A General Part
1.1 These Terms Of Service (hereinafter: TOS) apply to all offers made by M2L Agency GmbH, Schleißheimer Straße 93A, 85748 Garching (hereinafter: M2L).
1.2 All offers of M2L are exclusively directed to entrepreneurs in the sense of § 14 BGB (hereinafter: Customer).
1.3 If M2L has not made other arrangements with the Customer either in an individual contract or in the context of other written agreements, only these TOS shall apply to the contractual relationship between the parties. Any other TOS of the Customer are expressly rejected. The inclusion of deviating TOS of the Customer requires the written consent of M2L.
1.4 When applying these TOS, the provisions of the general part shall apply unless there are deviating provisions in the special part.
2. M2L’s Services
2.1 M2L offers services and agency services in the field of online marketing. These include in particular search engine marketing (SEM), performance marketing, affiliate marketing, retargeting, social media marketing (SMM), display marketing and influencer marketing. In addition, M2L also offers training in the area of affiliate marketing.
2.2 The specific scope of services is governed by the individual contract concluded between the Customer and M2L as well as by the relevant special section of these TOS.
2.3 The services listed under “Range of Services” in the individual contract are the typical individual services possible under the respective type of contract. These may vary in each individual case depending on the specific project requirements and the Customer’s instructions and assignments. The concrete services, in particular their scope and frequency, shall be determined by M2L depending on the project requirements at its own discretion and depending on the requirements of the Customer.
3. Conclusion of contracts
3.1 M2L shall prepare a concept according to the Customer’s requirements. On the basis of this concept, the parties shall conclude an individual agreement in which the Customer’s objectives as well as the measures to be taken by M2L in order to achieve the objective shall be specified.
3.2 The individual agreement between M2L and the Customer shall be concluded by the Customer accepting M2L’s offer in text form (letter, fax, e-mail).
4. Owed success
4.1 M2L does not owe any success within the scope of the marketing services offered. Insofar as the parties have not expressly agreed on certain parameters as a binding target in the individual contract, these are non-binding targets.
4.2 Insofar as the parties have agreed on binding success-dependent parameters in individual contracts with regard to a specific ranking, the agreed targets shall be deemed to have been achieved if the website optimized by M2L has reached the agreed ranking position at least once. Only the search results displayed in connection with a specific search query, which are unpaid, shall be taken into account.
4.3 In the event that the parties have agreed by individual contract on a success owed elsewhere, M2L shall inform the Customer as soon as the success has been achieved. If the Customer does not object within seven days, the corresponding service shall be deemed to have been accepted.
4.4 M2L shall neither owe a successful bidding strategy nor guarantee that a budget specified by the Customer will be fully utilized.
5. Contract term / termination
5.1 The term of the contract shall be determined by the agreement made between the parties in the individual contract.
5.2 If the parties have agreed on the provision of recurring services (continuing obligation), the initial term shall be 24 months, unless otherwise stipulated in the individual contract. The contract shall be extended by a further twelve months in each case if it is not terminated no later than three months before the end of the contract.
5.3 The option of extraordinary termination for good cause shall remain unaffected. An extraordinary reason shall be deemed to exist in particular if a party culpably breaches the obligations incumbent upon it under this Agreement. Insofar as it is not unreasonable according to the specific circumstances, the party in breach of duty shall be granted a period of 30 days to remedy the situation.
5.4 Good cause shall be deemed to exist in particular if insolvency proceedings are instituted against the assets of a party or if the insolvency proceedings are rejected for lack of assets. Good cause shall also be deemed to exist if the Customer is in default of payment of the agreed remuneration for two months and M2L has sent a reminder to no avail.
5.5 The termination must be in writing (letter, fax, e-mail) to be effective.
6. Change of the agreed scope of services
6.1 If the Customer wishes to change the agreed scope of services, he shall inform M2L in writing (letter, fax, e-mail). Upon receipt of the change request, M2L shall review the request. After the review, M2L shall inform the Customer whether the change request can be complied with or not.
6.2 Within the scope of the review, M2L shall consider in particular the feasibility, the effects on the already existing services, the adherence to deadlines, the duration of the contract and/or the remuneration.
6.3 M2L shall not be obliged to comply with the Customer’s change requests.
6.4 Requests for changes within the meaning of this contract shall be understood to mean changes to the originally agreed scope of services in the form of additional or reduced effort and/or a change to the contract term that were not the subject of the original agreement between the parties.
