TERMS & CONDITIONS
1. Scope
1.1 These Terms and Conditions ("Terms") govern all deliveries, services and offers made by adpeak GmbH ("adpeak") to its clients (each a "Client"). They form part of every contract between adpeak and the Client and apply equally to all future deliveries, services and offers, whether or not agreed again.
1.2 The Client’s own terms, and those of any third party, do not apply. This holds even where adpeak does not object to them in an individual case, and even where adpeak refers to correspondence that contains or refers to them.
2. Services
2.1 adpeak provides consulting and agency services to operators of online shops in e-commerce, online marketing and branding. Unless expressly agreed otherwise in writing, adpeak owes the exercise of professional skill and care; it does not owe a work product or any specific result.
2.2 The Client shall provide all cooperation required of it, in full and promptly on adpeak’s first request. Where the Client fails to do so and adpeak is thereby prevented from performing, adpeak remains entitled to its fees in full.
2.3 The Client acknowledges that third-party platforms such as Facebook and Google may stop or suspend advertising campaigns at any time and without stating reasons. adpeak is not responsible for such action and remains entitled to its fees if it occurs.
2.4 adpeak may determine the manner and means of performing its services at its reasonable discretion within the meaning of § 315 BGB.
2.5 adpeak may perform through subcontractors and other third parties.
2.6 Media spend and other amounts payable to third-party platforms are not included in adpeak’s fees and are borne by the Client.
2.7 Where the Client instructs adpeak to pause a campaign, or where a campaign must be paused for reasons not attributable to adpeak, adpeak remains entitled to its fees.
2.8 The Client is solely responsible for the legal compliance of its advertisements, landing pages and similar materials. adpeak recommends that the Client have these reviewed by its own legal counsel before use.
2.9 Where image or film material is to be used in the course of the engagement, the Client shall grant adpeak all rights of use and adaptation required to perform the contract, or shall procure a sufficient licence.
2.10 Services booked with adpeak may not be transferred to third parties.
2.11 Where adpeak makes domains, landing pages or websites available to the Client, it does so for the contract term only, unless individually agreed otherwise. Continued provision beyond the contract term is not agreed unless expressly stated.
3. Formation of contract
Contracts between adpeak and the Client may be concluded orally, in writing or in text form.
4. Acceptance
4.1 adpeak’s services are governed by the law on contracts for services (Dienstvertragsrecht). Clauses 4.2 to 4.6 apply only where an individual service exceptionally qualifies as a contract for work (Werkvertragsrecht) and therefore requires acceptance.
4.2 adpeak may require the Client to accept each part of the services on its completion and, once all adjustments have been made, to accept the services as a whole.
4.3 adpeak may call on the Client to declare acceptance within one week. The services are deemed accepted on expiry of that period unless the Client has notified adpeak in writing of the defects still to be remedied. The Client shall record any defects in a defects list and deliver it to adpeak; the Client bears the risk of transmission.
4.4 Where material defects are identified on inspection, adpeak is entitled to remedy them.
4.5 The services are likewise deemed accepted if the Client does not respond in writing within seven working days of adpeak’s request for acceptance.
4.6 Subject to clause 13, the Client has no further claims in respect of defects, and in particular no claim to the cost of remedying them itself, to damages, or to reimbursement of wasted expenditure.
5. Fees and payment
5.1 The prices quoted by adpeak are binding and are exclusive of statutory VAT.
5.2 Unless individually agreed otherwise, fees are payable in full and in advance, immediately on conclusion of the contract. A SEPA direct debit authorisation granted to adpeak continues to apply to the ongoing business relationship until revoked.
5.3 Where payment by SEPA direct debit is agreed, the Client shall grant adpeak a written SEPA mandate after the contract is concluded. adpeak supplies the mandate on request.
5.4 adpeak issues a VAT invoice, which it may do through a third party.
5.5 Where a direct debit cannot be collected and is returned, the Client shall transfer the amount due within three working days of the return and bear the costs arising from it.
5.6 Either party may set off only against claims that the other has acknowledged or that have been finally determined by a court. The same applies to any right of retention.
