Apply for collaboration
Deutsch (AGB)

General Terms and Conditions

§1 Scope of Application

  1. These General Terms and Conditions (GTC) apply to all contracts between MediaEngine GmbH, Krummenweger Str. 173, 40885 Ratingen, Germany (hereinafter referred to as the “Agency”) and its clients.
  2. Contracting parties of the Agency are exclusively entrepreneurs within the meaning of §14 of the German Civil Code (BGB) as well as legal entities.
  3. Deviating terms and conditions of the client shall not apply unless the Agency has explicitly agreed to them in writing.

§2 Subject Matter of the Contract

  1. The Agency provides services in the areas of online marketing, performance marketing, social media marketing, search engine marketing, content production, strategy development, advertising campaigns, and marketing consulting.
  2. The specific services are defined in the respective offer or contract.
  3. All campaign structures, marketing strategies, tracking setups, creatives, data models, and optimisation processes developed by the Agency are made available exclusively for use during the term of the contract.

§3 Conclusion of Contract

  1. Offers by the Agency are non-binding and subject to change.
  2. A contract is concluded upon acceptance of an offer by the client or by written order confirmation from the Agency.
  3. By signing the contract or accepting the offer, the client expressly confirms having read, understood, and accepted these GTC in full. The GTC are an integral part of every contractual relationship with the Agency.

§4 Contract Term

  1. The contract term is – unless otherwise agreed – 3, 6, or 12 months, as specified in the offer or contract.
  2. The contract ends automatically upon expiry of the agreed contract term without requiring a separate notice of termination. Any continuation of the collaboration requires the conclusion of a new contract. If no new contract is concluded, all services of the Agency end on the last day of the contract term.
  3. Ordinary termination of the contract by the client is excluded. The contract is concluded bindingly for the entire agreed period; full remuneration is owed for the entire term.
  4. Once the Agency has commenced performance, early termination by the client is excluded. From that point, the client is obligated to pay the full agreed remuneration regardless of whether the services are actually used or whether the collaboration is factually discontinued.
  5. The Agency’s right to extraordinary termination for good cause remains unaffected. Good cause exists in particular if the client breaches material contractual obligations or falls into payment default. In the event of termination by the Agency due to a cause attributable to the client, the remuneration for the entire originally agreed remaining term remains due in full.

§5 Remuneration and Payment Terms

  1. Remuneration is determined by the agreed offer. All prices are net plus statutory value-added tax.

1a. For clients domiciled abroad (EU or third countries), the reverse charge procedure applies provided the statutory requirements are met. In such cases, no German VAT will be shown on the invoice; the client is responsible for declaring and remitting VAT in their own country. The client is obligated to provide the Agency with a valid VAT identification number before invoicing. If no valid VAT ID is provided, the Agency is entitled to invoice German VAT.

  1. The full agreed remuneration is generally due in one lump sum before work commences. The Agency will not begin providing services until the full remuneration has been received in the Agency’s account.
  2. The option of instalment payments may be granted to selected clients at the Agency’s sole discretion and constitutes a separate payment arrangement. The client has no entitlement to instalment payment.
  3. If instalment payment is agreed, instalments are due on the payment dates specified in the contract or offer. If a payment date falls on a Saturday, Sunday, or public holiday, the due date is shifted to the next working day.
  4. If a due instalment has not been received in full in the Agency’s account by the payment date – or the next working day in the case of weekends or public holidays – the Agency is entitled to immediately and fully pause all ongoing services without further notice. The pause continues until the outstanding amount has been received in full and verifiably confirmed.
  5. Pausing services does not release the client from their obligation to pay the full agreed remuneration. Any consequential damages resulting from the service pause are borne exclusively by the client.
  6. An instalment payment agreement does not affect the obligation to pay the full agreed remuneration. In the event of payment default exceeding 7 days, the Agency is entitled to demand the entire outstanding remuneration immediately and in one sum.
  7. From the first day of payment default, interest on arrears of 9 percentage points above the applicable base interest rate pursuant to §288 para. 2 BGB will be charged. Additionally, a reminder fee of €40.00 per reminder will be levied.
  8. In the event of continued payment default, the Agency is entitled to refer the matter to a debt collection agency or solicitor without further notice. The costs incurred thereby shall be borne by the client.

