Terms of service

Status: 16.09.2023
1. General and scope of application
1.1. authentic commerce msi GmbH, Stefan-Heym-Platz 1, 10367 Berlin ("Contractor") is a service provider for performance advertising solutions and innovative content creation and advises and supports customers ("Clients") in particular in optimising their marketing campaigns in the area of social media and in creating digital products and content. The consulting spectrum includes, among other things, the determination of the (collectively "Services").
1.2. These General Terms and Conditions of Offer ("GTC") shall apply exclusively to all rights and obligations of the Contractor and the Client (together "Parties" individually also "Party") arising from and in connection with the provision of the Services. The Contractor shall not recognise any general terms and conditions of the Client that conflict with or deviate from the GTC or statutory provisions, unless the Contractor has expressly agreed to their validity in writing.
1.3 Details of the services to be provided by the Contractor are specified in a separate offer. The transmission of an offer prepared by the Contractor individually for the Client for the provision of services specified in the offer ("Offer") constitutes a binding offer (during its period of validity specified in the Offer) for the conclusion of a contract subject to these GTC. The Contractor accepts this offer in a legally binding manner by signing the offer ("Contract").
1.4 By making a declaration to enter into a contract with the Contractor, the declarant represents and warrants that he is authorised to enter into the contract for the relevant organisation identified in the declaration and that he is making the declaration as or on behalf of an entrepreneur.
2. Services of the Contractor
2.1. Insofar as the Parties agree in an offer to provide Services in the form of consultancy and similar services, the Contractor shall provide the agreed Services to the Client during the agreed period.
2.2. The Contractor shall hand over all performance results to the Client in the agreed form upon their completion.
2.3. Insofar as the Parties agree in the relevant offer on tests or acceptances of contractual services which are provided as Services, the provisions in Clause 5 shall apply accordingly.
3. Work performances of the Contractor
3.1. Insofar as the Parties agree in an offer on the provision of work results (including the development of individual software, the individual adaptation of software and/or the installation, commissioning and/or implementation of software), the Contractor shall provide the Services to the Client on the agreed dates in the agreed form.
3.2. The Contractor shall hand over the service results to the Client upon their completion in an appropriate form and in particular pre-existing software of the Contractor specifically developed for the Client and contained in the service results in source code and object code, including the associated documentation in electronic form.
3.3. Subject to deviating agreements in this framework agreement and/or in the corresponding offer, the provisions of the law on contracts for work and services pursuant to §§ 631 et seq. BGB (German civil code).
4. Basic performance requirements for all contractual Services
4.1. The Contractor shall provide the Services in accordance with the specific requirements set out in the respective Offer in consultation with the Client. The Client itself shall be responsible for ensuring that the Services comply with applicable law, unless the Parties have agreed otherwise in the respective Offer.
4.2. During the stay on the premises of the Client, the Contractor shall comply with the safety and accident prevention regulations as well as the house rules applicable there.
5. Acceptance
5.1. Acceptance shall take place insofar as this is expressly provided for within the framework of an offer. The Contractor shall inform the Client as soon as the contractual (partial) performance is ready for acceptance from its point of view and (if necessary) the acceptance test can begin and shall make the contractual performance available to the Client for this purpose in a suitable form.
5.2. The Client shall carry out the acceptance test on its own responsibility and at its own expense; the Contractor shall support the Client in carrying out the acceptance test insofar as this is necessary for the performance of the acceptance test.
5.3. The Client may not refuse acceptance on the grounds of a non-substantial defect. A material defect shall be deemed to exist if the use of the performance results is impossible or considerably restricted due to a defect.
5.4. If material defects become apparent after a concept, design or measure presentation or during the acceptance test, the Client shall inform the Contractor without delay and prepare a written acceptance report within one (1) week of notification of the defect with explanations as to (i) why the relevant acceptance requirement has not been met and (ii) whether and, if so, for what reasons the failure to meet the acceptance requirement is to be assessed as a material defect pursuant to Section 5.3. In the acceptance test report, the Client shall at the same time set a reasonable deadline for remedying these defects. If the Client fails to give timely notice, claims of the Client based on this delay shall be excluded.
5.5. Unless otherwise agreed in the respective Offer, the contractual Service shall be deemed to have been accepted as soon as the Client has used the result of the Service for a period of one week and / or has made it available to its customers.
5.6. Further rights of the Contractor shall remain unaffected.
6. Obligations of the Client to cooperate
6.1. The Client shall perform in a timely manner all acts of cooperation required for the Contractor's performance. In particular, the Client shall perform the acts of cooperation agreed in the respective Offer.