6. Term and termination
6.1 The contract runs for the minimum term agreed between the parties, and may not be terminated before the end of that term. Unless notice is given no later than four weeks before the end of the minimum term, the contract renews on the same terms for a further period of the same length. A setup fee already charged is not charged again on renewal.
6.2 Termination for convenience during the contract term is excluded.
6.3 Notice of termination must be given in writing, meaning a signed document within the meaning of § 126 BGB.
6.4 The right of either party to terminate for good cause is unaffected.
7. Late payment
7.1 Time for performance by adpeak does not begin to run until adpeak has received payment of the invoice and the Client has supplied, in full, the data and cooperation the services require.
7.2 Where the Client is in arrears with payments due, adpeak may suspend further performance until payment is made in full.
7.3 Where payment by instalments has been agreed and the Client is in arrears with two or more instalments, adpeak may terminate the contract for cause and discontinue the services. In that event adpeak may claim as damages the fees that would have fallen due up to the next ordinary termination date.
8. Performance
8.1 adpeak shall perform the agreed services with due care and in accordance with its offer, and may use third parties in doing so without restriction.
8.2 Where adpeak is prevented from performing for reasons within the Client’s sphere of responsibility, adpeak remains entitled to its fees.
9. Conduct
The Client shall conduct itself towards adpeak in accordance with the standards of a prudent merchant. adpeak reserves the right to pursue civil remedies, and to bring criminal complaints without prior notice, in respect of unlawful or unfounded statements about adpeak or its services, in particular untrue statements of fact and abusive criticism, whether made by clients, competitors or other third parties.
10. Third-party rights
The Client warrants that the materials it supplies to adpeak, including photographs, text and video, are free of third-party rights, or that the permissions required for the purposes of the contract have been obtained. The Client shall indemnify adpeak against any third-party claims arising in this respect.
11. Rights of use
11.1 adpeak grants the Client a non-exclusive, non-transferable right to use the work product adpeak creates and supplies, for the duration of the contract term only. Work product means all work and services, or parts of them, created by adpeak for the Client under the contract.
11.2 Clause 11.1 applies only once the Client has paid adpeak’s fees under the contract in full.
11.3 Where payment by instalments has been agreed, the right of use passes only on payment of the final instalment, unless individually agreed otherwise.
11.4 The Client may not pass the work product to third parties, including affiliated companies, and may not adapt it within the meaning of § 23 UrhG.
12. Right of withdrawal
No right of withdrawal exists for entrepreneurs within the meaning of § 14 BGB or for merchants under the German Commercial Code (HGB), whether by operation of law or by grant from adpeak.
13. Liability
13.1 adpeak is liable in damages, on whatever legal basis, only for intent and gross negligence. In cases of ordinary negligence adpeak is liable only:
(a) for injury to life, body or health; and
(b) for breach of a material contractual obligation, meaning an obligation whose performance is essential to the proper performance of the contract and on which the Client may reasonably rely. In that case liability is limited to the foreseeable damage typical of this type of contract.
13.2 Within the limits of clause 13.1, adpeak is not liable for loss of data or programs. Liability for loss of data is limited to the cost of restoration that would typically have been incurred had backups been taken regularly and in a manner appropriate to the risk. Liability under the Product Liability Act, and liability arising from any guarantee given, are unaffected.
14. General
14.1 Variations to these Terms are effective only if agreed in writing. Individual agreements with the Client, including side agreements, supplements and amendments, take precedence over these Terms in every case; a written contract or adpeak’s written confirmation governs their content.
14.2 These Terms and the contractual relationship as a whole are governed by German law, excluding the UN Convention on Contracts for the International Sale of Goods.
14.3 The place of performance is adpeak’s registered office. The courts at adpeak’s registered office have exclusive jurisdiction over disputes with merchants.
14.4 If any provision is or becomes invalid or unenforceable, the remaining provisions remain in force. The parties shall replace the invalid or unenforceable provision with a valid provision that comes closest to its intended commercial effect.
14.5 These Terms exist in a German and an English version. The German version governs.