General Terms and Conditions of eFly-amz
1. validity of the general terms and conditions
1.1 In all contractual relationships in which eFly-amz GmbH ("CONTRACTOR") acts for customers
("CUSTOMER") provides services within the scope of Amazon and eBay SEO, e-commerce and consulting services in these areas, these General Terms and Conditions ("GTC") as well as the provisions of the service offer submitted by the CUSTOMER to the CUSTOMER with reference to these GTC and accepted by the latter, including its attachments ("Contract" or "Contract Components"), shall apply exclusively.The GTC shall apply in their respective version as a framework agreement also for future contracts without the CUSTOMER having to refer to them again in each individual case. The defined terms from the underlying contract shall also apply to the GTC. If the GTC and the contract contradict each other, the contract shall take precedence over these GTC.
1.2 Contradictory terms and conditions and provisions that go beyond the integral parts of the contract - in particular in the CUSTOMER's General Terms and Conditions - shall not become part of the contract, even if such terms and conditions are attached to an order of the CUSTOMER and the CUSTOMER executes this order without expressly objecting to these General Terms and Conditions.
2. scope of contract, conclusion of contract, written form
2.1 These GTC shall also apply to the pre-contractual relations between the CUSTOMER and the CLIENT.
2.2 Unless otherwise expressly stipulated in the service offer submitted by the CUSTOMER, the CUSTOMER shall be bound by the service offer for four (4) weeks. Offers submitted by a CUSTOMER may be accepted by the CUSTOMER within four (4) weeks by means of a written order confirmation.
2.3 The conclusion of the contract, subsequent amendments and supplements to the contract as well as all declarations of intent shall require the written form to be effective. This shall also apply to any waiver of the written form requirement. Text form (§ 126b BGB) shall be sufficient for compliance with the written form requirement. Verbal collateral agreements are not permitted and will not be made.
2.4 However, Section 127 (2) of the German Civil Code shall not apply in all other respects.
2.5 Commitments of any kind whatsoever that give rise to obligations on the part of the CONTRACTOR that go beyond those set forth in these GTC or other parts of the contract shall require express written confirmation by the CONTRACTOR by means of a declaration signed by the management of the CONTRACTOR.
3. contractual obligation, setting of deadlines
3.1 Deadlines set by law or contract by the CUSTOMER must be at least ten (10) business days, unless such a duration of the deadline would lead to an unreasonable disadvantage of the CUSTOMER.
3.2 If the CUSTOMER wishes to terminate the contract after the fruitless expiry of a deadline set by the CUSTOMER, the CUSTOMER shall
If the CUSTOMER refuses the contractual performance or if the CUSTOMER wishes to withdraw from the contract (e.g. rescission, termination) and/or claim damages instead of performance, the CUSTOMER must notify the CUSTOMER of the refusal. of the contractual performance, the dissolution of the contract or the claim for damages. together with the deadline in writing. The CUSTOMER may, after the expiry of the the CUSTOMER to pay the costs resulting from the expiry of the time limit and the rights threatened accordingly within ten working days of receipt of a request by the CUSTOMER exercises. In this case, services already rendered shall be reimbursed in accordance with the present terms and conditions. Section 9 shall apply to the assertion of claims for damages.
4. service provision
4.1 The scope of services is described conclusively in the contract. The CUSTOMER shall not be entitled to any further services.
4.2 The employees used by the CONTRACTOR in the performance of the contract shall not be integrated into the CONTRACTOR's business and the CONTRACTOR shall be liable to these
not authorized to give instructions. The CUSTOMER may only give instructions to the contact person named by the CUSTOMER in the contract in accordance with the scope of services described.
4.5 The decision as to which employees the CUSTOMER deploys shall lie solely with the CUSTOMER. The CUSTOMER may withdraw the assigned employees at any time and replace them with others. The CONTRACTOR may also use freelancers and other companies within the scope of the performance of the contract at its own free discretion.
5. participation of the CONTRACTOR
5.1 In every phase and for all matters of cooperation, a close and trusting relationship between the
cooperation between the CUSTOMER and the SUPPLIER and in this context an appropriate cooperation of the CUSTOMER for the performance of the service is necessary. The CUSTOMER therefore actively cooperates in the fulfillment of the order by the CUSTOMER to the extent required, e.g. by providing advertising material, press material or articles on the respective projects or actions, inquiries and/or orders, answering questions and reviewing work results of the CUSTOMER. In addition, the CONTRACTOR shall provide its login data
of the Amazon and/or eBay account to be serviced. The Amazon and/or eBay account is and remains the property of the CUSTOMER even after the termination of the contract.
