Conditions
GENERAL TERMS AND CONDITIONS
1. GENERAL TERMS AND CONDITIONS
1.1 Scope of application of the general terms and conditions of business
a. TOUCHPOINT marketing company, hereinafter: TOUCHPOINT marketing Company , offers its customers services in the field of marketing, advertising and marketing of products in
retail chains and online stores, in particular on the Amazon platform.
b. Customers can only be entrepreneurs in the sense of § 14 BGB (German Civil Code), i.e. natural or
legal entities or partnerships with legal capacity, who act in the exercise of their commercial or independent
or independent professional activity.
c. All services are provided exclusively on the basis of these General Terms and Conditions. Deviating, conflicting or supplementary general terms and conditions of the customer (also e.g. terms and conditions of purchase) shall not become part of the contract, unless their validity is expressly agreed in writing at the time the contract is
expressly agreed in writing upon conclusion of the contract. Any reference to the customer's terms and conditions in the form of a form is expressly rejected.
1.2 Offer and conclusion of contract
All offers received from TOUCHPOINT marketing company are subject to change without notice and are
non-binding. A contract between you as a customer and TOUCHPOINT marketing company is only
only through your order and its acceptance by TOUCHPOINT marketing company.
TOUCHPOINT marketing company accepts your order by sending a confirmation by e-mail or by sending the signed contract.
or by sending you the signed contract.
1.3 Warranty
a. The actual success of a performed action depends on a variety of factors,
namely, in particular, on the techniques and algorithms used by the respective platform or search engine operator, as well as on the regulations of the merchants/purchasing centers. TOUCHPOINT marketing company has no influence on this.
b. TOUCHPOINT marketing company provides services to its customers.
The regulations of civil law and commercial law do not provide any warranty regulations for service contracts.
1.4 Indemnification, liability
a. Insofar as TOUCHPOINT marketing company is held liable by a third party due to the customer's
third parties due to conduct attributable to the customer, the customer shall indemnify TOUCHPOINT marketing company
from all claims in this respect.
b. TOUCHPOINT marketing company shall be liable to the customer in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions, insofar as not
these terms and conditions.
c. TOUCHPOINT marketing company shall only be liable to the customer for damages in the event of intent and gross negligence, irrespective of the legal grounds. In the case of simple negligence
TOUCHPOINT marketing company shall only be liable i. for damages resulting from injury to life, body
ii. for damages arising from the breach of a material contractual obligation (obligation, the fulfillment of which is a prerequisite for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, TOUCHPOINT marketing company's liability shall be limited to the compensation of the foreseeable, typically occurring damage. As far as no other indications are given, this shall be twice the order value.
d. The limitations of liability resulting from the above shall not apply insofar as
TOUCHPOINT marketing company can be accused of malice or in the case of guarantees or in the
guarantees or in the area of application of the product liability law.
1.5 Date of payment/Delay
Unless otherwise agreed in the offer, the term of payment for all services is 14 days from the date of invoice. In the event of late payment on your part, TOUCHPOINT marketing company's claims shall be governed by the statutory default provisions. TOUCHPOINT marketing company
is free, however, in the case of a proven higher damage caused by the delay, to
to assert this against you.
1.6 Secrecy
a. The documents, knowledge and experience provided to the customer are subject to secrecy and may be used and may only be used for the purposes of this contract and may not be made available to third
made available to third parties, unless they are intended to be made available to third parties.
to be made accessible to third parties.
b. The customer undertakes to pay a reasonable contractual penalty for each case of culpable infringement of the aboveobligation to pay an appropriate contractual penalty to TOUCHPOINT marketing company.
to TOUCHPOINT marketing company. The amount of the contractual penalty shall be determined by TOUCHPOINT marketing company at its reasonable discretion and shall be reviewed by the competent court in the event of a dispute.
1.7 Final provisions
a. The law of the Federal Republic of Germany shall apply. The provisions of the
UN Convention on Contracts for the International Sale of Goods shall not apply.
b. Offsetting with counterclaims of the customer is only permissible insofar as the counterclaims are undisputed or have been legally established.
