1. Validity of the general terms and conditions
1.1 These general terms and conditions apply to all contracts between customers (“CLIENT”) and eFly Marketplace Services GmbH (“CONTRACTOR”) for the provision of various services by the CONTRACTOR to improve the CLIENT's external image on online marketplaces. These terms and conditions also apply to pre-contractual relationships between CONTRACTOR and CLIENT. The terms and conditions apply only to entrepreneurs in the exercise of their commercial or independent professional activity and to legal entities under public law.
1.2 These terms and conditions apply exclusively. The CONTRACTOR does not recognize any conflicting, additional or deviating terms and conditions of the client. These terms and conditions apply even if the CONTRACTOR starts providing the services without reservation in the knowledge of conflicting, additional or deviating from these terms and conditions of the client.
1.3 Individual agreements made with the CLIENT in individual cases (including ancillary agreements, additions and amendments to these terms and conditions) always take precedence over these terms and conditions. A written contract or written confirmation from the contractor is decisive for the content of such agreements. This also applies to the removal of the written form requirement. The contractual partners also meet the written form requirement by sending emails, scans or faxes.
1.4 The terms and conditions in their current version also apply to future contracts, without the CONTRACTOR having to refer to them again in each individual case. The defined terms from the underlying contract also apply to the terms and conditions. If the terms and conditions and contract conflict, the contract takes precedence over these terms and conditions.
1.5 Rights that the CONTRACTOR has under statutory provisions or other agreements beyond these terms and conditions remain unaffected.
2. Placing an order
2.1 By submitting his order, consisting of service offer and contract, to the CONTRACTOR in writing or electronically, he submits an offer. Unless otherwise expressly stated in the service offer submitted by the CONTRACTOR, the CONTRACTOR is bound by the service offer for two (2) weeks. The contract between CONTRACTOR and CLIENT is only concluded when the CLIENT accepts the CONTRACTOR's offer in writing by letter or email.
2.2 A transfer of rights and obligations under the contract or the contract itself to third parties requires the consent of the other contracting party. However, the CONTRACTOR is entitled to use third parties, e.g. freelancers and other companies, to fulfill its duties. The CONTRACTOR is also entitled, without the consent of the client, to transfer rights and obligations under the contract and the contract itself to an affiliated company in accordance with Sections 15 et seq. of the German Stock Corporation Act.
2.3 The conclusion of the contract, subsequent changes and additions to the contract, and all declarations of intent must be made in writing to be effective. This also applies to a waiver of the written form requirement. Additional oral agreements are not permitted and will not be made. However, Section 127 (2) BGB does not apply otherwise.
2.4 Commitments of any kind which establish further obligations on the part of the contractor than those set out in these terms and conditions or other parts of the contract require express and written confirmation by the CONTRACTOR by means of a declaration signed by the contractor's management.
3. Provision of services
3.1 The CONTRACTOR provides services and consulting services in the areas described in the service offer and contract. The scope of services is finally described in the service offer and contract. The CLIENT is not entitled to any additional services. Unless otherwise expressly agreed in writing, the CONTRACTOR does not owe the CLIENT the performance of a work or specific success.
3.2 With regard to the services to be provided, the CONTRACTOR has a right to determine the performance of the services to be provided vis-à-vis the CLIENT in accordance with Section 315 BGB. The necessary measures can change at any time for various reasons (e.g. change in the marketplace algorithm, change in the client's competitive environment, replanning/change of goals by arrangement, etc.) or be carried out sooner or later. Whether and in what manner changes to the planned measures are made is at the sole discretion of the CONTRACTOR. The CONTRACTOR is not obliged to carry out all the services/measures listed in the personal service offer. Depending on the agreed budget and changes in circumstances, the forecast duration of initially planned measures, their significance and thus their sequence may change and, if necessary, measures initially planned within the agreed time frame/budget may also be omitted altogether. The CONTRACTOR will carry out his task in the best of his knowledge and belief for the benefit of the CLIENT in accordance with the current state of the art in accordance with the current circumstances. However, for the reasons listed above, the CONTRACTOR cannot guarantee that the measures taken will result in a (permanent) addition or improvement of the marketplace customer account.