6.2. The Client shall provide the Contractor and its vicarious agents with the documents, data and information required for the performance of the Services. The Client guarantees that the information provided is complete, unambiguous and correct overall. The assertion of warranty claims according to clause 13 and/or liability of the Contractor according to clause 14 for errors or defects in the performance results based on incomplete, ambiguous or incorrect documents provided by the Client is excluded.
6.3. The Client shall grant the Contractor and its vicarious agents access to the Client's business premises as required for the performance of the Services after prior consultation with the Client and shall provide appropriate workplaces there.
6.4. The Client shall grant the Contractor and its vicarious agents the access to the Client's IT systems required for the performance of the Services in accordance with the respective Offer.
7. Amendments to an Offer
7.1. Either Party may at any time submit a written request for a change in the limitation, modification or extension of the Services agreed upon in an Offer. This must contain a detailed description of the desired change, the reason for the change, a time schedule and the remuneration.
7.2. The Contractor shall examine a change request of the Client within a reasonable period of time with regard to completeness, comprehensibility and correctness as well as with regard to fundamental deviations from the Contractor's service responsibility agreed in the offer, ask any existing questions to the Client and submit to the Client either a change offer ("Change Offer") or, in the event that the effort of three (3) person hours stipulated in section 7.5is exceeded, an offer for further processing of the change request within the scope of a consulting service. In addition, the Contractor shall be entitled to reject the change request.
7.3. The Contractor shall notify the Client of a change request directly, enclosing a change offer.
7.4. The Client is not obliged to accept a change offer from the Contractor. If no agreement is reached in accordance with this clause 7,, the original provisions of the Offer shall remain in force and the Contractor shall continue to provide the contractual services to the originally agreed extent.
7.5. Unless expressly agreed otherwise, no costs shall be incurred by the Party submitting a Change Request in connection with the review and, if applicable, the preparation of the Change Offer. If, in the reasonable discretion of the Contractor, the processing of a change request of the Client is expected to require more than three (3) person-hours, the Contractor may make the processing of the change request dependent on the agreement of a reasonable remuneration; the Parties may already agree on the amount of the hourly rate in the Offer.
7.6. The Client shall examine a change request from the Contractor within seven (7) working days and decide whether to accept the change request.
7.7. All declarations in connection with a change request shall be submitted to the other Party in writing or in text form.
8. Personnel of the Contractor
8.1. The Parties agree that a transfer of Contractor personnel to the Client within the scope of a transfer of business or a transfer of Contractor personnel within the meaning of the German Personnel Leasing Act (AÜG) to the Client is not intended. The Contractor shall be solely responsible for the fulfilment of the contractual, statutory, official and employers' liability insurance association obligations towards the Contractor's personnel.
8.2. The Parties agree that a transfer of Contractor personnel to the Client within the scope of a transfer of business or a transfer of Contractor personnel within the meaning of the German Personnel Leasing Act (Arbeitnehmerüberlassungsgesetz - AÜG) to the Client within the scope of the conclusion, performance and/or termination of this Contract is not intended. The Contractor shall be solely responsible for the fulfilment of the contractual, statutory, official and employers' liability insurance association obligations towards the Contractor's personnel. The Contractor shall indemnify the Client against any claims in this connection asserted against the Client, including any legal costs incurred.
9. Subcontractors
The Contractor may use the assistance of third parties in the provision of the Services and/or have the Services provided in whole or in part by a third party.
10. Non-solicitation
10.1. During the term of the contract and for 18 months thereafter, the Client undertakes not to actively entice away the Contractor's personnel and not to enter into any direct or indirect business relationship with them. The placement of the Contractor's personnel with other companies shall also be deemed to be an indirect business relationship. Furthermore, in the event that the contractual relationship between a person belonging to the Contractor's staff and the Contractor should end for whatever legal reason, the Client undertakes not to employ the person concerned (not even as a freelancer or via third parties) until the expiry of twelve (12) months after the termination of that contractual relationship, unless the Contractor brings about the termination or has given its prior written consent in the individual case (Section 126 (1) of the German Civil Code).
10.2. For each case of violation of the provision in section 10.1, the Contractor shall pay the Client a contractual penalty in the amount of the last annual salary of the enticed person.
