TERMS & CONDITIONS – Nayoki GmbH

 

A) Introduction

 

I. Scope

 

1. All services provided by Nayoki GmbH, Birkenleiten 41, 81543 Munich (hereinafter “Nayoki”) shall be exclusively governed by the following General Terms and Conditions (hereinafter “T&Cs”), provided that nothing else has expressly been agreed upon. Any conflicting terms and conditions of the customer or terms and conditions which deviate from Nayoki’s T&Cs will not be recognized unless Nayoki expressly acknowledges their validity in writing. Nayoki’s T&Cs shall apply even if Nayoki provides the service without reservation, in full knowledge of the existence of terms and conditions which conflict with or deviate from these T&Cs.

 

2. The following T&Cs of Nayoki shall apply exclusively vis-à-vis entrepreneurs, legal entities under public law and special funds under public law.

 

 

B) General provisions

 

I. Conclusion of contract

 

1. Nayoki’s offers, brochures etc. are non-binding and constitute an invitation to the customer to award a contract to Nayoki.

 

2. An order signed by a customer is a binding order that Nayoki can accept within two weeks of receipt either by confirming the order in writing or by providing the service.

 

3. A contract shall be entered into upon receipt of Nayoki’s written order confirmation by the customer or upon provision of the service.

 

II. Obligations of the customer

 

1. The customer is obliged to provide Nayoki with all materials (addresses, templates, hyperlinks, promotional materials, keywords, company or brand names etc.) required for the proper execution of an advertising or marketing campaign and agreed on either contractually or in a briefing no later than 20 working days before the agreed start date using the agreed channels. If the customer does not meet the aforementioned deadline, Nayoki reserves the right to cancel the corresponding contractual services and to withdraw from the contract.

 

2. Nayoki reserves the right to process the materials transmitted by the customer and to make changes to them if this is necessary for the optimal implementation of the contractual service, does not violate any rights of the customer and is not unreasonable for the customer.

 

3. Nayoki shall not be obliged to review the materials transmitted by the customer. The customer guarantees to Nayoki that the materials breach neither statutory provisions nor third-party rights and will release Nayoki fully from all claims brought by third parties in relation to this, including the reasonable costs of legal defense. The above obligations of the customer shall not apply with regard to changes made to the materials by Nayoki which are not approved by the customer.

 

4. Nayoki will transmit the finalized contractual service to the customer for approval in good time before the agreed start date. The customer will declare its approval to Nayoki by e-mail without delay, but no later than within 2 working days. If the aforementioned deadline passes without result, the service shall be deemed to have been approved. Upon approval, the responsibility for the legal soundness of the contractual service shall pass entirely to the customer.

 

III. Prices, payment

 

1. The prices listed in Nayoki’s current valid price list shall apply.

 

2. All of Nayoki’s prices are quoted in EUROS exclusive of applicable statutory VAT. Any postal, shipping or other additional charges will be charged separately.

 

3. Unless agreed otherwise, Nayoki’s invoices shall be due when the customer receives them and are to be settled without delay or at the latest within 10 days of receipt without deductions. The place of payment shall be Nayoki’s place of business.

 

4. If the customer is in default of payment, Nayoki shall be entitled to demand interest at the rate of 8% p.a. above the base rate. Furthermore, Nayoki shall be entitled to demand higher interest on other legal grounds or to claim further damages.

 

5. If the customer is in default of payment, Nayoki shall also be entitled to withhold all further services, to charge for services already provided, and to make the provision of further services conditional upon the advance payment of the remuneration due for these services.

 

6. If insolvency proceedings are instigated against the customer, Nayoki shall also be entitled to withhold all further services, to charge for services already provided, and to make the provision of further services conditional upon the advance payment of the remuneration due for these services.

 

7. The customer shall not be entitled to withhold payments as a result of counterclaims or to offset payments against counterclaims unless the counterclaims are uncontested or have legal force.

 

IV. Performance deadlines, force majeure

 

1. If the customer does not fulfill its duties to cooperate and/or does not make advance payments on time, the performance deadlines shall be postponed accordingly. Nayoki shall be entitled to demand compensation for any damages and additional expenditure incurred as a result of a culpable breach of the customer’s duty to cooperate.

