GTC

General Terms and Conditions

1 Scope of application and definitions

1.1.
The business relationship between won't stop GmbH, Propst-Morhardt-Str. 42, 85229 Markt Indersdorf (hereinafter referred to as the ‘PROVIDER’) and the recipient of the services (hereinafter referred to as the ‘CUSTOMER’, hereinafter also referred to collectively as the ‘PARTIES’), in particular with regard to contracts for services in the field of social media marketing - including consulting and content creation - (hereinafter referred to as the ‘Services’) shall be governed exclusively by these General Terms and Conditions.

1.2.
The PROVIDER's offer is aimed exclusively at entrepreneurs (§ 14 BGB) or traders.

1.3.
Conflicting, deviating or supplementary General Terms and Conditions of the CUSTOMER shall not become part of the contract unless the PROVIDER expressly agrees to their validity. These General Terms and Conditions shall also apply if the PROVIDER performs services without reservation in the knowledge that the CUSTOMER's terms and conditions conflict with or deviate from these General Terms and Conditions.

1.4.
The contractual basis results from the individual agreement between the PROVIDER and the CUSTOMER (e.g. in the form of an offer) and these terms and conditions.

1.5.
The version of the PROVIDER's General Terms and Conditions valid prior to utilisation of the services shall apply.

1.6.
The General Terms and Conditions shall also apply to all future service relationships between the PROVIDER and the CUSTOMER (in connection with the subject matter of the service offered), without the need for express inclusion.

1.7.
Insofar as the generic masculine is used in the following provisions, this applies solely for reasons of simplicity, without any judgement being made.

2 Conclusion of contract

2.1.
The presentation of the services on the website, in social networks, in brochures or in adverts does not constitute a binding offer by the PROVIDER to conclude a contract.

2.2.
The contract between the PROVIDER and the CUSTOMER may be concluded by telephone (in particular by video or video chat and/or telephone), in text form (e.g. by e-mail) or in writing.

2.3.
In the case of contracts concluded by telephone between the PROVIDER and the CUSTOMER, the CUSTOMER consents to the PROVIDER recording the telephone call and/or video conference with the CUSTOMER for evidence and documentation purposes.

2.4.
The CUSTOMER expressly agrees not to disclose to third parties any login user names, passwords, materials and links to which the CUSTOMER gains access under this contract.

3. services

3.1.
The range of services includes the following areas in particular:
- Social media marketing, content and design creation
- Photography and videography
- associated consulting.

3.2.
The specific scope of services results from the individual agreement between PROVIDER and CUSTOMER.

3.3.
With regard to the contents of a service contract entered into with the PROVIDER, the PROVIDER shall be entitled to a right to determine performance in accordance with Section 315 BGB.

3.4.
The PROVIDER is entitled to use the assistance of third parties, in particular subcontractors, to fulfil individual or all contractual obligations.

4 Special provisions for services in the area of online and performance marketing

4.1.
Insofar as the CUSTOMER commissions the PROVIDER with activities via the account and on behalf of the CUSTOMER (e.g. the placement of online advertisements, postings), the CUSTOMER shall grant the PROVIDER a corresponding power of attorney in this respect.

4.2.
The CUSTOMER shall determine the budget for the advertising costs incurred in addition to the remuneration. Unless expressly agreed otherwise, the advertising costs shall be invoiced directly between the CUSTOMER and the advertising platform. The CUSTOMER shall bear all advertising costs incurred.

4.3.
The PARTIES agree that the PROVIDER expressly does not owe the CUSTOMER any specific quantitative and/or economic success (such as, but not limited to, a specific number of leads, employees or the like) in the provision of the agreed services.

4.4.
Platforms (e.g. Facebook, LinkedIn, Instagram, etc.) may suspend advertising campaigns created by the PROVIDER for the CUSTOMER in individual cases without stating reasons. Platforms may also temporarily or permanently block accounts, advertising accounts and/or the CUSTOMER's business manager. The PROVIDER has no influence on this. The PROVIDER's claim to remuneration remains unaffected in this respect.

4.5.
The CUSTOMER shall receive a - simple - right to use the campaigns, licences and content (e.g. creatives, texts, image and video material) during the term of the contract. Any transfer and/or reproduction of the licences or content is prohibited. Any infringement will be prosecuted and may result in claims for damages.

4.6.
The CUSTOMER grants the PROVIDER a worldwide, exclusive right to use advertising campaigns and their content for all conceivable types of use, without restriction in terms of subject matter or time. This also includes future types of use that were not yet known at the time the contract was concluded.