7. Obligations of the Customer
7.1 The Customer is obligated to perform all necessary acts of cooperation so that M2L can provide the contractually owed service. This provision applies in particular to the provision of access data to accounts, information and documents necessary for M2L to provide the service.
7.2 The Customer is obligated to treat access data received from M2L during the term of the contract as confidential and to take appropriate security measures. If access data provided by M2L – for whatever reason – is lost, becomes known to unauthorized third parties or is otherwise no longer secret, the Customer is obligated to inform M2L immediately.
7.3 Upon request, the Customer is obligated to provide M2L with a responsible contact person with the required expertise who is responsible for all contractual issues. M2L must be informed immediately of any changes to the contact person.
7.4 The Customer is obligated to make backup copies of all information and data received from M2L in the course of the execution of the contract and to store them. M2L may request the data from the Customer at any time.
7.5 The Customer shall ensure that its Internet presence is always accessible and functional. The same applies to the legality of its product or service offering as well as its Internet presence.
7.6 The Customer is obligated to inform M2L without delay of any changes to its offer as well as the associated prices, insofar as these are changes that are the subject of the contractual agreement between the parties. Likewise, the Customer shall inform M2L as soon as products are no longer available.
7.7 Insofar as the Customer provides M2L with content and/or information, the Customer assures that this is free of third-party rights and that the Customer is authorized to use it, as well as that it does not violate applicable law. In the event that claims are asserted against M2L by third parties on the basis of content or information provided and/or suggested by the Customer, the Customer shall indemnify M2L against the claims (including legal defense costs).
7.8 If variable budgets for Third Party Costs have been agreed between the parties in individual contracts (e.g. costs for advertising platforms), the Customer shall be obligated to notify M2L in text form of the budget for the upcoming billing period in a timely manner, but at least three working days prior to the start of the billing period. This budget shall be deemed agreed until notification of a deviating budget. If the Customer does not notify M2L of a budget for the upcoming billing period, the minimum budget agreed in the individual contract shall be deemed agreed upon.
7.9 If the Customer does not fulfill his obligations to cooperate, M2L shall be released from its obligation to perform during this period without having to offer the services separately. The claim to remuneration for this period remains valid.
8. Rights of M2L
8.1 In order to fulfill its contractual obligations, M2L may use the services of third parties (eg. Google, Yahoo, affiliate networks, publishers), unless otherwise agreed in individual contracts. M2L is not obligated to monitor the respective third party providers, unless otherwise regulated in individual contracts.
8.2 Unless otherwise agreed by the parties in the individual contract, M2L shall be permitted to use the Customer’s property rights, in particular trademarks, company logos as well as names within the scope of the performance of the contract.
8.3 Insofar as it is necessary for the fulfillment of the contract, M2L is permitted to transmit information and data of the Customer to the third party in the context of using the services of third parties.
8.4 Insofar as property rights arise in the work results of M2L, in particular copyrights, design rights as well as other intellectual property rights, M2L shall transfer a simple right of use to the Customer at the time the work results arise, which is limited in time until the termination of the cooperation.
8.5 M2L is entitled to name the Customer as a reference. For this purpose, M2L shall also be entitled to depict the Customer’s trademarks and logos on its own website, in social media appearances and in other advertising materials on a non-exclusive basis.
9.1 The amount of the remuneration to be paid by the Customer to M2L shall be determined by the individual contract concluded between the parties. Unless otherwise agreed in the individual contract, the amounts are net amounts.
9.2 Unless otherwise agreed in the individual contract, M2L shall invoice on a monthly basis.
9.3 Invoices are due immediately unless the parties have agreed otherwise in an individual contract.
10.1 M2L is liable for intent and gross negligence. M2L shall be liable for slight negligence for damages resulting from injury to life, body and health as well as in the event of a breach of material contractual obligations, the fulfillment of which is a prerequisite for the proper execution of the contract and the observance of which the Customer may regularly rely on.
10.2 In cases of slight negligence, M2L’s liability is limited to the amount of the typical and foreseeable damage.
10.3 The above provisions shall also apply in favor of the managing directors, executive staff, employees and vicarious agents of M2L.
10.4 In the event of system failures, M2L’s liability is limited to the amount of the remuneration that would have been incurred during the period of the system failure.