3.3 The CLIENT is aware that third-party providers, such as Amazon and Otto, are entitled to stop or discontinue advertising campaigns at any time without giving reasons. The CONTRACTOR is not responsible for such action, unless the action is based on a culpable breach by the contractor of its contractual obligations. The CONTRACTOR's claim for compensation remains unaffected in these cases.
3.4 If the CLIENT instructs the CONTRACTOR to pause any campaigns in the meantime or if it is necessary to pause the campaign altogether through no fault of the CONTRACTOR, this does not affect the CONTRACTOR's claim for compensation.
3.5 It is agreed that all samples (products, articles, objects, etc.) handed over to the CONTRACTOR should be returned to the CLIENT after performance of the service for which the sample was required. The customer must either pick up the samples himself or send the CONTRACTOR a return slip by email or post. If the samples are not picked up after two working days or if no return slip is provided, the samples will be disposed of.
3.6 The employees employed by the CONTRACTOR in the execution of the contract are not integrated into the CLIENT's business and the CLIENT is not authorized to issue instructions to them. The CLIENT can only provide technical requirements to the contact person named by the CONTRACTOR in the contract in accordance with the scope of services described.
3.7 The decision as to which employees the CONTRACTOR uses is the sole responsibility of the CONTRACTOR. The CONTRACTOR can remove the employed employees at any time and replace them with others. The contractor is entitled to use third parties to provide the contractually agreed services or to use third-party products for this purpose.
4. Services subject to acceptance
4.1 The services provided by the contractor are generally subject to service contract law. If, by virtue of law, an agreed service is predominantly subject to work contract law and is therefore subject to acceptance, the following paragraphs 2 and 3 apply only with regard to these services.
4.2 The CLIENT is obliged to accept the commissioned and provided service, e.g. creative services, insofar as the service to be accepted is essentially in accordance with the contract. If the CLIENT does not explain within five working days of delivery of a service that is essentially in accordance with the contract whether it accepts it or refuses acceptance or wishes to make further changes, the acceptance is considered to have been granted. The refusal of acceptance is only admissible if at least one significant defect is specified. This applies even if the CLIENT would still be entitled to rounds of amendments and corrections under contract.
4.3 By accepting the service, the CLIENT assumes responsibility for the accuracy and legality of the service, in particular its compliance with competition law, unless the CONTRACTOR has expressly assumed responsibility for certain elements in writing. Within the scope of the above responsibility, the CLIENT releases the CONTRACTOR from any claims made by third parties and from all costs incurred by the CONTRACTOR as a result of a claim. The CONTRACTOR is in no way liable for the factual statements contained in the services accepted about the CLIENT's products and services. In this respect, the CONTRACTOR is also not subject to an audit obligation.
5. Rights to use creative services
5.1 If the CONTRACTOR creates product texts, product images, logos and other materials and content for the CLIENT, the (computer) graphic implementations (hereinafter “creative services”) developed by the CONTRACTOR are protected works under copyright law. Unless this is explicitly agreed otherwise in the contract, the CLIENT only receives the simple, non-transferable right to use the creative service as a whole within the framework of the agreed purpose of the contract.
5.2 If the CLIENT intends to use the creative service in addition or to use individual elements of the creative service separately, a separate user agreement must be concluded with the CONTRACTOR or, in the case of individual elements, with the author/right holder of the element. If the CLIENT uses the creative service or parts of it attributable to the CONTRACTOR as the author without a corresponding user agreement or beyond the agreed usage framework, the CONTRACTOR is entitled to remuneration in accordance with the contractor's current schedule of remuneration or, if the type of use is not regulated, remuneration in the usual market amount.