The same shall apply to the assertion of rights of retention.
c. The transfer of rights and obligations of the customer from the contract to third parties requires the written consent of TOUCHPOINT marketing company. The consent can only be refused if there is an important reason. This is particularly the case if there is an important reason in the person of the third party or if business interests of TOUCHPOINT marketing company would be violated.
d. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be the registered office of TOUCHPOINT marketing company. The same applies if the customer has no general
place of jurisdiction in Germany or if the customer's place of residence or habitual
are not known at the time the action is filed.
e. Any ancillary agreements must be made in writing.
1.8 Severability clause
Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, the validity of the rest of the contract shall remain unaffected. In place of the ineffective contractual provision, such a provision shall be deemed to be intended which comes closest to the meaning and purpose of the ineffective provision, taking into account the purpose of the entire contract and in good faith. The same shall apply if there is a gap in the contract, which shall then be filled accordingly.
2. TERMS & CONDITIONS
MARKETING & ADVERTISING
2.1 Copyright and rights of use
a. Every order placed with TOUCHPOINT marketing company is a copyright contract, which is directed towards the granting of rights of use to the work performances.
b. All drafts and final artwork are subject to copyright law. The provisions of the Copyright Act shall also apply if the necessary requirements for protection, e.g. the so-called "level of creation", are not met in an individual case. Thus, in such a case
the rules of copyright contract law of §§ 31 ff. UrhG; furthermore, TOUCHPOINT marketing company shall be entitled in such a case in particular to the
claims under copyright law from §§ 97 ff. UrhG.
c. The drafts and final artwork may not be altered or passed on to third parties, either in the original or in reproduction, without the express consent of TOUCHPOINT marketing company.
Any imitation - even of parts - is not permitted. Violation of this provision shall entitle TOUCHPOINT marketing company to demand a contractual penalty in the amount of 100% of the agreed remuneration or the remuneration customary according to the collective agreement for design services SDSt/AGD (latest version). If no remuneration has been agreed, the remuneration customary according to the collective agreement for design services SDSt/AGD (latest version) shall be deemed to have been agreed.
d. TOUCHPOINT marketing company shall transfer to the client the rights of use required for the respective purpose. Unless otherwise agreed, only the simple right of use shall be transferred in each case. Any transfer of the rights of use to third parties shall require a written agreement.
agreement. The rights of use shall not be transferred until the remuneration has been paid in full.
e. TOUCHPOINT marketing company has the right to be named as the author on the reproductions. A violation of the right to be named entitles TOUCHPOINT marketing company to compensation. Without proof of higher damages, the compensation shall amount to 100% of the agreed remuneration or the remuneration customary according to the collective agreement for design services SDSt/AGD (latest version). The right to claim higher damages upon proof higher damages upon proof shall remain unaffected.
f. Suggestions of the client or his other cooperation have no influence on the amount of the remuneration. They do not constitute a joint copyright.
2.2 Remuneration
a. Drafts and final artwork, together with the granting of rights of use, form a single service. Remuneration shall be based on the collective agreement for design services SDSt/AGD (latest version), unless other agreements have been made. The remunerations are net amounts,
which are to be paid plus the statutory value added tax.
b. If no rights of use are granted and only drafts and/or final artwork are supplied,
the remuneration for use shall not apply.
c. If the drafts are used later, or to a greater extent than originally intended,
TOUCHPOINT marketing company shall be entitled to subsequently invoice the remuneration for use or to demand the difference between the higher remuneration for use and the remuneration originally paid.
d. The preparation of drafts and all other activities performed by TOUCHPOINT marketing company for the client shall be subject to a charge, unless expressly agreed otherwise.
agreed otherwise.
