General Terms and
Conditions of Contract
Der The Reach Group GmbH, Am Karlsbad 16, 10785, Berlin, Germany (Current as of 8 April 2020)
1.1 The General Terms and Conditions of Contract (hereinafter: GTC) apply to the entire business relationship between the Client (hereinafter: Contractual Partner) and The Reach Group GmbH in the version valid at the time of the conclusion of the contract.
1.2 The GTC shall also apply to all future business between the Contractual Partners in the business areas of Performance Marketing, Affiliate Marketing, Display Marketing, Retargeting, Search Engine Marketing (SEO and SEA), Newsletter Marketing, Conversion Optimisation, Web Analytics and Native Advertising, even if The Reach Group GmbH does not expressly refer to them again. If these contractual conditions are included in business areas other than those mentioned above, they shall apply to all future transactions that are identical or similar. The above provisions apply in particular to new orders placed in writing, by fax, telephone or e-mail in the case of an existing business relationship, requests for changes or the extension of existing contracts.
1.3 Deviating, conflicting or supplementary General Terms and Conditions of Business of the Contractual Partner shall not become part of the contract, even if The Reach Group GmbH is aware of them, unless The Reach Group GmbH has expressly agreed to their validity in writing. This also applies if The Reach Group GmbH provides services without reservation in the knowledge of conflicting and/or deviating conditions of the Contractual Partner.
1.4 Amendments to these GTC shall become effective and automatically an integral part of the contract if the amendments have been made available to the Customer in writing and the Customer has not objected to the amendments in writing within one month of receipt. The Reach Group GmbH must expressly refer to this legal consequence in its letter with the submission of the amended GTC. In the event of an objection by the Customer, the GTC on which the contract was based up to that point remain valid.
1.5 Employees and staff of The Reach Group GmbH are not authorised to enter into verbal or written agreements with binding effect for The Reach Group GmbH that deviate from or go beyond the content of the respective contract concluded and the GTC underlying the respective contract.
1.6 In the event of deviations or contradictions between agreements in a concluded contract and these GTC, the agreements in the contract shall take precedence.
1.7 All agreements, subsidiary agreements, assurances and contract amendments must be in writing. This also applies to the waiver of the written form agreement itself. Oral amendments or additions to the contract are void. The precedence of an individual agreement (§ 305 b BGB) remains unaffected.
2. Subject of the contract
2.1 The services to be provided by The Reach Group GmbH, as well as prices and terms of payment, are each derived from the offer provided by The Reach Group GmbH on which the contract is based, which contains a detailed description of services and, where applicable, supplementary documents and guidelines of The Reach Group GmbH. The Reach Group GmbH’s offer is therefore decisive for the content of the contract, unless otherwise expressly agreed in writing. The documents supplementing the offer are given to the Customer together with the offer. In addition, they are available for inspection at the registered office of The Reach Group GmbH and will be sent to the Customer free of charge as a written document upon written request.
2.2 The Reach Group GmbH grants the Contractual Partner the opportunity to flexibly adapt, change and/or extend the concluded contract referred to in 2.1. Any request by the Contractual Partner for adaptation, amendment and/or extension of the contract must be made in writing, by fax or by e-mail. If The Reach Group GmbH agrees to the adaptation, modification or extension request of the Contractual Partner, this will be confirmed to the Contractual Partner in writing, by fax or by e-mail. Such an amendment to the contract only becomes valid after receipt of the confirmation. Otherwise, the original agreement remains in force.
2.3 Insofar as The Reach Group GmbH provides free services and benefits to the Customer, The Reach Group GmbH reserves the right to discontinue these services and benefits to the Customer at any time after reasonable notice. In this case, the Customer is not entitled to a reduction, reimbursement or compensation for damages.
3. External service providers
3.1 The Reach Group GmbH often uses the services of third parties (external service providers) to implement and increase the efficiency of the services listed in the respective contract. Within the scope of this cooperation, relevant data from the Contractual Partner will be made available to them, insofar as this is helpful or necessary for the execution of the service. The Contractual Partner hereby agrees that The Reach Group GmbH may transfer such contractually relevant data to external service providers.
The Reach Group GmbH makes no guarantee that the services of third-party service providers, especially network services, will always be available without interruption, error-free and secure.
