Terms and Conditions

1 Scope of Application

(1) These General Terms and Conditions, in their valid version at the time of contract conclusion, exclusively apply to the business relationship between Roi & Cavalier GbR, Sternenberger Hof 5, 51149 Cologne (hereinafter referred to as the “Agency”) and the customer (hereinafter referred to as the “Client”).

(2) The Agency provides its services exclusively based on these terms and conditions. Deviating general terms and conditions of the Client will not be recognized unless the Agency expressly agrees to their applicability in writing.

(3) These conditions apply only to entrepreneurs, legal entities under public law, or special public funds within the meaning of § 310 para. 1 BGB (German Civil Code).

(4) Unless otherwise regulated below or explicitly agreed between the parties, the Agency exclusively provides services as an advertising agency in accordance with the Client’s specifications or instructions. The law governing service contracts exclusively applies to all services provided by the Agency.

2 Object of the Contract, Basis of Cooperation, Conclusion of the Contract

(1) The object of the contract is the provision of service contract services (hereinafter referred to as “Services” or “Project”) in the field of target group-optimized reach and attention advertising. The responsibility for the project and its success lies with the Client.

(2) Unless explicitly stated otherwise, offers from the Agency are non-binding.

(3) Specific advertising measures (“individual orders”) shall be provided in accordance with these General Terms and Conditions, based on a separate written order according to the Client’s specifications (“briefing”). The specific services to be provided by the Agency are determined in detail in the respective offers or individual orders. The individual order is concluded when the Client confirms acceptance of the contract offer in writing.

3 Performance of Services by the Agency

(1) The Agency provides its consulting services with the utmost care and diligence, in accordance with the latest established techniques. It takes into account general procedural descriptions and industry standards (e.g., ITIL, DIN) as agreed upon and deemed reasonable on a case-by-case basis.

(2) The Agency will only use qualified and reliable personnel. It will employ proven methods, tools, and instruments that it is familiar with, capable of executing, and comply with the requirements as stated in paragraph (1).

(3) In principle, the Agency is not authorized to act as a representative of the Client vis-à-vis third parties, particularly to negotiate or make declarations of intent with legal effect for or against the Client. Exceptions require the prior written consent of the Client.

(4) The Agency is generally free to choose the place of performance. If the nature of the activity requires presence at a specific location, the Agency is obliged to perform its services there.

(5) The Agency is free to organize its working hours. However, it must coordinate with the Client’s project manager for collaboration and adherence to deadlines.

(6) The Agency may only engage subcontractors as third parties for the provision of consulting services with the prior written consent of the Client.

4 Obligations of the Client/Cooperation Arrangements

(1) In order to fulfill its obligations under the contract, the Agency depends on the support and cooperation of the Client. The Client is obligated to provide the Agency with essential data, product information, templates, as well as access credentials or user accounts (collectively referred to as “Documents”) for strictly confidential treatment.

(2) If the Client provides the Agency with materials for use in the design of advertising measures, the Client assures that they are authorized to hand over and use these materials in accordance with the contract.

(3) Before providing individual orders within the meaning of § 1 paragraph (3), the Agency is obliged to submit a detailed written proposal, including a cost plan, for the provision of services to the Client. The Client must inform the Agency within a reasonable period, generally no more than five working days, whether they accept or reject an individual order proposed by the Agency for the design and implementation of advertising measures in accordance with § 2 paragraphs (3) and (4), with or without modifications.

(4) Individual orders become effective only when they are accepted in writing by the Client. If the Client accepts the proposed design by the Agency, this shall be deemed as approval of the cost estimate associated with the individual order.

(5) If necessary, the Client will provide suitable workspaces with adequately equipped workstations (telephone, fax, and computer) free of charge to the Agency during regular working hours. The Client will grant the Agency’s employees access to its premises and provide access to the necessary hardware and software required for the provision of services, during the Client’s regular business hours and to the extent necessary. If the urgency of the specific service provision requires it, access will also be granted outside the Client’s regular business hours. The Agency shall take care to minimize disruption to the Client’s business operations during its on-site activities.

