February 19, 2024
General Terms and Conditions - Electus GmbH
General Terms and Conditions of Electus GmbH, Auf dem Knickert 7, 53332 Bornheim, represented by the managing directors Marlon Pollmeier and Julian Pollmüller, commercial register at the Bonn District Court, HRB 27601 (hereinafter: "Electus GmbH")
§ 1 Scope of application
(1) The following General Terms and Conditions (GTC) apply to all contracts that Electus GmbH concludes with its customers, if the customer is an entrepreneur, a legal entity under public law, or a special fund under public law (hereinafter referred to as "Customer" or "Client" ["AG"]).
(2) Electus GmbH does not conclude contracts with consumers. The customer assures that they act as an entrepreneur within the meaning of § 14 BGB (German Civil Code) or as a merchant according to the HGB (German Commercial Code) when entering into a contract with Electus GmbH.
(3) These GTC apply exclusively. Deviating, contrary, or supplementary General Terms and Conditions of the customer shall only become part of the contract if Electus GmbH has expressly agreed to their validity. This requirement for consent applies in every case, for example, even if Electus GmbH begins to perform the services unreservedly with knowledge of the customer's GTC.
§ 2 Services from Electus GmbH / Customer Participation
(1) Electus GmbH provides individual consulting and agency services in the field of online marketing. Unless expressly agreed otherwise in writing, Electus GmbH is not obliged to produce a work. In particular, Electus GmbH can only predict the success of specific advertising measures based on empirical values. The customer is aware that such success cannot be guaranteed by Electus GmbH due to various other parameters and factors influencing an advertising campaign. If a separate remuneration for achieving a certain success of an advertising measure is agreed upon, this will be paid as a success-dependent bonus. There is no fundamental claim to the attainment of a concrete success.
(2) If Electus GmbH provides a service for the customer in the field of inquiry acquisition (applicant or customer inquiries), inquiries are considered qualified when they have been entered through the process defined and created by Electus GmbH with the help of the customer, thus demonstrating interest in the customer's products, positions, and services.
(3) The customer must always perform the participatory actions required of him completely and on time. If the customer omits a participatory action and thus prevents the performance of services by Electus GmbH, Electus GmbH's claim to remuneration remains unaffected.
(5) The customer is solely responsible for the legal compliance of any advertising campaigns (advertisements, internet presence, imprint, privacy statements, etc.).
(6) We point out that advertising platforms such as Facebook, TikTok, and Google are at any time entitled to stop/suspend advertising campaigns without giving reasons. Electus GmbH is not responsible for such action.
(7) Electus GmbH has the right to determine performance according to § 315 BGB (German Civil Code) in relation to the consulting services to be provided to the customer.
(8) Electus GmbH is entitled to have services owed to the customer also performed by vicarious agents/subcontractors and third parties.
(9) The agreed compensation from Electus GmbH regarding its consulting services does not include a budget for the customer's advertising campaigns unless otherwise agreed. This budget must be provided separately by the customer and paid directly to the advertising platform operator if necessary.
(10) Electus GmbH does not guarantee a specific number of applications/customer inquiries and no certain quality in the context of the advertising campaigns published for the customer.
(11) Landing pages and domains (including subdomains) provided by Electus GmbH in cooperation with the customer must be transferred to Electus GmbH after the collaboration has ended. The customer has no right of use beyond the duration of the collaboration.
§ 3 Conclusion of Contracts
(1) The conclusion of the contract between Electus GmbH and the customer can occur remotely (video chat, email, phone, etc.) or in writing. If the contract is concluded remotely, the customer has no right to receive the contract content again in written form from Electus GmbH.
(2) Remotely, contracts between Electus GmbH and the customer are concluded through matching declarations of intent. The customer consents to Electus GmbH recording the phone call, the email, and/or the respective video chat for evidence and documentation purposes if desired by Electus GmbH.
§ 4 Services Requiring Acceptance
(1) The services of Electus GmbH generally fall under the law of service contracts. Only for services that exceptionally fall under contract law and are therefore subject to acceptance, do the following paragraphs 2-10 apply.
(2) Electus GmbH may demand acceptance of the respective partial service from the customer after completion of the individual partial service and, after performing all adjustments, may additionally demand overall acceptance of all services.
(3) Acceptance of services requires a functional test by the customer. The functional test is considered successfully carried out if the adaptation services meet the agreed requirements.
(4) If the functionality test is carried out successfully, acceptance must be declared immediately. Electus GmbH may set a deadline of one week for the customer to declare partial or overall acceptance. It is deemed accepted upon expiry of the deadline if the customer has not declared in writing to Electus GmbH which defects still need to be remedied. The customer will prepare a protocol of defects and provide it to Electus GmbH. The risk of transmission lies with the customer.