 

2. In the event of delays in performance due to unforeseeable events which lie outside Nayoki’s sphere of influence (e.g. strike, lockout, industrial dispute, delays in procuring data due to unpunctual delivery to Nayoki without fault on the part of Nayoki (or unpunctual delivery to Nayoki’s suppliers), civil war, acts of terrorism, natural catastrophes, import and export bans, shortages of energy and raw materials), the agreed delivery deadlines shall be extended by the duration of the disruption. If Nayoki is not able to provide the service on an ongoing basis, but for at least four months, due to force majeure, it shall not be obliged to provide the service. In this case the customer shall be entitled to withdraw from the contract.

 

V. Place of fulfillment, shipping, passing of risk, acceptance

 

1. Unless otherwise agreed, the place of fulfillment shall be Nayoki’s place of business.

 

2. If Nayoki is responsible for transferring the deliverables, the risk of accidental loss or deterioration of the results shall pass to the customer at the time when the deliverables leave Nayoki or are sent by Nayoki – including by e-mail. If shipping is delayed by the customer, the risk shall be passed from Nayoki to the customer when notification is given of readiness for shipping. In all other cases, the risk shall be passed to the customer at the latest upon acceptance.

 

3. The customer must inspect the deliverables without delay after they are handed over or transferred and must declare acceptance to Nayoki in writing within one week unless acceptance is excluded due to the condition of the work. If the aforementioned period passes without a corresponding declaration from the customer, the deliverables shall be deemed to have been accepted.

 

VI. Liability

1. The customer is aware that the Internet is a decentralized network and that computer servers are complex systems and are not always available without interruption. As far as these parameters are outside Nayoki’s sphere of influence, Nayoki shall not be liable for websites and/or hyperlinks specified in the contractual provisions being available and accessible at all times and from anywhere in the world.

 

2. Nayoki shall not be responsible for the content of websites of customers, other contractual partners of Nayoki or other third parties. This shall also apply to errors in the software or hardware of the aforementioned groups of persons/companies and damage resulting from interruption to the availability of, or insufficient functioning of the Internet.

 

VII. Rights of use

 

1. As a basic principle, Nayoki expressly reserves all ownership rights, industrial property rights and the exclusive copyrights to all diagrams, drawings, plans, drafts, deliverables and all other documents (hereinafter collectively referred to as “deliverables”) without restriction. The provisions of the respective order shall apply with respect to data records provided by Nayoki.

 

2. If the customer has to provide Nayoki with materials such as photos, drawings, graphics, plans, texts, claims, hyperlinks, banners, promotional materials, industrial property rights (e.g. trade marks, industrial design rights) and/or other documents that are legally protected (hereinafter referred to jointly as “materials”) for fulfillment of the contractual services, or transfers such materials to Nayoki, the customer grants Nayoki rights of use to these materials to the extent necessary and guarantees to Nayoki that these materials are free from the rights of third parties and are in compliance with the law. In the event that claims are brought by third parties as a result of Nayoki using these materials, the customer will release Nayoki from all claims including the reasonable costs of legal defense.

 

VIII. Responsibility for data transfer/provision and for the customer’s websites

 

1. If Nayoki merely transfers data from a cooperation partner to the customer, or obtains data from a cooperation partner and provides it to the customer, Nayoki shall not be liable towards the customer if use of the data violates the rights of third parties or other rights. In this case, the cooperation partner shall be liable towards the customer. Nayoki will pass on complaints made by the customer to the cooperation partner, so that the cooperation partner can address these. Nayoki will expressly make the cooperation partner aware of its liability towards Nayoki’s customer in the agreement entered into with the cooperation partner.

 

2. If Nayoki provides links to the customer’s websites, the customer guarantees to Nayoki that these websites are free from third party rights and are in compliance with the law. In the event that claims are brought by third parties as a result of Nayoki providing links to these websites, the customer will release Nayoki from all claims including the reasonable costs of legal defense.

 

3. Regardless of the aforementioned provisions, the customer’s websites in respect of which Nayoki provides services must meet all legal requirements and may not violate the applicable law, moral standards or the rights of third parties. They must have sufficient content and may not contain large sections that are still under construction.