(6) The Client will appoint a qualified employee who will be available as a contact person (“project manager”) for the Agency and authorized to make the necessary decisions for the contract’s execution.

(7) The Client shall grant the Agency the right to use third-party systems, to the extent necessary for the provision of services owed under this contract.

(8) If the Client fails to fulfill its responsibilities within its scope of action, the Agency’s performance obligation shall be suspended for the duration of the delay, to the extent that it cannot be provided without these cooperative actions or can only be provided with disproportionate additional effort. Any additional expenses caused by the Client’s lack of cooperation shall be reimbursed to the Agency in addition to the agreed remuneration based on the applicable rates. The Agency’s statutory right to terminate the contract remains unaffected.

(9) If the Client is obligated to provide the Agency with hardware and software, especially server systems, as part of the contractual cooperation, the Client shall continuously maintain the contracted system environment or duly delegate the ongoing maintenance of its system environment to a suitable IT service provider.

(10) If the provision of computer programs is part of the individual order, the Client shall promptly install or apply updates or other measures provided by the Agency for error correction.

(11) The Agency is not obligated to verify whether the content provided by the Client violates any laws or rights of third parties. The Client bears sole responsibility for the legal permissibility of the advertising covered by the contract vis-à-vis third parties. If a third party asserts claims against the Agency regarding the advertising covered by the contract, the Client shall indemnify the Agency, unless the Client can demonstrate that the legal dispute is due to a breach of duty by the Agency.

5 Special Provisions for Work Contracts

(1) If the parties agree on the provision of work services in the individual order, the following paragraphs (2) to (8) shall apply:

(2) The Client is obligated to accept a website or concept if it meets the contractual requirements. Acceptance shall be declared in written form (§ 126b BGB). During the completion phase, the Agency is entitled to present individual components of the website or concept for partial acceptance to the Client.

(3) The Client is obligated to grant partial acceptance if the respective components of the concept or website meet the contractual requirements. The services of the Agency shall be deemed accepted if the Client does not declare acceptance or refuses with detailed defects within a period of 8 business days.

(4) If the Client requests changes after the acceptance of the concept or design, they shall be subject to a charge. The procedure for performance changes as described in the following paragraph (8) shall apply accordingly.

(5) Deadlines for performance are binding only if explicitly stated or confirmed by the Agency. In the case of non-binding deadlines, the Agency shall not be liable for timely performance. If the performance of the subject matter requires the performance of a third party, performance deadlines are generally subject to the condition of timely performance by the third party. If the agreed performance deadlines are not met due to culpable reasons, the Agency shall be given a reasonable grace period for performance. After the expiration of the grace period without further notice, the Agency shall be in default.

(6) Acceptance of the contractual performance shall take place upon availability for acceptance by the Agency. The procedure and manner of acceptance shall be separately agreed upon by the parties. A protocol shall be created regarding the acceptance, which shall be signed by both parties.

(7) If the performance does not comply with the contract and the Client rightfully refuses acceptance or accepts with reservation for the rectification of defects specified in the protocol, the Agency is obligated to provide a contract-compliant performance within a reasonable period, rectify the defects, notify the expected duration of the defect rectification, and indicate the completion of the rectification after the subsequent work.

(8) Until the acceptance, the Client may request changes and additions to the performance at any time, provided that they are technically feasible and reasonable for the Agency. The Agency shall review the change request and provide the Client with the result, including any resulting costs and adjustments to the project schedule, in the form of a binding offer. If the Client does not accept the offer, the parties shall continue the project without changes. During an ongoing performance change process, the Agency shall continue the contractual services as planned unless the Client instructs them in writing to suspend or limit the work until a decision on the performance change is made.

6 Remuneration, Payments, Payment Default, Reservation of Rights

(1) Unless otherwise agreed, the remuneration shall be based on the actual expenditure at the rates applicable to the Agency at the time of contract conclusion.

(2) The Agency may invoice on a monthly basis. If services are remunerated based on expenditure, the Agency shall document the nature and duration of the activities and provide this documentation with the invoice.

