1. APPLICABILITY; CONCLUSION OF CONTRACT
1.1 WellSpace CO. (hereinafter “Agency”) shall provide its services exclusively on the basis of the following General Terms and Conditions (GTC). They shall apply to all legal relationships between the Agency and the Client, even if they are not expressly referred to. The GTC shall exclusively apply to legal transactions with entrepreneurs, i.e. B2B transactions.
1.2 The version applicable at the time of conclusion of a contract shall be relevant. Deviations from these GTC and other supplementary agreements with the Client shall only be effective if they have been confirmed by the Agency in writing.
1.3 Terms and conditions of the Client, if any, shall not be accepted, even if the Agency knows them, unless expressly agreed otherwise in writing on a case-by-case basis. The Agency expressly objects to GTC of the Client. No other objection of the Agency to the Client’s GTC shall be required.
1.4 The Client shall be informed about amendments to the GTC; they shall be deemed agreed unless the Client objects to the amended GTC in writing within 14 days; in the information the Client will be expressly informed about the consequence of silence on his part.
1.5 If any provisions of these General Terms and Conditions are ineffective, the binding nature of the remaining provisions and the contracts concluded on the basis of the same shall not be affected. The ineffective provision shall be replaced by an effective provision which comes as close as possible to the meaning and purpose of the ineffective one.
1.6 The Agency’s offers shall be subject to change without notice and non-binding.
2. ONLINE ADVERTISING
Before an order is placed the Agency expressly points out to the Client that providers of “social media channels” (e.g. facebook; hereinafter referred to as Providers), in their terms and conditions of use, reserve the right to reject or remove advertisements or promotional appearances for any reason whatsoever. Accordingly, Providers are not obliged to forward content or information to users. Thus, there is a risk, which cannot be calculated by the Agency, that advertisements or promotional appearances are removed for no reason. Although in the case of a complaint of a different user Providers do offer an opportunity to reply, the content will be immediately removed also in that case. In that case restoring the original, lawful condition may take some time. The Agency works on the basis of the Providers’ terms and conditions of use, on which it has no influence, and also makes them the basis of Client orders. By placing the order the Client expressly acknowledges that those terms and conditions of use (co-)determine the rights and duties of a contractual relationship, if any. The Agency intends to execute the Client’s order to the best of its knowledge and belief and to comply with the policies of “social media channels”. Due to the terms and conditions of use that are currently applicable and the fact that every user can easily allege a violation of the law with the aim that contents will be removed, the Agency cannot guarantee that the ordered campaign can be retrieved at any time.
3. INTELLECTUAL PROPERTY
3.1 Work represented in this contract will be considered work for hire.
3.2 Intellectual property rights for components developed or designed for the specific purpose of The Clients campaign will become the property of The Client.
3.3 Resources developed by The Agency that only help to facilitate the campaign or are by-products of The Agency’s time remain the property of The Agency.
4. SCOPE OF SERVICES; ORDER PROCESSING; CLIENT’S DUTIES TO CO-OPERATE
4.1 The scope of the services to be rendered shall be based on the specifications of the Agency Agreement or the Agency’s acknowledgment of order, if any, and the briefing report, if any (“Offer Documents”). Subsequent modifications of the services shall be subject to the Agency’s written confirmation. When executing the order the Agency shall be free in its discretion within the framework specified by the Client.
4.2 It is understood that the Agency is acting in the best interest of the Client, and with the full authority of the Client as outlined in the Agency Agreement. The Agency may request Client approval before moving forward with particular marketing activities. At such time, proofs shall be checked by the Client and released within three working days of receipt by the Client. If they are not released within that period, they shall be deemed approved by the Client. After that period has expired with no reply from the Client they shall be deemed accepted by the same.
4.3 The Client shall make accessible to the Agency completely and in time all information and documents required for rendering the service. The Client shall notify the Agency of all circumstances that are relevant to execution of the order, even if they become known only in the course of execution of the order. The Client shall bear the costs incurred due to the fact that work has to be done again by the Agency or is delayed because of his incorrect, incomplete or subsequently modified specifications.