§6 Advertising Budget

  1. Advertising budgets (e.g. Meta Ads, Google Ads, TikTok Ads) are not part of the Agency’s remuneration and are listed separately.
  2. These are paid exclusively by the client directly to the respective platform. The Agency assumes no liability for the use, loss, or consumption of advertising budgets.
  3. Failure or delay in providing budgets by the client does not entitle the client to a reduction in the Agency’s remuneration or an extension of the service period.

§7 Cooperation Obligations

  1. The client undertakes to provide all necessary information, materials, accesses, and approvals within 5 working days of being requested by the Agency.
  2. Delays resulting from the client’s failure to cooperate or late cooperation are not attributable to the Agency. Agreed service deadlines are automatically extended by the duration of the delay.
  3. If the Agency incurs additional effort due to the client’s failure to cooperate (e.g. additional work, waiting times, rework), the Agency is entitled to charge for this as an additional service at its current hourly rate.
  4. The client ensures that all materials provided by them are free from third-party rights. The client indemnifies the Agency against all third-party claims arising from the use of materials provided by the client.

§8 Intellectual Property and Copyright

  1. All services and content created or developed by the Agency in the course of the collaboration are and remain the exclusive intellectual property of the Agency – regardless of whether the client has paid remuneration for them, whether the content was created within the client’s accounts or the Agency’s own systems, and regardless of whose request or briefing led to their creation.
  2. The Agency’s intellectual property includes in particular, but not exclusively:
  • Advertising copy, ad texts, headlines, captions, and all written content (copywriting),
  • Graphic creatives, image and video ads, advertising materials of all kinds,
  • All photo and video recordings, raw material, edited versions, and resulting final products produced during the collaboration (e.g. promotional videos, reels, image films, product photos, behind-the-scenes material),
  • Social media content, posts, stories, reels, and other publications,
  • Websites, landing pages, and funnel pages of any kind, including design, structure, texts, technical implementation, and all embedded content,
  • Email sequences and other digital content,
  • Marketing strategies, campaign structures, tracking systems, funnel structures, processes, and optimisation models.
  1. The client receives exclusively a simple, time-limited, non-transferable and non-sublicensable right of use for all services and content created by the Agency, limited to the active contract term. This right of use entitles the client to use the content exclusively within the scope of the agreed collaboration.
  2. Payment of the agreed remuneration does not establish a permanent right of ownership or unlimited right of use over the created content. The remuneration constitutes solely the fee for rendering the service, not the purchase of the content or rights thereto.
  3. The right of use expires automatically, completely, and without further declaration upon termination of the contractual relationship, regardless of the reason for termination.

§9 Assignment of Rights to Campaign Data and Marketing Infrastructure

  1. Upon signing the contract, the client irrevocably and fully assigns to the Agency all rights to all elements created, configured, or optimised by the Agency within the client’s advertising accounts. This assignment includes in particular:
  • The methodical configuration logic and structural design of pixel and tracking setups,
  • Campaign architectures, ad group and ad structures,
  • Targeting logics, custom audiences, and lookalike audiences, insofar as these were built on the basis of the methodology developed by the Agency,
  • Conversion setups and event configurations,
  • Optimisation rules, automated bidding strategies, and algorithm configurations,
  • Funnel structures and retargeting logics,
  • All creatives and advertising materials created or customised by the Agency.
  1. The assignment expressly does not include the personal raw data of the client’s end customers within the meaning of the GDPR. The client remains the controller for the processing of personal data in the advertising account. The Agency acts as a data processor in this regard pursuant to Art. 28 GDPR.
  2. The methodical know-how, configuration logic, and structural design principles of the systems created are deemed a strategic trade secret of the Agency within the meaning of the German Trade Secrets Act (GeschGehG) and must be treated as strictly confidential by the client.
  3. The client is not entitled to continue using, transferring, licensing, or making the assigned elements accessible to third parties after the end of the contract without having concluded a corresponding written agreement with the Agency.