(3) The remuneration for one-time services is due upon completion of the service and invoicing. The Agency may request advance payments in a reasonable amount. Invoices shall be payable without deduction within the payment term specified in the individual contract.

(4) The remuneration is due and payable within 10 calendar days from the date of the invoice, unless otherwise agreed in the contract. If the due date is determined in days, weeks, or months, the starting point is the invoice date. In the event of payment default by the Client, the outstanding amount shall accrue interest in accordance with § 288 BGB (German Civil Code). This shall not affect the assertion of further rights.

(5) GEMA fees and other copyright-related payments, artists’ social security contributions, and customs costs shall be specified in the cost estimates provided. Unless otherwise agreed, the Client shall bear these costs.

(6) Travel expenses to the Client’s premises will not be charged. Costs for all other travels shall be invoiced to the Client with their prior written consent.

(7) Unless expressly stated otherwise, all amounts mentioned in contractual documents are understood to be net amounts, i.e., excluding the applicable value-added tax. The Agency shall separately indicate the tax rate and the amount of value-added tax on the invoice.

(8) In the event of payment default by the Client, unless expressly agreed otherwise, the Agency is entitled to suspend or withhold further services, without prejudice to other rights, for as long as the payment default persists. Furthermore, the Agency is entitled to make the performance of outstanding services dependent on the Client’s full advance payment of the respective next installment or provision of security for the outstanding remuneration in the form of an indefinite, self-secured guarantee callable upon first demand from a major European bank.

(9) The Agency reserves ownership and rights to its services until the full payment of the contractually agreed remuneration.

(10) In the event of the Client’s economic incapacity to fulfill its obligations towards the Agency, the Agency may terminate existing exchange contracts with the Client by withdrawal and terminate ongoing contractual relationships without notice, even in the event of a bankruptcy petition filed by the Client. The Client is obligated to inform the Agency in a timely manner and in writing about any impending insolvency.

7 Additional Remuneration Provisions for Contracts with a Fixed Term

(1) The remuneration for contracts with a fixed term is payable monthly. If the contract is not concluded on the first day of a calendar month, the remuneration for the first month shall be prorated based on the remaining days of the month from the start of the term.

(2) The remuneration for each month is due in advance on the 3rd business day of each month.

(3) Services that go beyond the agreed and flat-rate services shall be separately remunerated by the Client based on actual expenditure. The applicable rates of the Agency shall apply.

(4) In the case of a work contract, paragraphs (1) and (2) do not apply. The Agency will invoice the remuneration or agreed installments in accordance with the payment schedule included in the contract.

8 Rights to the Results of Services, Protection of Intellectual Property

(1) The Agency grants the Client a non-exclusive, non-transferable, perpetual, irrevocable, and non-transferable right to use the services provided within the scope of the contract, to the extent necessary and appropriate for the purpose and scope of the contract. The Client is obligated to use the work results produced by the Agency within the project, such as reports, organizational plans, analyses, programs/software, designs, drawings, statements, calculations, or similar work results, exclusively for its own internal purposes; any other uses require the explicit written agreement between the parties. Unless explicitly agreed otherwise between the parties, the right to modify by the Client is excluded.

(2) To the extent that copyrights or other protective rights arise in the work results, these rights remain with the Agency. The same applies without exception to the use of the Agency’s own methods, results, programs/software, or similarly protectable know-how, with respect to all industrial property rights belonging to the Agency in this regard.

9 Provisions on Duration and Termination

(1) Unless otherwise agreed, a contract with a fixed term begins upon its signing and has a fixed duration of 24 months. Afterward, it automatically extends for an additional year unless terminated by either party with a notice period of three months prior to the end of the fixed term or any subsequent extension period.

(2) If the parties agree on a contract with a fixed term, regular termination can be exercised at the earliest upon the expiration of the respective fixed contract term. The right of either party to exercise extraordinary termination for cause remains unaffected.

(3) Service contracts without a specified term can be terminated by either party at any time in accordance with the statutory notice periods.

(4) In the event that the Client exercises their right of termination under § 649 sentence 1 BGB (German Civil Code) in the case of a contract for work with a fixed term, the Agency may demand a lump-sum compensation of 15% of the agreed remuneration if the execution has not yet commenced.