4. Obligation of secrecy / Data protection agreement
4.1 All information, knowledge and documents which the contracting parties have already provided or will provide or make available in the future within the scope of the cooperation, even if they are not expressly marked as confidential, are subject to the obligation of secrecy. This is professional, technical or economic 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 (in particular concerning working principles and methods, consulting strategies etc.), software in the form of machine and source code, data flow charts, interface descriptions, software documentation, inventions, drawings, specifications, formulae, ideas, process engineering, design plans, as well as all aspects of marketing, sales, product design and pricing policy, etc. This information, even if stored on a data carrier, is hereinafter collectively referred to as “Information”.
4.2 The confidentiality obligation also applies to Information concerning companies affiliated with the contracting parties, other cooperation partners or suppliers, as well as Information concerning customers and sales representatives of the contracting parties.
4.3 The obligation of secrecy also includes the results of the contractually agreed services. In particular, the Contractual Partner may not use the data created by The Reach Group GmbH for other projects or pass it on to other agencies or other third parties without the prior written consent from The Reach Group GmbH. This obligation applies without time limitation beyond the end of the contract and refers to specific Information provided by The Reach Group GmbH (in particular reporting techniques, special interfaces to The Reach Group GmbH and access to tools provided by The Reach Group GmbH).
4.4 Each of the contracting parties shall keep all the confidential Information referred to in clause 4.1 strictly confidential. In particular, the parties to the contract obligate themselves to
a) apply the same care to protect the confidentiality of the Information as they would apply to protect their own confidential Information.
b) 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; Clause 3 (3.1; 3.2) of the GCSD shall remain unaffected;
c) upon request of the respective other contractual party to return any Information received in physical form and copies thereof or to delete other stored Information covered by this confidentiality obligation and to verify the completeness of the return or
d) to inform the other contracting party immediately in writing about the use of the Information by unauthorised third parties or the suspicion of such use and to support the other contracting party in the best possible way in the detection and prosecution of the use of the Information by unauthorised third parties.
4.5 The obligation of confidentiality does not apply to Information which (i) was already publicly known at the time of the disclosure or which becomes publicly known after the disclosure without breach of contract, (ii) was already in the possession of the Contractual Partner at the time of disclosure or (iii) was or will be exempted 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 must be observed. The parties to the contract process or use the personal data exclusively within the scope of the contractual agreement and, in particular, are not entitled to use personal data beyond this scope or to pass it on to third parties.
5.1 In the event of malicious concealment of defects, as well as culpable injury to life, body or health, and for claims arising from the Product Liability Act, The Reach Group GmbH shall be liable to the Contractual Partner for compensation for the damage incurred. The Reach Group GmbH is also liable for damages resulting from The Reach Group GmbH or one of its vicarious agents culpably violating an obligation whose fulfilment is essential for the proper execution of the contract and on the observance of which the Contractual Partner must regularly rely (cardinal obligations).
5.2 In particular, The Reach Group GmbH is not liable in its relationship with the Contractual Partner for legal violations by the Contractual Partner within the offers in terms of copyright, competition law, trademark law, consumer law or any other legally significant manner. In this respect, the Contractual Partner shall indemnify The Reach Group GmbH comprehensively and immediately upon first request from all claims asserted by third parties. The claim for indemnification also includes all costs incurred by The Reach Group GmbH in defending itself against the claim.
5.3 The Reach Group GmbH is only liable for other damages insofar as the underlying breach of duty is based on intent or gross negligence on the part of The Reach Group GmbH or one of its vicarious agents, in the case of simple vicarious agents only in the event of intent. Furthermore, The Reach Group GmbH shall not be liable for the conduct of its vicarious agent, if The Reach Group GmbH uses the Contractual Partner as its vicarious agent.
5.4 The liability for damages is limited to predictable and typically occurring damage. In other cases, The Reach Group GmbH is not liable.
6. Control / Indemnification / Copyrights
6.1 All texts, search terms, titles and URLs that are displayed in the search engines or the website of the Contractual Partner must be authorised by the Contractual Partner and independently checked by the Contractual Partner.