2.3 Due date for payment
a. Remuneration shall be due upon delivery of the work. It is payable without deduction. If the ordered work is accepted in parts, a corresponding partial remuneration shall be due in each case upon acceptance of the part. Thus, TOUCHPOINT marketing company may also demand the corresponding part of the remuneration upon acceptance of the drafts. If the order extends over a longer period of time or if it requires the
TOUCHPOINT marketing company, reasonable advance payments shall be made, namely 1/3 of the total remuneration when the order is placed, 1/3 after completion of 50% of the work, 1/3 after delivery.
b. In the event of default in payment, TOUCHPOINT marketing company shall be entitled to charge interest on arrears in the amount of 8 percentage points above the base interest rate in accordance with §§ 288, 247 BGB. The assertion of proven higher damages shall remain unaffected. If the client does not pay after the first reminder, he shall be charged costs of EUR 7.50 for each further reminder.
c. Acceptance may not be refused on creative-artistic grounds.
There is freedom of design within the scope of the order.
d. Should the Client terminate the contract prematurely, TOUCHPOINT marketing company shall receive the agreed remuneration, however, TOUCHPOINT marketing company must take into account any expenses saved or substitute orders carried out or maliciously omitted (§ 649 BGB). The parties shall, however, agree on a lump sum of the remuneration saved up to the time of termination prior to the commencement of work: 10% of the agreed remuneration or, if no such remuneration has been agreed, 10% of the remuneration customary under the collective agreement for design services SDSt/AGD (latest version). Agreements deviating from this are possible. The client reserves the right to provide evidence of actually lower services or higher expenses.
2.4 Special services, additional and travel expenses
a. Special services such as the reworking or modification of final artwork, manuscript studies
or print monitoring shall be charged separately on the basis of the time spent in accordance with the collective agreement for design services SDSt/AGD (latest version).
b. TOUCHPOINT marketing company is entitled to order the external services necessary for the fulfillment of the order in the name and for the account of the Client. The client
undertakes to grant TOUCHPOINT marketing company the corresponding power of attorney.
TOUCHPOINT marketing company shall not assume any warranty and/or liability for damages or other impairments of the contract due to the external services ordered in
the name of and for the account of the Customer.
c. Insofar as in individual cases contracts for external services are concluded in the name and for the account of TOUCHPOINT marketing company, the client undertakes to release TOUCHPOINT marketing company internally from all liabilities arising from the conclusion of the contract. This includes in particular the assumption of costs. TOUCHPOINT marketing company shall not assume any warranties and/or liability for damages or other contractual impairments due to the external services commissioned on behalf of TOUCHPOINT marketing company for the client.
d. Expenses for ancillary technical costs, in particular for special materials, for the production of models, photos, intermediate photos, reproduction costs, typesetting and printing, etc. shall be reimbursed by the
to be reimbursed by the client.
e. Travel costs and expenses for journeys that are to be undertaken in connection with the assignment
and agreed upon with the client, are to be reimbursed by the client.
2.5 Retention of title
a. Only rights of use are granted for drafts and final artwork, but no ownership rights are transferred.
b. The originals must therefore be returned undamaged after a reasonable period of time, unless expressly agreed otherwise. In the event of damage or loss, the client shall reimburse the costs necessary to restore the originals. The assertion of further damages remains unaffected.
c. The dispatch of the work and originals shall be at the risk and for the account of the client.
d. TOUCHPOINT marketing company is not obligated to release to the client files or layouts that were
computer to be handed over to the client. If the Client wishes computer data to be handed over, this shall be agreed separately and shall be remunerated. If TOUCHPOINT marketing company has provided the client with computer files, these may only be changed with the prior consent of the designer.
e. The shipment of all items mentioned in sections 2.5.a. to 2.5.d. shall be at the risk and for the account of the risk and for the account of the client.
2.6.Correction, Production Supervision and Voucher Samples
a. Prior to the execution of the reproduction, TOUCHPOINT marketing company shall be provided with
must be provided with correction samples.
b. Production monitoring by TOUCHPOINT marketing company shall only take place on the basis of a special agreement. When assuming production supervision, TOUCHPOINT marketing company shall be entitled to make the necessary decisions and issue the appropriate instructions at its own discretion. The TOUCHPOINT marketing company shall be liable for errors only in the event of fault on the part of its vicarious agents and only in the event of intent and gross negligence.
c. The client shall provide the designer with 10 to 20 perfect, unfolded copies of all duplicated work free of charge. TOUCHPOINT marketing company is entitled to use these samples for self-promotion purposes.
