General Terms and Conditions of Tiki-Taka Media GmbH
General Terms and Conditions of Tiki-Taka Media GmbH
Valid as of September 8, 2020
1. Scope:
1.1 The General Terms and Conditions apply to the entire business relationship between the client (hereinafter: contractual partner) and Tiki-Taka Media GmbH (hereinafter: tikitaka) in the version valid at the time of the conclusion of the contract.
1.2 The General Terms and Conditions shall also apply to all future transactions between the contracting parties in the business fields mentioned in section 2.1 of the GTC as agreed upon, even if tikitaka does not explicitly refer to them again. If these contractual terms and conditions are included in business areas other than those mentioned above, they shall apply to all future transactions of the same or similar nature. The above provisions shall apply in particular to new orders placed in writing, by fax, by telephone or by e-mail in the case of an existing business relationship, to requests for changes submitted or to the extension of existing contracts.
1.3 Deviating, conflicting or supplementary general terms and conditions of the contracting party shall not become part of the contract, even if known to tikitaka, unless tikitaka has agreed to their validity in writing. This also applies if tikitaka provides services without reservation in knowledge of conflicting and/or deviating conditions of the contractual partner.
2. Subject matter of the contract:
2.1 Subject matter of the contract is the respective individual agreement between the contracting party and tikitaka. This agreement is based on an individual offer of tikitaka, which tikitaka prepares for the contracting partner beforehand. The individual agreement together with the offer regulates in particular the scope of services to be provided by tikitaka as well as prices and terms of payment, as far as these are not regulated in the General Terms and Conditions. The services offered by tikitaka include in particular:
- Online Marketing Mallorca
- Search engine marketing consultant
- Search engine advertising
- Search engine optimization
- Bannering
- Affiliate marketing
- Product Search Engine Marketing
- Workshops
- Consulting
- Technology Services
- Online Collaboration Marketing
2.2 tikitaka grants the contracting party the possibility of a flexible adjustment, change and/or extension of the concluded contract referred to under 2.1. A request by the Contractual Partner to adjust, amend and/or extend the contract must be made in writing, by fax or by e-mail. If tikitaka agrees with the contracting party’s request for adjustment, change or extension, this will be confirmed to the contracting party in writing, by fax or by e-mail. Only after receipt of the confirmation such a contract amendment becomes valid. Otherwise, the agreement originally concluded shall remain in force.
3. Third-party service providers:
3.1 tikitaka often uses the help of third parties (third party service providers) for the realization and to increase the efficiency of the services listed in the respective contract. Relevant data of the contractual partner shall be made available to these parties within the framework of the cooperation, insofar as this is helpful or necessary for the performance of the service. The contracting party declares already now its consent that tikitaka may transmit such contract-relevant data in particular to the following third party service providers:
- Google Germany GmbH
- Google Ireland Ltd.
- Google Switzerland GmbH
- Google Hong Kong Ltd.
- metaapes GmbH
- Mirago PLC
- metapeople Limited
- Miva Ltd.
- QualiGO Search
- Technology GmbH & Co KG
- Yahoo! Germany GmbH
- Yahooo! Inc.
- Baidu Inc.
- Click Forensics Inc.
3.2 If it should become necessary to transfer data relevant to the contract to a third party service provider other than those mentioned above for the execution of the contract, the contracting party will be informed by tikitaka immediately in writing, by fax or by e-mail. If the Contractual Partner does not object in writing or by fax within 7 calendar days from the notification, the consent to the transmission of relevant data to such third party service provider shall be deemed granted.
3.3 tikitaka does not warrant that the services of the third party service providers, especially network services, are always available without interruption, error-free and secure.
4. Confidentiality obligation / data protection agreement:
4.1 All information, knowledge and documents which the contracting parties have already provided to each other within the framework of the cooperation or will provide or make available in the future, even if they have not been expressly marked as confidential, shall be subject to the duty of confidentiality. This is professional, technical or commercial information which may be in oral or written form, stored on data carriers or in electronic form and which may include, in particular, proprietary, confidential know-how (especially about working principles and methods, consulting strategies, etc.), software in the form of machine and source code, data flow diagrams, interface descriptions, software documentation, inventions, drawings, specifications, formulas, ideas, process technologies, design plans, and all aspects of marketing, sales, product design and pricing policies, etc. This information, also insofar as it is stored on a data carrier, is hereinafter collectively referred to as “Information”.