6.2 The Contractual Partner is obliged to ensure that the authorised data or its content as well as the websites linked by the search results are not illegal or immoral in the respective target countries. Furthermore, the Contractual Partner must in particular observe criminal law regulations, the provisions of the law on administrative offences, the regulations on youth and consumer protection, as well as the German Act against Unfair Competition (UWG). The Contractual Partner must ensure that neither the search terms authorised by it, nor its advertisement and/or the websites linked by this advertisement infringe the rights of third parties, in particular personal rights, name rights, copyrights, rights of use, trademark rights or other industrial property rights.
6.3 The Reach Group GmbH does not check authorised data from the Contractual Partner and its contents for any possible illegality and/or immorality. The Contractual Partner is therefore itself responsible for ensuring that the authorised data selected by it and the content contained therein, 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, recognised rules of conduct of professional associations (in particular the rules of conduct of the German Advertising Standards Council) and do not infringe any rights of third parties. In the event that a third party makes a claim against The Reach Group GmbH due to possible legal infringements or violations of the rights of third parties resulting from the content and advertising media selected and authorised by the Contractual Partner and/or their content, the services of the Contractual Partner, the websites linked via the advertising media of the Contractual Partner and/or any other type of use of the advertising, the Contractual Partner agrees to indemnify The Reach Group GmbH from all liability and to reimburse The Reach Group GmbH for all costs incurred by The Reach Group GmbH due to a (possible) violation of rights.
6.4 The Reach Group GmbH holds sole copyright to all performance reports to be produced under the contract. The Contractual Partner only acquires rights of use and exploitation of the performance reports if this has been expressly agreed in the contract.
6.5 The Contractual Partner grants The Reach Group GmbH, on a non-exclusive basis and for the duration of the cooperation, all rights of use, reproduction and publication of any and all copyrights, trademarks and corporate identifications of the Contractual Partner that are necessary for the trouble-free fulfilment of the contract, such as, in particular but not exclusively, the right to store and make them available publicly. The Contractual Partner assures The Reach Group GmbH that it is in possession of the necessary rights.
6.6 The Reach Group GmbH is entitled, if this is unavoidable for the fulfilment of the service in accordance with the purpose of the contract, to transfer all rights under Section 6.5 to third parties. An unavoidability exists in particular, but not exclusively, when The Reach Group GmbH makes use of an affiliate network to fulfil the contract.
6.7 Not included in the transfer of the rights from clauses 6.5 and 6.6 is the right to legally pursue infringements of property rights by third parties. The Reach Group GmbH will assist the Contractual Partner in the event of infringements of property rights, though assistance will come at the expense of the Contractual Partner, provided that this is related to the contract between the parties and is liable to legal action.
6.8 The Contractual Partner shall immediately and fully indemnify The Reach Group GmbH from all claims by third parties directed against the use of the data, documents and other information provided by the Contractual Partner upon first request.
7. Contract partner’s duty to cooperate
7.1 For the proper execution of the contractual relationship, it is necessary that the Contractual Partner immediately notify The Reach Group GmbH in writing of any changes to its name and address, as well as the expiry or amendment of any power of representation granted to The Reach Group GmbH (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 that register.
7.2 The content of orders or instructions of any kind issued by the Contractual Partner must be clearly identifiable. Orders that are not clearly formulated can result in follow-up inquiries, which can lead to delays. Changes, confirmations or repeat or instructions must be marked as such.
7.3 The Contractual Partner is always required to provide the necessary cooperation with regard to the services provided by The Reach Group GmbH. In particular, the Contractual Partner must provide all necessary documents and/or information required for The Reach Group GmbH to carry out its services, unsolicited and in a timely manner. Furthermore, the Contractual Partner must grant continuous access to and Influence on the contents of the Contractual Partner’s website. A cooperative working relationship is required for The Reach Group GmbH to perform its services. If this cooperative working relationship cannot be granted in full or in part by the Contractual Partner, The Reach Group GmbH is not obliged to provide services, or only on the basis of the cooperation that has already taken place. A cooperative relationship is primarily understood to mean measures such as the implementation of necessary changes to the Contractual Partner’s internet pages as requested by The Reach Group GmbH. If the Contractual Partner does not perform a required collaborative action, does not perform it in a timely manner or does not perform it properly, the resulting consequences (e.g. delays, additional costs) shall be borne by the Contractual Partner.