§10 Use of Advertising Accounts and External Marketing Tools

  1. Marketing activities are regularly carried out within the client’s accounts. The provisions of this clause apply equally to all digital platforms and tools managed or used by the Agency, including advertising accounts (Meta, Google, TikTok etc.), email marketing tools (e.g. ActiveCampaign, Klaviyo, Mailchimp), CRM systems, analytics tools, and all other software accesses used in the course of the collaboration.
  2. Formal ownership of the account accesses remains with the client.
  3. Notwithstanding the above, all campaign structures, strategies, configurations, email sequences, automations, and data models created or optimised within these accounts and tools by the Agency remain the intellectual property of the Agency pursuant to §§8 and 9 of these GTC.
  4. The client is obligated to notify the Agency in advance and in writing of all persons who have or are to receive access to the accounts and tools managed by the Agency. Users who are not recognisable by their official name in an account, or whose identity is not known to the Agency, are not authorised to access the accounts. Access by unregistered or unidentifiable users constitutes a material breach of contract.
  5. The client and all persons granted access to the accounts are not entitled to independently make changes, adjustments, or interventions in the campaigns, structures, automations, email sequences, or other configurations created or managed by the Agency. Any changes may only be made by the Agency or with its explicit written consent. Unauthorised interventions by the client can permanently damage data sets, optimisation algorithms, and ongoing measures; any resulting damage is borne entirely by the client.
  6. The client is not entitled to withdraw or restrict the Agency’s accesses as long as outstanding payment obligations exist. Restriction of access by the client constitutes a material breach of contract and entitles the Agency to immediately demand the full outstanding remuneration.

§11 Use After Contract Expiry and Content Purchase

  1. Upon termination of the contractual relationship, the client’s right of use over all services and content created by the Agency expires completely. This applies without exception to all types of content, in particular:
  • Advertisements, creatives, and advertising materials of all kinds,
  • Photo and video recordings, raw material, edited versions, and all resulting final products produced during the collaboration,
  • Advertising copy, ad texts, headlines, and captions,
  • Social media posts, stories, reels, and other publications,
  • Websites, landing pages, and funnel pages including all contained designs, texts, and technical configurations,
  • Email sequences and other digital content,
  • Campaign structures, strategies, tracking setups, and optimisation logics.
  1. Within 14 days of the contract ending, the client must deactivate, remove, and cease using all of the Agency’s content, campaigns, ads, and creatives across all of the client’s accounts, channels, and systems. This also applies to already published social media content created during the collaboration.
  2. If the Agency provides credible evidence of a breach of clause 1 or clause 2, the client is obligated to prove that no breach has occurred. If the client fails to provide such proof, the client is obligated to pay a contractual penalty of €15,000.00 per breach. In the case of ongoing breaches, the contractual penalty becomes due again for each commenced calendar day. The assertion of further claims for damages remains reserved; contractual penalties paid will be credited against any potential damages claim.

3a. The Agency is entitled, at its discretion, to demand the surrender of any economic advantage gained by the client through the breach, in lieu of the contractual penalty. The client is obligated to provide the Agency with full disclosure of revenues and benefits obtained through continued use upon request.

3b. In the event of imminent or ongoing breaches of clauses 1 or 2, the Agency is entitled to apply for an injunction without prior warning. The client expressly acknowledges that breaches of these provisions may cause damage that cannot be fully compensated by monetary means, thereby justifying interim legal protection.

  1. If the client wishes to permanently acquire and continue using individual or all content and services created by the Agency, a written content purchase is possible. The purchase of individual content items, as well as the purchase of the entire marketing infrastructure pursuant to §14 (IP Buyout), each require a separate written agreement and are subject to a fee. Prices and terms are agreed individually.
  2. Without a written purchase or licence agreement, the client has no right whatsoever to continue using the created content after the contract ends – including content for the creation of which the client has paid in full.