4.2 The subject of the confidentiality obligation shall also be such information concerning companies affiliated with the contracting parties, other cooperation partners or suppliers, as well as information concerning customers and commercial agents of the contracting parties.
4.3 Also included in the duty of confidentiality are the results of the contractually agreed services. In particular, the contracting party may not use the data created by tikitaka for other projects or pass it on to other agencies or other third parties without the prior written consent of tikitaka. This obligation applies without time limit beyond the end of the contract and refers to specific information of tikitaka (in particular evaluation techniques, special interfaces to tikitaka and access to tools of tikitaka).
4.4 The contracting parties undertake to treat the information referred to in Clause 4.1 as strictly confidential. In particular, the Contracting Parties undertake,
(a) exercise the same care to protect the confidentiality of the information as it exercises in protecting its own confidential information,
b) to use the information only within the scope of the contractual purpose and not to pass it on to third parties or make it accessible to third parties in any other way; Section 3 (3.1; 3.2) of the GTC shall remain unaffected,
(c) upon request of the other Party, to return any information covered by this confidentiality obligation received in physical form, as well as any copies made thereof, or to delete any other stored information and to confirm in writing the completeness of the return or deletion,
(d) promptly notify the other Party in writing of any use or suspected use of the Information by any unauthorized third party and assist the other Party to the best of its ability in detecting and prosecuting any use of the Information by any unauthorized third party.
4.5 The confidentiality obligation shall not apply to information which (i) was already publicly known at the time of transmission or becomes publicly known after transmission without breach of contract, (ii) was already in the possession of the contracting party at the time of transmission or(iii) was or becomes exempt from confidentiality by agreement made in writing, by fax or by e-mail.
4.6 Insofar as the contracting parties come into contact with personal data in the course of their activities, the relevant regulations on data protection shall be observed. The contracting parties shall process or use the personal data exclusively within the framework of the contractual agreement and shall in particular not be entitled to use personal data beyond this or to pass it on to third parties.
5. Liability:
5.1 In case of fraudulent concealment of defects as well as culpable injury to life, body or health and for claims under the Product Liability Act, tikitaka shall be liable to the contractual partner for compensation of the damage incurred. tikitaka is also liable for damages which are based on the fact that tikitaka or one of its vicarious agents culpably violate an obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner may regularly rely (cardinal obligations).
5.2 For other damages tikitaka is only liable as far as the underlying breach of duty is based on intent or gross negligence of tikitaka or one of its vicarious agents, in case of ordinary vicarious agents only in case of intent. Furthermore, tikitaka is not liable for the conduct of its vicarious agent, if tikitaka uses the contracting party as vicarious agent.
5.3 The liability for damages shall be limited to the foreseeable and typically occurring damage. In other cases tikitaka is not liable.
6. Control / release from liability:
6.1 All texts, search terms, titles and URLs that are displayed in search engines or on the website of the contracting party must be released by the contracting party and independently controlled by the contracting party.
6.2 The contractual partner shall be obliged to ensure that the released data or its content, as well as the websites linked by the search results are not illegal or immoral in the respective target countries. In particular, the contracting party shall observe criminal law provisions, the provisions of the law of regulatory offences, the provisions on youth and consumer protection, as well as the Unfair Competition Act (UWG). The contracting party must ensure that neither the search terms released by it, nor its advertisement and / or the websites linked by this advertisement infringe the rights of third parties, in particular not personal rights, rights to a name, copyrights, rights of use, trademark rights or other industrial property rights.
