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1. scope of application, subject matter of the contract

  1. Formel S Consulting GmbH (hereinafter referred to as "Formel S" or "Company") is a network of various experts and freelancers (hereinafter referred to as "Partners" or "Consultants"), who are contractually bound to Formel S and work in the name of Formel S. All terms and conditions between Formel S Consulting GmbH in Berlin and the client (hereinafter referred to as "customer") are exclusively subject to these General Terms and Conditions in the version valid at the time of the conclusion of the contract. Deviating conditions are only valid if Formel S explicitly agrees to their validity in text form (by letter or e-mail).
  2. The concrete subject matter of the contract and the performance obligations of the parties resultfrom the individual performance offer of Formel S.
  3. Unless expressly included in Formel S's offer, services that are not provided directly by Formel S are not part of the contractually agreed remuneration, but are to be paid separately by the customer. This includes the granting of rights to contents of third parties (e.g. stock material, software costs), legal examinations, translations and other comparable services of third parties, as well as unforeseen travel costs when preparing the offer.
  4. There are no obligations on the part of Formel S to publish editable original data. This only takes place at the request of the customer against payment of a fee, which must be agreed separately.
  5. Formel S is entitled to use vicarious agents for the fulfilment of the contract at its own discretion, without there being a corresponding obligation to inform the customer about it.
  6. These General Terms and Conditions apply exclusively to contracts with companies within the meaning of § 14 BGB (German Civil Code).

2. offers, conclusion of a contract

  1. Service offers of Formel S are not binding, which means that price and execution of the offered services can change.
  2. As far as Formel S communicates the conditions for an order, this does not represent a legally binding offer. Only if the customer agrees with the conditions of Formel S, there is an offer of the customer to conclude a contract.
  3. A contract is only concluded with acceptance by Formel S. This can take place alternatively by post or by e-mail.

3. contractual obligations

  1. The customer provides Formel S with the contents necessary for the creation of the service in digital form. Formel S is not obliged to check the contents provided by the customer for correctness, in particular not to the extent that they are suitable to achieve the purpose pursued with the subject matter of the contract. Furthermore Formel S is not responsible for all contents, which the customer makes available in the context of the contract and the contract initiation. In particular Formel S is not obliged to check the contents for possible infringements of rights (e.g. trademark rights and copyrights as well as other industrial property rights); this is a duty of the customer.
  2. Formel S tries to delete advertising contents immediately, if there are indications that these are illegal or violate rights of third parties. There are indications of illegality or infringement of rights in particular if authorities or other third parties take measures of any kind against partners, providers and/or Formel S and these measures are based on allegations of illegality or infringement of rights by the advertising content.
  3. Should third parties claim against Formel S due to possible violations of the law resulting from the contents of the customer, the customer undertakes to exempt Formel S from any liability and to reimburse Formel S for the costs incurred by the company due to the possible violation of the law.
  4. In the case of design services, Formel S is obliged to perform up to two rounds for the master layout. For the design of print materials, up to three designs are included. Should the customer still not be satisfied with the designs after the second or third round, both he and Formel S have the possibility to cancel the project at this point. In the event of termination, Formel S voluntarily waives payment of the remaining project sum. All other services already rendered (e.g. conception, design and programming phase) remain unaffected and are to be paid by the customer in accordance with the contract.
  5. During the contract period until twelve months after termination of the contract, the customer undertakes not to entice any partners or consultants away from Formel S or to have them enticed away by third parties. In case of violation a contractual penalty amounting to 3 times the average gross salary of the poached partner or consultant is to be paid to Formel S. In case of violation of the contract Formel S is entitled to a penalty.

4. contract period, termination of contracts

  1. The ordinary term of the contract results from the individual contract of the parties.
  2. In the case of contracts with a fixed term, ordinary termination with a notice period of three months to the end of the agreed term is possible for both parties to the contract. Otherwise, the contract shall be renewed for the duration of the agreed term.
  3. After termination of the contract the customer has to secure his data independently. A transmission of the contents and data stored by the customer on the computer storage space on a data carrier or by electronic dispatch is not an obligation of Formel S and must therefore be agreed separately.
  4. In the case of an extraordinary termination by one of the contracting parties, Formel S is entitled to demand the costs arising for the delivery of the contents stored by the customer on the computer storage space to the customer, from the customer step by step against delivery of the data.
  5. The contract can only be terminated prematurely by both parties for good cause without observing a period of notice. Significant conduct contrary to the terms of the contract despite a warning shall be deemed an important reason.
  6. If the customer cancels prematurely for an important reason without Formel S being responsible for this reason, the company is entitled to the contractually agreed complete remuneration without deduction for any saved services and expenses.
  7. If the customer terminates the contract for an important reason and Formel S is responsible for this reason, the company is only entitled to the agreed fee for the part of services rendered up to that point.