11. Intellectual property
11.1. Both Parties, their third party suppliers and licensors shall remain the owners of all intellectual property rights and copyrights unless rights are expressly granted in the Contract. In particular, all rights in any pre-existing work shall remain solely with the party providing the pre-existing work. Pre-existing Works are works developed or otherwise obtained by a Party independently of the relevant Offer and these GTC.
11.2. Subject to deviating provisions in the respective offer and full payment of the remuneration agreed in the offer, the Contractor grants the Client, upon acceptance of performance results to be created within the scope of an offer, a simple, permanent, non-sublicensable right to use these performance results for its own business purposes. The Client's own business purposes within the meaning of this Clause 11.2shall also include the business purposes of companies affiliated with the Client within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG).
11.3. The Client grants the Contractor a non-exclusive, non-transferable and non-sublicensable right during the term of the Contract to use any content provided by the Client for the purpose of implementing the Contract.
11.4. The Client is entitled to have the rights transferred under the respective Offer and these GTCs entered in the respective register. The Contractor shall provide the documents required for this purpose, but shall not be obliged to provide any further support - in particular to check the registrability before, during or after the provision of the Services. Upon written request of the Client, the Contractor shall have the registrability of the respective service results examined by a third party of its choice. The Contractor shall provide the Client with a cost estimate before commissioning the third party and shall commission the third party at the Client's expense after obtaining the Client's consent.
11.5. The Contractor shall be entitled to publish the performance results prepared in accordance with an offer for reference and advertising purposes in suitable media (e.g. in company brochures and on the Contractor's website).
12. Remuneration and payment modalities
12.1. Unless otherwise stated, all prices quoted in the Offer are exclusive of the applicable statutory value added tax.
12.2. The agreed remuneration shall be due within ten (10) days after invoicing, unless the Parties have agreed otherwise in the Offer. Partial payments are permissible if this has been expressly agreed between the Parties in the Offer.
12.3. Unless other payment methods have been agreed or permitted by the Contractor, payment of the remuneration by the Client shall be made by bank transfer to the Contractor's business account specified in the Offer.
12.4. Travel and accommodation costs shall be reimbursed unless otherwise agreed in the respective Offer.
13. Warranty
13.1. Any consultancy services rendered are not an absolute fixed debt. In the event of poor performance, they can be made up for.
13.2. The Contractor does not assume any guarantee for a specific characteristic of the performance results and also does not assure this. Technical data, specifications and performance data made available to the Client serve solely to describe the Services.
13.3. The Client is obliged to reimburse the Contractor for the necessary expenses for the remedial measures undertaken by the Contractor at the Client's request if the defects asserted by the Client do not actually exist or the Contractor was not obliged to remedy them in accordance with the provisions of these GTC and/or the Offer. This applies in particular if the defect is due to incorrect operation or incorrect use by the Client.
13.4. The Client acknowledges that, based on the current state of the art, it is impossible to produce complex software products completely free of defects. The Contractor therefore does not owe the complete freedom from errors of software products that are part of the Services, but only the freedom from such errors that make their use impossible or limit them in a significant way.
13.5. The Client shall inform the Contractor without delay of the existence of a defect in the case of work performances. Insofar as the Contractor is obliged to remedy the defects in accordance with the provisions of these General Terms and Conditions and/or the Offer in accordance with statutory warranty law, the Contractor shall remedy the defect at its discretion by remedying the defect or by reproducing the result of the performance within a reasonable period of time.
13.6. Claims of the Client against the Contractor due to a defect in a work performance shall become statute-barred within one (1) year from the statutory commencement of the limitation period. § Section 634a para. 1 no. 2 of the German Civil Code (BGB) shall remain unaffected.
14. Liability
14.1. The Contractor shall be liable for intent and gross negligence in accordance with the statutory provisions.
14.2. In the event of slight negligence, the Contractor shall only be liable - unless otherwise provided for in section 14.3- in the event of a breach of a material contractual obligation in a manner that jeopardises the purpose of the Contract and in the event of a breach of a contractual obligation the fulfilment of which is a prerequisite for the proper performance of the Contract and on the observance of which the Client may regularly rely (so-called cardinal obligation), and this shall be limited to compensation for the typical damage foreseeable at the time of the conclusion of the Contract.
14.3. The Contractor's liability for damages arising from injury to life, body or health and under the Product Liability Act shall remain unaffected by the above limitations of liability.
14.4. The limitations of liability resulting from the provisions of this Clause 14 shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of the Contractor.
