General Terms and Conditions (GTC) of Performics Germany GmbH
(1) The following GTC apply for all contracts between Performics Germany GmbH, Paul-Lincke-Ufer 39/40, 10999 Berlin (hereinafter: Performics) and its clients (hereinafter: clients) in the field of search engine marketing (SEO and/or SEA).
(2) The client’s General Terms and Conditions shall become an integral part of a contract only if this is expressly agreed.
2. Offer and conclusion of contract
By sending an order in text form the client submits an offer to conclude a contract. The subject matter of the order is an offer from Performics on the basis of these GTC. After receipt and consideration of the order Performics shall declare its acceptance through a corresponding notification to the client or by commencing to render the service.
3. General rights and duties of Performics
(1) Depending on the details of the order in question, Performics shall render SEO services pursuant to Clauses 4 to 6 and/or SEA services pursuant to Clause 7 for the client.
(2) In so far as Performics is commissioned to render consulting services, the performance owed by Performics shall be limited to supporting the client’s pertinent advertising measures.
(3) Such support measures can include in particular producing and/or revising keyword lists and analysing the competitive situation. Unless agreed otherwise, possible keywords for SEO and/or SEA measures shall be selected by Performics on the basis of the client’s specifications. Performics can present keyword lists to the client for coordination. The client is obliged to examine the keyword lists with respect to their content and legal aspects without undue delay. If the client does not declare that individual keywords or keyword additions are not acceptable within two days of being provided with a keyword list by Performics, the keyword list shall be deemed approved. If the client does not insist on being sent keyword lists, Performics shall be entitled to choose the keywords at its discretion.
(4) Performics shall not be under any duty to advise the client above and beyond the advice duties laid down in these GTC or the offer/order.
4. Performics’s rights and duties under SEO contracts
(1) Performics shall advise and support the client in optimising the Internet addresses specified in the order/offer vis-à-vis the web search engine specified in the offer against remuneration (Search Engine Optimising – SEO). If a search engine is not expressly specified, the advice shall refer to Google exclusively.
(2) The aim is to have the internet addresses forming the subject matter appear higher in the hit list than it is currently the case when the search engine user enters certain search terms (keywords) agreed between the parties. The success of a particular search engine ranking is not owed.
(3) Unless expressly agreed otherwise, the client alone shall be responsible for producing content for the website.
(4) The client is aware that SEO is an ongoing process and that it may take up to six months from when Performics makes the first changes before the effects are apparent. The client is also aware that the search engine ranking depends on a large number of factors which are subject to continuous changes and not all individually known. Unforeseen changes in the ranking – also a drastic deterioration or even complete removal from the pertinent search engine’s index – cannot be ruled out.
(5) For the event of a sudden deterioration of the search engine ranking, Performics shall, against remuneration, promptly advise the client on further steps, suggest possible remedies and then implement them in liaison with the client.
5. Onpage measures
(1) In so far as Performics is commissioned to analyse the status quo of the website to be optimised (onpage optimisation), Performics shall advise the client concerning the page structure and content of the websites forming the subject matter, their titles, headings, image descriptions, navigation features, internal links etc. and recommend possible changes.
(2) The client bears the responsibility for implementing suggestions, in particular advisable possible modification of the websites , unless the parties expressly agree that Performics itself shall carry out the onpage optimisation against additional remuneration.
(3) In so far as the client commissions Performics to implement onpage optimisation, the client must backup his data before the start of the programming work and verify that his website is functioning after completion, before the updated version is put online.
6. Link marketing
(1) In so far as Performics is commissioned with the link marketing, Performics shall strive for backlinks on a contractually agreed scale and environment for the client’s pages forming the subject matter.
(2) Performics shall strive for permanent links which shall remain after the term of the contract. Unless expressly agreed otherwise, Performics shall strive to have links callable from the linked page for at least 24 months. Should it transpire that placed links are no longer callable within that period, Performics shall promptly strive for a comparable link. Performics has no duty to check placed links. If the client changes the target pages of links, Performics has no duty to arrange for the rerouting or the creating of new links. If Performics acts for the client in such cases, remuneration as per the agreed per diem rates shall be owed.
(3) Unless expressly agreed otherwise, a certain quantity or quality of backlinks shall not be owed. In so far as the parties agree offpage optimisation, this shall also cover the booking of third-party website linking against remuneration. Reputation Management services shall only be owed if expressly agreed.