(5) If defects are found during the functionality test, Electus GmbH is obliged and authorized to continue working on and remedy these defects. Services provided by Electus GmbH for the remediation of defects are to be remunerated based on time spent, provided they exceed two hours. The same applies to services for the remedy of defects detected after acceptance. In this respect, the usual hourly rate of a consulting firm is to be applied.
(6) In the presence of a significant defect, Electus GmbH is entitled to remedy the defect twice within a reasonable and customer-set deadline. The time spent on this is to be remunerated separately by the customer; paragraph (5) applies accordingly. Insignificant defects in the (partial) service do not prevent acceptance.
(7) If it is in dispute between the parties whether there is a significant or insignificant defect in the work, a publicly appointed expert from the Chamber of Commerce and Industry must be consulted before initiating legal proceedings. The customer is obliged to make an advance payment for the appropriate remuneration of the expert to be consulted. If the called expert determines the existence of a significant defect in the work, Electus GmbH will reimburse the customer for the resulting expenses.
(8) The (partial) service to be accepted from Electus GmbH is also deemed accepted if the customer, upon request from Electus GmbH to accept the respective (partial) service, does not declare in writing within 7 working days.
(9) Additional claims of the customer, in particular for reimbursement of the necessary expenses for the remedy of defects, damages, and compensation for futile expenditures, do not exist.
(10) If the defects leading to extraordinary termination of the contract do not constitute significant defects as mentioned earlier, the customer also has no claim for reimbursement of parts of the compensation.
§ 5 Provision of Social Media Accounts
(1) In the course of the collaboration, the customer agrees to grant Electus GmbH access to his/her social media accounts (hereinafter "Accounts"). This includes, but is not limited to, platforms such as Facebook, Instagram, LinkedIn, and TikTok.
(2) The customer undertakes to provide all necessary access data and permissions to enable Electus GmbH to perform the agreed services in connection with the Accounts. This provision must be made timely and in accordance with the respective terms of use of the relevant platforms.
(3) Electus GmbH commits to keeping the access data and permissions confidential and to use them only for the purpose of the contractually agreed performance of services. Furthermore, Electus GmbH will comply with all applicable laws, regulations, and provisions in connection with access and use of the Accounts.
(4) The customer is responsible for ensuring the security and integrity of his/her Accounts. This includes regularly updating passwords and monitoring the Accounts to detect potential security breaches or unauthorized activities and taking appropriate measures.
(5) Electus GmbH is not liable for damages or losses incurred by the customer through the use of the Accounts in the course of collaboration, unless such damages or losses are due to intentional or grossly negligent actions of Electus GmbH.
§ 6 Payments, Prices, Terms
(1) The prices stated and communicated by us, whether remotely or in writing, are binding. The communicated prices are exclusive of statutory value-added tax and quoted in the currency Euro (€).
(2) Payment for our services is due immediately upon invoicing, either by invoice issuance or via SEPA direct debit mandate. Payment for our services is generally due upon conclusion of the contract, unless our offer states otherwise. A granted (SEPA) direct debit authorization is valid until revoked, even for further business relations.
(3) If a payment via SEPA direct debit mandate has been agreed upon, you are obligated and agree to immediately provide us with a written SEPA direct debit mandate signed by you after the phone call or fill out and transmit the link for granting a SEPA direct debit mandate provided on our site. This should be addressed to: info@electus.digital and then by mail to:
Electus GmbH
Auf dem Knickert 7
53332 Bornheim
(4) Electus GmbH will issue a proper invoice outlining the VAT after successful direct debit collection.
(5) 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 owed amount to Electus GmbH within three working days.
(6) Offsetting with counterclaims is mutually permissible only if the respective other contracting party has acknowledged the offset or if it has been legally established. The same applies to the exercise of a right of retention by a contracting party.
(7) In any form of collaboration (both remunerated and gratuitous), Electus GmbH is entitled to use the partner's logo on its own website for advertising purposes.
(8) Electus GmbH is entitled to assign third parties with the handling of payment transactions with the customer. The customer authorizes Electus GmbH to enter (payment) data on behalf of the customer.
§ 7 Termination, Duration
(1) The contract between Electus GmbH and the customer has the individually agreed minimum term (remotely or in writing) between the parties. Early termination is excluded. If the contract between Electus GmbH and the customer is not terminated at least 4 weeks before the end of the contract term, it will be extended for the same duration and under the same conditions (this does not apply to any setup fees or setup fees).
(2) The right to extraordinary termination remains unaffected at all times.
§ 8 Default / Withdrawal
(1) Deadlines for the performance of services by Electus GmbH do not begin before the invoice amount has been received by Electus GmbH and the data necessary for the services are completely available to Electus GmbH or the necessary participatory actions are fully performed.
(2) If the customer is in arrears with due payments, Electus GmbH reserves the right not to perform further services until the outstanding amount has been settled.
