Terms & Conditions
General Terms and Conditions § 1 Scope of Application and General
1.1 The following General Terms and Conditions (hereinafter “GTC”) shall apply for all business relationships of GOCOMO GmbH (hereinafter “COMO”) with its customers. The GTC shall only apply, if the customer is a company (§ 14, BGB, Bürgerliches Gesetzbuch; German Civil Code), a legal person under public law or a special fund under public law. The customer and COMO hereinafter are jointly referred to as “contractual parties”).
1.2 The GTC shall become applicable particularly for contracts for services offered by COMO, which mainly concern consultation and implementation services for the analysis, identification, activation, maintenance and tracking of a brand-own community (hereinafter generally “services”).
1.3 COMO’s GTC are exclusively to be applied. Deviating, contradictory or supplemented GTC of the customer will only then and insofar form part of the contract, as COMO has explicitly approved in writing their validity (text form suffices). This consent requirement shall become applicable in any case, for example also then, if COMO in knowledge of the GTC of the customer executes the services for the customer without reservation.
1.4 Individual agreements concluded in single cases with the customer (including ancillary agreements, supplements and amendments) take in any case precedence over these GTC. For the contents of such agreements, subject to proof to the contrary, an agreement in text form or COMO’s written confirmation shall be decisive.
1.5 Legally relevant declarations and notifications, which after contract conclusion have to be made by the customer to COMO (for example setting of deadlines, notice of defects, terminations, amendments) need to be done at least in text form to become effective (for example by email).
1.6 Information on the validity of legal provisions shall only have clarifying importance. Also without such a clarification the legal provisions shall hence be applicable, insofar as they are not directly amended or explicitly excluded in these GTC.
§ 2 Contract Conclusion
After initial contacts between COMO and the customer, personally and/or within the scope of telephone conversations, COMO submits to the customer an offer signed by COMO with the compilation of COMO’s offered services in text form including the GTC. By signing with his signature on the electronic compilation and return of the same the customer submits vis-à-vis COMO a binding offer concerning the conclusion of a contract.
§ 3 Contents of the Contract
3.1 Objects of the contract are the services exactly defined in the compilation and the offer to be performed by COMO within the meaning of § 1.2.
3.2 If conditions deviating from the contract are given by the customer with the service ordering, these shall become only applicable, if COMO explicitly approves to them in text form. Silence on COMO’s side as well as the entering into activities by COMO will not be deemed to be consent in this case.
3.3 Any deadlines and objectives of the customer are fundamentally not binding for COMO, unless, COMO has explicitly ensured them at least in text form as a fixed target.
3.4 The customer may apply for amendments of the agreed scope of service in text form. After receipt of an application of amendments COMO will immediately check as to whether and to which conditions the amendments can be executed and to inform the customer on the consent or rejection in text form. If an application of amendments of the customer requires an extensive examination, COMO can invoice the client with the examination effort after prior notification, if the customer still insists on the examination of the application of amendments. The contractual adjustments of the agreed conditions and services required for any examinations and/or amendments are to be stipulated in an amendment agreement at least in text form; these GTC shall also become applicable for this amendment agreement.
§ 4 Obligations to Cooperate The customer is obligated to provide COMO with all available information, which are required for the execution of the services through COMO and to immediately effect all cooperative actions necessary for the execution of the services, as long as they are reasonable and proportionate. In this respect COMO renders advice to the customer and requests him to timely provide his obligations to cooperation and information duties.
§ 5 Remuneration, Settlement, Payment Terms
5.1 Invoicing either simultaneously takes place with the acceptance of the offer by COMO or after providing the service or during agreement of permanent support monthly to the first working day of an individual calendar month. Third-party costs are invoiced in advance.
5.2 Unless otherwise specified, invoices become due for payment without deduction at the latest 30 days after receipt of the invoice payable to the bank account of GOCOMO GmbH, Hufelandstrasse 22, 10407 Berlin, Germany, IBAN: DE57 100500000 190839350, BIC: BELADEBEXXX.
5.3 COMO shall be entitled to invoice all services ordered by the customer, also if the results of these services are unclaimed by the customer. 5.4 All prices specified in compilation or offer are quoted plus statutory value added tax.
5.5 If the customer gets in default with a payment, COMO shall be entitled to request as from the relevant time interests in the amount of 9 % above the respective base interest rate of the European Central Bank. The proof of a higher damage remains reserved by COMO. The customer shall only be entitled to a setoff, also if complaints or counter claims are asserted, if the counter claims are legally binding, acknowledged by COMO or are indisputable.
§ 6 Contract Term, Contract Termination, Notice
6.1 The contract commences with the acceptance of the offer or order by COMO (hereto § 2), unless, a different commencement was agreed.
6.2 With long lasting support or recurring services the contract runs for an indefinite period of time, unless otherwise agreed in the offer. The notice period is one month to the end of the month. With the one-time booking of components, individual services or projects the contract terminates with the total service provision by COMO.