2.7. liability
a. TOUCHPOINT marketing company undertakes to execute the order with the greatest possible care, and in particular to handle with care any templates, films, displays, layouts etc. provided to it. TOUCHPOINT marketing company shall be liable for any damage incurred only in the event of intent
and gross negligence of its vicarious agents, except for damages resulting from injury to life, body or health; for such damages TOUCHPOINT marketing company and its vicarious agents shall also be liable for slight negligence. Otherwise, TOUCHPOINT marketing company shall only be liable for slight negligence if an obligation is violated, compliance with which is of particular importance for the achievement of the purpose of the contract (cardinal obligation). Any compensation for damages
in excess of the material value shall be excluded.
b. TOUCHPOINT marketing company undertakes to carefully select and instruct its vicarious agents. Beyond that, it shall not be liable for its vicarious agents, unless the
TOUCHPOINT marketing company is at fault in the selection of its vicarious agents.
fault in the selection of its vicarious agents.
c. If TOUCHPOINT marketing company commissions necessary external services, the respective contractors shall not be vicarious agents of TOUCHPOINT marketing company. TOUCHPOINT marketing company shall only be liable for its own fault and only for intent and gross negligence or intent and gross negligence of its own vicarious agents.
d. With the approval or acceptance of drafts, final designs or final artwork by the client, the client assumes responsibility for the correctness of text and images.
e. TOUCHPOINT marketing company shall not be liable for any drafts, texts, final versions and final drawings approved or accepted by the client.
f. TOUCHPOINT marketing company shall not be liable for the admissibility and registrability of the work as a property right (trademark, design patent, utility model or any other right) under competition and trademark law. The client is responsible for his own himself responsible.
g. Complaints of any kind whatsoever must be made in writing to the registered office of TOUCHPOINT marketing company within 14 days of delivery of the work. The timely dispatch of the complaint is sufficient to meet the deadline. Thereafter, the work shall be deemed to have been accepted free of defects.
2.8 Freedom of design and templates
a. Within the scope of the order there is freedom of design. Complaints regarding the artistic design are excluded. If the client wishes to make changes during or after production, he shall bear the additional costs. TOUCHPOINT marketing company shall retain the right to remuneration for work already commenced.
b. If the execution of the order is delayed for reasons for which the client is responsible, TOUCHPOINT marketing company may demand an appropriate increase in remuneration. In the event of intent or gross negligence, it may also assert claims for damages. The assertion of further damage caused by delay shall remain unaffected.
c. The client assures that he is entitled to use all templates handed over to TOUCHPOINT marketing company. If, contrary to this assurance, he is not entitled to use them, the Client shall indemnify TOUCHPOINT marketing company against all claims for
from all claims for compensation by third parties.
2.9. final provisions
a. If the client is a merchant, the place of performance and jurisdiction shall be the registered office of the
of TOUCHPOINT marketing company.
b. The invalidity of one of the above conditions shall not affect the validity of the remaining conditions.
remaining provisions.
c. The law of the Federal Republic of Germany shall apply. The application of
UN Convention on Contracts for the International Sale of Goods is excluded.
3. TERMS AND CONDITIONS
DISCLOSURE
3.1 Subject of the contract
a. TOUCHPOINT marketing company shall establish the contact between the client and the distributor and provide advice and assistance with regard to business procedures and industry specifics.
b. TOUCHPOINT marketing company has purely advisory and mediating tasks and bears no liability for the success of the mediated business relationship.
c. The operative and legal cooperation, respectively all components of the legal transaction (orders, organizational matters, payment, liability, logistics, etc.) are carried out directly and exclusively between the dealer and the client. Therefore, it is the responsibility of the client to carefully review all documents and general conditions before confirming the order to the dealer and to obtain written confirmation from the dealer carefully and request them from the dealer in writing. All information
of TOUCHPOINT marketing company are without guarantee.