5 Special provisions in the area of social media marketing, content and design creation

5.1.
The content and designs (e.g. texts, graphics, print elements, etc.) shall generally be agreed in advance by mutual consent (in writing, by telephone and/or by electronic communication). Irrespective of this, the final decision regarding the conceptual and creative realisation of the content lies with the PROVIDER.

5.2.
Insofar as the CUSTOMER commissions the PROVIDER with activities via the account and on behalf of the CUSTOMER, the CUSTOMER shall grant the PROVIDER a corresponding power of attorney in this respect.

5.3.
If content or design is changed by reworking and/or a correction loop, the transfer of rights shall only take place with the final version of the work and its provision. Unedited material is not covered by the transfer of rights.

5.4.
The CUSTOMER shall receive a simple right of use - unlimited in time and place - to utilise the content or designs created. The (commercial) transfer or sale by the CUSTOMER is not permitted. Any infringement will be prosecuted and may result in claims for damages.

6 Special provisions in the area of photography and videography

6.1.
The content of the services shall generally be agreed by mutual agreement in advance (in writing, by telephone and/or by electronic communication). Irrespective of this, the final decision regarding the conceptual and creative realisation of the production (e.g. with regard to exposure, image composition, etc.) lies with the PROVIDER.

6.2.
The CLIENT shall ensure that all rights in connection with the performance of the service relating to the participants in front of the camera, the location and/or other third parties are available and shall indemnify the PROVIDER against any claims by third parties in this regard.

6.3.
The CLIENT is obliged to arrive punctually on the agreed shooting date. The CLIENT must immediately report any delays on the agreed recording date. If additional costs are incurred by the PROVIDER due to a delay caused by the CLIENT (e.g. due to delays in the PROVIDER's workflow), these shall be borne by the CLIENT.

6.4.
In the event of cancellation within four weeks before the agreed shooting date, the CLIENT is obliged to reimburse the PROVIDER for the costs incurred, but at least 30% of the agreed remuneration. In the event of a cancellation within 7 days before the agreed shooting date, the CLIENT is obliged to pay the agreed remuneration in full, unless an alternative date is mutually agreed between the PARTIES. However, the PROVIDER must allow credit for any expenses saved or not incurred.

6.5.
Unless otherwise agreed in individual cases, the service owed by the PROVIDER shall also include the post-processing of the recordings made. This includes in particular, but is not limited to, colour correction (carried out in accordance with the current state of the art).

6.6.
After all agreed services have been carried out, the final version of the images or image selection shall be available to the CLIENT for digital download and/or shall be made available to the CLIENT on a USB stick. The images can be watermarked in the editing status.

6.7.
Unless otherwise contractually agreed, the creation and processing of the recordings and all other contractually agreed services, as well as any travelling expenses incurred, shall be compensated by a lump-sum fee plus statutory VAT. The flat-rate fee also includes the transfer of rights by the PROVIDER to the CUSTOMER in accordance with the agreement as well as a correction loop with regard to the post-processing of the recordings. Further changes are subject to a fee according to the price list.

6.8.
Unless otherwise contractually agreed in individual cases, additional costs (for example, but not limited to: expenses, catering, additional props required) shall be borne by the CLIENT and are not covered by a flat-rate fee.

6.9.
The PROVIDER shall transfer to the CUSTOMER the rights of use, ancillary copyrights and other rights arising in connection with the performance of the contract, including any rights of use that were unknown at the time the contract was signed. The CUSTOMER shall be entitled to all rights from the time of their transfer for simple use without restriction in terms of time, space and content. The (commercial) transfer or sale by the CUSTOMER is not permitted.

6.10.
If the recordings are changed by post-processing or a correction loop, the transfer of rights shall only take place with the final version of the work and its provision. Unprocessed image material is not covered by the transfer of rights.

6.11.
The CUSTOMER is obliged to indicate the PROVIDER as the author in an appropriate form, stating the homepage or Instagram profile, for any use of the images in all media (including online and print).

7. remuneration

7.1.
The remuneration applicable at the time of conclusion of the contract in accordance with the offer shall apply to the services. If no remuneration has been agreed individually, the remuneration according to the applicable price list shall apply. If payment by instalments has been agreed, the first instalment shall be due immediately upon conclusion of the contract; unless otherwise agreed, further instalments shall be due monthly in advance. All prices are exclusive of VAT.