15. Exemption
15.1. Insofar as the use of the results of the performance infringes the intellectual property rights of third parties and corresponding claims are asserted against the Client by holders of intellectual property rights, the Client shall inform the Contractor thereof in writing without delay (e-mail is sufficient). The Contractor may, at its own discretion and expense, (i) procure the necessary right of use for the Client, (ii) modify the performance in such a way that it can be used without legal defects, (iii) or, if the Contractor cannot achieve any other remedy at reasonable expense or such remedy is unreasonable, terminate the contract and reimburse any costs incurred in accordance with Clause 14.
15.2. The Contractor shall indemnify the Client in accordance with Clause 14 against any damages, claims by third parties and costs, including reasonable legal costs, incurred by the Client as a result of a claim under Clause 15.1, sentence 1. The Client shall inform the Contractor of the claim without delay and, insofar as this is legally possible, give the Contractor the opportunity to defend the asserted claim. At the same time, the Parties shall support each other in defending the claim to a reasonable extent, in particular by fully disclosing all available information on the facts which are the subject of the claim and by handing over any necessary documentation.
15.3. In the event that a third party asserts against the Contractor an infringement of rights (in particular of intellectual property rights) through the use, in accordance with the contract, of the contents (including text and image material and other working materials) made available by the Client for the provision of the Services
(a) indemnify the Contractor against all claims and damages arising out of or in connection with such claims, and
(b) defend such claims at the Customer's own expense, both in and out of court.
15.4. The Client's obligation to indemnify pursuant to Clause 15.3shall in particular include (i) all reasonable costs of litigation and legal defence, (ii) all expenses and costs as well as all compensation vis-à-vis third parties, (iii) all other expenses incurred in particular in connection with judicial or extra-judicial settlements or judicial convictions, as well as (iv) all (other) damage or loss incurred by the Contractor as a result of claims by a third party in connection with the alleged infringement of its rights.
16. Confidentiality
16.1. The Parties shall treat all information obtained about the other Party and its affiliates in connection with the negotiation, conclusion and performance of this Contract and the content of this Contract and the measures taken to implement it as confidential and shall maintain secrecy with respect to outsiders. Confidential information is all information that is expressly designated as confidential or whose confidentiality results from its subject matter or other circumstances ("Confidential Information"). This shall apply irrespective of whether the information has been transmitted in writing, orally or in any other form, whether it has been expressly or tacitly designated or classified as secret or confidential and whether it meets the requirements of a business secret within the meaning of § 2 No. 1 of the German Business Secrets Act (GeschGehG). If there is any doubt as to whether Confidential Information exists in a specific case, the consent of the other Party shall be obtained.
16.2. Each Party shall treat the Confidential Information received from the other Party as strictly confidential and shall protect and secure it with the necessary care and thus at least with the care with which the Party protects its own comparable information, but in any case with the care of a reasonable businessman. Information shall be stored and secured in such a way that its unauthorised disclosure and/or use is prevented as far as possible. The Parties shall take all appropriate and reasonable precautions of a technical and personnel nature to ensure confidentiality in the aforementioned sense, in particular appropriate secrecy measures within the meaning of § 2 para. 1 no. 2 b) GeschGehG. This includes compliance with the measures specified by the transmitting Party for the protection of Confidential Information and taking reasonable precautions to prevent unauthorised persons from gaining access to the transmitting Party's data, as well as compliance with the prohibitions on action regulated in § 4 GeschGehG.
16.3. The Parties agree that the Confidential Information shall be made available to the other Party exclusively for the purposes specified in the Contract. The recipient undertakes to use the Confidential Information of the disclosing party only for these purposes. The Recipient further undertakes to keep the Confidential Information secret and not to make it available to third parties under any circumstances unless the disclosing Party has given its prior written consent to such disclosure to third parties. The Recipient shall, however, be entitled to disclose the Confidential Information to its employees, collaborators and/or consultants on a need-to-know basis to the extent necessary for the purposes specified in the Contract and provided that they have signed a confidentiality agreement to that effect in advance. Instructions given in individual cases on the use, disclosure, retention, storage and other handling of the respective information shall be observed in any case within the scope of what is reasonable for the other Party and, in case of doubt, shall take precedence over any deviating provisions of the Contract.
16.4. Each Party shall promptly notify the other Party in writing if it has knowledge or suspicion of an imminent or actual breach of the other Party's Confidential Interests or of this Clause 16.
16.5. All rights in the Confidential Information shall remain with the disclosing Party. The disclosure of the Confidential Information does not grant the recipient any rights of use, exploitation or otherwise. Applicable laws, in particular on the protection of personal data, business and trade secrets as well as know-how, shall be strictly observed by the Parties.
