General Terms & Conditions
General Terms and Conditions of Wingmen Online Marketing GmbH - hereinafter referred to as "Wingmen".
1. Scope of application
The following General Terms and Conditions shall apply to business relations of any kind between Wingmen and the Customer in their currently valid version.
Deviating conditions or general terms and conditions of the Customer shall not apply unless otherwise agreed in writing.
All offers, irrespective of whether they are made by telephone, fax, Internet, e-mail or in any other way, are only binding on Wingmen once they have been confirmed in writing or the service has been provided and/or an invoice has been issued.
Any terms and conditions of the Customer that deviate in whole or in part from these Terms and Conditions shall not be recognized unless they have been expressly agreed to in writing. These General Terms and Conditions shall also apply exclusively if services are provided without reservation in the knowledge of conflicting General Terms and Conditions of the Customer.
These General Terms and Conditions shall also apply to future transactions between the parties.
2. Obligations of the Customer
The Customer shall ensure that his website does not violate applicable law or the Google Webmaster Guidelines. Wingmen reserves the right not to disseminate online marketing measures that appear questionable in terms of content or to exclude them from storage on its server. Wingmen shall inform the Customer of such measures as soon as it becomes aware of them. The same applies if Wingmen is requested to change or delete content on websites because it allegedly infringes third-party rights. Wingmen is under no obligation to check. The Customer shall indemnify Wingmen against claims for compensation by third parties based on unauthorized content on a website of the Customer.
The Customer shall ensure that all documents necessary for the execution of the orders are submitted to Wingmen in good time, even without Wingmen's specific request, and that Wingmen is informed of all processes and circumstances that may be of significance for Wingmen's activities. In particular, the Customer undertakes to keep Wingmen fully informed of its marketing measures, especially online marketing measures. This also applies to documents, processes and circumstances that are only created or started during Wingmen's activities.
The Customer undertakes to provide Wingmen with all the necessary preparatory work that cannot be provided by Wingmen.
The Customer undertakes to keep all passwords, access data or license codes received from Wingmen strictly confidential and to inform Wingmen immediately as soon as he becomes aware that this data has come to the knowledge of unauthorized third parties. Should third parties use Wingmen's services through misuse of the passwords due to the Customer's fault, the Customer shall be liable to Wingmen for usage fees and damages.
3. Obligations of Wingmen
Wingmen undertakes to generate the best recommendations for the Customer, but does not guarantee the economic return of the recommendation.
Wingmen undertakes to maintain confidentiality with regard to all contractual content. This expressly excludes the existence of the Customer relationship. This may be used as a reference, if necessary including the respective Customer logo.
4. Copyrights
The Customer is responsible for the protection of Wingmen's intellectual property. To this end, he is prohibited from passing on offers and recommendations as well as presentations and analysis results, even in part, to third parties without the written consent of Wingmen. Any imitation is not permitted. Suggestions made by the Customer or his other cooperation shall have no influence on the amount of the remuneration. They do not constitute a joint copyright. This obligation shall continue to apply after termination of the cooperation.
5. Freedom of design
Within the scope of the order and in consultation with the Customer, there is freedom of design. Complaints regarding the artistic design are excluded. The Customer shall bear the costs of any changes to originally agreed designs for which it is responsible or which it requests. Wingmen shall retain the right to remuneration for work already commenced.
In order to avoid errors in telephone recommendations and verbal presentation components, the parties agree to document these in writing. The contractual relationship between the parties shall be governed exclusively by such documentation.
Wingmen is entitled to use the services of third parties to fulfill the tasks. Unless agreed separately, the Customer shall not be invoiced separately for such costs.
6. Duration of the contract, termination
The contract is concluded for an indefinite period and may be terminated in writing by either party with notice to the end of the following month. The notice period shall be extended by one month for each year of the duration of the contractual relationship. Deviating provisions, if agreed in writing, shall take precedence. The right of both parties to terminate the contract without notice for good cause remains unaffected.
7. Prices and payment
Wingmen shall invoice the contractually agreed services in the agreed amount when the order is placed. These are to be settled within 15 days without deduction. Variable costs such as travel and media costs shall be invoiced separately.
If the Customer cancels an agreed and confirmed written consultation appointment within two days before the appointment, for whatever reason, the agreed remuneration and any travel and accommodation costs already incurred shall be due in full. The same applies to appointments to be held at the client's premises.
If the parties agree on remuneration for services on a daily rate basis, Wingmen shall prepare an offer based on a conscientious estimate of the man-days to be estimated. This is not binding.
Travel times shall be invoiced at 50% of the agreed time remuneration.
Wingmen is entitled to suspend the provision of services if the Customer is in default of payment. Wingmen shall not be liable for any losses incurred by the Customer as a result.
Without the need for a separate reminder, the Customer shall be in default 30 days after invoicing. In the event of default, default interest of 5% above the discount rate in accordance with the German Discount Rate Transition Act (Diskontsatzüberleitungsgesetz) shall be agreed.
8. Liability
Wingmen shall only be liable for damages if Wingmen or one of its vicarious agents has breached an essential contractual obligation (cardinal obligation) in a way that jeopardizes the purpose of the contract or if the damage is attributable to gross negligence or intent on the part of Wingmen or one of its vicarious agents. If the culpable breach of an essential contractual obligation (cardinal obligation) is not due to gross negligence or intent, Wingmen's liability shall be limited to such typical damages as were reasonably foreseeable for Wingmen at the time the contract was concluded.
In any case, Wingmen's liability shall be limited to the value of the order for the current year. Liability is otherwise excluded.
9. Data protection
In accordance with § 33 BDSG of the German law, Wingmen points out that personal data is stored as part of the execution of the contract. Wingmen is entitled to process and use the inventory data of its Customers insofar as this is necessary for advising Customers, for advertising and market research for its own purposes and for the needs-based design of its services. Upon request, Wingmen shall provide the Customer with complete information free of charge at any time about the stored data relating to the Customer.
Wingmen expressly points out to the Customer that data protection for data transmissions in open networks, such as the Internet, cannot be fully guaranteed according to the current state of the art. Other participants on the Internet may be technically able to intervene in network security without authorization and to control message traffic.
10. Final provisions
Any amendments, additions or the partial or complete rescission of these General Terms and Conditions must be made in writing, including the amendment or rescission of the written form requirement.
The exclusive place of jurisdiction for all disputes arising from this contract shall be Hamburg, even if the Customer is a merchant, a legal entity under public law, a special fund under public law or has no place of jurisdiction in Germany. The law of the Federal Republic of Germany shall apply exclusively to contracts concluded by Wingmen on the basis of these General Terms and Conditions and to claims arising from them, regardless of their nature.
Should provisions of these General Terms and Conditions and/or the contract be or become invalid, this shall not affect the validity of the remaining provisions. Instead, each invalid provision shall be replaced by a substitute provision that corresponds or at least comes close to the purpose of the agreement, as the parties would have agreed to achieve the same economic result if they had been aware of the invalidity of the provision. The same applies to omissions.
Status August 01, 2013