General Terms and Conditions (GTC)
of Socentic Sports – Herberth, Klement & Utz GbR (as at 01.01.2019)
§ 1 Scope of application
(1) The following General Terms and Conditions of Socentic Sports – Herberth, Klement & Utz GbR, Tumblingerstraße 12, 80337 Munich (“Socentic Sports”) apply to all legal transactions and all services of Socentic Sports in Germany and abroad to contractual partners (“Customers”).
(2) These GTC apply only to entrepreneurs within the meaning of § 14 BGB, legal entities under public law or special funds under public law pursuant to § 310 BGB. Entrepreneurs within the meaning of § 14 BGB are natural or legal persons or partnerships with legal capacity who are acting in the exercise of their commercial or independent professional activity when concluding the legal transaction. They are always part of the business relationship and apply exclusively.
(3) Terms and conditions of the customer that contradict or deviate from these General Terms and Conditions do not apply unless Socentic Sports has previously expressly agreed to these terms and conditions of the customer in a written agreement.
(4) For all future businesses with a customer, these General Terms and Conditions of Socentic Sports apply even if their validity is not expressly referred to again. This also applies if the submission or acceptance of an offer by a customer is made with reference to the overriding validity of the customer’s own general terms and conditions.
§ 2 Order of precedence of the contractual provisions
All contractual agreements are in the following order of precedence:
- individual contractual agreements; in particular the content of the offers made by Socentic Sports to the customer.
- these general terms and conditions (GTC)
- legal regulations
In case of contradictions, the first mentioned agreements always have priority over the last mentioned. Gaps are filled by the respective subordinate provisions.
§ 3 Content of the services
The content of the services basically includes social sports marketing and the associated branding by Socentic Sports. The concrete scope of services can be found in the respective offer of Socentic Sports or will be agreed upon.
§ 4 Third-party services/commissioning of third parties
(1) Socentic Sports is entitled, at its own discretion, to carry out the services itself, to make use of expert third parties as vicarious agents in the provision of services that are the subject of the contract and/or to substitute such services (“external service”).
(2) The commissioning of third parties within the framework of an external service is carried out in the name of the customer and for the account of the customer. Socentic Sports will carefully select this third party and ensure that it has the necessary professional qualifications.
(3) Insofar as Socentic Sports commissions necessary or agreed external services, the respective contractors are not vicarious agents of Socentic Sports.
§ 5 Performance obligations of the customer
(1) The customer will inform Socentic Sports of the desired measures and campaigns with the available budget for the agreed period.
(2) The customer will provide Socentic Sports with all necessary access (such as Social Sports Admin rights) for the fulfilment of the order as well as the essential data, product information and templates for the provision of services in accordance with § 2 by the agreed date.
(3) The client has to inform Socentic Sports in time whether he grants approval regarding a proposal, so that the workflow of the agency is not impaired and Socentic Sports is able to provide follow-up work without additional costs and quality risk.
(4) If the client gives approval for a design proposed by Socentic Sports, this is at the same time considered as approval of the cost estimate, if any, associated with the proposal of Socentic Sports.
§ 6 Rights of cooperation, duties to cooperate
(1) Socentic Sports will provide the customer with cost estimates in written form before the start of any cost-incurring work.
(2) At the end of the contract, all documents obtained in each case will be handed over to each other on request, otherwise they will be destroyed, insofar as this is permissible according to the legal regulations.
§ 7 Prices and payments
(1) The customer is obliged to pay the agreed remuneration to Socentic Sports. Socentic Sports provides the services against payment, unless something different is expressly agreed. If the amount of remuneration is not expressly agreed, the remuneration is deemed to be agreed which is also offered to third parties for comparable services (“list price”).
(2) Unless otherwise stated, all prices are exclusive of the applicable statutory value added tax.
(3) All payment modalities are based on the offer in the service description as well as these GTC. Unless otherwise agreed, all payments are due for payment on the 3rd of each month at the latest. The monthly invoice shall be issued in euros.
(4) If the client changes and/or cancels orders, work, planning and the like outside of the current support without authorisation or consent, he will reimburse Socentic Sports for all costs incurred and release it from all liabilities to third parties.
(5) Cash expenses and other costs incurred by Socentic Sports at the express request of the customer will be reimbursed to Socentic Sports. This includes, for example, extraordinary communication, dispatch and duplication costs.
(6) Travel costs will be charged to the customer after his prior written consent.
(7) If Socentic Sports estimates a price, this price estimate is non-binding, unless explicitly agreed otherwise.
(8) Socentic Sports reserves the right to provide services only against advanced payment, if there is an objectively justified reason for this and no overriding interests of the customer are opposed.
(9) In case of default of payment by the customer, the statutory default interest (§ 288 BGB) applies. Socentic Sports is, however, free to claim higher default damages from the customer if they can be proven.
(10) Objections against invoiced payment claims must be made by the customer in writing to Socentic Sports within a period of six weeks after receipt of the invoice. The omission of timely objections by the customer is considered as approval of the invoice, as far as Socentic Sports has specifically pointed out to the customer in the invoice the consequences of an omitted timely objection. Legal claims of the customer in case of objections after the deadline remain unaffected.
