General Terms and Conditions of Peak Scaling Agency LLP for the Media Agency Agreement

Präambel

The aim of the cooperation between the client and the agency is to optimize and expand the advertising and communicative presence of the client's company, its products and/or services on the market. In order to achieve this goal, both contractual partners consider themselves to be bound by a relationship of mutual trust and agree the following:

1. Scope of application

The following General Terms and Conditions (GTC) only apply to contracts that Peak Consulting LLP - 32Kinburn Street - UK SE16 6DW London (Agency) concludes with its clients if the client is an entrepreneur (m/f/d), a merchant (m/f/d), a legal entity under public law or a special fund under public law.
These GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and insofar as Peak Consulting LLP has expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if Peak Consulting LLP begins to provide the (service) without reservation in the knowledge of the customer's General Terms and Conditions.

2. Order

The agency provides comprehensive services and consulting in the field of digital advertising and digital marketing. This includes, in particular, consulting, conception, creation and implementation of advertising measures, the specific content of which is agreed on a project-by-project basis as part of the respective assignment. The agency also sells products in the field of performance marketing, in particular coaching and mentoring. Unless expressly agreed otherwise in writing, the agency does not owe the customer the provision of a work / concrete success.

3. Placing an order

A separate contract shall be signed between the agency and the client, which shall contain a precise list of the services to be provided by the agency and the remuneration owed for them.
The individual advertising measures triggering additional costs with third-party providers shall only be initiated by the agency on the basis of a cost estimate approved by the customer. Approval must be given at least in text form.

4. Changes to work (change request)

Subsequent changes to the commissioned services (change request) by the client must be communicated to the agency as early as possible and in sufficient detail and require express confirmation by the agency to be effective.
If, in the event of a subsequent change to the service description, the originally commissioned service cannot be performed or can only be performed in part, the Agency shall be entitled to discontinue the further provision of services. The agency shall inform the customer of this. If the customer objects to the suspension of services, the agency shall continue the original provision of services.
If the agency incurs additional costs as a result of the change request, the agency shall inform the client of this. The agency shall be entitled to invoice the customer for the additional services.

5. Principles of cooperation

The agency shall provide the contractual services in a proper, timely and professional manner in accordance with the agreed requirements and quality criteria or - unless otherwise agreed - in accordance with the principles of proper professional practice.
The contracting parties shall communicate at regular intervals about progress and obstacles in the execution of the commissioned services. In the event of deviations from the agreed procedure or doubts about the correctness of the other party's procedure, they shall inform each other immediately.
Deadlines for the provision of services are only binding if they are expressly designated as such. Otherwise, these are target dates which are further developed as part of project management. In the case of target deadlines, the customer may request the provision of the outstanding services in writing within a reasonable period of time after expiry, setting a reasonable deadline; upon expiry of this deadline, the customer's claim to this service shall become due.
A legal examination of the agency's performance results, in particular with regard to competition, trademark, copyright and personality rights, is expressly not the agency's task. The same applies to the performance and legal evaluation of trademark searches and/or the examination of the registrability of trademarks and designs.
The agency shall deploy qualified and reliable personnel to fulfill its performance obligations. The agency shall decide at its own dutiful discretion which employees are to be deployed or replaced in order to provide services in accordance with the contract. The agency reserves the right to replace an employee with another employee with the necessary qualifications for an important or justified reason. It is exclusively authorized to issue instructions to its employees, regardless of their place of deployment. Agency employees shall not be integrated into the client's operations and shall not enter into an employment relationship with the client.
The agency is basically free to choose the time and place of performance of the commissioned services.