7.2.
If a set-up fee has been agreed, this will only be charged once, unless otherwise agreed. In the event of a contract extension, no further set-up fee will be charged.

7.3.
The obligation to provide the contractually agreed remuneration in full shall also apply if the CUSTOMER instructs the PROVIDER to temporarily interrupt the services or if an interruption is necessary for other reasons, provided that the reasons are not due to the fault of the PROVIDER.

7.4.
Unless otherwise agreed, the CUSTOMER is obliged to make advance payment. The agreed remuneration is due immediately upon invoicing and payable within 7 days.

7.5.
If the CUSTOMER fails to perform a necessary act of co-operation and thereby prevents the PROVIDER from providing the service, the PROVIDER's claim to remuneration shall remain unaffected.

7.6.
The CUSTOMER may only exercise its right of set-off or assert a right of retention with legally established or undisputed claims.

8. default

8.1.
Any deadlines for the provision of services by the PROVIDER shall in any case not commence before the agreed remuneration has been paid in full by the CUSTOMER and all necessary acts of co-operation by the CUSTOMER have been provided in full.

8.2.
If the CUSTOMER is in arrears with payments due, the PROVIDER reserves the right not to perform further services until the payments due have been settled.

8.3.
The PROVIDER is entitled to terminate the contract for good cause in accordance with Section 626 (1) BGB and to discontinue all services. Good cause exists in particular if the CUSTOMER is in arrears with at least two instalments due to the PROVIDER for an agreed instalment payment. The PROVIDER is entitled to claim the entire remuneration that would be due by the next ordinary termination date as compensation. In this case, however, the PROVIDER must take into account the expenses that it saves or fails to acquire.

9 Other obligations of the PARTIES to perform the agreed services
9.1.

The PROVIDER shall only provide all contractually agreed services from the time of conclusion of the contract or the individually agreed start of the contract term.

9.2.
The CUSTOMER shall ensure that the PROVIDER has all the necessary information at all times that is required to achieve the best possible service result. If the PROVIDER is prevented from providing the agreed services and the reasons for the impediment result from the CLIENT's sphere, the PROVIDER's claim to remuneration shall remain unaffected.

9.3.
The CUSTOMER is responsible for all content provided by him and must ensure that the content is not encumbered by third-party rights and does not violate applicable law (in particular copyright, competition, trademark, criminal, youth protection, data protection law or similar). The PROVIDER is not obliged to check the content.

9.4.
The CLIENT shall ensure that all rights in connection with the performance of the service relating to the participants in front of the camera, the location and/or other third parties exist and shall indemnify the PROVIDER against any claims by third parties in this regard.

9.5.
The PROVIDER is authorised to carry out all appointments with the CLIENT digitally (e.g. via Zoom, Teams, Skype, Teamviewer or similar), unless the respective type of service provision necessarily requires on-site presence (e.g. the execution of photo shoots or video shoots).

9.6.
The CUSTOMER is independently responsible for ensuring that the technical requirements are met in order to be able to fully utilise the offer. In the event of technical problems with the service provided, the CUSTOMER is also obliged to cooperate in solving the problem to the best of their ability.

10 Contract term

10.1.
The contract is concluded for the term agreed in accordance with the individual contractual agreement (initial term). Premature ordinary cancellation is excluded.

10.2.
Unless explicitly agreed otherwise, the contract term shall commence upon completion of the set-up phase, at the latest one month after conclusion of the contract. The due date of an agreed set-up fee remains unaffected by this.

10.3.
Unless explicitly agreed otherwise, the contract term shall be extended by the agreed initial term if it is not cancelled in writing (e-mail is sufficient) by one of the parties four weeks before the end of the initial term or the respective contract extension.

10.4.
The right to extraordinary cancellation for good cause remains unaffected.

11 Terms of payment

11.1.
Payment is possible by invoice, advance payment and direct debit.

11.2.
In the case of payment by direct debit, the CUSTOMER undertakes to issue the PROVIDER with a (SEPA) direct debit authorisation immediately after conclusion of the contract, but at the latest within 7 days of conclusion of the contract. The PROVIDER is not responsible for overdraft fees, overdraft charges or similar fees charged by the bank or credit card company.

12 Liability for damages

12.1.
The PROVIDER shall be liable, irrespective of the legal grounds, within the framework of the statutory provisions only in accordance with the following provisions.