5.2 The CLIENT shall name a qualified contact person/project manager in writing to the CUSTOMER and shall provide contact data by means of which the contact person or, if applicable, his authorized representative can be reached at any time. The contact person must be in a position to make the necessary decisions for the CUSTOMER or to bring them about without delay. The CUSTOMER shall immediately notify the CUSTOMER in writing of any changes in these contact details. Furthermore, the CUSTOMER shall make available free of charge those employees of the CUSTOMER who have special knowledge that is required for the execution of the contract and the provision of the services agreed herein by the CUSTOMER.
5.3 Disadvantages and additional costs resulting from a breach of the CUSTOMER's cooperation obligations regulated in this § 5 and elsewhere in the contract shall be borne by the CUSTOMER. In particular, the CUSTOMER's payment obligation shall not lapse if services of the CUSTOMER cannot be provided due to deficient or non-provided cooperation services of the CUSTOMER, the contact person named by the CUSTOMER or other employees of the CUSTOMER.
6.1 The remuneration, insofar as it relates to the revenue share, shall be based on the
percentages agreed upon in the contract. All prices are subject to the addition of the applicable
statutory turnovertax, unless the turnover is exempt from turnover tax. The CUSTOMER is entitled, to invoice partial services. Remuneration shall be paid at the beginning of each month for the the preceding month.
6.2 Payments are due within the payment period specified in the respective service contract or offer after receipt of the invoice. A cash discount shall not be granted. After expiry of the respective payment deadline, the CUSTOMER shall charge interest in the amount of the respective applicable statutory default interest rate. Alternatively, the CUSTOMER may issue a SEPA corporate direct debit mandate. The direct debit will be collected approximately 7 days after the invoice date. The period for the pre-notification is reduced to 7 days. The CUSTOMER assures to ensure that the account is covered. Costs incurred due to dishonor or chargeback of the direct debit shall be borne by the CUSTOMER, as long as the dishonor or chargeback was not caused by the CUSTOMER.
6.3 If payments are not made or not made in due time, the CUSTOMER shall not be
obligated to provide services and may suspend performance until final and complete
7.1 The CUSTOMER shall transfer to the CUSTOMER all possibly arising rights of use to product texts, product images without temporal and spatial restrictions.
7.2 The CUSTOMER shall be entitled to the data collected by the CUSTOMER in the course of the contract. The CUSTOMER has the right to use this data for the purpose of fulfilling the contract. All rights to data generated by a party itself shall belong to that party alone.
8.1 In the event of any breaches of duty occurring, the CUSTOMER shall be obligated to
without delay with a detailed description of the problem and the steps to be taken to rectify it.
provide any relevant information in writing.
8.2 The CONTRACTOR does not give any guarantees of any kind, in particular that the
The Company shall ensure that the measures to increase sales resulting from the contract and the General Terms and Conditions are successful.
9 Liability, indemnification, contractual penalty
9.1 The CUSTOMER shall only be liable in full in the event of intent or gross negligence, also on the part of its legal representatives and/or vicarious agents, as well as in the absence of a quality for which the CUSTOMER has assumed a guarantee. In the event of slight negligence, the CUSTOMER shall only be liable to the extent that an obligation is thereby breached which is essential for achieving the purpose of the contract (cardinal obligation) - and only to the extent of the foreseeable damage and limited to the amount stated in the contract for six (6) months. In this case, the CUSTOMER shall also not be liable for indirect damages, consequential damages and/or loss of profit. In all other respects, any liability on the part of the CUSTOMER is excluded. The limitations of liability of this § 9.1 shall also apply in favor of bodies, employees and third parties acting on behalf of the PURCHASER.
9.2 The liability limits of § 9.1 shall not apply in the case of liability for personal injury (injury to life, body, health), in the case of fraudulently concealed defects and in the case of liability based on mandatory statutory provisions, in particular under the Product Liability Act.
