Date: 08/31/2023
1. GTC scope of application
1.1 These general terms and conditions (“GTC”) shall apply to all declarations of intent, contracts, and legal or legal-like transactions of eviom GmbH, Schwanthalerstraße 11, 80336 Munich (hereinafter “eviom”) with their customers (hereinafter “customer” or “customers”).
1.2 These GTC solely target entrepreneurs and are thus solely applicable to entrepreneurs. Entrepreneurs are any natural or legal entity or judicable partnership that acts within the scope of its commercial or self-employed work when entering into a legal agreement.
1.3 Contrasting or deviating conditions to these GTC are not accepted unless an express written agreement with eviom is made. These GTC shall also apply if eviom unconditionally provides services in knowledge of contrasting conditions or customer conditions deviating from these conditions.
1.4 Eviom reserves the right to unilaterally alter the GTC at any point. Changes to the GTC shall be disclosed to the customer in writing or electronically (e.g. via email). The customer may object to the updated version of the GTC within 2 weeks after said disclosure. Without objection, changes shall be deemed accepted. If the customer objects to changes to the GTC, eviom shall have the right to terminate the contractual relationship with immediate effect.
1.5 These GTC are valid in their most recent updated form at the respective point in time of the legal transaction being concluded or the contractual-like relationship being entered. Unless agreed otherwise, they shall also apply to any future legal transactions or contractual-like relationships, even if not expressly agreed upon again. The currently valid version of these GTC can be found at eviom.com
2. Contractual relationships and contents
2.1 Eviom is a digital marketing and communications agency for custom-tailored B2B communication solutions. The goal of the cooperation between the customer and eviom is particularly the optimization and expansion of the customer’s presence in advertisement and communication, their products and/or services on the market, and the provision of opportunities for presenting the business scope and products of the customer.
2.2 In particular, the customer may commission services of digital marketing and corresponding services (content marketing, content creation, etc.). The services ordered in detail result from the order and are subject to these GTC.
2.3 The customer may commission individual and retainer services.
2.3.1 Individual services/projects are one-time services provided given a one-time order. These are provided as partial (modules) or complete performances.
2.3.2 Retainers are services provided with a time-based contract and fixed agreed services or hours (“retainer”).
2.4 The services owed by eviom are hereinafter jointly referred to as “subject of performance”. Eviom does not guarantee any specific economic success.
2.5 Eviom is entitled, at their own discretion, to perform the services themselves, to use competent third parties as proxies for the performance of services under the contract, and/or to substitute such services (hereinafter “external services“).
2.6 The contractual agreements between the parties correlate as follows:
- Order confirmation including potential attachments,
- these GTC, respective up to date version,
- legal provisions.
In the event of any contradictions, the contractual bases shall apply in the order listed.
3. Conclusion of contract
Unless otherwise agreed in writing, any offers by eviom are binding for the period listed in the offer. The parties enter into a contract upon the customer signing the offer and transmitting it within the binding period. Oral agreements or commitments require confirmation by eviom in written form to be effective.
4. Cooperation duties and approvals, acceptances, releases
4.1 The customer shall grant approvals, acceptances, and releases detailed in the commission in due time to ensure that workflow at eviom and their suppliers and thus the jointly fixed objectives are untouched. Approvals, acceptances, and releases which are not provided or are provided late may cause additional costs which shall be borne by the customer. Approvals, acceptances, and releases are deemed granted if eviom does not receive a statement from the customer within a period of seven (7) days after eviom has sent the respective subject of performance to the customer. Acceptance shall be deemed granted at the latest upon use or payment of the remuneration.
4.2 The information and materials provided by the customer serve as an essential basis for the services of eviom. The customer guarantees eviom the correctness of the information and is liable for any legal consequences of incorrect information provided. The customer shall ensure that eviom obtains the rights required to use said materials and shall indemnify eviom against any claims by third parties in respect to the respective materials.
4.3 If the customer fails to comply with their duty to cooperate, eviom shall request the customer to do so within a reasonable period of time (text form, e.g. e-mail suffices). If the customer does not comply with their information obligation despite a given deadline, eviom shall be entitled, at their own discretion, either to provide their service on the basis of the information already available or to rescind from the contract. Additionally, eviom may also claim compensation for any expenses incurred by eviom within the scope of the contractual relationship which were in vain or were additionally incurred as a result of the breach of duty by the customer. Further claims for damages remain unaffected.
4.4 If a concept or other service has to be modified due to the correction of previously provided information or as a result of the subsequent filing of information, this shall always be deemed to be an extension of the scope of services and shall be remunerated subsequently.
5. Maturity of the subject of performance
5.1 The maturity date of eviom’s services shall be based on the joint agreements between eviom and the customer who shall agree on a schedule and adjust it if necessary.
6 . Remuneration and prices / price changes
6.1 The prices stated in the order confirmation shall be deemed agreed between the parties, plus the VAT rate applicable at the time of performance.
