General Terms and Conditions of clicks digital
Part 1: General provisions
Part 2: Additional provisions – SEO
Part 3: Additional provisions – Online advertisements | SEA
Part 1: General provisions
(1) All contracts with clicks digital GmbH, An der Mauer 1, 01067 Dresden, Germany (hereinafter referred to as “clicks”) and the customer are subject to these General Terms and Conditions of Business (GTC).
(2) These General Terms and Conditions apply exclusively. Conflicting or supplementary General Terms and Conditions of the customer shall not become part of the contract.
(3) Clicks is entitled to amend these GTC, provided the amendments are reasonable for the customer. Clicks will inform the customer of the intended changes in a timely manner by e-mail or post. If the customer does not object within 6 weeks after receipt of the notification, the changes to the GTC shall be deemed accepted. In the notification, clicks shall inform the customer of his right to object and of the legal consequences of the expiry of the deadline.
II. Clicks services
The services owed by clicks are rendered with great care and conscientiousness. However, clicks shall only owe a concrete success if this has been expressly agreed. The examination of legal questions is not part of the contract; it is the responsibility of the customer to ensure that the planned advertisements and campaigns comply with applicable law, in particular data protection, copyright, competition and trademark law.
III. Duties of cooperation of the customer
(1) The customer shall be obliged to support clicks in the provision of the contractual services through appropriate cooperative actions and in particular to provide all information and documents necessary for this purpose. The customer shall, without being requested to do so, draw attention to circumstances which are unknown to clicks and which are relevant to the provision of services. The customer shall be obliged to check the legal conformity of the advertisements and other campaign content created for him without separate request and to inform clicks immediately of any violations of applicable law or the rights of third parties or any concerns in this regard.
(2) The customer shall name a contact person and a deputy as permanent reference persons for all matters relating to the respective contract. They are to be enabled to either make all decisions concerning the contract themselves or to bring them about promptly. In addition, the customer shall make available those employees whose special knowledge is necessary to realise the purpose of the contract.
(3) If the customer does not comply with his obligations to cooperate and clicks is therefore unable to provide the service owed in whole or in part within the agreed time, the full remuneration shall remain due and the period agreed for the provision of the service shall be extended accordingly.
IV. Guarantee of ownership of rights and legal conformity, indemnification by customers
(1) The customer guarantees that he/she has the respective rights of use regarding the information provided to clicks for the desired online marketing services, in particular texts, search terms (keywords), images and photos.
(2) In addition, the customer guarantees that the use of the content referred to in paragraph 1 by clicks within the scope of the contract does not infringe the rights of third parties, in particular trademark and copyright laws, or otherwise violate applicable law.
(3) The customer shall indemnify clicks upon first request from all claims of third parties, in particular claims for copyright and trademark infringements, which should be asserted against clicks in connection with the exercise of the contractual rights. The customer shall immediately notify clicks of any impairments of the rights covered by the contract. Clicks is entitled to take appropriate measures itself to defend itself against claims by third parties or to pursue its rights. The customer must coordinate his own measures with clicks in advance. The indemnification also includes the reimbursement of costs incurred by clicks as a result of legal action/defence.
V. Termination of contract
The termination of the contractual relationship must be in writing. The written form shall be deemed to have been observed if it is transmitted by telecommunications, in particular by fax or e-mail, provided that a copy of the signed declaration is transmitted.
VI. payment, terms of payment
(1) All prices quoted by clicks are exclusive of the statutory value added tax.
(2) The remuneration payable to clicks is due for payment within 10 days of receipt of a proper invoice. The date of payment shall be determined by the date of receipt by clicks.
(3) The offsetting of counterclaims by the customer or the retention of payments due to such claims is only permissible insofar as the counterclaims have been acknowledged, are undisputed or have been legally established.
(4) Clicks is entitled to render outstanding services only against advance payment or the provision of security if, after conclusion of the contract, clicks becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the customer and which jeopardise the payment of clicks’ outstanding claims by the customer arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
(5) Claims against clicks can only be assigned to third parties with the consent of clicks. The provision of § 354a HGB (German Commercial Code) remains unaffected.