9.3 For all claims against the CUSTOMER for damages or reimbursement of futile expenses, a limitation period of two (2) years shall apply from the date on which the CUSTOMER obtains knowledge of the damage or should have obtained knowledge. Without regard to knowledge or awareness, claims for damages shall become time-barred after three (3) years at the latest. years from the time of the damaging event. This does not apply to liability in the event of intent or gross negligence or in the case of personal injury or in the case of liability based on mandatory statutory provisions, in particular under the Product Liability Act. The deviating regulated The limitation period for claims based on material defects and defects of title shall remain unaffected by the provisions of this §9.3. untouched.
9.4 In the event of data loss caused by slight negligence, liability shall be limited to the typical recovery costs that would have been incurred if back-up copies had been made regularly and in accordance with the risk.
9.5 The limitations of liability set out in §§ 9.1 to 9.3 shall also apply accordingly to the CUSTOMER.
9.6 The CUSTOMER undertakes to indemnify the CUSTOMER and its affiliated companies within the meaning of § 15ff. AktG (German Stock Corporation Act) from all claims of third parties (including court costs and statutory costs) at the first request, which third parties may claim against the CUSTOMER or with the affiliated companies within the meaning of § 15 et seq. AktG (German Stock Corporation Act) due to acts of cooperation of the CUSTOMER (§ 5). This indemnification obligation also includes all claims, third parties on the basis of an alleged infringement of a patent, copyright, trademark, a trade secret or from unfair competition through (contributory) acts of the CUSTOMER in accordance with § 5. The CUSTOMER undertakes to indemnify the CUSTOMER against any and all third party claims (including court costs and statutory attorney's fees) brought by third parties against the CUSTOMER on the basis of an alleged infringement of a patent, copyright, trademark or other rights of third parties by the CUSTOMER upon first request.
10. secrecy and data protection
10.1 The CUSTOMER and the CLIENT undertake to keep secret from third parties any documents, knowledge and experience which become known to or are provided to the respective other party in the course of this performance of the contract (including the fact of the conclusion of the contract) ("Confidential Information"). This is in particular all information of the CUSTOMER and the CUSTOMER regarding know-how, business models, processes and (marketing) concepts.
10.2 The confidentiality obligation pursuant to § 10.1 above shall not apply to Confidential Information.
Information disclosed by a Party if and to the extent that (i) it was lawfully in its possession prior to disclosure and without an obligation of confidentiality, (ii) it has been published or otherwise become generally known through no fault of its own, (iii) it was lawfully communicated to it after the conclusion of the Agreement by one or more third parties without an obligation of confidentiality, i.e. without breach of the Agreement by the receiving Party; (iv) they are released in writing by the disclosing Party; (v) they have been developed independently of disclosure by the other Party by it or any of its Affiliates as of the effective date of this Agreement or later; (vi) they have been disclosed by the disclosing Party without corresponding obligations and restrictions.
party have been made accessible to a third party, (vii) they have been disclosed to a third party in accordance with statutory or
required to be disclosed under administrative law, if the disclosing party is promptly notified of such requirement and the scope of the disclosure is limited to the extent possible, or required to be disclosed pursuant to a court order, if the disclosing party is promptly notified of such order
and if there is no possibility to challenge the decision, or (viii) their disclosure to third parties is necessary for the performance of the contract.
10.3 The CUSTOMER may only make confidential information accessible to employees and employees of companies affiliated with it within the meaning of §§ 15ff of the German Stock Corporation Act (AktG) to the extent that this is necessary to exercise the right of use granted to it. The CUSTOMER may only disclose confidential information to third parties with the consent of the CONTRACTOR access to the Confidential Information. The CUSTOMER shall keep all Persons to whom he has authorized access to the CONTRACTOR's confidential information. granted, about the CONTRACTOR's rights to such confidential information and the obligation to and instruct these persons in writing on the observance of secrecy. obligate.
10.4 The confidentiality provisions under this § 10 shall apply after termination of the contract to continued for another two (2) years.
10.5 The CUSTOMER shall be entitled to use the cooperation with the CUSTOMER as a reference for marketing purposes and in particular to name it as a reference in marketing documents (tombstones) or press releases or on the Internet (e.g. its own homepage). In this context, the CUSTOMER is also entitled to use the company name as well as brand appearances (e.g. logo, figurative and word mark) of the CUSTOMER.
10.6 Other publications, press releases and other notices going beyond § 10.5 shall be mutually agreed between the CUSTOMER and the CONTRACTOR prior to publication.