6.3 The right to extraordinary termination for good cause shall be unaffected thereby. Good cause exists in particular: despite a warning letter and setting of a deadline the customer is in default with a due payment for a period of more than one (1) month;
despite warning and extension of time the customer violates significant contractual duties; or the customer files for insolvency proceedings, insolvency proceedings are opened on the customer or relevant proceedings are rejected due to any lack of assets.
§ 7 Default of Payment, Debt Collection
7.1 With default of payment on the side of the customer COMO shall be entitled to make the provision of services dependent on the payment of the customer. The suspension of the service provision by COMO shall not release the customer from his payment obligation.
7.2 COMO reserves the right to provide only further services, if all outstanding claims with all costs relating to the debt collection or the legal prosecution are fulfilled.
7.3 In such case COMO is entitled, to provide its future services only against advance payment or deposit of a security and complete payment.
§ 8 Guarantee
8.1 COMO’s services are carefully prepared and executed to the best of its knowledge.
8.2 COMO is liable for any damage caused by intentional or grossly negligent acts of unlimited amount. In the event of damage to life, body or health, COMO’s liability to the customer or to a legal representative or vicarious agent of the customer is unlimited regardless of the level of fault. There is no limit to the amount of liability towards the customer for damage that can be attributed to serious organizational negligence on the part of COMO, as well as for damage caused by a lack of guaranteed quality. In the event of a breach of such contractual obligations by COMO, the fulfillment of which makes the proper execution of the contract possible at all, the violation of which jeopardizes the achievement of the contract and whose compliance the customer regularly trusts, COMO shall be liable to the customer if none of the aforementioned cases exist, the amount limited to the level of the foreseeable damage typical for the contract and not for consequential damage. In particular, there is no liability for direct or indirect production losses, lost profits, additional expenses or increased expenses due to late performance. Any further liability for damages is excluded.
8.3 The customer keeps COMO free of all third-party claims upon first request. The customer and COMO will inform each other immediately in writing if they are asserted against third-party claims.
8.4 COMO is not liable for blocking or suspension of brand accounts by the respective account provider, advertising networks or other cooperation partner of the customer.
§ 9 Usage Rights During the contractual term COMO is permitted to make use of the agreed customer accounts and channels and to use them on behalf of the customer as well as to the 3 agreed extent. At no time the access shall be transmitted to third parties and is completely assigned after contract termination.
§ 10 Reference Namings COMO is entitled to name the customer in every data medium as reference at no charge. This also includes the naming and use of any protected descriptions or logos. COMO shall not be liable for the naming.
§ 11 Contractual Adjustment
COMO reserves the right to amend these GTC, prices and services due to legislative changes or economic or organizational requirements. COMO announces such amendments in text form with a deadline of at least 4 weeks. The amendments come into effect in line with the announcement, if the customer does not object to them until the announced term of the effective date of the amendments in text form.
§ 12 Secrecy
12.1 The contractual parties undertake to treat all knowledge of confidential information and business secrets of the other contractual party, that has been acquired in the course of initiating and executing the contract as confidential for an unlimited period of time and to use it only for the purpose of executing this contract or to use it only in the prior written consent of the respective other party against third parties – for whatever purpose.
Confidential information and trade secrets (“trade secrets”) are to be understood as the information expressly designated as confidential by the contractual party providing the information and such information, the confidentiality of which clearly emerges from the circumstances of the transfer.
12.2 The above obligations do not apply to trade secrets that (i) were already obvious to the other contractual party or were known to the other contractual party at the time of their transmission; (ii) after their transmission by the contractual party through no fault they became obvious to the other contractual party; (iii) after their transmission by the contractual party, they were made accessible to the other contractual party by third parties in a not unlawful manner and without restriction in terms of confidentiality or use; (iv) that were independently developed by a contractual party, without the use of the trade secrets of the contractual party; (v) that must be published under the law, government orders or court decisions – provided, the publishing contractual party immediately informs the contractual party thereupon and supports him in the defense of such orders or decisions; or (vi) insofar as the contractual party was permitted to use or transmit the trade secrets due to mandatorily legal provisions or due to this contract.
§ 13 Final Provisions
13.1 Place of performance is Berlin. 1
3.2 The assignment of the respective rights and duties from the contract with COMO is only permitted to the contractual parties with the prior written consent of the other contractual party, unless expressly stated otherwise.
13.3 GTC and offer include all agreements to the object of the contract concluded among the contractual parties. Further-reaching agreements were not made. Amendments and supplements shall be made in text form for its effectiveness, unless by law a 4 stricter form prevails. This text from requirement is also applicable for an amendment or supplement of the text form requirement itself.
13.4 GTC and offer as well as their interpretation are subject to the law of the Federal Republic of Germany. Exclusive place of jurisdiction for all and any disputes arising from or in connection with the contract with COMO is Berlin, provided that the customer is a businessman, a legal person under public law or a special fund under public law.
13.5 If a provision of these GTC is or becomes ineffective or should these GTC contain a gap, the effectiveness and enforceability of all other provisions in these GTC shall remain unaffected thereby. For such case the contractual parties agree to an effective and enforceable provision, which reflects the commercial purpose pursued by the parties to the extent, that no significant change of the version of these GTC is caused thereby.