1. Applicability
1.1 Marketing Hackerz shall provide its services exclusively on the basis of the following General Terms and Conditions (GTC). They shall apply to all legal relationships between Marketing Hackerz and the Client, even if they are not expressly referred to. The GTC shall exclusively apply to legal transactions with entrepreneurs, i.e. B2B transactions. The customer declares to be an entrepreneur and is liable to Marketing Hackerz with this information.
1.2 The Client shall be informed about amendments to the GTC; they shall be deemed agreed unless the Client objects to the amended GTC in writing within 14 days; in the information the Client will be expressly informed about the consequence of silence on his part.
1.3 If any provisions of these General Terms and Conditions are ineffective, the binding nature of the remaining provisions and the contracts concluded on the basis of the same shall not be affected. The ineffective provision shall be replaced by an effective provision which comes as close as possible to the meaning and purpose of the ineffective one.
1.4 Marketing Hackerz 's offers and services shall be subject to change without notice and to being non-binding.
2. Concept Protection
If a potential Client has already invited Marketing Hackerz beforehand to develop a concept and if Marketing Hackerz accepts this invitation prior to conclusion of the principal contract, the following shall apply:
2.1 By the invitation from the potential client and acceptance of the invitation by Marketing Hackerz the potential Client and Marketing Hackerz enter into a contractual relationship. That contract will also be based on these GTC.
2.2 The potential Client acknowledges that already by developing a concept Marketing Hackerz will render cost-intensive services, even though the Client himself has not taken on any performance duties yet.
2.3 Furthermore, the concept contains ideas that are relevant to advertising which do not reach the level of originality required for copyright protection. Such ideas are generated at the beginning of every creative process and may be defined as the creative spark for all subsequent work results and, thus, as the origin of a marketing strategy. Accordingly, those elements of the concept are protected which are unique and characterize the marketing strategy. For the purpose of this agreement ideas shall in particular mean advertising slogans, advertising texts, graphics and illustrations, advertising means etc., even if they do not reach the level of originality required for copyright protection.
2.4 The potential Client undertakes not to exploit or have exploited commercially and/or use or have used the creative advertising ideas which Marketing Hackerz presented as part of the concept in any context other than the corrective of a principal contract to be concluded at a later time.
2.5 If the potential Client is of the opinion that Marketing Hackerz presented ideas to him which he already had before the presentation, he shall notify Marketing Hackerz thereof via e-mail within 14 days of the day of the presentation and include means of evidence which allow a chronological allocation.
2.6 Otherwise the Parties will assume that Marketing Hackerz has presented an idea to the potential Client which is new to him. If the Client uses the idea, it has to be assumed that Marketing Hackerz received remuneration therefor.
2.7 The potential Client may be released from his duties under this Clause if he pays a reasonable compensation plus possible VAT, if applicable. Such release shall become effective only after receipt of the full compensation payment by Marketing Hackerz.
3. Client's Duties
3.1 The Client shall make accessible to Marketing Hackerz completely and in time all information and documents required for rendering the service. The Client shall notify Marketing Hackerz of all circumstances that are relevant to execution of the order, even if they become known only in the course of execution of the order. The Client shall bear the costs incurred due to the fact that work has to be done again by Marketing Hackerz or is delayed because of his incorrect, incomplete or subsequently modified specifications.
3,2 In addition, the Client is obliged to clear the documents made available by him for execution of the order (photos, logos, etc.) for potential copyrights, trademark rights, marks or other rights of third parties (rights clearance) and guarantees that the documents are free from rights of third parties and may therefore be used for the desired purpose. In the case of merely slight negligence or if it has fulfilled its duty to warn the Client, Marketing Hackerz shall not be liable (at least as regards the relationship between Marketing Hackerz and the Client) for an infringement of such rights of third parties by documents made available by the Client. If Marketing Hackerz is held liable for an infringement of such rights, the Client shall indemnify and hold Marketing Hackerz harmless and shall compensate Marketing Hackerz for any and all disadvantages suffered by it due to third-party claims, including costs of reasonable legal representation. The Client undertakes to support Marketing Hackerz in defending claims of third parties, if any. For this purpose the Client shall provide Marketing Hackerz with all documents without request.