4.4 In addition, the Client is obliged to clear the documents made available by him for execution of the order (photos, logos, etc.) for potential copyrights, trademark rights, marks or other rights of third parties (rights clearance) and guarantees that the documents are free from rights of third parties and may therefore be used for the desired purpose. In the case of merely slight negligence or if it has fulfilled its duty to warn the Client, the Agency shall not be liable (at least as regards the relationship between the Agency and the Client) for an infringement of such rights of third parties by documents made available by the Client. If the Agency is held liable for an infringement of such rights, the Client shall indemnify and hold harmless the Agency and shall compensate the Agency for any and all disadvantages suffered by it due to third-party claims, including costs of reasonable legal representation.
5. EXTERNAL SERVICES; COMMISSIONING OF THIRD PARTIES
5.1 The Agency shall be entitled at its own discretion to render the services itself, to employ expert third parties as agents and/or to commission a third party to render such services (“External Service”).
5.2 Commissioning of third parties in connection with an External Service shall be done in the Agency’s own name. The Agency shall select the relevant third party with care and ensure that it is appropriately qualified.
5.3 The Client shall assume obligations vis-à-vis third parties which survive the contract. This shall expressly apply also in the case of termination of the agency contract for cause.
6.1 Unless expressly agreed to be binding, delivery or service periods stated shall only be approximate and non-binding. Binding agreements on deadlines shall be recorded in writing or confirmed by the Agency in writing.
6.2 If the delivery/service of the Agency is delayed for reasons for which the Agency is not responsible, such as, e.g. events of force majeure or other unforeseeable events that cannot be prevented by reasonable means, the service obligations shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly. If such delays continue for more than two months, the Client and the Agency shall be entitled to rescind the contract.
6.3 If the Agency is in default, the Client may only rescind the contract after having granted the Agency a reasonable grace period of at least 14 days in writing and after such period has expired fruitlessly. Claims of the Client for damages on the ground of non-performance or default shall be excluded, unless intent or gross negligence can be proved.
7. EARLY TERMINATION
7.1 Contracts written by the Agency are deemed month-to-month unless noted on the original agreement. Monthly agreements can be cancelled without cause by either party. If an agreement is canceled all funds due either party must be remitted within 14 days of cancellation.
8. TERMS OF PAYMENT
8.1 Agency contracts are typically made up of two billings, recurring and itemized.
8.2 Recurring billings will be charged on a monthly basis, or as stated on the agreement. Recurring billings are drafted without additional notice to the Client and are set to continue until the agreement is cancelled or modified in writing.
8.3 Any late or refused payments will incur a 2% interest penalty or $50 fee, whichever is greater.
8.4 Delinquent payments not remitted within 10 days of the due date may incur loss of access, suspended accounts, or other reduction of marketing. The Agency is not responsible for the affects of these suspensions or the loss of data or sales that may occur.
8.5 Itemized billings will be approved by the Client or pre-approved through a dedicated budget. These variable costs will be billed monthly and payment must be received within 20 days to avoid suspensions as listed in section 8.4.
8.6 All services of the Agency which are not expressly covered by the agreed fees shall be paid for separately. All cash expenses incurred by the Agency shall be reimbursed by the Client.
8.7 Cost estimates provided by the Agency shall be non-binding. If it becomes clear that the actual costs will exceed the Agency’s written cost estimate by more than 15 per cent, the Agency shall advise the Client of such higher costs. The increase in costs shall be deemed accepted by the Client if the Client does not object to such increase in writing within three working days of the advice and states cheaper alternatives at the same time. Cost increases of up to 15 per cent shall not have to be advised separately. Such a deviation from the cost estimate shall be deemed accepted by the Client from the beginning.
8.8 If the Client unilaterally modifies or cancels work ordered without involving the Agency and notwithstanding other regular support from the same, the Client shall pay the Agency for the services provided by then according to the agreement on fees and shall reimburse all costs incurred. Unless work is cancelled on the ground of a breach of the Agency’s duties by gross negligence or wilful intent, the Client shall, in addition, pay the Agency the total fee (commission) agreed for that contract. Furthermore, the Agency shall be indemnified and held harmless from and against any third-party claims, in particular of the Agency’s contractors. By payment of the fees the Client shall acquire no rights to use work already carried out; concepts, drafts and other documents which were not implemented shall rather be returned to the Agency without delay.