7.4 The Contractual Partner is obliged to provide The Reach Group GmbH with all data required for the fulfilment of the contractual obligations of already existing measures in order to ensure a smooth adoption of the measures.
7.5 If action is not taken in response to a warning issued due to a breach of the above duties and obligations by the Customer, The Reach Group GmbH is entitled to terminate the contractual relationship without notice.
7.6 If The Reach Group has to provide services that must be accepted under the agreement, the Contractual Partner must declare acceptance in a timely manner. The Contractual Partner must also authorise the disclosure of performance results. That disclosure does not result in a transfer of risk at the expense of The Reach Group.
8. Corrective action and change requests
If corrective action is contractually agreed in the services agreement the following procedure applies:
8.1. At the beginning of the corrective stage, the Contractor hands over the work result to the Customer and asks the Customer in writing to declare whether the work result is in accordance with the contract. The Customer shall declare in writing (e.g. by e-mail) within three working days that the work result is in accordance with the contract or in which point a correction is still necessary.
8.2. If the request for corrective action is not a request for change in accordance with Section 8.6 of these contractual terms and conditions, the Contractor shall revise the work result without separate remuneration.
8.3. If the Customer expresses further requests for corrective action after the revision, the Contractor must inform the Customer that a further revision is not included in the services agreement and that the further correction request will be treated as a change request.
8.4. In the event that several corrective stages are included in the services agreement, the procedure applies accordingly.
8.5 If the Customer wishes to make a change to the services owed by the Contractor, the Customer shall address this request for change to the Contractor in writing. When doing so, the following must be taken into account:
8.6. A request for change shall be deemed to exist, inter alia, if a) the Customer makes new requests in relation to the services agreement which have not yet been agreed; or b) the Customer makes a request about the services agreement which was previously expressly agreed as not belonging to the services provided; or c.) the Customer specifies a request for the services agreement differently than previously agreed
8.7. The Contractor shall examine what effects the change request has on the services agreement, in particular with regard to remuneration and deadlines. Contractor shall inform Customer in writing if the change request is not reasonable for Contractor or under which conditions the change request can be implemented.
9. Remuneration and reporting
9.1 The Reach Group GmbH is remunerated in accordance with the individual contractual agreement on the basis of the quotation prepared by The Reach Group GmbH (cf. Section 2 of the GCU). If costs per click (CPC) or volume are forecast in the offer, this information initially only represents an estimate, which The Reach Group GmbH assumes at the time the offer is prepared. This estimated value may subsequently deviate from the CPC or volume actually achieved, in particular if the calculation basis or the costs or volumes delivered to be reimbursed by the advertising service providers, partners or advertising media used change. If the work is remunerated, it is generally invoiced in daily rates per person day, whereby a person day corresponds to eight hours of time without taking necessary breaks into account. If the actual working time differs from the person day, a pro-rated increase or decrease in remuneration is owed.
9.2 The Reach Group GmbH will invoice the Contractual Partner for the units, expenses, clicks, delivery quantities or volumes determined on the basis of the reporting of the respective measure carried out by The Reach Group GmbH, together with any agreed special remunerations and handling fees. The Contractual Partner agrees to the calculation based on The Reach Group GmbH reporting. The number of delivery volumes determined by The Reach Group GmbH reporting may differ from the volumes determined by the Client (due to double clicks or ad server discrepancies, for example). Insofar as the difference between the reporting of The Reach Group GmbH and the reporting of the Customer does not amount to more than an average of 10% per month ( increase or decrease), the invoice prepared by The Reach Group GmbH is deemed to be approved.
9.3 The Reach Group GmbH will regularly review the number of units, efforts, clicks, delivery quantities or volumes generated based on its own reporting in consultation with the Customer. In the event of differences of more than 10% of the monthly delivery quantity, an economically viable solution (e.g. cost sharing) shall be mutually agreed between the Contractual Parties.
9.4 To the extent agreed and technically feasible, the Contractual Partner will be granted access to The Reach Group GmbH’s reporting, which can be viewed online. In this way, the Customer is informed about the current quantities delivered and the development of the media budget within the scope of usual availability. Should the Contractual Partner require additional information about the current progress of the contract, it must notify The Reach Group GmbH in writing, by fax or by e-mail. The Reach Group GmbH will provide the Contractual Partner with the desired information within the scope of its possibilities and to the extent appropriate. A claim to this does not exist in principle.