(5) Any termination must be made in writing. The exercise of termination via telecommunication, such as email, is excluded.

10 Force Majeure

(1) The Agency is exempt from the obligation to perform if and to the extent that the non-performance of services is attributable to the occurrence of circumstances of force majeure after the conclusion of the contract.

(2) Circumstances of force majeure include, for example, war, strikes, riots, expropriation, fundamental changes in the law, storms, floods, and other natural disasters, as well as other circumstances beyond the control of the Agency, such as water ingress, power outages, and interruptions or destruction of data transmission lines.

(3) Each party shall promptly notify the other party in writing of the occurrence of a force majeure event.

11 Subcontractors, Transfer of Rights and Obligations

(1) The Agency has the right to engage subcontractors to fulfill the contractual relationship.

(2) The Client may only assign claims against the Agency to third parties with the written consent of the Agency.

12 Liability

(1) The Agency shall be liable in accordance with the following provisions (a) to (e):

(a) The Agency shall be liable without limitation for damages caused intentionally or through gross negligence by the Agency, its legal representatives, or executive employees, as well as for damages caused intentionally by other agents; in the case of gross negligence by other agents, liability shall be determined according to the regulations for slight negligence outlined in (e) below.

(b) The Agency shall be liable without limitation for damages caused intentionally or negligently through the violation of life, body, or health by the Agency, its legal representatives, or agents.

(c) The Agency shall be liable for damages resulting from the absence of warranted characteristics up to the amount that was encompassed by the purpose of the warranty and was foreseeable by the Agency at the time the warranty was given.

(d) The Agency shall be liable for product liability damages in accordance with the provisions of the Product Liability Act.

(e) The Agency shall be liable for damages resulting from the breach of material contractual obligations by the Agency, its legal representatives, or agents; material contractual obligations are the essential obligations that form the basis of the contractual performance obligations, which were crucial for the conclusion of the contract, and on whose fulfillment the Client may rely. If the Agency has negligently violated these material contractual obligations, its liability shall be limited to the amount that was foreseeable and typical for the Agency at the time of the respective performance.

(2) The Agency shall be liable for the loss of data only up to the amount that would have been incurred for the proper and regular backup of the data for its restoration.

(3) Further liability of the Agency is excluded in principle. In particular, the Agency is released from liability for non-apparent defects under § 536a BGB (German Civil Code) that existed at the beginning of the contract without fault on the part of the Agency.

13 Warranty

(1) Claims for defects in the Agency’s services shall not exist in the case of only minor deviations from the contractually agreed quality or usability.

(2) Claims for defects shall also be excluded in the following cases:

Accuracy of the manufacturer’s information regarding the reliability or performance of data processing systems or software recommended by the Agency;
Defects in data processing systems recommended by the Agency;
Business risks that, according to customary commercial practices, are to be borne by the Customer, such as errors in the assessment of the market situation or the misunderstanding of the appropriateness of business measures.
(3) Claims for defects shall become time-barred within one year from the statutory commencement of the limitation period.

(4) The statutory periods for the right of recourse under § 478 BGB (German Civil Code) shall remain unaffected. The same applies if the law prescribes a longer period in cases of willful or grossly negligent breach of duty by the Agency, fraudulent concealment of a defect, or in cases of injury to life, body, or health.

(5) The Customer’s claims for defects are subject to the condition that the Customer has fulfilled its statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB – German Commercial Code). If a defect becomes apparent upon delivery, inspection, or at any later time, the Agency must be notified in writing without delay. If the Customer fails to conduct a proper inspection and/or provide a notice of defect, the liability of the Agency for the defect not notified or not notified in a timely or proper manner shall be excluded in accordance with statutory provisions.

(6) If the Agency is liable for material and legal defects under the provisions of the German Civil Code for contracts for work and services, the Customer must first assert its rights to subsequent performance. If subsequent performance fails, the Customer shall be entitled to exercise the further statutory rights for defects.