6. Involvement of the client
6.1 At every stage and for all aspects of cooperation, close and trusting cooperation between the CONTRACTOR and the CLIENT and, in this context, appropriate involvement of the CLIENT to perform the service is necessary. Depending on the service provided, the CLIENT is therefore obliged to provide various cooperation and assistance services. If necessary for the execution of the order, the CLIENT will in particular
• send photos and/or logos etc. to the CONTRACTOR for the creation of advertising measures and/or setup/optimization of online marketplace accounts by the CONTRACTOR - if commissioned;
• grant the CONTRACTOR access and the necessary rights to) edit/manage existing online marketplace accounts. The CLIENT will maintain this access for the duration of the contract and for a period of 30 days after termination of the contract, for whatever reason. Access 30 days after termination of the contract is necessary, as the CONTRACTOR only creates the statement based on the account data after the service has been provided. The online marketplace account is and remains the property of the CLIENT even after the contract has ended;
• carry out the review/correct/approval of advertising measures/creative services, advertising material, speeches created by the CLIENT
• With regard to the services to be provided by him, the CLIENT receives
Cooperation by the CONTRACTOR after conclusion of the contract by telephone or e-mail, a general explanation, in particular information on the necessary technical requirements and information where any materials to be submitted by the CLIENT should be sent.
6.2 The CLIENT appoints a qualified contact person/project manager to the CONTRACTOR in writing and provides contact details by means of which the contact person or, if applicable, his authorized representative can be reached at any time. The contact person must be able to make the necessary decisions for the CLIENT or make them immediately. The CLIENT shall immediately inform the CONTRACTOR in writing of any changes to these contact details. Furthermore, the CLIENT shall provide, free of charge, those employees of the CLIENT who have the special knowledge required for the execution of the contract and the provision of the services agreed therein by the CONTRACTOR.
6.3 The CLIENT will independently and carefully check all information for errors. The CONTRACTOR is not obliged to verify the information, but will point out to the client any obvious contradictions on the part of the contractor.
6.4 The client undertakes not to transmit any illegal content and ensures that the material provided by him for services provided by the contractor does not contain or link to illegal content, in particular no content that violates the provisions of the Criminal Code, Narcotics Act, Medicines Act, Weapons Act or the liberal democratic order.
6.5 If the CLIENT has to hand over photos/logos/images/texts/company data and information or similar materials (collectively “content”) for the creation of advertising measures and/or setup/optimization of online marketplace accounts or provision of other creative services by the contractor, he assures the CLIENT — without the CONTRACTOR having to verify this — that the reproduction, trademark, naming, editing and other intellectual property rights to this content are with the CLIENT in for the provision of are entitled to agreed services by the CONTRACTOR or third parties commissioned by the CONTRACTOR and insofar as personal data is provided whose use and processing in accordance with the order by the CONTRACTOR or third parties commissioned by the latter does not violate the relevant data protection regulations.
6.6 The CLIENT only uses and transmits to the CONTRACTOR its own content or content to which it has acquired the necessary rights for the respective intended use and which does not infringe the rights of third parties and transfers to the CONTRACTOR the simple, spatially and temporally unlimited rights of use of this content, including the right to sublicense, to the extent necessary to fulfill the contractual relationship. The right of use granted to the CONTRACTOR includes in particular the reproduction, processing, public reproduction, public availability and transmission of the content.
6.7 Insofar as certain online marketplaces require the client to cooperate (e.g. activation link, entry of a code in a web directory, etc.) in order to finally activate the entry, account, profile or parts of it, this is the sole obligation of the client.
6.8 The CLIENT is exclusively responsible for the legal compliance of any content created or measures taken by the CONTRACTOR, such as advertisements, landing pages, etc. The CONTRACTOR does not provide legal advice. As part of its obligations to cooperate, the CLIENT will always check on its own responsibility and at its own expense whether the use of a work result violates applicable law before accepting the client's work results without reservation. A preliminary review by legal counsel from the CLIENT is recommended.