(1) Claims of the customer for damages are excluded. Excluded from this are claims for damages by the customer arising from injury to life, body or health or from the violation of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by clicks or its vicarious agents. Essential contractual obligations are those whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner may regularly rely.
(2) In the event of a breach of essential contractual obligations, clicks shall only be liable for the foreseeable damage typical for the contract if this was caused by simple negligence, unless the customer’s claims for damages are based on injury to life, body or health.
(3) The liability of clicks under the Product Liability Act and other legally binding liability regulations remains unaffected by the above limitations and exclusions of liability.
(4) The above exclusions and limitations of liability apply to the same extent in favour of clicks’ legal representatives, employees and other vicarious agents.
VIII. Place of Jurisdiction, Choice of Law, Severability Clause
(1) If the customer is a merchant, a legal entity under public law or a special fund under public law, or if the customer has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between clicks and the customer shall be, at the discretion of clicks, either Dresden or the customer’s registered office. In these cases, however, Dresden shall be the exclusive place of jurisdiction for legal actions against clicks. Mandatory legal provisions regarding exclusive places of jurisdiction remain unaffected by this provision.
(2) The law of the Federal Republic of Germany applies exclusively, excluding international uniform law.
(3) Insofar as the contract or these GTC contain loopholes, those legally effective regulations shall be deemed agreed to fill these loopholes which the contractual partners would have agreed to in accordance with the economic objectives of the contract and the purpose of these GTC if they had been aware of the loophole.
Part 2: Additional provisions – SEO
I. Scope of application
These additional terms and conditions become part of the contract if the customer has commissioned clicks to carry out search engine optimisation (SEO).
II. Services of clicks
(1) Clicks revises contractual websites with the aim of improving their placement in the organic search results of search engines.
(2) The client is aware that SEO is subject to constant change. The success of SEO depends on partly unforeseeable changes in search engine algorithms and measures of third parties who also do SEO. The parties are therefore in agreement that the achievement of a certain success is not owed.
III. Obligations of the customer to cooperate
The customer is obliged to check the contents published by clicks on the customer’s website, in particular whether the contents violate applicable rights or the rights of third parties. If the customer discovers infringements or if there are at least concerns, he shall notify clicks immediately.
Part 3: Additional provisions for online advertisements and SEA
I. Scope of application
These additional conditions become part of the contract if the customer has commissioned clicks with the placement of online ads, such as Facebook Ads and/or search engine advertising (SEA).
II. Services of clicks
(1) Clicks conducts online advertising or SEA campaigns for the customer with the aim of increasing the customer’s awareness and attracting more visitors to the customer’s website.
(2) The outcome of the campaigns pursuant to paragraph 1 depends in part on factors that cannot be influenced by clicks. The parties therefore agree that the achievement of a certain success is not owed.
III. Control and cooperation obligations of the customer
(1) The customer shall provide clicks with the account number of the SEA program used by the customer – if available.
(2) Existing access data to an account of the customer shall be transmitted by the customer to clicks, insofar as this is necessary for the fulfillment of the contract or is not expressly agreed upon otherwise in individual cases. In any case, the customer shall remain obligated to regularly and independently check account accesses and account performance and, if necessary, to make backups of the account.
(3) If clicks provides the customer with reports, these are to be checked by the customer immediately. In particular, the customer must check whether the content or keywords used by clicks are identical or confusingly similar to the names of competitors (companies, trademarks, company logos). If the customer discovers that the contents or keywords used by clicks violate applicable law or the rights of third parties, he/she shall inform clicks immediately.
(4) The customer shall inform clicks immediately and without separate request about changes in the availability of products in order to prevent the emergence of disputes under trademark law.
(5) The customer must provide the agreed budget, if applicable. The customer is aware that the budget will be used up sooner or later, depending on the behaviour of the search engine users and the demand for the corresponding keywords. It is then incumbent on the customer to provide a new budget.
(6) The customer is aware that clicks will create links to the customer’s website and its sub-pages. The customer shall ensure the accessibility of the website. Should there be any changes to the website URLs, the customer must inform clicks immediately.