§ 8 Right of retention / set-off
(1) The customer may assert the defence of non-performance of the contract without contractual restriction in accordance with the statutory provisions (§ 320 BGB). The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
(2) Without contractual restriction, the customer can set off his claims for non-performance or for defects against claims of Socentic Sports for payment of the remuneration in accordance with the statutory provisions. Claims other than those listed in sentence 1 can only be set off by the customer against claims of Socentic Sports if they are undisputed or have been legally established or are ready for a decision.
§ 9 Liability
(1) The liability of Socentic Sports and its representatives and vicarious agents for slightly negligent breaches of duty is excluded with the exception of the breach of essential contractual obligations (so-called cardinal obligations), in the event of injury to life, limb or health or in the event of claims arising from the Product Liability Act. The Agency shall not be liable for the admissibility of content under competition and trademark law. The liability is limited to the contract-typical and foreseeable damage, but at most up to the agreed order sum.
(2) Socentic Sports will inform the client in due time about legal risks of the content or the design of planned advertising measures that are recognisable to it. If the agency considers a legal (e.g. competition law) examination by a particularly competent person at the expense of the customer necessary for the realisation of the measures, it has to point this out to the customer. If the Agency has pointed out concerns and the customer nevertheless insists on the realisation of the advertising measure, the Agency shall not be liable for any resulting disadvantages and risks. The customer shall indemnify and hold the Agency harmless against any claims by third parties. Notwithstanding this, the Agency shall not be liable for the factual information about the client’s products contained in advertising measures or for the protectability under copyright, design, trademark or brand law of the ideas, proposals, concepts, drafts, etc. supplied within the framework of this contract, unless this protectability was expressly made part of the contract.
(3) Due to printing or transmission errors through no fault of Socentic Sports, which entitle Socentic Sports to contest, the customer cannot claim damages as a consequence of the contestation.
§ 10 Granting of rights of use
(1) Socentic Sports grants the customer a simple right of use to ideas, drafts, designs and work results, limited spatially and temporally to the duration of the contract, unless otherwise agreed. The transfer of the right to third parties requires the written consent of Socentic Sports.
(2) The rights of use are only transferred to the client with the complete payment of the remuneration.
(3) Socentic Sports will inform the customer about any restrictions of the copyright, especially regarding third parties.
(4) Socentic Sports reserves the right to make use of its right to copyrights.
(5) If Socentic Sports uses third parties for the fulfilment of the contract, it will acquire their rights of use and transfer them to the same extent to the customer. The granted possibilities of use refer to all media.
§ 11 Term / Termination
(1) Insofar as the services are provided by Socentic Sports as a continuing obligation, a minimum contract term of six (6) months is agreed, unless otherwise agreed in the separate service agreement. The start of the contract is possible on the 01st or in exceptional cases on the 15th of each month.
(2) A special right of termination is granted with a notice period of two (2) weeks to the end of the third month of the contract. Thereafter, a regular notice period of three (3) months to the end of a full contractual month shall be deemed agreed. In any case, the notice of termination shall be given in writing.
(3) The right to terminate for cause in the case of continuing obligations shall remain unaffected.
(4) If one party terminates this contract extraordinarily, the service provided by Socentic Sports will be invoiced according to the hours worked up to the time of termination. Socentic Sports is obliged to refund the excess amounts paid.
(5) Insofar as Socentic Sports has entered obligations towards third parties in accordance with this contract and after consultation with the client, and these obligations continue beyond the end of Socentic Sports’ contract with the agency, the client will reimburse Socentic Sports for the expenses incurred beyond the end of the contract.
§ 12 Confidentiality
Socentic Sports will treat all business transactions and documents of the customer that come to its knowledge as strictly confidential. The duty of confidentiality applies equally to all employees and/or third parties who have access to the business transactions and documents. The same applies to the customer. The duty of confidentiality shall apply for an unlimited period beyond the duration of this contract.
§ 13 Data protection
The parties process the personal data entrusted to them, if applicable, within the framework of the cooperation in compliance with the applicable data protection provisions. If personal data are transmitted by the customer in the context of the contractual cooperation, the customer assures that he collects, stores, as well as, is entitled to pass on these to Socentic Sports in the context of the contractual cooperation according to the valid data protection regulations and has obtained the necessary declarations of consent for this if necessary. As far as the customer commissions Socentic Sports with the processing of personal data on his behalf or with equivalent measures, the contracting parties will conclude an agreement on commissioned data processing. The customer indemnifies Socentic Sports in respect of all losses, damages and costs, including the costs of legal action, arising from a breach of data protection provisions by the customer, including to the extent that expenses have to be incurred in order to ward off attacks by third parties, including the competent supervisory authorities.
§ 14 General provisions
(1) The place of performance and jurisdiction for all disputes arising from this contract is the registered office of Socentic Sports.
(2) The law of the Federal Republic of Germany applies to contracts of Socentic Sports with the customers to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(3) Changes, additions, terminations and cancellations of service agreements require the written form to be effective.
(4) Headings and subdivisions of these GTC and of the respective agreement serve only to provide a better overview and do not have any legal effect.