(3) If the customer is in arrears with at least two due payments towards Electus GmbH, Electus GmbH is entitled to terminate the contract extraordinarily and discontinue the services. Electus GmbH will claim compensation for the entire payment due until the next regular termination date. Saved expenses should be deducted.
(4) Any free termination rights of the customer are excluded.
§ 9 Fulfillment
(1) Electus GmbH will perform the agreed services according to the offer with the necessary care. Electus GmbH is authorized to employ third parties for this purpose.
(2) The customer is aware that Electus GmbH, unless explicitly agreed otherwise in writing, owes the performance of services, not the production of a work. Upon the customer's request, Electus GmbH will provide information on the services performed.
(3) If Electus GmbH is prevented from providing the agreed services and the reasons for the hindrance come from the customer's sphere, Electus GmbH's claim to compensation remains unaffected.
(4) Electus GmbH is entitled to call contacts generated for the customer for quality assurance purposes in the customer's name.
§ 10 Liability
(1) Electus GmbH is liable for compensation for damages - regardless of the legal reason - only for intent and gross negligence. In the case of simple negligence, Electus GmbH is only liable
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of a material contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, liability is limited to the compensation for the foreseeable, typically occurring damage.
(2) Within the limits of paragraph 1, Electus GmbH is not liable for data and program losses. Liability for data loss is limited to the typical recovery effort that would have been incurred if backup copies had been made regularly and with due regard to the risks.
Liability according to the Product Liability Act remains unaffected as does liability for assuming a guarantee.
(3) The customer is aware that third-party providers such as Meta are at any time entitled according to their policies to delete/remove/block individual advertising campaigns, pages, accounts from their offers. Electus GmbH is not liable for such procedures.
(4) As part of their duty to cooperate, the customer is obliged to provide Electus GmbH only with image/video/audio material that is free of third-party rights. The customer completely indemnifies Electus GmbH from any claims of third parties due to the violation of intellectual property in this respect.
§ 12 Copyright, Usage Rights
(1) We hold copyrights to all images, videos, texts, webinars, databases that we publish. Any use without our consent is not permitted.
(2) The customer receives only for the duration of the contract period a simple right of use regarding the contents stored in our password-protected member area. Redistribution to third parties or duplication of the contents stored by us is strictly prohibited. If the customer duplicates content from the protected member area or passes it on to unauthorized third parties, a reasonable penalty fee to be determined by us and to be reviewed in case of dispute by the competent court is considered agreed upon.
(3) The customer does not receive usage rights regarding advertising texts/ads published by us on our websites or within forums/groups.
(4) It is prohibited to pass on the content conveyed and the templates, strategies, and concepts made available to third parties or to offer them commercially to third parties unless this has been explicitly coordinated with Electus GmbH. If the customer violates this agreement, a reasonable penalty fee to be determined by us and to be reviewed in case of dispute by the competent court is considered agreed upon.
(5) Violations of paragraphs 1 and 2 will be reported to a law enforcement authority.
§ 13 Third-Party Rights
(1) If the customer provides Electus GmbH with material (photos, videos) to be used by Electus GmbH in the advertising display, the customer warrants that the supplied material is free from third-party rights or that the necessary permissions for the purposes of the main contract are in place.
(2) The customer indemnifies Electus GmbH in this context for any third-party claims due to infringements of rights.
§ 14 Reference Advertising
(1) The customer agrees that Electus GmbH may use his/her name and logo without time and location restrictions on the Electus GmbH social media presences to inform about the provision of services or the collaboration and to advertise with it.
(2) Furthermore, the customer agrees that Electus GmbH may use all media (including but not limited to images, texts, videos, and other materials used in the collaboration) for reference purposes and for advertising activities.
(3) The customer warrants that he has obtained all necessary rights, especially copyrights, trademarks, and personality rights, for the materials used in the collaboration. The customer indemnifies Electus GmbH from all claims by third parties that arise due to the use of the materials provided by the customer.
(4) Electus GmbH is not liable for the infringement of third-party rights through materials provided by the customer. The responsibility for obtaining the corresponding rights rests exclusively with the customer.
§ 15 Final Provisions
(1) Deviations from these GTC are only valid if they have been agreed in writing. In individual cases, special agreements made with the customer including side agreements, supplements, and amendments always take precedence over these GTC. The content of such agreements is determined by a written contract or the written confirmation from Electus GmbH.
(2) The law of the Federal Republic of Germany applies. The place of performance and jurisdiction is Bornheim.
(3) Electus GmbH reserves the right to change these General Terms and Conditions at any time, unless the change is unreasonable for the customer. Electus GmbH will notify the customer in advance. If the customer does not object to the new General Terms and Conditions within a period of two weeks after notification, the changed General Terms and Conditions are considered accepted by the customer.