3.2 Time and place of the service
TOUCHPOINT marketing company is free with regard to the type and execution of the tasks assigned to him and the use of his time. He is not subject to any instructions from the client.
3.3 Rights and duties of the client
During the term of the contract, the client shall not be entitled to commission additional agents in parallel.
TOUCHPOINT marketing company for the drugstore and retail trade.
All retailers or other intermediaries who contact him during the term of the contract shall be referred to TOUCHPOINT marketing company.
3.4 Remuneration
a. In case of success, TOUCHPOINT marketing company will participate in the commission to be paid, which can be found in the individual offer/order, (plus the legal VAT of 19%) on all future sales, which are realized between the parties brought into contact by TOUCHPOINT marketing company. Further payments of the client to the dealer, which reduce the net sales value, shall be borne by the client. These can be downstream payments or payments that reduce the net sales value, such as advertising cost subsidies (WKZ), return refunds, market commission, cash discounts, bonuses, downstream conditions, subsequent discounts, etc.).
b. In the event that the client violates TOUCHPOINT marketing company's exclusive agency right by selling the goods through another agent during the term of the contract, he undertakes to to reimburse TOUCHPOINT marketing company in full for the lost commissions.
3.5 Payment
a. The client shall proactively disclose to TOUCHPOINT marketing company on a monthly basis the turnover(s) made between him and the brokered trader(s) in full as an attachment to the credit notes to be submitted on a monthly basis. The owed brokerage commission, which is to be taken from the individual offer/order, plus VAT 19% of the net sales volume is to be paid by the client after receipt of payment of the trade, at the latest 14 days thereafter to the TOUCHPOINT marketing company.
b. In case of default of payment, TOUCHPOINT marketing company shall be entitled to charge default interest in the amount of 8% points above the base interest rate according to §§ 288, 247 BGB. The assertion of proven higher damages shall remain unaffected. If the client does not pay after the first reminder,
he shall be charged costs of EUR 7.50 for each further reminder.
3.6 Travel expenses and special expenses
TOUCHPOINT marketing company shall be entitled to reimbursement of the necessary and proven travel costs and expenses incurred by it in the course of its activities under this contract. Travel expenses must be notified to the client in advance and approved.
3.7 Confidentiality and surrender of documents
TOUCHPOINT marketing company and the client undertake to maintain secrecy about all business or operational matters which have become known to him or which become known to him, even after the end of this contract. TOUCHPOINT marketing company and the Client shall carefully store the documents transferred to them within the scope of their contractual activities, protect them from inspection by third parties and return them to the Client after the end of the contract. TOUCHPOINT marketing company shall not be entitled to exercise any right of retention over these documents. All physical and digital documents shall be returned or deleted after the end of the contract.
3.8 Duration and termination of the contract
The start of the contract is included in the order The contract is concluded for an indefinite period and lasts
for the duration of the business relationship between the parties mediated by the contractor.
4. TERMS AND CONDITIONS
ONLINE AGENCY
4.1 General
a. TOUCHPOINT marketing company renders services to its clients which serve to promote the sales of the client's goods. These services are provided by consulting in the field of website marketing and search engine optimization, especially on the platform Amazon.
b. Details of the type and scope of the services commissioned by the customer shall be set out in the respective order concluded.
c. TOUCHPOINT marketing company shall provide the services in accordance with the current state of optimization technology. Insofar as TOUCHPOINT marketing company makes suggestions for the optimization of offers and proposes changes, TOUCHPOINT marketing company will rely on the recommendations of the respective platform operators and on specialist publications made available online or offline. These can always only reflect the current state of knowledge, but cannot provide a forecast as to whether certain measures will still be promising in the future. The customer's attention is drawn to the fact that, as a result of changes in technical requirements, new technologies or new weightings of previously used technologies, measures already implemented may no longer achieve the original success.
d. TOUCHPOINT marketing company does not owe the legal examination and assessment of the services rendered. The customer alone is responsible for this. TOUCHPOINT marketing company shall not carry out any legal examination of the services rendered and shall not monitor services rendered with regard to their ongoing legal admissibility.
e. TOUCHPOINT marketing company shall be entitled to commission subcontractors with the provision of individual or all contractual obligations.
f. Insofar as costs are charged by individual search engine operators for the technical execution of the campaigns within the framework of the provision of services, TOUCHPOINT marketing company shall be entitled to charge you for these costs. This applies in particular to the costs of the
advertising budget, the technical interfaces for campaign control (e.g. Google API- interface
or comparable interfaces of other providers), the costs of which will be passed on to you on a monthly basis in the actual the amount actually incurred.
