Terms & Conditions

§ 1 Scope

The following general terms and conditions (GTC) apply to all contracts concluded between the customer and Berthold GmbH, hereinafter referred to as Fleiv.
All agreements made in connection with the conclusion of a contract result from these conditions, the service descriptions and the separate agreements made between the parties in writing.
The version of the General Terms and Conditions valid at the time the contract is concluded is decisive.
Counter-confirmations from the customer with reference to their own general terms and conditions (GTC) are hereby expressly contradicted. These do not become part of the contract, even if there is no separate written objection. Deviations from these General Terms and Conditions are only effective if they are confirmed in writing by Fleiv.

§ 2 Subject of the contract and conclusion of the contract

The subject of the general terms and conditions are the contracts of a full-service advertising agency. This includes the conception of advertising campaigns, websites, advertising films and other advertising-related products. The specific subject matter of the contract results from the individual contractual agreements.
The contract with the agency and the customer is concluded as soon as the customer confirms the offer made by the agency in text form.

§ 3 Scope of services and customer’s obligations to cooperate

The contractor provides services in the area of search engine marketing. The contractor does not owe any economic success. This service makes it possible to draw and guide Internet users to the client’s products. In this way, users can be won as customers. Amazon and Google Ads should be used here.
The contractor places advertisements on behalf of the client and for his account on Amazon and Google Ads within the budget agreed with the client. By concluding the contract, the client grants the contractor the authority to place advertisements.
The advertisements use search terms that are likely to be entered by potential customers when searching online to purchase the advertised products.
The search terms in this Agreement may be a single word, combinations of words, or multiple words. The client does not receive exclusivity for the search terms used.
Fleiv owes the implementation of the specifically ordered service within the scope of the scope of services described in the individual contract.
Different wishes and changes after conclusion of the contract are generally possible. The resulting additional effort and costs must be borne by the customer.
Fleiv is entitled to provide the services itself or through third parties as subcontractors.
The customer provides the agency with all data, access and information required to carry out the order free of charge. If the customer does not comply with his obligation to cooperate despite a request, the agency is released from its obligation to provide services. If the agency still performs the service, it will invoice the additional effort incurred.
The customer ensures that the material he supplies is free of third-party rights (e.g. copyright, trademark or personal rights) and does not violate the legal system.
The customer undertakes to inform the agency, without being asked and immediately, of circumstances that may be relevant to the agency’s provision of services and of which the customer can recognize that they are unknown to the agency. This applies in particular if it turns out that individual advertising measures have to be discontinued or changed by the agency or commissioned third parties due to legal regulations or due to the violation of third party rights.
The customer is responsible for setting up and maintaining its IT infrastructure. The agency assumes no system responsibility.
The customer undertakes to maintain access to the advertising campaigns until the end of the contract so that performance analyzes and billing can be created smoothly.

§ 4 Copyrights and rights of use

The agency is the author of all works and therefore the sole owner of all intended uses. It transfers the copyright usage rights to the customer within the framework of the concluded contract. The transfer of usage rights ends when the underlying contract between the agency and the customer expires. Any use beyond the term of the contract requires a special agreement between the customer and the agency.
Any use of the campaigns beyond the term of the contract without the agency’s consent will trigger a contractual penalty of three times the monthly advertising revenue generated by the campaigns.
The cooperation of the customer and/or its employees has no influence on the amount of the agreed remuneration and does not constitute co-copyright of the campaigns and works developed and created. The customer also does not receive any rights of use to designs that he rejects or does not execute.
The agency’s services and works may not be changed either in the original or by reproduction by the customer or third parties commissioned by the customer. Any imitation, including parts of the work, is not permitted. The transfer of granted usage rights to third parties and/or multiple uses must be paid for, unless contractually agreed, and require the agency’s consent.
The agency is entitled to name the customer as a reference and to list it on its website and, if necessary, to use the customer’s logos. Self-promotion can be excluded contractually between the agency and the customer.

§ 5 Fees & Payment

The evaluation takes place via Amazon and Google Ads.
The client is not entitled to set off his own claims against the contractor’s remuneration unless the client’s claims are undisputed or legally established. The same applies to the exercise of retention rights.
The client determines the amount of advertising costs and is responsible for covering them himself. The client is entitled to adjust the amount of advertising costs at any time.
The remuneration must be paid plus the applicable statutory VAT.
Unless otherwise agreed, the payment deadline is 7 days from receipt of the invoice. The day the money is received is crucial for the timeliness of payment. The agency’s invoices can also be sent electronically.
If the customer defaults on payment, the statutory default interest applies at the rate applicable to business transactions. Furthermore, in the event of late payment, the customer undertakes to reimburse the agency for any dunning and collection costs incurred, to the extent that they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters at the usual market rate of currently at least €20.00 per reminder as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.

§ 6 Contract term

After the minimum contract term, both contractual partners can terminate the contract with one month’s notice to the end of the month without giving reasons. Termination must be in writing, which is also deemed to be given by email.

§ 7 Warranty and liability

Claims for damages by the user, regardless of the legal basis, as well as claims for reimbursement of wasted expenses are excluded unless the cause of the damage is based on a grossly negligent or intentional breach of duty or at least on a negligent breach of essential contractual obligations (cardinal obligations) by Fleiv in this case Liability is limited to the amount of typically foreseeable damage.
The above limitation of liability does not apply to damages resulting from injury to life, body or health.
Claims for damages by the client based on a simple negligent breach of duty by Fleiv can no longer be asserted after one year from the occurrence of the damage.
Fleiv cannot be held responsible for the decline or stagnation of the position of the products in relevant search terms on Amazon, the loss of ownership of the shopping cart field, negative product reviews or other developments and the associated impact on visitor numbers or sales.

§ 8 Confidentiality and duty of confidentiality

Fleiv will treat all information and documents that come to its knowledge as part of the collaboration with the client that is not intended to be passed on to third parties as strictly confidential and will comply with the legal data protection provisions in accordance with the Federal Data Protection Act (BDSG) and the General Data Protection Regulation ( GDPR) and undertakes to maintain absolute confidentiality about this. It will oblige employees and third parties who receive such information or documents to carry out work under this contract to the same level of confidentiality. Fleiv is entitled to collect, use and publish anonymized success data as part of case studies.
All work results, product data, reports, evaluations, screenshots and content of the software solutions from Fleiv made available to the client by Fleiv may only be used by the client and his employees and may not be passed on to third parties.

§ 9 Final provisions

The ineffectiveness of individual conditions does not affect the effectiveness of the others. If individual clauses are ineffective, the parties will attempt to replace the ineffective clause with an effective clause that comes closest to the meaning of the ineffective clause. The same applies in the event of a regulatory gap.
The parties undertake to observe the relevant data protection regulations.
The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods and international reference standards.
The exclusive – including international – place of jurisdiction for all disputes between the parties is, to the extent permitted by law, Hamburg, Germany.

Berthold GmbH – Niendorfer Str. – 22529 Hamburg, Germany