For the retainer, a monthly lump-sum payment is agreed on. Services that exceed the scope of the retainer will be agreed upon as additional single orders based on the commission. For this, eviom shall make an estimate and an offer on the basis of the commission. A single order is concluded in accordance with the provision in section 2 of these GTC. In case no individual project order exists, additional services shall be charged based on the current price list.
6.2 For project-based services without continuous commission of eviom, the remuneration listed in the order confirmation shall apply. Services not listed in the order confirmation are charged as additional services.
6.3 Invoicing for the services provided by eviom, as well as for the costs incurred through the commissioning of third parties and for expenses, shall be in subsequent form or, based on a separate written agreement, on a pro-rata basis during a project or after the completion of a project.
6.4 Unless otherwise agreed, invoices shall be due without deduction within fourteen (14) calendar days of complete delivery and performance (including any agreed acceptance), and invoicing.
6.5 The customer reimburses eviom for any travel expenses given corresponding receipts. Travel expenses include in particular the costs for transportation (airplane, cab, rental car or, train), and for accommodation. For flights, the costs are only reimbursable for the use of economy class, for train travel only for second class, and for accommodation only for a four-star hotel, unless the employee is accommodated in a hotel of the customer.
7. Term and termination of contracts and rescission
7.1 The contract term specified in the commission and the notice periods specified therein shall apply. There shall be no ordinary right of termination on the part of the customer in the case of a fixed-term commission. In the absence of a termination provision in the case of open-ended commissions, an ordinary notice period of three months shall apply, in each case to the end of the term. Notice of termination must be in writing.
7.2 The right to extraordinary termination remains unaffected. Serious grounds for termination exist in particular if (i) one party breaches essential obligations or repeatedly breaches non-essential obligations arising from the contractual relationship and does not remedy the breach within a reasonable period of time after being requested to do so by the other party, or (ii) one party cannot reasonably be expected to adhere to the contract as a result of force majeure, or (iii) insolvency proceedings have been instituted against the assets of the other party, or such proceedings are imminent.
7.3 If a commission is extraordinarily terminated by the customer after the start of its execution or if the customer withdraws from the commission for reasons for which eviom is not responsible, eviom shall be entitled to invoice the services delivered up to that point in accordance with the commission and to demand reimbursement of all costs incurred and to demand that the customer indemnify and hold eviom harmless with regard to any claims of third parties, in particular contractors.
7.4 In the above-mentioned cases according to sections 7.4 and 7.5, the customer is entitled to prove that eviom has not incurred any damages or only significantly lower damages than the listed cancellation fees.
7.5 Eviom reserves the right to assert further claims for damages.
8. Rights of use, Property
8.1 In the event that a service obtains copyright protection through processing by eviom, eviom shall transfer to the customer a non-exclusive right of use unlimited in terms of space, content, and time. This right of use includes in particular the right to reproduce, distribute, and make publicly available the work in whole or in part. The right to modify and transfer to third parties is included. Any differing granting of rights of use requires an individual agreement in writing.
8.2 The granting of any rights of use shall take place upon acceptance and, subject to a condition precedent, upon full payment of the agreed remuneration.
8.3 Rights to drafts unexecuted or rejected by the customer remain with eviom. This also applies to eviom’s services that are not subject to special statutory rights, in particular copyright.
9. Warranty
If eviom’s services have the character of a contract for services, the following provisions shall apply:
9.1 Said services are subject to acceptance. Further details on acceptance shall be agreed between the parties in the individual contract.
9.2 The customer shall notify eviom immediately in writing of any defective service. As far as a rectification of defects is possible and feasible with reasonable effort, eviom has the right to rectify defects for which it is responsible.
9.3 A defect exclusively exists if the subject of performance does not have the contractually agreed quality or is not suitable for the contractually required use. The contractual quality of the subject of performance results in particular from the commission provisions. Negligible deviations shall not constitute a defect.
9.4 In the event of refusal, impossibility, failure, or unreasonable delay in the rectification of defects, the customer may, at their discretion, demand the rescission of the contract or the reduction of the remuneration.
9.5 Warranty claims of the customer shall become time-barred within a period of six months after completion of the respective services.
9.6 Claims based on warranty liability without fault and the right of self-remedy are excluded.
9.7 Eviom shall be liable for consequential harm caused by a defect only in accordance with the liability provisions set forth in these GTC. This exemption from liability shall not apply if a warranty of quality was given which covers the consequential damage caused by a defect and if the damage caused by the defect stems from the lack of such quality.
10. Liability
10.1 If not further regulated in the other provisions, eviom shall be liable for damages due to breach of contractual or non-contractual obligations only in case of intent and gross negligence. The limitation of liability also applies to legal representatives, executives, and proxies. Eviom shall only be liable for slight negligence in case of breach of an essential contractual obligation (cardinal obligation), and in case of damage resulting from injury to life, body, or health. In the event of a slightly negligent breach of cardinal obligations, however, the obligation to pay compensation shall be limited to the foreseeable damage typical for the contract. Cardinal obligations are obligations which are essential to be fulfilled for the proper performance of this contract and on the observance of which the other party may regularly rely.