5. remuneration

  1. The amount of the remuneration (regardless of whether it is a lump sum or hourly remuneration) results from the offer of Formel S. The stated amounts are to be understood plus the legal turnover tax (net price).
  2. Formel S reserves itself the right to demand advance payments and/or partial payments after the achievement of substantial intermediate performances. Interim invoices are also due for payment within 10 days.
  3. n the event of a temporary project standstill for which Formel S is not responsible, Formel S reserves the right to demand partial payments for services rendered. Accordingly Formel S can demand a partial payment for the services already rendered if the customer has exceeded 10% of a bindingly agreed performance time of his obligation to cooperate. If the customer has exceeded 50% of the agreed time, or if the project comes to a standstill for an indefinite period of time, the entire project sum is due for payment to Formel S after invoicing.

6. acceptance of services

  1. The customer is obliged to accept the service rendered, provided that it meets the contractual requirements. Acceptance must be declared in writing (by email or in text form). If acceptance does not take place in writing within 14 days on the part of the customer despite a request and contractually rendered service, and if no objections to acceptance are raised in writing, the service shall be deemed tacitly accepted.
  2. During the completion phase Formel S is entitled to present individual components of the rendered service to the customer for partial acceptance. The customer is obliged to accept part of the services, provided that the services in question meet the contractual requirements.
  3. The use of the contractual services by the customer shall also constitute a disabling acceptance.
  4. If the customer requests Formel S to put a website or other publicly accessible contents online, then he assures Formel S that he has legally checked the complete page beforehand.

7. General description of services and contractual obligations for server services

  1. Formel S is obliged to enable the customer to store data on the provided storage space at any time by accessing the server. For this Formel S assigns the appropriate access data to the customer.
  2. The parties agree that the customer will not be provided with a specific, geographically delimited storage space. Formel S is obligated, however, to provide permanent storage space on a server to the agreed extent for use by the customer.
  3. Formel S reserves the right to extend services and make improvements, as far as these serve the technical progress, appear necessary to prevent abuse, or Formel S is obligated due to legal regulations.
  4. The customer receives no access to system configurations or software components of the server system. The responsibility in these places is thus clearly with Formel S. In agreement with the customer it is possible to deviate from this at certain points. In these cases the responsibility for the affected components goes to the customer.
  5. Formel S guarantees a contractually agreed availability of the servers of 99% in the annual average. Excluded from this are times in which the server cannot be reached due to technical or other problems which are not within the sphere of influence of Formel S (force majeure, fault of third parties, etc.). If the security of the network operation or the maintenance of the network integrity is endangered by reasons, which do not lie in the area of responsibility of Formel S, Formel S can temporarily restrict the access to the services depending upon requirement.
  6. If the customer uses more server power (CPU computing time) than agreed between the contracting parties, Formel S has the possibility to charge the customer a more powerful package in case of continuous impairment despite reminder. If the customer does not contradict the contract adjustment expressly within two weeks after communication about the necessary adjustment, then the changes are considered as accepted. If the customer objects to the adjustment, Formel S has the right to terminate the original contract with immediate effect.
  7. The following applies to the service area "availability, reaction times and fault processing":
  1. Formel S guarantees the above-mentioned availability on an annual average for the service provided. The fault processing begins immediately after the detection of fundamental problems in the operation of the servers. All problems which noticeably restrict the use of the services (e.g. non-availability of the server services, greatly deteriorated performance in comparison to normal operation) are regarded as fundamental problems.
  2. All incidents are accepted and handled by Formel S support during business hours.
  3. Due to the complexity of hardware and software applications, networks and specific configurations, Formel S cannot guarantee the success of the troubleshooting, i.e. despite the best efforts of Formel S, it can happen that errors cannot be solved by the implementation of the support at the customer. All support services are provided as a service contract.