10.7 The parties are obliged to comply with all applicable data protection regulations.
note. The CUSTOMER shall ensure that the CUSTOMER is informed of all relevant facts that go beyond the statutory regulations, the knowledge of which is necessary for reasons of data protection.
and secrecy is required to be made known. Access data (user name, password, etc.), which are used for protected data access by the CUSTOMER, must be stored carefully and must not be made accessible to unauthorized third parties. If the CUSTOMER becomes aware that unauthorized third parties have obtained access data or if a corresponding serious suspicion exists, the CUSTOMER must inform the SUPPLIER immediately in writing.
11. contract duration
11.1 The term, termination and notice periods shall be as set forth in the contract.
11.2 Irrespective of the contractual provisions, termination for good cause shall always be permitted. For each party, good cause shall be deemed to exist in particular (i) if an application for the opening of insolvency proceedings is filed with respect to the assets of the other party or if insolvency proceedings are opened with respect to the assets of the other party or if an application for the opening of insolvency proceedings is rejected for lack of assets, (ii) if enforcement measures are taken against the other party and are not lifted within one month and/or (iii) if
the other party breaches material obligations under the contract and/or the GTC. For the CUSTOMER, good cause shall also exist in particular (i) if the CUSTOMER suspends its payments or if the financial circumstances of the CUSTOMER deteriorate significantly after the conclusion of the contract, (ii) if the majority shareholding in the CUSTOMER changes (change of control) and/or (iii) if the CUSTOMER breaches its duties to cooperate to a significant extent, even in the event of a single breach of the duties to cooperate.
11.3 Any termination must be in writing to be effective.
11.4 In the event of a termination or termination of the Agreement (i) each party shall be obliged to surrender all Confidential Information to the other party or to destroy it upon request and to confirm in writing the completeness of the surrender or the destruction upon request. The foregoing shall not apply to the extent that the receiving Party is obligated under the statutory retention obligations to retain such information independently and not delegable to third parties, or to the extent that the Confidential Information is not retained by the receiving Party due to ongoing or pending legal disputes are required for evidentiary purposes. From the obligation to destruction, Confidential Information is excluded, which is automatically protected by backups of data backup systems and to which there is no systematic access; and (ii) the claim for remuneration of the CONTRACTOR shall expire only after complete payment according to End of contract, as agreed in the contract.
11.5 In the event of termination, remuneration already paid by the CUSTOMER for services rendered by the CUSTOMER cannot be reclaimed.
12. final provisions
12.1 The respective current GTC at the time of the conclusion of the contract shall apply. The CUSTOMER reserves the right to amend the GTC for future transactions at any time. In this case, the intended amendment shall be notified to the CUSTOMER in writing. The changes shall be deemed approved if the CUSTOMER does not object in writing. The CONTRACTOR shall specifically point out this consequence when announcing the changes. The written objection
must be received by the CUSTOMER within four (4) weeks after notification of the changes. If such an objection is made, the contract shall be continued without the proposed changes. The right of the parties to terminate the contract shall remain unaffected.
12.2 The CUSTOMER is not entitled, without the prior written consent of the CUSTOMER, to transfer and/or assign its rights and/or obligations under the contract and these GTC, in whole or in part, to a third party. The CUSTOMER shall be entitled to transfer and/or assign the rights and obligations arising from the contract with the CUSTOMER in whole or in part to a company affiliated with the CUSTOMER within the meaning of §§ 15ff of the German Stock Corporation Act (AktG).
12.3 The CUSTOMER may only offset undisputed or legally established claims. He may not assign his claims to third parties - without prejudice to the provision of § 354a HGB. The CUSTOMER has no right of retention - irrespective of the legal grounds - to Confidential Information and/or other items owned by the CUSTOMER.
12.4 The place of performance of all services of the CONTRACTOR shall be Stuttgart.
12.5 German law shall apply exclusively, to the exclusion of its conflict of law provisions.
Provisions. UN sales law does not apply.
12.6 The exclusive place of jurisdiction for all disputes between the CUSTOMER and the SUPPLIER arising from and in connection with the contract and these GTC shall be Stuttgart, to the extent legally permissible.
12.7 Should any provision of these GTC be or become invalid in whole or in part, the validity of the remaining provisions of these GTC shall not be affected thereby.
Status: June 20