§12 Data Scraping and Reverse Engineering

  1. The client undertakes not to reconstruct, copy, document, or replicate any campaign structures, data sets, marketing models, algorithm configurations, or systems of the Agency through analysis, reverse engineering, automated data evaluation, screenshot-based documentation, or any other technical or non-technical methods.
  2. If the Agency provides credible evidence of a breach of clause 1, the client is obligated to prove that no breach has occurred. If the client fails to provide such proof, the client is obligated to pay a contractual penalty of €25,000.00 per breach. The Agency is entitled, at its discretion, to demand the surrender of any economic advantage gained by the client through the breach, in lieu of the contractual penalty. The assertion of further claims for damages is expressly reserved.
  3. In the event of imminent or ongoing breaches, the Agency is entitled to apply for an injunction without prior warning. The client expressly acknowledges that such breaches may cause damage that cannot be fully compensated by monetary means.

§13 Campaign Replication Clause

  1. The client undertakes not to replicate or reproduce campaign structures, marketing strategies, funnel architectures, or advertising systems of the Agency, either directly or indirectly, including in new accounts, with third-party providers, or by engaging other service providers.
  2. This obligation applies throughout the entire contract term and for a period of 36 months after the end of the contract.
  3. If the Agency provides credible evidence of a breach of this clause, the client is obligated to prove that no breach has occurred. If the client fails to provide such proof, the client is obligated to pay a contractual penalty of €20,000.00 per identified breach. In the case of ongoing breaches, the contractual penalty becomes due again for each commenced calendar day. The Agency is entitled, at its discretion, to demand the surrender of any economic advantage gained by the client through the breach, in lieu of the contractual penalty. Further claims for damages remain reserved.
  4. In the event of imminent or ongoing breaches, the Agency is entitled to apply for an injunction without prior warning. The client expressly acknowledges that such breaches may cause damage that cannot be fully compensated by monetary means.

§14 IP Buyout

  1. If the client wishes to permanently and fully acquire the marketing infrastructure developed by the Agency, an IP buyout is possible.
  2. The buyout price consists of two cumulative components:

Component 1: The sum of all invoices issued by the Agency up to the time of the buyout (total fees).

Component 2: The client’s verified annual revenue in the last completed financial year, multiplied by 10%, multiplied by the factor 3. Upon request, the client is obligated to provide evidence of their annual revenue through appropriate documentation (e.g. annual financial statements, tax assessment). If the client refuses to provide evidence, the buyout price will be estimated by the Agency at its reasonable discretion.

  1. The second component serves as compensation for future economic benefits arising from the permanent use of the marketing infrastructure developed by the Agency.
  2. A buyout requires a separate written agreement between the parties. Without such an agreement, the client has no right to permanently take over the marketing infrastructure.

§15 Non-Circumvention and Non-Solicitation

  1. The client undertakes, during the contract term and for a period of 36 months after the end of the contract, not to directly or indirectly engage, employ, or solicit any named employees, freelancers, or subcontractors of the Agency who were actively involved in the client’s project during the collaboration.
  2. If the Agency provides credible evidence of a breach of clause 1, the client is obligated to prove that no breach has occurred. If the client fails to provide such proof, the client is obligated to pay a contractual penalty of €25,000.00 per person and per breach. Further claims for damages by the Agency are expressly reserved.
  3. This obligation applies regardless of whether the approach was initiated by the client or the relevant person.

§16 Reference Use

  1. The Agency is entitled to use the client’s name, logo, and anonymised or non-anonymised performance metrics as a reference for its own marketing purposes (e.g. website, social media, presentations).
  2. The client may object to the use of their name within 14 days of the conclusion of the contract by means of a written declaration. The use of anonymised performance metrics is not affected by an objection and remains permitted to the Agency at all times.