10.2 Eviom shall not be liable for the factual information about the customer’s products contained in the subject matter of the performance or the protectability under copyright, design, trademark, or brand law of the ideas, proposals, concepts, drafts, etc. delivered within the scope of the commission, unless this protectability was expressly agreed in writing as part of the contract.
10.3 The liability for breaches of duty, which occurred neither intentionally nor grossly negligent, is limited to the sum of the contractual fees, which the customer has paid to eviom for the period of two years prior to the occurrence of the damaging event within the scope of the specific contractual relationship. This does not apply to liability for injury to life, body, and health.
10.4 Eviom is liable to entrepreneurs only in case of intent and gross negligence for atypical/unforeseeable indirect damages and consequential damages, and for loss of profit. In this case, eviom’s liability is limited to the contract-typical foreseeable damage, at most to the sum of the contractual fees which the customer has paid to eviom for the period of two years prior to the occurrence of the damaging event within the scope of the specific contractual relationship. This does not apply to liability for injury to life, body, and health.
11. Retention, archiving and release of data and documents
11.1 All reports, print documents, films, and illustrations created by eviom for the customer shall be properly stored by eviom without separate remuneration for a period of half a year, beginning with the termination of the respective communication measure.
11.2 Eviom may immediately destroy documents that are no longer required, such as manuscripts, sketches, drafts of unrealized advertising measures, or similar documents.
12. Self-promotion
Eviom as well as their affiliated companies within the meaning of §§ 15 of the German Stock Corporation Act (AktG) are permitted to use work results or excerpts from the commissions for the purpose of self-promotion – even after the end of the contract period – free of charge.
13. Confidentiality and data protection
13.1 Eviom will treat the transmitted subjects of performance as confidentially as state-of-the-art technology allows; however, for electronic data transmission, eviom cannot guarantee 100% confidentiality.
13.2 The parties shall treat as confidential all documents, information, and data they receive for the realization of the contractual relationship, and which are designated to them as confidential and shall use them only for the realization of the respective commission. In particular, commissions concluded between the parties shall also be deemed confidential. The parties shall impose a corresponding obligation on their employees and third parties involved in the services, in particular subcontractors. Independent of the reason for a potential termination, these obligations shall remain in effect even after the termination of the contractual relationship for two years from the end of the contract.
13.3 The customer authorizes eviom to process any data received as part of the business relationship in accordance with applicable data protection regulations, given the processing requires explicit authorization meaning no other legal basis for the processing exists. Eviom declares that all staff and proxies have been sworn to secrecy and compliance with data protection, and that eviom have taken all required technical and organizational measures to assure execution of applicable data protection regulations.
13.4 If the customer commissions eviom to conduct a lead campaign and receives lead data from eviom for this purpose, the customer is obligated to comply with their information obligations in accordance with art. 14, GDPR, within thirty (30) days of the lead data having been sent.
14. Cession and offset
The customer may only transfer the rights and obligations arising from this contract given express written consent of eviom. The customer may only offset claims of eviom against undisputed or legally established claims.
15. Force majeure
Force majeure or other unforeseeable events for which eviom is not responsible and which make it substantially more difficult or temporarily impossible to provide the contractual services, including pandemic, strike, lockout, and regulatory actions, shall allow eviom to postpone the performance of their services for the duration of the hindrance plus a reasonable start-up period. Eviom shall inform the customer immediately about the occurrence of such hindrances to performance. If the delays resulting from an event in accordance with sentence 1 above exceed the period of six weeks, and if an adjustment of the contract is not possible and not reasonable for either party, both parties are released from their performance obligations agreed upon in the order confirmation. Services delivered by eviom are to be remunerated by the customers according to their share. Damage claims are excluded in such a case.
16. Form
16.1 Unless otherwise agreed in the respective order confirmation or in these GTC, all agreements between eviom and the customer regarding contractually owed services, and all modalities of the performance of the services shall require text form.
16.2 For all other legally relevant declarations and notifications of the customer towards eviom regarding the commission (e.g. deadline, reminder, withdrawal) the requirement of the written form shall apply. Legal formalities and further proofs, in particular in case of doubts about the legitimacy of the declaring party, remain unaffected by this.
17. Applicable law, place of jurisdiction, severability clause
17.1 Solely the law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.
17.2 Place of performance and jurisdiction for any arising legal disputes between eviom and the customer is Munich, Germany.
17.3 Changes and additions, and termination of the contractual relationship with eviom must at least be in writing to be effective unless this contract stipulates another form. This also applies to any alteration of this text form provision.
17.4 Should one or more provisions of these GTC be or become invalid or void, the validity of the remaining provisions of these GTC shall remain unaffected. This applies accordingly to the filling of a gap in the contract. The invalidity of individual provisions of these GTC shall not affect the validity of the remainder of the commission.
The eviom GmbH expressly reserves the right to use its content for commercial text and data mining in accordance with § 44b UrhG. For the acquisition of a corresponding usage right, please contact datenschutz@vogel.de.”