6. Cooperation of the customer

The client shall inform the agency of the expected scope of business with regard to the planned advertising activities and the available budget before the new financial year. The client shall inform the agency immediately of any significant changes to these communicated plans. The details of the advertising budget must be presented in a comprehensible and, if necessary, verifiable manner using appropriate supporting documents.
The Client shall provide the Agency with all data and information about marketing objectives, markets and products that are necessary or useful for the Agency's work without being requested to do so. The Agency undertakes to treat such transmitted data and information as strictly confidential.
The customer shall support the agency to a reasonable extent in the fulfillment of its contractually owed performance. This includes in particular the timely provision of information and data material, insofar as this is required by the customer's cooperation. The customer shall issue approvals in good time so that the Agency's workflow and thus the realization of the agreed measure is not impaired. If the agency is unable to provide the services due to a lack of or insufficient cooperation or provision of materials, or is only able to do so at additional expense, it shall be entitled to claim any necessary additional expenses from the customer.
If the customer provides the agency with materials and/or content (e.g. brand logos, advertising texts, products), the customer warrants that these are free of third-party rights and that their use or publication does not violate applicable law in any way. The content provided shall also include such content and its sources that the customer recommends or suggests to the agency with regard to the performance of the commissioned services. It is recommended that the client's legal advisor checks this in advance. Should claims be made against the agency by third parties on the basis of such content originating from the customer, the customer shall indemnify the agency against these claims (including the necessary legal costs) upon first request.
If the customer fails to cooperate as required and prevents or delays the provision of the service owed by the agency, this shall not affect the agency's claim to remuneration.

7. Use of subcontractors, external services

The agency has the right to use subcontractors or freelancers (service providers) to fulfill the commissioned service obligations. The service providers commissioned by the agency must also comply with and observe the obligations described in this contract that apply to the agency, in particular confidentiality and data protection.
Third-party services (e.g. Facebook, Google, YouTube, LinkedIn, Instagram, etc.) are shown separately by the agency in the order to the client. Unless otherwise agreed, third-party services are either commissioned in the name and for the account of the customer or in the name of the agency and for the account of the customer. The costs incurred by third-party providers are not included in the agency's remuneration and are to be borne separately by the customer.
The customer is aware that third-party providers such as Facebook, Google, YouTube, LinkedIn, Instagram, etc. are entitled to stop/suspend advertising campaigns at any time without giving reasons. The agency is not responsible for such action. The agency's claim to remuneration remains unaffected by this.

8. Compensation, invoice, payment

The prices quoted by the agency are binding and are net plus the costs of third-party providers.
All third-party costs incurred within the scope of this contract shall be borne by the customer.
Any bank charges incurred for payment by the customer to the agency or by the agency to the third-party provider in the customer's economic interest shall be borne by the customer. This applies in particular to foreign payments.
As the agency is based outside the Federal Republic of Germany, no German VAT is charged and is not shown on the invoices. The reverse charge mechanism according to § 13b UstG applies. The invoices will contain the following addition: "In accordance with § 13b UStG, reference is made to the tax liability of the recipient of the service. The tax rate is 19 percent.
As the agency is based outside the Federal Republic of The invoices issued by the agency to the customer are due upon receipt and without deductions. of Germany, no German VAT is charged and is not shown in the invoices.
The agency is entitled to issue advance invoices and interim invoices. The commencement or continuation of the contractually owed activity is then dependent on the settlement of such an invoice.
A SEPA direct debit authorization issued to the agency shall also apply to the further business relationship until revoked.
In the event that agreed direct debits cannot be collected from the customer's account and a chargeback occurs, the customer is obliged to transfer the amount owed to the agency within 5 working days of the chargeback and to bear the costs incurred as a result of the chargeback.
Offsetting against counterclaims is only permitted if the other party to the contract has acknowledged the claim or if it has been legally established. The same applies to the exercise of a right of retention by one of the contracting parties.
In the event of default in payment, the agency shall be entitled to claim statutory default interest.