9. IDENTIFICATION MARKS
9.1 The Agency shall be entitled to make reference to the Agency and the author, if applicable, on all advertising means and in any advertising and promotion measures, without the Client being entitled to any payment in this respect.
9.2 The Agency shall be entitled to make reference to its current or former business relationship with the Client on its own advertising media, including but not limited to its website, by referring to the Client’s business name and business logo, with the Client having the right to revoke his consent in writing at any time.
10.1 The Client shall notify any defects immediately and in any case within eight days of delivery/provision of the service by the Agency and hidden defects not later than eight days after they were identified in writing including a description of the defect; otherwise, the service shall be deemed accepted. In that case assertion of any warranty claims or claims for damages as well as the right to assert claims on account of mistake shall be excluded.
10.2 In the case of a justified and timely notification of defects the Client shall be entitled to improvement or replacement of the delivery/service by the Agency. The Agency shall repair the defects within a reasonable period of time and the Client shall enable the Agency to take all measures which are necessary for examination and repair of the defects. The Agency shall be entitled to refuse improvement of the service if such improvement is impossible or if the Agency were to incur disproportionately high costs. In that case the Client shall be entitled to cancel the contract or get a fee reduction as provided for by law. In the case of improvement the Client shall send the defective (physical) item at his cost.
10.3 The Client shall also be obliged to examine the service for its lawfulness, including but not limited to competition law, trademark law, copyright law and administrative law. The Agency is obliged only to roughly examine lawfulness. In the case of slight negligence or after it has fulfilled its duty to warn the Client, if any, the Agency shall not be liable for lawfulness of contents if they were advised or accepted by the Client.
11. LIABILITY AND PRODUCT LIABILITY
11.1 In cases of slight negligence liability of the Agency and its employees, contractors or other agents (“People”) for damage to property or pecuniary loss suffered by the Client shall be excluded, be it indirect or direct damage, lost profit or consequential damage resulting from a defect, damage due to default, impossibility, breach of obligation, culpa in contrahendo or due to defective or incomplete performance. The harmed party shall have to prove gross negligence. To the extent that the Agency’s liability is excluded or limited this shall also apply to personal liability of its People.
11.2 Any liability of the Agency for claims asserted vis-à-vis the Client on the ground of services rendered by the Agency (e.g. advertising and promotion measures) shall be expressly excluded, provided that the Agency complied with its duty to inform or if it was unable to see such a duty, even due to slight negligence. The Agency shall, in particular, not be liable for costs of legal proceedings, lawyer’s fees of the Client or costs of publication of judgments or for claims for damages, if any, or other claims of third parties; the Client shall indemnify and hold harmless the Agency in this respect.
11.3 Claims of the Client for damages shall be forfeited six months after knowledge of the damage and in any case three years after the Agency’s infringement. Claims for damages shall be limited to the net contract value.
12. DATA PROTECTION
The Client agrees that his personal data, namely name, occupation, date of birth, Business Register Number, powers to represent the company, contact person, business address and other addresses of the Client, phone number, fax number, e-mail address, bank details, credit card details,) may be collected, stored and processed electronically for the purpose of performance of the contract and support of the Client and for the Agency’s own advertising and promotion purposes, for example by sending him offers, advertising brochures or newsletters (in hard copy or electronic form) and for the purpose of making reference to the current of former business relationship with the Client. The Client agrees to be sent electronic mail for advertising purposes until further notice. Such consent may be revoked in writing via e-mail, fax or letter to the contact details stated in the header of these GTC at any time.
13. APPLICABLE LAW
The Agreement and all mutual rights and duties resulting therefrom as well as any claims between the Agency and the Client shall be subject to U.S. law and the State of Washington.
14. PLACE OF PERFORMANCE AND PLACE OF JURISDICTION
14.1 The place of performance shall be the registered office of the Agency. In the case that goods are shipped the risk shall pass to the Client once the Agency has delivered the goods to the carrier chosen by it.
14.2 The agreed place of jurisdiction for all legal disputes arising between the Agency and Client in connection with this contractual relationship shall be the court having jurisdiction over the subject-matter and the Agency’s registered office. Notwithstanding the foregoing the Agency shall be entitled to sue the Client at his general place of jurisdiction.