3.3 The customer is obligated to comply with all applicable statutory provisions. The customer shall indemnify and hold Marketing Hackerz harmless in the event of a claim for breach for which the customer is responsible. A legal examination of the project undertaken by Marketing Hackerz is the sole responsibility of the customer. Any liability of Marketing Hackerz in this respect is excluded.
3.4 The Client shall also be obliged to examine the service for its lawfulness, including but not limited to competition law, trademark law, copyright law and administrative law. Marketing Hackerz is obliged only to roughly examine lawfulness. In the case of slight negligence or after it has fulfilled its duty to warn the Client, if any, Marketing Hackerz shall not be liable for lawfulness of contents if they were advised or accepted by the Client.
4. Copyright
4.1 Marketing Hackerz shall retain title to all services of Marketing Hackerz, including services in connection with presentations (e.g., suggestions, ideas, preliminary drafts, preliminary designs, final drawings, concepts, slides), including parts thereof, as well as the individual workpieces and original designs and Marketing Hackerz may demand at any time, in particular in the case of termination of the contractual relationship, that they be returned to it. By paying the fees the Client shall acquire the right to use the services for the designated purpose agreed. Acquisition of rights to use and exploit Marketing Hackerz's services shall in any case be subject to full payment of the fees charged by Marketing Hackerz for the same. If the Client uses Marketing Hackerz's services already prior to that time, such use shall be based on a loan relationship that may be revoked at any time.
4.2 Modifications and/or editing of services of Marketing Hackerz, including but not limited to further development of the same by the Client or third parties working for the Client, shall only be permitted with the express consent of Marketing Hackerz and, to the extent that services are protected by copyright, of the author. The release of files, data carriers and data with the source code is thus expressly not part of the contract. Marketing Hackerz is not obliged to release these, i.e. without contractual assignment of the rights of use also for "electronic work," the client has no legal claim to it.
4.3 Use of Marketing Hackerz's services beyond the originally agreed purpose and scope of use shall be subject to Marketing Hackerz's consent irrespective of whether such service is protected by copyright or not. In consideration thereof Marketing Hackerz and the author shall be entitled to a separate reasonable fee.
4.4 After expiration of Marketing Hackerz Agreement use of services of Marketing Hackerz and/or advertising means for which Marketing Hackerz developed concepts or designs shall also be subject to Marketing Hackerz's consent irrespective of whether the service is protected by copyright or not.
5. Deadlines
5.1 Marketing Hackerz shall endeavour to meet agreed deadlines for completion. Unless expressly agreed to be binding, delivery or service periods stated shall only be approximate and non-binding. Binding agreements on deadlines shall be recorded in writing or confirmed by Marketing Hackerz in writing.
5.2 If the delivery/service of Marketing Hackerz is delayed for reasons for which Marketing Hackerz is not responsible, such as, e.g. events of force majeure or other unforeseeable events that cannot be prevented by reasonable means, the service obligations shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly. If such delays continue for more than two months, the Client and Marketing Hackerz shall be entitled to rescind the contract.
5.3 If Marketing Hackerz is in default, the Client may only rescind the contract after having granted Marketing Hackerz a reasonable grace period of at least 14 days in writing and after such period has expired fruitlessly. Claims of the Client for damages on the ground of non-performance or default shall be excluded.
6. Early termination
6.1 Marketing Hackerz shall be entitled to terminate the contract for cause with immediate effect. Causes shall include but not be limited to situations where
(a) provision of a service becomes impossible for reasons for which the Client is responsible or is further delayed even though the Client was granted a grace period of 14 days;
(b) the Client continues to violate material obligations under this contract, such as, e.g. the obligation to pay an amount payment of which has been demanded or duties to co-operate, despite a written warning and having been granted a grace period of 14 days;
(c) legitimate concerns exist regarding the Client's credit standing and, upon Marketing Hackerz's request, the Client fails to make advance payments or to furnish suitable security prior to provision of the service by Marketing Hackerz.