10.5 In the event that services of third parties are used within the framework of the performance of the contract, M2L shall not be liable for ensuring that the services of third parties always function without interruption or error. M2L does not guarantee that the services of third parties can meet the legal requirements (e.g. data protection law) for the intended purpose. The Customer itself is responsible for carrying out a legal review by a suitable lawyer.
10.6 M2L shall not be liable for impairments of its offers that are due to causes for which M2L is not responsible. This includes in particular force majeure, actions of third parties not acting on behalf of M2L or system failures outside the sphere of M2L such as Internet outages.
11. Data protection and confidentiality
11.1 The parties undertake to keep secret all information that has become known to them in the course of the contractual relationship. In particular, the Customer shall be prohibited from disseminating, publishing or making known to third parties in any manner whatsoever any information and/or data that has become known to it within the scope of the contractual relationship, as well as from using such information and/or data for activities that are not related to the individual contract concluded between the Parties.
11.2 Customer undertakes to ensure that, with respect to data and information transmitted by M2L to third parties and/or processed by M2L or third parties within the scope of performance of the contract, the statutory provisions, in particular the GDPR with respect to the transmission of data to non-EU countries, are complied with.
12. Other provisions
12.1 Rights and obligations arising from the contractual relationship existing between the parties cannot be assigned without a written agreement.
12.2 The Customer shall not be entitled to set off claims of M2L against its own claims. This shall not apply to claims of the Customer that are undisputed or have been legally established.
12.3 The Customer is not entitled to exercise a right of retention that has not arisen on the basis of the individual contract concluded between the parties.
13. Changes of the TOS
M2L reserves the right to change these TOS at any time and without providing reasons for it. M2L will notify the Customer of changes to these TOS by e-mail or letter. If the Customer does not object to the changes within two weeks of receipt of the change notification, the changes are considered agreed upon. The right of objection and the legal consequences of silence will be pointed out to the Customer separately in the notification.
14. Final Provisions
14.1 The contract concluded between the Customer and M2L shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
14.2 The place of performance for obligations arising from the contract concluded between the parties shall be Munich, unless the parties have agreed otherwise in individual contracts.
14.3 To the extent permissible, the Parties agree that Munich shall be the place of jurisdiction for disputes arising from the contractual relationship.
14.4 The Parties have not entered into any verbal collateral agreements. Amendments, supplements and/or additions to this contract must be made in writing in order to be valid. This shall also apply to any amendment of this clause itself.
14.5 Should any provision of these TOS and/or of the individual agreement concluded between the parties be or become invalid or void in whole or in part, this shall not affect the validity of the remainder of the contract. The parties undertake to replace the invalid or void provision with a provision that comes closest in legal and economic terms to what was intended. This shall also apply in the event that provisions of these TOS and/or the individual agreement concluded between the parties require interpretation or supplementation, as well as in the event of loopholes.
B Special Part
1. Affiliate Marketing
1.1 In the context of commissioning affiliate services, M2L shall be entitled to demand advances from the Customer which are necessary for charging the account in affiliate networks.
1.2 Unless the parties have agreed otherwise in an individual contract, the Customer shall receive a monthly report. The report shall list the most important KPIs (e.g. views, clicks, sales or revenue).
1.3 If releases of payments to third parties (e.g. publisher remuneration) by the Customer are agreed on the basis of the reports, the Customer has one week from receipt of the respective report to declare the release. After expiry of the deadline, the payments shall be deemed to have been released.
1.4 If the Customer commissions M2L with online marketing services, this commission shall be exclusive. The Customer shall not be entitled to commission other service providers with the same or similar services at the same time without M2L’s consent.
2. Search engine marketing
2.1 If the Customer commissions M2L with search engine marketing (SEM) services, this commission shall be exclusive. The Customer shall not be entitled to commission other service providers with the same or similar services at the same time without M2L’s consent.
2.2 For the duration of the commissioning of M2L, the Customer shall not be entitled to make changes to the accounts/accounts with which M2L provides the service without M2L’s consent.
2.3 M2L shall not be liable for the infringement of third party rights, in particular trademark and/or name rights, arising from the use of keywords, regardless of whether the keyword was suggested by Customer or by M2L. Customer shall be obliged to check whether any keywords violate the rights of third parties.
3. Influencer Marketing
3.1 M2L shall endeavor to provide the Customer with a suitable Influencer. Success is not owed by M2L.
3.2 M2L shall not be liable for infringements of rights committed by the procured Influencer. In particular, M2L is not obliged to monitor the Influencer.
Status 22.03.2017 [TOS 2017]
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