10. Due date
10.1 The Reach Group GmbH’s monthly invoiced services to the Contractual Partner are due 14 days after the invoice is issued. The Contractual Partner is automatically in arrears if the invoiced amount is not credited to the account of The Reach Group GmbH stated in the invoice within the payment period of 14 days.
10.2 If the Contractual Partner defaults on the payment of an invoiced service, The Reach Group GmbH is entitled to charge interest on arrears from the first day of default at a rate of 8 percentage points above the respective base interest rate of the European Central Bank (§ 288 para. 2 BGB), unless an extension of payment was granted for the amount invoiced.
10.3 If the Contractual Partner is in default of payment of an invoice for more than 14 days, The Reach Group GmbH is entitled to suspend the execution of further services and to stop the campaigns and measures currently being carried out for the Contractual Partner and only to recommence them once outstanding amounts including interest have been paid to The Reach Group GmbH. This does not apply if an extension has been provided on the amount of the invoice.
10.4 Furthermore, in the event that The Reach Group GmbH becomes aware of circumstances after the commencement of the contract that give rise to doubts about the solvency or willingness to pay of the Contractual Partner, The Reach Group GmbH is entitled to suspend the execution of further services – regardless of whether they result from the relevant or any other conclusion of contract – until full prepayment has been made or an appropriate deposit has been made as security. This also includes the continuation of campaigns and measures carried out on behalf of the Contractual Partner.
11. Off-setting and retention
The Contractual Partner may only offset claims of The Reach Group GmbH against its own claims if its claims are undisputed or legally enforceable. The same applies to a right of retention of the Contractual Partner. Furthermore, these can only be asserted if they are based on the same contractual relationship as the claims against which a right of retention was asserted.
12. Termination / notice period
12.1 For contractual relationships that are limited in time, the notice periods stipulated in the individual contractual agreement shall apply without prejudice to the termination for good cause.
12.2 Contracts for which no period of notice has been agreed, as well as contracts concluded for an indefinite period of time, may be terminated with a notice period of at least two months prior to the end of a quarter.
Good cause for termination without notice exists if the party terminating the contract cannot reasonably be expected to continue the business relationship. The legitimate interests of the other party shall be taken into account. An important reason for The Reach Group GmbH exists in particular if a significant deterioration or a significant threat to the financial circumstances of the Contractual Partner occurs or the Contractual Partner suspends payments to The Reach Group GmbH or declares that it intends to suspend them. In addition, good cause exists if a compulsory execution is levied against the Contractual Partner or insolvency proceedings are initiated against the assets of the Contractual Partner.
12.4 The contracting parties shall be granted a special right of termination if, in the course of the potential and feasibility analysis of individual pages, a non-feasibility of the project is determined. The special right of termination can only be exercised if the non-feasibility of the project is confirmed in writing by letter to the other party by both parties.
12.5 Upon dissolution of the business relationship, any amounts that the Contractual Partner still owes The Reach Group GmbH are due immediately. The Contractual Partner is also obligated to indemnify The Reach Group GmbH in this respect from all obligations assumed for or on behalf of it. The Reach Group GmbH has the right to terminate the obligations assumed for or on behalf of the Contractual Partner.
The Parties are allowed to publicise their mutual cooperation. However, all promotional measures must be approved in advance by the other party to the contract in writing, by fax or by e-mail. The use for reference purposes can be made without consent.
14. Final provisions
14.1 Amendments or supplements to these GTC, including this provision, must be made in writing.
14.2 If any provision of the agreement between The Reach Group GmbH and the Contractual Partner, including these GTC, is or becomes void, invalid or unenforceable in whole or in part, the validity and enforceability of all remaining provisions shall not be affected. The void, ineffective or unenforceable provision shall be deemed replaced by the effective and enforceable provision which comes closest to the economic purpose of the void, ineffective or unenforceable provision in terms of object, measure, time, place or scope. The same applies to any gaps in this contract or these GTC.
14.3 The law of the Federal Republic of Germany shall apply.
14.4 Place of fulfilment and jurisdiction is Berlin.