(a) provision of a service becomes impossible for reasons for which the Client is responsible or is further delayed even though the Client was granted a grace period of 14 days;
(b) the Client continues to violate material obligations under this contract, such as, e.g. the obligation to pay an amount payment of which has been demanded or duties to co-operate, despite a written warning and having been granted a grace period of 14 days;
(c) legitimate concerns exist regarding the Client's credit standing and, upon Marketing Hackerz's request, the Client fails to make advance payments or to furnish suitable security prior to provision of the service by Marketing Hackerz.
6.2 The Client shall be entitled to terminate the contract for cause without having to grant a grace period. A cause shall be, in particular, where Marketing Hackerz repeatedly violates material provisions of this contract despite a written warning and having been granted a grace period of at least 14 days to remedy the breach of the contract.
7. Fees
7.1 Unless otherwise agreed Marketing Hackerz's entitlement to fees shall arise for any specific service once the same has been rendered. Marketing Hackerz shall be entitled to ask for advances to cover its expenses.
7.2 The fees shall be stated as net fees in EUR plus statutory value added tax. If in a specific case no agreement on fees has been concluded, Marketing Hackerz shall be entitled to fees at market rates for the services rendered and for transfer of copyrights and marks.
7.3 All services of Marketing Hackerz which are not expressly covered by the agreed fees shall be paid for separately. All cash expenses incurred by Marketing Hackerz shall be reimbursed by the Client.
7.4 Cost estimates provided by Marketing Hackerz shall be non-binding. If it becomes clear that the actual costs will exceed Marketing Hackerz's written cost estimate by more than 15 per cent, Marketing Hackerz shall advise the Client of such higher costs. The increase in costs shall be deemed accepted by the Client if the Client does not object to such increase in writing within three working days of the advice and states cheaper alternatives at the same time. Cost increases of up to 15 per cent shall not have to be advised separately. Such a deviation from the cost estimate shall be deemed accepted by the Client from the beginning.
7.5 If the Client unilaterally modifies or cancels work ordered without involving Marketing Hackerz and notwithstanding other regular support from the same, the Client shall pay Marketing Hackerz for the services provided by then according to the agreement on fees and shall reimburse all costs incurred. Unless work is cancelled on the ground of a breach of Marketing Hackerz's duties by gross negligence or willful intent, the Client shall, in addition, pay Marketing Hackerz the total fee (commission) agreed for that contract. Furthermore, Marketing Hackerz shall be indemnified and held harmless from and against any third-party claims, in particular of Marketing Hackerz's contractors. By payment of the fees the Client shall acquire no rights to use work already carried out; concepts, drafts and other documents which were not implemented shall rather be returned to Marketing Hackerz without delay.
8. Payment
8.1 The fee shall be due for payment immediately upon receipt of the invoice without any deductions, unless special payment terms are agreed in writing on a case-by-case basis. The same shall apply to all cash and other expenses charged. Marketing Hackerz shall retain title to the goods delivered by it until full payment of the fee including all ancillary liabilities.
8.2 If the Client is in default of payment, Marketing Hackerz may call for immediate payment of services or partial services rendered under different contracts concluded with the Client.
8.3 Furthermore, Marketing Hackerz is not obliged to render other services until payment of the amount outstanding (right to withhold services). The obligation to pay the fees shall not be affected.
8.4 If payment by installments has been agreed, Marketing Hackerz reserves the right to demand immediate payment of the total debt outstanding if installments or ancillary claims are not paid in time (acceleration clause).
8.5 A set-off of the fee charged by Marketing Hackerz by the customer with counterclaims of any kind whatsoever is excluded.
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