8. obligations of the customer for server services

  1. The customer has to ensure that the Internet presences or data of other customers of Formel S, the server stability, server performance or server availability are not impaired against the contractually presupposed use. This also includes the obligation of the customer to use only software with current security standards in order not to endanger the server stability which can result from security deficiencies. This also means that the customer himself is responsible for updating the software he uses.
  2. The customer is obliged to provide prescribed information on his website within the framework of the legal provisions, in particular in compliance with the TMG.
  3. The contents retrievable from the web server, stored data, inserted banners as well as the keywords used in the registration in search engines must not violate legal prohibitions, good customs or third party rights (in particular trademark and copyright laws).
  4. The customer is also not allowed to offer erotic or pornographic contents, to exclusively operate a download server, to send unauthorized email advertising, as well as to use scripts, which can endanger the server stability, as well as this happens over the storage space provided by Formel S.
  5. The customer receives the appropriate access data for the care of his offer. He is obliged to treat these confidentially and is liable for any misuse resulting from an unauthorized use of the access data. If the customer becomes aware that unauthorized third parties are aware of the access data, he must inform Formel S immediately. Should unauthorized third parties use services of Formel S due to the fault of the customer, the customer is liable to Formel S for usage fees and damages. In case of suspicion the customer therefore has the possibility and the duty to request new access data.
  6. Unless otherwise contractually agreed, it is the duty of the customer to regularly back up all his files and software settings that he can access himself. The data backup shall take place before every change made by the customer as well as before maintenance work by Formel S, as far as these have been announced in time. The customer undertakes not to back up backup copies made by himself on the web server.
  7. The customer commits himself to exempt Formel S from claims of third parties of any kind, which result from the illegality of contents, which the customer has stored on the contractual storage space, and/or the misappropriation of the provided server services contrary to contract. The indemnification obligation also includes the obligation to completely indemnify Formel S from legal defence costs (e.g. court and lawyer costs).

9. performance disturbances

  1. Formel S is only responsible for service disturbances, as far as these concern the service obligations agreed upon in the contract between the parties. In particular, Formel S is not responsible for the functionality of the actual Internet presence of the customer, consisting of the data installed on the web server (e.g. HTML files, Flash files, scripts, etc.), without a deviating regulation.
  2. Formel S has to eliminate disturbances immediately in the context of the technical and operational possibility. The customer is obligated to inform Formel S immediately of any malfunctions that are recognisable to him. If the fault is not rectified within a reasonable period of time, the customer must set Formel S a reasonable grace period.
  3. If the functionality of the web server is impaired due to contents that are not in accordance with the contract or due to a use going beyond the contractually presupposed use, the customer cannot assert any rights with regard to disturbances based on this. In case of force majeure Formel S is released from the obligation to perform. This includes in particular legal industrial action measures, also in third companies and official measures, as far as not caused by the provider.

10. blocking of contents

  1. Formel S is entitled to block access to the contents stored by the customer on the contractual computer storage space if there is sufficient suspicion of the dissemination of illegal contents.
  2. Formel S is entitled to terminate the contractual relationship without notice in case of a justified blocking. For this he has to ask the customer unsuccessfully to remedy the situation. Such a warning is dispensable in the case of serious violations. Notice of termination shall be given within a reasonable period of time after becoming aware of the reason for termination. Previously rendered services of Formel S remain unaffected and will be invoiced by the customer.
  3. Formel S is also entitled to block the contents if the customer is in default with the settlement of the invoice claim of Formel S and he has already been reminded twice with the explicit reference to the blockage in case of continued default.

11. registration of domains

  1. If the customer commissions Formel S with the registration of a domain, then the customer must ensure before placing the order that the domain does not violate the rights of third parties and does not violate applicable law. The customer assures that he has complied with this obligation and that no indications of an infringement have arisen during this check.
  2. Formel S has no influence on the allocation of a domain by the respective registry. Formel S does not guarantee that the domain applied for by the customer will also be allocated and/or that the allocated domain is free of rights of third parties and/or is permanent. The information from Formel S about whether a certain domain can be registered is provided by the provider on the basis of information provided by third parties and only refers to the time at which the provider obtains the information.

12. rights of use

  1. Formel S transfers to the customer the exclusive, temporally, spatially and contentwise unrestricted right to use the contractual service. Further rights of use of documents produced in connection with the contractual service, e.g. contractual service. Further rights of use of documents produced in connection with the contractual service, such as printing documents, drawings, graphics, images, sound and/or image recordings, software data, etc., including drafts, shall only be transferred to the customer upon express agreement.
  2. The right of use granted by Formel S includes the right of modification and further transfer to third companies.
  3. Formel S does not waive the right of naming in the context of the granting of rights, as far as not otherwise expressly communicated (§ 13 UrhG).
  4. The rights of use shall only be granted upon full payment of the agreed remuneration.
  5. If Formel S uses third parties for the fulfilment of the contract, the agency will acquire their copyright usage rights for the customer at the customer's expense in terms of time, place, purpose of use and in any other way without restriction and transfer them to the customer to the same extent. The customer is entitled to inspect the contracts concluded with third parties which are necessary for the fulfilment of this contract.
  6. Formel S reserves the right to use the provided service with the customer's company logo as a reference.