6.3 tikitaka does not check released data of the contracting party and their contents for possible illegality and / or immorality. The Contractual Partner is therefore responsible for ensuring that the data selected by it and its content, as well as the websites linked via these search results, all other forms of use of the advertising measures by the Contractual Partner, as well as all services of the Contractual Partner in the respective target countries do not violate the legal system applicable there, recognized rules of conduct of professional associations (in particular the rules of conduct of the German Advertising Council) and do not infringe any third-party rights. Should third tikitaka for possible infringements or violations of third party rights resulting from the contents and advertising materials selected and released by the Contractual Partner or their contents, the services of the Contractual Partner, the websites linked via the advertising materials of the Contractual Partner and / or any other type of use of the advertising, the Contractual Partner undertakes, to indemnify tikitaka from any liability and to reimburse tikitaka for all costs incurred or incurred by tikitaka due to a (possible) infringement.
7. Cooperation obligations of the contractual partner:
7.1 For the proper execution of the contractual relationship, it is necessary that the contracting party immediately notifies tikitaka in writing of any changes of its name and address as well as the expiration or change of any power of representation granted to tikitaka (in particular a power of attorney). This notification obligation also exists if the power of representation is entered in a public register (e.g. the Commercial Register) and its expiry or amendment is entered in this register.
7.2 Orders or instructions of any kind from the contracting party must make their content unambiguously recognizable. Orders that are not clearly formulated may result in queries that can lead to delays. Amendments, confirmations or repetitions of orders or instructions must be marked as such.
7.3 For the proper performance of the services listed in the contract by tikitaka, the contracting party must grant tikitaka permanent access, access or influence on the contents of the internet pages of the contracting party. For the fulfillment of the services by tikitaka a cooperative collaboration with the contractual partner is required. If this cooperative collaboration is not or partially not possible on the part of the contracting party, tikitaka is not obligated to perform or is only obligated to perform on the basis of the cooperation that has taken place. Cooperative cooperation (or simply, a “cooperative”) primarily means measures such as the implementation by the contracting party itself of necessary changes to the contracting party’s website requested by tikitaka.
7.4 The contracting party is obliged to provide tikitaka with all data of already existing measures required for the fulfillment of the contractual obligations in order to ensure a smooth takeover of the measures.
8. Compensation, reporting:
8.1 The remuneration for tikitaka shall be made according to the individual contractual agreement on the basis of the offer made by tikitaka (cf. clause 2 of the GTC). If costs per click (CPC) are forecast in the offer, this information initially only represents an estimated value, which tikitaka currently assumes when creating the offer. This estimated value may subsequently deviate from the CPC actually achieved, especially if the calculation basis or the costs to be reimbursed by the search engine operators (Google, Yahoo, MIVA, etc.) change.
8.2 tikitaka invoices the contracting party for the Clicks determined on the basis of the reporting carried out by tikitaka for the respective measure plus handling fee (media service). The contract partner agrees to the calculation based on the tikitaka reporting. The number of generated clicks determined by tikitaka reporting may differ from the clicks determined by the search engine operators (Google, Yahoo, MIVA, etc.), as the search engine operators make error corrections (e.g. due to double clicks or ad server discrepancies) in their downstream, self-performed reporting. If the deviation of the reporting of tikitaka with the reporting of the search engine operators does not amount to more than 5% per month on average (increasing as well as decreasing), the contracting party waives a corrected billing on the basis of the reporting carried out by the search engine operators.
8.3 tikitaka checks the number of generated clicks determined on the basis of its own reporting with the generated clicks determined by the reporting of the search engine operators regularly once a year until the end of March of a calendar year for the previous calendar year or, if a contractual relationship should end before, at the end of the contractual term. Should the check reveal that there is a deviation of more than 5% on average between the reports of tikitaka and the reports of the service providers used (Google, Yahoo, Miva etc.), tikitaka will invoice the contract partner for the difference or refund the difference to the contract partner.
8.4 The contracting party receives access to the reporting of tikitaka, which he can view online. Thus, he is informed about the current number of generated clicks, as well as the development of the media budget within the scope of the usual availability. If the contracting party needs further information about the current course of the contract, he has to inform tikitaka in writing, by fax or by e-mail. tikitaka will subsequently provide the contracting party with the requested information to a reasonable extent within the scope of its possibilities.