(7) The Agency shall bear the necessary expenses for inspection and subsequent performance, in particular transport, travel, labor, and material costs (excluding removal and installation costs), if an actual defect exists. Otherwise, the Agency may demand reimbursement from the Customer for costs incurred as a result of an unjustified request for defect rectification (in particular, inspection and transport costs), unless the lack of defectiveness was not recognizable to the Customer.

(8) Claims for damages or reimbursement of wasted expenses by the Customer due to defects shall only exist in accordance with Section 12 and are otherwise excluded.

(9) In all other respects, the warranty of the Agency shall be governed by the statutory provisions.

14 Confidentiality

(1) The Parties agree to maintain confidentiality regarding confidential information. This obligation shall continue indefinitely after the termination of the contractual relationship.

(2) The following confidential information is exempt from this obligation:

a) Information that was demonstrably known to the recipient at the time of contract conclusion or subsequently became known from a third party without violating any confidentiality agreements, legal regulations, or official orders;

b) Information that is publicly known at the time of contract conclusion or subsequently becomes publicly known, provided that this is not based on a breach of this agreement;

c) Information that must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the recipient obligated to disclose shall notify the other Party in advance and provide it with an opportunity to take action against the disclosure.

(3) The Parties shall only grant access to confidential information to advisors who are bound by professional secrecy or who have been previously obligated to maintain confidentiality in accordance with the confidentiality obligations of this agreement. Furthermore, the Parties shall only disclose confidential information to those employees who need it for the performance of this agreement and shall also impose confidentiality obligations on these employees to the extent permitted by labor law, even after their departure.

15 Data Protection/Data Security

(1) The Agency and the Client shall comply with applicable data protection regulations. In particular, the Agency shall only collect, process, or use personal data of the Client within the scope of its instructions as defined in Section 11(3) of the Federal Data Protection Act (BDSG). The Parties shall oblige their employees in accordance with Section 5 of the BDSG to maintain data confidentiality. Furthermore, the Parties shall conclude a data processing agreement in accordance with Section 11 of the BDSG if the services provided under the contract involve the processing of personal data of the Client by the Agency or if access to personal data of the Client by the Agency cannot be excluded.

(2) It is the responsibility of the Client to regularly back up its data with the care of a prudent merchant. In particular, the Client shall perform a complete data backup of all system and application data immediately before each installation and/or intervention by the Agency or by third parties commissioned by the Agency. The data backups shall be stored in a manner that allows for the restoration of the backed-up data at any time. The Client shall also comply with the technical and organizational requirements in accordance with the Annex to Section 9 of the BDSG. In particular, the Client shall protect the systems subject to its access against unauthorized knowledge, storage, modification, as well as other unauthorized access or attacks of any kind by its employees or third parties. To this end, the Client shall take appropriate measures, in accordance with the state of the art, to the extent necessary, especially to protect against viruses and other malicious programs or routines, as well as other measures to protect its facilities, particularly against intrusions. When using systems not subject to its access, the Client shall impose corresponding obligations on its contractual partners and regularly monitor compliance with these obligations.

16 Individual Agreements, Written Form

(1) Individual contracts as well as any other individual agreements made between the Parties, including side agreements, amendments, and modifications, shall take precedence over these General Terms and Conditions. Such agreements should be documented in a written contract or, unless explicitly agreed otherwise, confirmed in writing by the Agency.

(2) Legally relevant statements and notifications to be made by the Customer to the Agency after the conclusion of the contract (e.g., setting of deadlines, notifications of defects, declaration of withdrawal or reduction) shall require written form to be effective. This also applies to any amendment or revocation of this clause. Electronic documents in text form do not fulfill the requirement of written form.

(3) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall apply to the extent that they are not directly amended or expressly excluded in these General Terms and Conditions.

17 Choice of Law, Jurisdiction

(1) The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods dated April 11, 1980.

(2) The Parties agree that the registered office of the Agency shall be the exclusive place of jurisdiction for all disputes arising out of or in connection with the contract, provided that the Customer is a merchant within the meaning of the German Commercial Code or, at the time of filing a lawsuit, does not have a registered office in the Federal Republic of Germany.