4.2 Duties of the customer
a. The Customer shall support TOUCHPOINT marketing company in the performance of the contractually agreed services. This includes, in particular, providing information, access data and data material in a timely manner, insofar as these are necessary for the provision of the services.
b. The customer will only provide TOUCHPOINT marketing company with factually correct information. TOUCHPOINT marketing company will not check the information provided and may in this respect trust the respective information provided by the customer.
c. The Customer himself is responsible for the legally permissible design of his advertising measures and will subject the proposals submitted by TOUCHPOINT marketing company to a legal review himself and without further request.
d. The customer is obligated to inform TOUCHPOINT marketing company at any time of the effects of the measures carried out and to document them accordingly.
and to document them accordingly. The customer shall immediately inform TOUCHPOINT marketing company of any errors that occur (deactivation or blocking of offers, blocking of user accounts, negative development of the display of search results, declining sales figures).
4.3 Copyright / brand use
a. Insofar as TOUCHPOINT marketing company develops services for you within the scope of its services which are capable of being protected by copyright, TOUCHPOINT marketing company shall be entitled to all copyrights and exploitation rights thereto. Any use, duplication and transfer not expressly authorized is prohibited passing on is prohibited.
b. The TOUCHPOINT marketing company is granted the right to use your company name, your logos and your trademarks for the campaigns commissioned by you. This applies in particular to the
use in the advertisement text, source code and the URL associated with it. If, due to multiple bookings and/or a violation of the exclusivity of these GTC through fault or no fault of your own, it is necessary to prove the exclusivity to Google or another provider for the customer relationship or for the use of the trademark, you agree to provide all necessary agree to provide all documents and records required for this purpose. This applies in particular to an extract from the trademark register, or all documents and declarations required for the ownership of the trademark documents and declarations required for the ownership of the trademark.
c. Copyrights and protectable know-how for technologies and processes used for search engine optimization are the property of TOUCHPOINT marketing company. You are aware
that these copyrights and protectable know-how represent an essential entrepreneurial value of the
value of TOUCHPOINT marketing company. In order to secure this value, you undertake to
you undertake to keep all documents, data and other information received from us in connection with the
information in connection with the contractual relationship as well as basic information,
information about inventions, developments and processes, regardless of the manner and form in which you receive them. TOUCHPOINT marketing company uses different measures to optimize the results. In some cases, special Internet pages are programmed or modified in whole or in part for our customers. All copyrights of these internet pages are the exclusive property of TOUCHPOINT marketing company. This applies in particular to the design, structure, links and placement of keywords on corresponding pages. The use of the corresponding pages after the expiry of the present contractual relationship is legally permissible, provided that this use is exclusively within the scope of the original purpose of the contract, i.e. no new offers or offers of third parties are linked or advertised.
4.4 Exemption
a. TOUCHPOINT marketing company does not check used keywords with regard to trademark law or copyright. The legal responsibility in this respect lies with you. If claims are made against TOUCHPOINT marketing company by third parties due to trademark or copyright infringements copyright infringements, you shall indemnify TOUCHPOINT marketing company from all legal claims and from all legal claims and costs. This includes in particular the costs of legal prosecution. This obligation on your part shall apply regardless of which services and/or products are commissioned.
b. TOUCHPOINT marketing company expressly points out that the optimization and influencing of search engine results can lead to your relevant Internet pages being may in exceptional cases be adversely evaluated and indexed by search engines. Claims on your part due to such an evaluation and indexing by search engines, which cannot be influenced by TOUCHPOINT marketing company, are excluded.