9. Maturity:
9.1 The services invoiced monthly to the contracting party by tikitaka are due 14 days after invoicing. The contracting party is automatically in default if the invoiced amount is not credited to the account of tikitaka specified in the invoice within the payment period of 14 days.
9.2 If the contracting party is in default with the payment of an invoiced service, the contracting party is tikitaka shall be entitled to charge interest on arrears from the first day of default at a rate of 8 percentage points above the respective prime rate of the European Central Bank (Section 288 (2) BGB), unless the invoice amount was deferred.
9.3 If the contracting party is in default with the payment of an invoice for more than 14 days, tikitaka is entitled to postpone the execution of further services and to stop the campaigns and measures currently carried out for the contracting party and to start them again only after outstanding amounts including interest have been paid to tikitaka. This does not apply if the invoice amount was deferred.
9.4 Furthermore tikitaka in the event that tikitaka circumstances become known after the start of the contract which give rise to doubts about the contractual partner’s solvency or willingness to pay, shall be entitled to postpone the performance of further services – irrespective of whether they result from the contract in question or from another contract conclusion – until full advance payment or an appropriate security deposit has been made. This also includes stopping the campaigns and measures carried out for the contractor.
10. set-off and right of retention:
The contracting partner can only set off against claims of tikitaka with his own claims if his claims are undisputed or legally binding. The same shall apply to a right of retention of the contractual partner.
11 Termination / Notice Periods:
11.1 For contractual relationships limited in time, the notice periods stipulated in the individual contractual agreement shall apply, without prejudice to termination for good cause.
11.2 In the case of contracts or business relationships for which neither a term nor a deviating termination provision has been agreed, either contracting party may terminate the business relationship by giving 6 weeks’ notice to the end of the quarter. This shall not affect termination without notice for good cause.
11.3 Good cause for termination without notice exists if the terminating party cannot reasonably be expected to continue the business relationship. In doing so, the legitimate interests of the respective other contracting party shall be taken into account. An important reason for tikitaka exists in particular if a substantial deterioration or a substantial endangerment of the financial situation of the contracting party occurs or if the contracting party stops or declares to stop payments to tikitaka. In addition, good cause shall exist if enforcement proceedings or insolvency proceedings are instituted against the contractual partner’s assets.
11.4 The Contracting Party shall be granted a special right of termination if in the course of the potential and feasibility analysis of individual sides a non-feasibility of the project is determined. The special right of termination may only be exercised if the non-feasibility of the project is confirmed to the other contracting party in writing by letter post.
11.5 With the termination of the business relationship, amounts still owed by the contracting party to tikitaka shall become due immediately. The contracting party is also obliged to release tikitaka in this respect from all obligations assumed for him or on his behalf. tikitaka is entitled to terminate the obligations assumed for the contracting party or on his behalf.
12. Advertising:
The contracting parties are allowed to advertise their mutual cooperation. However, all advertising measures must be approved in advance by the other contracting party in writing, by fax or by e-mail.
13. Subcontracting; contracting with third parties:
13.1 tikitaka is entitled to have orders also executed by third parties and to use subcontractors for the fulfillment of the services stipulated in writing and to be rendered in the contract.
13.2 Production orders and technical services are placed by tikitaka in its own name and on its own account. The costs associated with awarding the contract to third parties shall be shown separately on the invoice and shall be reimbursed in full by the customer.
14. final provisions:
14.1 Amendments or supplements to these General Terms and Conditions including this provision must be made in writing.
14.2 Should individual provisions of the agreement between tikitaka and the contracting party, including these General Terms and Conditions, be or become void, invalid or unenforceable in whole or in part, the validity and enforceability of all remaining provisions shall not be affected thereby. The void, invalid or unenforceable provision shall be deemed to be replaced by the valid and enforceable provision that most closely approximates the economic purpose pursued by the void, invalid or unenforceable provision in terms of subject matter, extent, time, place or scope. The same shall apply to any gaps in this contract or these General Terms and Conditions.
14.3 The law of the Federal Republic of Germany shall apply.
14.4 The place of performance and jurisdiction shall be Hamburg.