 

IX. Confidentiality

 

1. The content of the contractual conditions agreed to between the parties in each individual case, the data and documents they receive from each other, and all other contractual information (hereinafter “information”) is to be treated in strictest confidence by the customer and may be neither disclosed to third parties, passed on to third parties nor used by the customer for purposes other than those linked directly to the fulfillment of the customer’s contractual obligations.

 

2. The customer is obliged to ensure that all of its employees covered by B) section IX.1. are bound to secrecy.

 

3. The customer shall only not be bound to secrecy is cases where (i) it can be proven that the information was already known – either generally or to the customer – before the contract was concluded, or becomes known through no fault of the customer; (ii) the information was made accessible to the customer by a third party on a non-confidential basis, unless the customer was aware that by passing on the information this third party was in breach of a nondisclosure agreement with Nayoki; (iii) the customer is legally obliged to disclose the information in judicial, official or other proceedings.

 

4. The obligation of confidentiality shall extend beyond the end of the parties’ contractual relationship and/or the end of the advertising/marketing campaign.

 

X. Data protection

 

1. Nayoki shall observe the provisions of the relevant data protection laws in its relationship with the customer.

 

2. The customer expressly declares its consent to Nayoki collecting its data, saving it in machine-readable form, processing it and using it to the extent necessary for the proper fulfillment and execution of the individual contracts that the parties enter into on the basis of these T&Cs.

 

3. The customer also declares its consent to Nayoki passing on its data to third parties in cases where Nayoki uses the services of a third party to provide the contractually agreed services. Nayoki will make the third party aware of the restrictions as specified in B) section X.2. in this context.

 

4. If the addressees of advertising/marketing campaigns or third parties argue that an infringement of the law has arisen in connection with the customer’s use of addresses provided by Nayoki, the customer shall be obliged to immediately resolve such infringements – provided that Nayoki is not responsible for them – with the cooperation partner who collected the addresses. In this case, Nayoki will disclose the identity of the respective cooperation partner to the customer upon written request.

 

XI. Contractual term and termination of the contract

 

1. The individual contractual relations between Nayoki and the customer shall include the signing of the contract, the completion of the agreed advertising/marketing campaign and the fulfillment of all reciprocal claims and obligations.

 

2. Nayoki shall be entitled to withdraw prematurely from the respective contract, however, if it has an objectively justified reason for doing so. Such a reason shall exist, for example, if (i) a cooperation partner withdraws from the agreement with Nayoki, (ii) this contract otherwise expires, or (iii) the cooperation partner does not provide its service or does not provide it on time and this could not have been foreseen by Nayoki.

 

XII. Changes to Nayoki’s T&Cs

 

1. Nayoki is entitled to make changes to individual provisions of these T&Cs, provided that the changes do not profoundly change the contractual relationship. Nayoki will forward the amended T&Cs to the customer at least four weeks before they come into effect. If the customer does not object to the amended T&Cs within four weeks of receipt in written form, the amended T&Cs shall be deemed to have been accepted. Nayoki will make the customer aware of the right of objection in its letter to the customer.

 

2. If the customer objects, the amended T&Cs shall be deemed to have been rejected. The contract will then continue without the proposed changes to the T&Cs. The rights of the parties to terminate their cooperation shall not be affected hereby. Nayoki will also make the customer aware of this possibility of terminating the contract in its letter to the customer.

 

XIII. Final provisions

 

1. Nayoki shall be entitled to use subcontractors to fulfill its obligations to the customer.

 

2. Nayoki shall also be entitled to transfer this contract to third parties or to assign claims arising from this contract to third parties.

 

3. The customer shall not be entitled to transfer the contract to a third party or to assign claims against Nayoki arising from this contract without Nayoki’s prior written permission.

 

4. Changes and additions to these T&Cs must be made in written form. This shall also apply to the amendment of this written form clause.

 

5. All legal relationships between Nayoki and the customer shall be governed solely by the law of the Federal Republic of Germany to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

6. The sole place of jurisdiction for all disputes arising from the business relationship shall be Nayoki’s registered office.

 

7. Should individual provisions of these T&Cs or parts hereof be or become wholly or partially ineffective, the effectiveness of the remaining T&Cs shall not be affected hereby. The parties shall agree on an effective provision to replace the ineffective provision that most closely achieves the purpose of the ineffective provision in factual, legal and economic terms. The same procedure shall apply in the event that the T&Cs are found to contain a loophole.