6.9 The CLIENT must provide the CONTRACTOR with the cooperation incumbent upon it in full and in due time. Disadvantages and additional costs arising from a breach of the CLIENT's obligations to cooperate set out in this Section 6 and elsewhere in the contract shall be borne by the CLIENT. In particular, the client's payment obligation does not lapse if services by the contractor cannot be provided due to deficient or not provided cooperation by the client, the contact person named by the latter or other employees of the client.
7. Remuneration
7.1 The amount of remuneration is based on the respective contract. When creating creative services, additional services compared to the agreed scope of services, in particular due to subsequent requests for changes or additions by the client, will be charged according to the agreed remuneration rates, as an alternative to the contractor's prices valid at the time of assignment.
7.2 Unless otherwise agreed in the contract, the CLIENT assumes the contractor's necessary accommodation and travel expenses associated with the performance of the contract. This includes accommodation costs in hotel categories up to and including 4 stars, car trips (0.30€/km), flight tickets up to and including business class, second-class train travel and other travel expenses for using public transport, taxis and parking fees
7.3 Any advertising costs and other additional costs incurred by third-party providers are not included in the contractor's remuneration and are to be borne separately by the CLIENT.
7.4 All prices are exclusive of the applicable statutory value added tax, unless the turnover is exempt from sales tax.
7.5 Offsets are only permitted with claims arising from the same legal relationship and undisputed or legally established claims. The CLIENT can only assert a right to refuse or withhold services if the counterclaim is based on the same contractual relationship and has been legally established or recognized by the CONTRACTOR.
7.6 An agreed set-up fee will be charged upon conclusion of the contract. Unless otherwise agreed, other one-off costs (e.g. for optional additional services) will be charged retrospectively on a monthly basis. Unless otherwise agreed, current amounts are also billed retrospectively on a monthly basis. The remuneration is invoiced at the beginning of each month for the previous month. Unless otherwise agreed, invoices will be sent to the CLIENT electronically.
7.7 Payments are due within the payment term specified in the contract after receipt of the invoice. The date the payment is received by the CONTRACTOR is decisive for the timeliness of payment. No discount is granted. After expiry of the respective payment term, the CONTRACTOR is entitled to claim default interest in the amount of the applicable statutory default interest rate.
7.8 Alternatively, the CLIENT may issue a SEPA corporate direct debit mandate. The direct debit will be collected approximately 7 days after the date of the invoice. The deadline for advance notice (pre-notification) is reduced to 7 days. The CLIENT undertakes to ensure that the account is covered. Costs arising from non-redemption or chargeback of the direct debit are borne by the CLIENT as long as the non-redemption or chargeback was not caused by the CONTRACTOR. The CLIENT undertakes to immediately report a change in the account details provided as part of the SEPA corporate direct debit mandate and to issue a new SEPA corporate direct debit mandate when switching accounts.
7.9 In the event of default of payment by the client and in the event of reasonable doubts as to the client's solvency, the CONTRACTOR is entitled to make the (further) execution of the contract dependent on the advance payment of the remuneration and the settlement of outstanding invoice amounts, even before and during the term of the contract, regardless of an originally agreed payment term. Insofar as the execution of the contract is interrupted for this reason (“pause”), the CONTRACTOR is not entitled to the agreed remuneration for the period of the break, but instead a claim for compensation in respect of the consideration not provided as a result of the break.
7.10 If the CLIENT refuses access to the online marketplace account during the contract period or in the period of 30 days after termination of the contract, the CONTRACTOR is entitled to estimate the CLIENT's gross advertising turnover, which is relevant to the calculation of an agreed sales commission. The sales commission calculated on the basis of this estimate is due for payment immediately after corresponding settlement by the CONTRACTOR. The estimate is binding — subject to any discretionary errors — until the CLIENT grants the CONTRACTOR access to the online marketplace account again to the required extent and a calculation of the sales commission deviating from the estimate is possible.