9. Rights of use

The customer shall receive a simple and non-transferable right of use in relation to the work and service results created and provided by the agency exclusively for the duration of the contract term. Performance and work results within the meaning of the underlying contract are all works or services or parts thereof created by the agency for the customer (e.g. all information, documents, evaluations, videos, photos, know-how acquired in the course of fulfilling the order, advertisements, drawings, materials, specifications, program drafts, any kind of files, data collections, individual software including associated documentation, manuals and IT systems in the form of source codes or in any other form).
Paragraph 1 shall apply exclusively subject to the proviso that the client has paid the remuneration due to the agency under the main contract in full.
The transfer of work and service results to third parties (including affiliated companies) is excluded. The same applies to processing in accordance with § 23 UrhG.
Passing on our program content to third parties is prohibited and will be prosecuted under civil and criminal law in the event of a violation. This also applies in particular to access to our member platform. Subject to individual agreements to the contrary, the right of use exists exclusively for our direct contractual partner.
The client shall permit the agency to use so-called testimonial advertising. The Agency shall be entitled to advertise with the Client as a reference in an appropriate manner even after expiry of the contract term, unless the Client expressly objects. In this context, the Agency is accordingly entitled to use copyrights, name rights, trademark rights and labeling rights belonging to the Client.

10. Right of withdrawal

The customer, who is not a consumer, is not entitled to a right of withdrawal by law, nor is such a right granted by the agency in any other way.

11. Liability

The agency shall only be liable for intent and gross negligence. The liability of the agency 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), injury to life, limb and health, in the case of claims arising from a guarantee and from the Product Liability Act.
Insofar as the Agency, its representatives and vicarious agents are liable in accordance with the above provision in paragraph 1, liability shall be limited to compensation for the foreseeable damage typical for the type of service.
Liability for loss of data and programs, insofar as the Agency is liable in accordance with the above provision in paragraph 1, shall be limited to the typical restoration costs that would have been incurred if backup copies had been made regularly and in accordance with the risks involved.
The client shall indemnify the agency against third-party claims if the agency has acted at the express request of the client, although it has informed the client of its concerns regarding the permissibility of the advertising measures.
The client shall indemnify the agency against third-party claims if the agency has acted at the express request of the client, although it has informed the client of its concerns regarding the permissibility of the advertising measures.

12. Contract duration/termination

Unless otherwise agreed in writing, the contract is concluded for an indefinite period and can be terminated with a notice period of 1 month to the end of the month, but at the earliest to the end of the 3rd month. Notice of termination must be given in writing.
It is possible to terminate individual components of the contract (if support for individual advertising platforms is no longer desired). Paragraph 1 applies equally to this.
Both parties reserve the right to terminate the contract without notice for good cause (including the opening of insolvency proceedings).
Insofar as the Agency has entered into obligations to third parties under this contract (fixed orders), the Client agrees to fulfill these obligations even after the end of the contract with the involvement of the Agency. At the Client's request, the Agency shall transfer all rights arising from agreements with third parties to the Client, provided that the Client indemnifies the Agency from all obligations arising from such agreements and from any liability in this regard.

13. Choice of law and place of jurisdiction

These GTC and the contractual relationship between the Agency and the Customer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the Agency's registered office in Building A2, Dubai Digital Park, Dubai Silicon Oasis, Dubai, United Arab Emirates shall be the exclusive and also international place of jurisdiction for all claims against the Agency arising directly or indirectly from the contractual relationship. The same applies if the customer is an entrepreneur within the meaning of § 14 BGB
We are also entitled to bring an action at the place of performance or at the customer's general place of jurisdiction. This shall not affect overriding statutory provisions (exclusive places of jurisdiction).

14. Final provisions

Deviations from these GTC are only effective if they have been agreed in writing. Individual agreements made with the customer in individual cases shall take precedence over these GTC. The content of such agreements shall be governed by a written contract or written confirmation from the Agency.
The customer may only transfer or assign claims against the agency based on this contract to third parties with the written consent of the agency.
Should one or more provisions of these GTC be or become invalid or unenforceable for factual or legal reasons, this shall not affect the validity of the remaining clauses. The invalid provision shall be replaced by a provision that comes closest to the intention of the parties as far as legally possible.