16.6. The Contract does not prohibit the disclosure or use of information if and to the extent that:
(a) there is a legal obligation to disclose or a Party is required to disclose by a governmental or regulatory authority or a court; however, in such a case, the Parties are obliged to inform each other, to the extent possible, prior to disclosure and to limit disclosure to the minimum required by law or governmental order or customary,
(b) the facts in question are or become already known to the public as such (not, for example, merely rumoured) (without this being due to a breach of the Contract or any other confidentiality agreement between all or some of the parties).
(c) the disclosure is made only to the extent necessary from time to time to a Party's professional advisers who are either bound by a duty of professional secrecy or who have similarly undertaken to comply with the confidentiality obligations under this Clause 16 in respect of the information concerned,
(d) the disclosure or use is made to lenders or potential lenders, (equity) purchasers or potential (equity) purchasers, investors or potential investors, provided that they are informed of the confidentiality and are under an obligation of confidentiality; or
(e) in the case of disclosure or use by either Party, provided that the other Party has given its prior written consent to such disclosure or use.
16.7. Upon termination of this Contract in whole or in part or upon request by either Party, each Party shall deliver to the other Party all Confidential Information in its possession relating thereto. With the prior consent of the other Party, it shall be sufficient if Confidential Information is deleted completely and irretrievably. The right or obligation of the Parties to comply with statutory retention obligations shall remain unaffected. The Parties shall have no right of retention to the Confidential Information of the other Party.
16.8. The obligation of confidentiality shall continue for five (5) years after the termination of this Contract.
17. Data protection
17.1. The Contractor and the Client undertake to comply with all applicable provisions of data protection law and in particular the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 ("DSGVO") and the German Federal Data Protection Act when processing personal data.
17.2. Insofar as it cannot be excluded in the context of the provision of Services by the Contractor that the Contractor obtains access to personal data of the Client, the Parties shall sign a commissioned processing agreement (Art. 28 DSGVO).
18. Contract term and termination
18.1. The term and termination of an Offer shall be governed primarily by the explicit agreements between the Parties in respect thereof in the Offer.
18.2. In the absence of an explicit contractual agreement on the term in the respective Offer, an Offer shall enter into force upon its conclusion and shall continue until the later of (i) its termination or ordinary termination or (ii) the performance by the Contractor of all its obligations under the Contract. Unless otherwise agreed, tenders concluded for an indefinite period may be terminated by either party with three (3) months' notice to the end of each calendar year.
18.3. The right of the Client and the Contractor to terminate an offer for good cause shall remain unaffected.
18.4. Any termination must be in writing (e-mail is sufficient). The Client's termination by e-mail shall only be effective if sent to the following e-mail address:
19. Final provisions
19.1. The transfer of the Contract or individual rights and obligations under this Contract by the Client or the Contractor is only permitted with the prior written consent of the other Party, which may not be refused without good cause. A transfer of the Contract or individual rights and obligations under the Contract by the Contractor to companies affiliated with the Contractor is always permissible.
19.2. The Client is only entitled to set-off if the counterclaim is undisputed or legally established or expressly recognised in writing by the Contractor. A right of retention can only be asserted on the basis of counterclaims that are based on the same contractual relationship.
19.3. The Contractor shall perform the contractual Services as general contractor under its sole responsibility.
19.4. All legal relations between the Client and the Contractor in connection with this contract shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods of 1 April 1980.
19.5. The exclusive place of jurisdiction for all legal disputes arising from the legal relationship between the Client and the Contractor shall be Berlin; however, the Contractor shall also be entitled to bring an action at the Client's general place of jurisdiction.
19.6. Amendments, supplements and ancillary agreements must be made in writing (e-mail is sufficient) to be legally effective. This also applies to the amendment of the written form requirement.
19.7. Insofar as the Client makes declarations to the Contractor by e-mail in connection with the contract, these shall only be effective if sent to the following e-mail address:
The Contractor shall be entitled at any time to inform the Client of another e-mail address for the submission of such declarations.
19.8. The Contractor and the Client may refer to the business relationship with the other Party in publications, websites or the like.
19.9. The invalidity of individual provisions of the Contract shall not affect the validity of the remaining provisions. In this case, the Parties undertake to agree on effective provisions that come as close as possible to the intended economic purpose of the invalid provisions. This applies accordingly to the filling of any gaps in the Contract.