7.11 The CONTRACTOR reserves the right to increase agreed fixed amounts by up to 5% annually. Any increases will be notified to the CLIENT in writing in advance and will take effect 30 days after notification. The CLIENT has the right to object within this period of 30 days after receipt of the notification of the price increase. If no objection is declared by the client within this period, the price increase is considered accepted and becomes part of this contract. If the CLIENT objects within the period, the CONTRACTOR will provide the services at the previously agreed price specifications. In the event of an objection, the CONTRACTOR has the right to cancel the contract with a notice period of 14 days to the end of the month.
8. Warranty, deadline
8.1 In the event of breaches of duty that occur, the CLIENT is obliged to report them immediately in writing with a detailed description of the fault and the information necessary for rectifying the fault.
8.2 The CONTRACTOR does not provide any guarantees of any kind, in particular that the sales promotion measures owed under the contract will be successful.
8.3 Deadlines set by law or contract by the CLIENT must be at least ten (10) working days, unless such a period would result in an unreasonable disadvantage of the CLIENT.
8.4 If, following the fruitless expiry of a period set by him, the CLIENT wishes to refuse the provision of the contract or if the CLIENT wishes to withdraw from the contract (e.g. withdrawal, termination) and/or claim compensation, the CLIENT must threaten in writing the refusal of the contractual service, the solution of the contract or the claim for compensation together with the setting of the deadline. After expiry of the set period, the CONTRACTOR may demand that the CLIENT exercise its rights resulting from the expiry of the deadline and threatened accordingly within ten working days of receipt of a request from the CONTRACTOR. In this case, services already provided will be billed in accordance with the present conditions. Section 9 applies to the assertion of compensation claims.
9. Liability, indemnification
9.1 The CONTRACTOR is fully liable for damage resulting from a breach of a warranty or from injury to life, body or health. The same applies to intent and gross negligence or insofar as the CONTRACTOR has assumed a procurement risk. The CONTRACTOR is only liable for slight negligence if essential obligations arising from the nature of the contract and which are of particular importance for achieving the purpose of the contract are breached. In the event of breach of such obligations, delay and impossibility, the liability of the CONTRACTOR is limited to such damages, which must typically be expected to occur under this contract. Mandatory legal liability for product defects remains unaffected.
9.2 Insofar as the liability of the contractor is excluded or limited, this also applies to the personal liability of the contractor's employees, workers, representatives and vicarious agents.
9.3 The CLIENT's claims expire at the latest one year after they arise. The limitation period of one year does not apply to the unlimited liability of CONTRACTORS for damage arising from the breach of a warranty or from injury to life, body or health, for intent and gross negligence and for product defects or insofar as the CONTRACTOR has assumed a procurement risk. In the event of data loss caused by slight negligence, liability is limited to the typical recovery costs that would have occurred if backup copies were made regularly and at appropriate risk.
9.4 Does the contract end before the end of the agreed contract period for reasons for which the CLIENT is responsible (e.g. termination of the contractor due to late payment by the client, failure to comply with obligations to cooperate by the CLIENT) or does the CLIENT cancel the contract before the end of the agreed contract period without any important reason for immediate termination, the CONTRACTOR is entitled to compensation relating to Services not yet provided by the contractor due to early termination. In the case of recurring fixed remuneration, this amounts to at least 50% of the charges attributable to the remaining term and the lost commission claims based on an extrapolation of the commission already earned. The CLIENT reserves the right to prove that the payment claim is lower due to lower expenses on the part of the CONTRACTOR. The CONTRACTOR reserves the right to assert further claims.
9.5 The CLIENT undertakes to provide the CONTRACTOR and its affiliated companies within the meaning of § 15ff. To indemnify AktG from all claims by third parties (including court costs and statutory attorneys' fees) upon first request, the third party against the CONTRACTOR or affiliated companies within the meaning of § 15ff. AktG as a result of cooperation by the client in accordance with Section 6. In particular, the client releases the CONTRACTOR and, if applicable, third parties commissioned by the latter to provide the agreed service from all claims (including reasonable legal defense costs) against the third party due to breaches of contract or law by the client, incorrect information, late/omission/illegal obligations to cooperate and infringement of third-party rights, in particular the infringement of industrial property rights or copyrights through the contractual use of the client claim content, documents, information, or other materials provided.