12.2.
The PROVIDER shall be liable without limitation for damages resulting from injury to life, limb or health caused by intent or negligence on the part of the PROVIDER or one of its legal representatives or vicarious agents. In addition, the PROVIDER shall be liable for damages caused by intent or gross negligence on the part of the PROVIDER or one of its legal representatives or vicarious agents as well as for damages due to non-compliance with a guarantee or warranted characteristic given by the PROVIDER or due to fraudulently concealed defects.

12.3.
The PROVIDER shall be liable, limited to compensation for foreseeable damages typical of the contract, for such damages that are based on a slightly negligent breach of material contractual obligations by the PROVIDER or one of its legal representatives or vicarious agents. Essential contractual obligations are obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner may regularly rely.

12.4.
Within the limits of the above paragraphs 2 and 3, the PROVIDER shall not be liable for loss of data and programmes. Liability for data loss shall be limited to the amount of the typical restoration costs that would have been incurred if backup copies had been made regularly and in accordance with the risks involved. The PROVIDER reserves the right to object to contributory negligence. In particular, the CUSTOMER is responsible for data backup and defence against malware in accordance with the current state of the art.

13. data protection, confidentiality

13.1.
The CUSTOMER is informed that the PROVIDER collects, processes and uses personal inventory and usage data in machine-readable form within the scope of the purpose of the contractual relationship. All personal data shall be treated confidentially.

13.2.
The PARTIES undertake to treat confidentially any information or documents from the area of the other party which become known to them in the course of the performance of the contract and which are not in the public domain or generally accessible. This confidentiality obligation shall survive the termination of the contractual relationship.

14. acceptance

14.1.
If the individually agreed services are subject to the law on contracts for work and labour, the following provisions shall apply in this respect.

14.2.
The PROVIDER may demand acceptance from the CUSTOMER after completion of a partial service.

14.3.
The (partial) services of the PROVIDER to be accepted by the CUSTOMER shall also be deemed to have been accepted if the CUSTOMER does not declare acceptance of the corresponding (partial) service in writing within 7 working days at the request of the PROVIDER.

15 Copyright, use of trademarks

15.1.
All content made available within the scope of the fulfilment of the contract is protected by copyright.

15.2.
The transfer of rights is subject to the condition precedent that the CUSTOMER has fulfilled all remuneration obligations towards the PROVIDER.

15.3.
The CUSTOMER grants the PROVIDER the right to use all trademarks, logos, names or other business marks of the CUSTOMER without restriction within the scope of the services to be provided. Deviations from this require a separate agreement.

15.4.
The CUSTOMER shall grant the PROVIDER free of charge the simple right of use, unrestricted in terms of time, space and content, for the public reproduction, duplication and distribution of all designs, content and content created for the purpose of (own) advertising, in particular but not exclusively on the PROVIDER's website (‘testimonial use’).

15.5.
The CUSTOMER shall indemnify the PROVIDER in full against any third-party claims for infringement of intellectual property and/or the use of terms, pages or content that are unauthorised and/or encumbered with third-party rights.

16. right of cancellation

The PROVIDER concludes contracts exclusively with entrepreneurs within the meaning of § 14 BGB (German Civil Code), so that there is no statutory right of cancellation.

17. naming of references

The PROVIDER may name the CUSTOMER as a reference in any medium. This also includes the naming and use of any protected trademarks, designations or logos. The PROVIDER is not obliged to name the CUSTOMER.

18 General provisions

18.1.
The place of fulfilment and exclusive place of jurisdiction for disputes with merchants, legal entities under public law or special funds under public law arising from contracts is the registered office of the PROVIDER.

18.2.
The law of the Federal Republic of Germany shall apply exclusively to all disputes, irrespective of the legal grounds, to the exclusion of all provisions of the conflict of laws that refer to another legal system.

18.3.
If necessary, any additional or alternative provisions to the Agreement agreed in writing by the PARTIES shall be considered part of the Agreement from the time of their signature.

18.4.
The invalidity of one or more provisions of these General Terms and Conditions shall not affect the validity of the remaining provisions of these General Terms and Conditions. The invalid clauses shall be replaced by those that come closest to the economic intention in a legally permissible manner. This also applies to the supplementary interpretation of the contract.

18.5.
The PROVIDER reserves the right to amend these General Terms and Conditions at any time, unless the amendment is unreasonable for the CUSTOMER. The PROVIDER shall notify the CUSTOMER of this in good time. If the CUSTOMER does not object to the new General Terms and Conditions within a period of two weeks after notification, the amended General Terms and Conditions shall be deemed to have been accepted by the CUSTOMER.

Status: August 2023

Close