13. limitation of liability, warranty

  1. Subject to the following regulations Formel S is liable - no matter for which reason - only for damages which can be attributed to intentional or grossly negligent behaviour of Formel S, its representatives or vicarious agents.
  2. Within the scope of liability for damages, which can be attributed to the grossly negligent behaviour of Formel S, the liability is limited to such damages, which can and must typically be expected to occur within the scope of this agreement.
  3. or damages, which were caused neither deliberately nor roughly negligently by Formel S, Formel S is responsible only, as far as it concerns a injury of an essential obligation in the context of the order. Furthermore, liability for negligent behaviour is excluded. A duty is essential if it is of special, outstanding importance for the execution of the order and the customer can rely on the compliance with the duty to a special degree.
  4. The liability within the scope of paragraph 13. c.) is limited to the sum of one month remuneration for Formel S Consulting GmbH or to the part of the invoice to be calculated according to the corresponding agreement between the parties, for one month.
  5. Formel S is not liable for the legality of the advertisement. In particular Formel S is not liable:
  1. For infringements of the rights of third parties (trademark rights, competition law or copyright), insofar as these are based on the use of materials or the unauthorised adoption of third-party photos, graphics, product descriptions, legal texts or codes (HTML, Javascript, CSS, PHP) for which the customer is responsible, Formel S is not obliged to check the legal conformity of data carriers, templates and other materials provided by customers.
  2. For missing legal obligation data or unfair interception of end customers by Typosquatting (Vertipper-Domains) by the customer.
  3. For breaches of the customer's professional rights.
  4. For violations of search engine guidelines, e.g. through link purchase or link exchange without marking as advertising.
  1. The customer exempts Formel S from all possible claims and demands of third parties in connection with these aforementioned infringements. This also includes any legal defense costs incurred.
  2. Formel S does not stick if not deliberately or roughly negligently causes:
  1. for problems with the technical implementation of products and the resulting additional costs for the customer,
  2. for not achieving the customer's image with the given media budget due to factors that cannot be influenced by Formel S,
  3. possible losses of the customer in the Google ranking, at Amazon or on other comparable or relevant websites.
  1. Beyond that Formel S does not assume any liability for the fact that the target values defined together with the respective customer in the context of a campaign, which are to be understood rather as guideline values for the measurability of the success of a campaign, are actually reached.
  2. The above limitation of liability also applies explicitly to the personal liability of the employees, representatives and organs of Formel S.

14. amendments of these GTC

  1. Formel S is entitled to change the AGB. The adjustment only takes place if there are valid and factual reasons and if it will not disturb the contractual balance of the customer to Formel S.) Formel S has the right to change the GTC. Such reasons can be for example legal as well as technical changes, experiences with customer behaviour or unintentional gaps in the clauses. The change will be communicated to the user by email.
  2. The customer is entitled to object to the changes. In case of objection Formel S reserves the right to terminate the existing contractual relationship with immediate effect.
  3. The changes are considered accepted and binding if the customer has not expressly objected to the changes within 14 days.

15. Confidentiality

  1. All information which becomes known to Formel S within the scope of the cooperation with the customer will be treated strictly confidentially and will only be passed on to third parties if it is necessary for the project processing.
  2. In return, the customer undertakes to treat all information concerning Formel S that becomes accessible to him during the cooperation as strictly confidential, unless the transfer to third parties has been agreed beforehand. This agreement also applies beyond the duration of the cooperation.

16. assignment, set-off, written form

  1. The customer may transfer claims against Formel S to third parties only after its written consent.
  2. The customer may only set off undisputed or legally established claims.
  3. Amendments and supplements to this contract must be made in writing. This also applies to the amendment or cancellation of this clause. Electronic documents in text form do not fulfil the written form requirement in this case.

17. Place of Jurisdiction, Place of Performance, Applicable Law, Contract Language

  1. Place of jurisdiction and place of performance is the registered office of Formel S.
  2. German law shall apply under exclusion of the UN Convention on Contracts for the International Sale of Goods.
  3. The contract language is German.

18. severability clause

Should one or more of the provisions of these GTC be or become invalid, the validity of the remaining provisions shall remain unaffected.
The validity of the remaining provisions shall not be affected thereby. The parties shall be required to replace the ineffective clause(s) by such effective clause(s), with which the ineffective clause(s) can be contractually desired result is achieved best.

State, August 18th, 2019

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