10. Confidentiality and data protection
10.1 The CONTRACTOR and the CLIENT agree to keep secret from third parties any documents, knowledge and experience known or provided to the other party in the context of this contract execution (including the fact of conclusion of the contract) (“Confidential Information”). In particular, this includes all information from the CONTRACTOR and the CLIENT regarding know-how, business models, processes and (marketing) concepts.
10.2 The confidentiality obligation in accordance with Section 10.1 above does not apply to confidential information that is disclosed by a party if and to the extent that (i) it was already lawfully in its possession before disclosure and without a confidentiality obligation, (ii) it was published without its action or otherwise became generally known to it through no fault of its own, (iii) it lawfully after conclusion of the contract by one or more third parties without a confidentiality obligation, i.e. without breach of the contract by the recipient party, (iv) these are released in writing by the disclosing party, (v) these have been developed independently of disclosure by the other party by it or its affiliated companies at the time of entry into force of this Agreement or later, (vi) these have been made available to a third party by the disclosing party without corresponding obligations and restrictions, (vii) these must be disclosed in accordance with statutory or administrative requirements if the disclosing party party to this requirement is notified immediately and the scope of the disclosure is limited as far as possible, or must be disclosed on the basis of a court decision if the disclosing party is immediately notified of this decision and if there is no opportunity to challenge the decision, or (viii) its disclosure to third parties is necessary to perform the contract.
10.3 The CLIENT may only make confidential information available to employees and employees of companies affiliated with it within the meaning of Sections 15 et seq. of the German Stock Corporation Act to the extent necessary to exercise the right of use granted to it. The CLIENT may only grant third parties access to the confidential information with the consent of the CONTRACTOR. The CLIENT will inform all persons to whom it legitimately grants access to the contractor's confidential information about the contractor's rights to this confidential information and the duty of secrecy and oblige these persons in writing to maintain confidentiality.
10.4 The confidentiality provisions in accordance with this Section 10 shall continue to apply for a further two (2) years after termination of the contract.
10.5 The contracting parties are obliged to comply with all applicable data protection regulations. The CLIENT ensures that the CONTRACTOR is made aware of all relevant facts that go beyond the legal regulations, knowledge of which is necessary for reasons of data protection and confidentiality. Access data (user name, password, etc.), which are used for protected data access by the CLIENT, must be kept carefully by the CLIENT and must not be made accessible to unauthorised third parties. If the CLIENT becomes aware that unauthorized third parties have obtained access data or there is a corresponding serious suspicion, the CLIENT must immediately inform the CONTRACTOR in writing.
10.6 The personal data processed for the CLIENT belongs solely to the respective customer and is processed by the CONTRACTOR on behalf of Article 28 GDPR. To regulate order processing, a corresponding order processing agreement will be provided for conclusion with the CONTRACTOR.
11. Contract duration
11.1 The contractual service period begins with the date agreed in the contract (“Planned Start Date”,) and ends with the expiry of the term or end date agreed in the contract. This applies even if the CONTRACTOR is not yet able to start providing the service because the CLIENT has not yet fulfilled its obligations to cooperate in accordance with Section 6 or has not yet fulfilled its obligations to cooperate late or insufficiently in quality. The CONTRACTOR is released from his obligation to perform for the period of the resulting delay. However, the client's obligation to pay the fee remains in this case.
11.2 In the case of contracts for the provision of services for a period of time agreed in months/years, contracts whose base period expires at the end of a month are extended by the same period of the basic period, and for a basic period of more than one year only by another year, unless the contract has been terminated with the period of notice agreed in the contract at the end of the respective term. In the case of contracts whose base period does not end at the end of a month, the contract is extended after expiry of the base period until the end of the calendar month in which it ends (termination month), unless the contract has been terminated within the period agreed in the contract. After the end of the month of termination, these contracts are also extended in accordance with sentence 1 if they have not been terminated within the contractually agreed period. Unless a different period of notice is agreed in the respective contract, the period of notice is 14 days before the end of the respective term.