§17 Confidentiality, Non-Disclosure, and Exclusivity

  1. Both parties undertake to strictly maintain confidentiality regarding all business and trade secrets of the other party. Confidential information includes in particular strategies, prices, campaign data, client lists, technical systems, and processes.
  2. The confidentiality obligation applies not only to the client itself, but to all employees, shareholders, advisors, and other persons of the client who gain access to accounts, tools, strategies, or other confidential information of the Agency in the course of the collaboration. The person signing the contract expressly undertakes to inform all affected persons of the confidentiality obligation and to ensure its compliance. This obligation extends in particular to all users with access to the accounts and tools managed by the Agency.
  3. This obligation applies for a period of five years after the end of the contract.
  4. Exempt from the confidentiality obligation is information that (a) was already publicly known at the time of disclosure, (b) was already known to the receiving party, or (c) must be disclosed due to statutory obligations. In the case of (c), the other party must be informed in advance.
  5. The client undertakes not to carry out any independent measures in the areas of marketing, advertising, performance marketing, social media, or comparable areas during the contract term that are comparable in content or structure to the measures managed by the Agency, or that could influence them. Independent interventions by the client can permanently disrupt data sets, algorithms, and ongoing campaigns; any damage arising therefrom is borne entirely by the client.
  6. The simultaneous collaboration of the client with other agencies or service providers in the areas of marketing, performance marketing, social media, business development, and IT is not permitted during the contract term, insofar as their activities touch upon or could influence the areas covered by the Agency.
  7. Exceptions to clause 6 are only possible in the following cases: (a) Existing collaborations with other service providers that already existed prior to the conclusion of the contract with the Agency are deemed tolerated, provided the client has informed the Agency thereof in writing before or at the latest at the time of contract conclusion. (b) New service providers or agencies must be reported to the Agency in advance and in writing; tolerance requires the Agency’s explicit written consent. The client has no entitlement to the granting of such consent.
  8. The Agency is not obligated to grant other agencies or service providers of the client access to the accounts or tools managed by it, nor to collaborate with them.
  9. If the client grants another agency or third party access to accounts or systems in which the Agency operates, such that they gain insight into the Agency’s work, structures, or data, the Agency is entitled to terminate the contractual relationship with immediate effect and to demand the entire outstanding remuneration for the remaining term immediately and in full. Further claims for damages remain reserved.
  10. If the Agency provides credible evidence of a breach of the confidentiality obligation, the breaching party is obligated to prove that no breach has occurred. If the breaching party fails to provide such proof, they are obligated to pay a contractual penalty of €20,000.00 per breach. The Agency is entitled, at its discretion, to demand the surrender of any economic advantage gained through the breach, in lieu of the contractual penalty. Further claims for damages remain reserved.
  11. In the event of imminent or ongoing breaches of the confidentiality obligation, the Agency is entitled to apply for an injunction without prior warning. The client expressly acknowledges that breaches of the confidentiality obligation may cause damage that cannot be fully compensated by monetary means.
  12. The client shall bear all actual costs of legal enforcement in the event of breaches of these GTC, including legal costs exceeding statutory fee schedules, insofar as these were necessary for the effective pursuit of legal remedies.

§18 Platform Dependency

  1. The Agency is not liable for changes in performance, restrictions, or failures caused by changes to algorithms, policies, technical systems, or other decisions of external platforms such as Meta, Google, TikTok, or similar providers.
  2. Platform-related restrictions do not entitle the client to a reduction in remuneration or extraordinary termination of the contract.

§19 Limitation of Liability

  1. The Agency is liable for intent or gross negligence in accordance with statutory provisions.
  2. In cases of simple negligence, the Agency is only liable for breach of a material contractual obligation (cardinal obligation) and only up to the amount of the foreseeable, typically occurring damage, but in any case limited to the amount of the net remuneration paid in the respective contract year.
  3. No guarantee is given for specific economic results, revenues, profits, or ROAS values. Marketing services are services and not works with an obligation to achieve a specific result.
  4. The Agency is not liable for indirect damages, loss of profit, or consequential damages suffered by the client, to the extent permitted by law.

§20 Jurisdiction and Applicable Law

  1. The law of the Federal Republic of Germany applies exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
  2. The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Düsseldorf, provided the client is a merchant, a legal entity under public law, or a special fund under public law.

§21 Severability Clause

Should any provision of these GTC be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid provision that comes closest to the economic purpose of the invalid provision.

§22 Written Form and Amendments

  1. Amendments and additions to these GTC and the contract require written form. This also applies to the waiver of this written form requirement.
  2. No oral collateral agreements exist and any such agreements shall be void.

 

Published by:
MediaEngine GmbH
Krummenweger Str. 173
40885 Ratingen, Germany