11.3 Irrespective of the contractual provisions, termination for good cause is always permitted. There is good cause for each party, in particular (i) if an application to open insolvency proceedings is filed with regard to the other party's assets or insolvency proceedings are opened against the other party's assets or an application to open insolvency proceedings is rejected due to lack of assets, (ii) if enforcement measures are taken against the other party and are not lifted within one month and/or (iii) if the other party has significant obligations under the contract and/or the terms and conditions violates. There is also an important reason for the CONTRACTOR in particular (i) if the CLIENT stops making payments or the client's financial circumstances deteriorate significantly after conclusion of the contract, (ii) if the majority of the CLIENT changes (change of control) and/or (iii) if the CLIENT significantly breaches its obligations to cooperate.
11.4 Any termination must be made in writing in order to be effective.
11.5 In the event of termination or termination of the contract (i), each party is obliged to release all Confidential Information to the other party or to destroy it upon request and to confirm the completeness of the surrender or destruction in writing upon request. The foregoing does not apply if the receiving party is obliged under the statutory storage obligations to store it independently and cannot be delegated to third parties or insofar as the confidential information is required for evidentiary purposes due to ongoing or pending legal disputes. Confidential information that is automatically backed up by backups of data backup systems and to which there is no systematic access is excluded from the obligation to destroy; and (ii) the right to remuneration of the contractor expires only after full payment after the end of the contract, as agreed in the contract.
12. reference reference
12.1 The CONTRACTOR is entitled to use the cooperation with the CLIENT as a reference for marketing purposes and in particular to name it as a reference in marketing documents (tombstones) or on the Internet on its own homepage and/or social media accounts. In this context, the CONTRACTOR is also entitled to use the client's company name and brand appearances (e.g. logo, image and word mark).
12.2 Other publications, press releases and other communications that go beyond Section 12.1 must be agreed jointly between the CONTRACTOR and the CLIENT before publication.
13. Prohibition of solicitation
13.1 The CONTRACTOR undertakes not to directly or indirectly poach away any employees of the client during existing contractual relationships with the CLIENT and for a further two years after termination of the contractual relationship.
13.2 Poaching is understood as acting on an employee bound by an employment contract with the aim of persuading him to change jobs.
13.3 In any case of culpable infringement by the CONTRACTOR of the obligation under Section 13.1, the CLIENT is entitled to demand from the CONTRACTOR a contractual penalty of up to one year's salary of the recruited employee, which, at the request of the CONTRACTOR, must be checked for appropriateness by the Stuttgart Regional Court, unless the retrieving CONTRACTOR proves that he has not recruited the employee.
13.4 The assertion of other claims, in particular for omission or compensation, remains unaffected.
14. Final provisions
14.1 The current terms and conditions apply at the time the contract is concluded. The CONTRACTOR reserves the right to change the terms and conditions for future transactions at any time. In this case, the CLIENT will be notified in writing of the proposed change. The amendments are considered approved unless the CLIENT objects in writing. The CONTRACTOR will draw particular attention to this consequence when announcing the changes. The written objection must be received by the CONTRACTOR within four (4) weeks after notification of the changes. If such an objection is made, the contract will continue without the proposed changes. The right of the parties to terminate the contract properly remains unaffected by this.
14.2 Regardless of the legal basis, the CLIENT has no right of retention of confidential information and/or other property owned by the CONTRACTOR.
14.3 The place of fulfilment of all services provided by the contractor is Stuttgart.
14.4 German law applies exclusively, to the exclusion of its conflict of law provisions. UN sales law does not apply.
14.5 The exclusive place of jurisdiction for all disputes between the CLIENT and the CONTRACTOR arising from and in connection with the contract and these terms and conditions is Stuttgart, to the extent permitted by law.
14.6 Should a provision of these terms and conditions be or become invalid in whole or in part, the effectiveness of the remaining provisions of these terms and conditions remains unaffected.