(4) Performics shall furnish the client with a monthly report showing the data relevant for the ranking of the websites forming the subject matter on the search engines forming the subject matter. A ranking of individual links is not part of the report.
7. Performics’s rights and duties under SEA contracts
(1) If and in so far as search engine advertising services are agreed, Performics shall advise and support the client on and with search engine advertising (Search Engine Advertising – SEA) against remuneration. SEA means context-sensitive advertising on the web pages of web search engines and other websites that display advertisements based on search words entered by Internet users or the content of the website. The booking of keywords for the purpose of showing advertisements on those websites is hereinafter referred to as „keyword campaign“.
(2) Performics shall support the client in producing and optimising accounts with various search engine advertising providers (hereinafter jointly: „providers“). For this purpose, the client shall give Performics access to existing accounts with providers. In case that there are no accounts at all or no accounts for individual providers, the agency shall set up the same for the client in consultation with the client. The client warrants that changes within the accounts are recorded in log files and the log files are available unadulterated for both parties for the duration of the contract.
(3) The displaying of advertisements is governed by the contractual terms and conditions of the provider in question on which Performics has no influence. Remuneration for the displaying of advertisements shall be per click. The client is familiar with search engine advertising and the options booked with the respective provider.
(4) Performics shall advise the client on the selection of relevant keywords. The client shall release the keywords suggested by Performics. If Performics does not receive any express reaction from the client in text form within 3 working days from request for release, the suggested keywords shall be deemed released. If the client fails to respond in text form at least twice in a row to Performics’s release requests or if the client waives right to release, Performics may activate keyword campaigns independently without consulting the client. In any case, it shall be the client’s duty to inform Performics in good time about keywords or groups of keywords which may not be booked, regardless of the reason therefor.
(5) In so far as expressly agreed, Performics itself shall also draft advert texts for the campaigns, resorting to the input supplied by the client. Performics assumes that the client holds all the rights to the pre-existing advert texts rights, that they comply with prevailing law and that they do not encroach on third-party rights.
(6) Performics has no duty to verify that the selected keywords and the advert texts are compatible with valid law and third-party rights and/or draw the client’s attention to any incompatibility of keywords or advert texts with the law.
8. Copyright and rights of use
Performics reserves all copyrights to the concepts it produces, its programming work and other work results. The client shall be granted a simple right of use for the work results produced for him.
9. The client’s duties
(1) The client is obliged to punctually pay Performics the agreed remuneration pursuant to Clause 10 of these GTC.
(2) The client shall nominate a contact person for Performics who shall be authorised and in a position to take and to communicate to Performics all the decisions arising in context with this contractual relationship. Information and recommendations given by Performics to this contact person – in any form whatever – shall be deemed as given to the client.
(3) In so far as success-based remuneration is agreed on for individual parts of a contract, the client is obliged to report on the success arisen (e.g. quantity of sales, turnover, profit) in a clear format without undue delay at the end of each month.
(4) The client must handle the access data with due care. He is obliged to keep access data confidential with respect to unauthorised third parties. In particular, access data must be stored such that access to these data is not possible for unauthorised third parties so as to prevent misuse of the access by such third parties. Unauthorised third parties are all persons apart from the contact person as per para. 2.
(5) The client himself may not make any changes to the account settings. The client’s attention is drawn to the fact that changes to the accounts are recorded and can be traced.
(6) The client shall verify the placing of the advertisements by means of the access data without undue delay after the start of the contract and then at regular intervals (at least once a week) for correct ranking and presentation as well as functionality of the links etc. and inform Performics about any defects without undue delay. The client is obliged to support Performics to the best of his ability in rectifying any such defects and in communicating with the providers, in particular by providing all the data and information necessary for correction of possible defects. The client bears sole responsibility for implementing onpage measures.
(7) The client is obliged to keep the advertisement target pages running at all times and ensure that log-in, registration and order processes will function properly at all times, i.e. 24 hours a day on 365 days a year. The client shall communicate changes to the advertisement target pages to Performics in good time.
(8) The client shall provide Performics with best possible support in the selection of keywords and in particular provide comprehensive details about the target group of the website and advertisements and possible search terms. The client bears sole responsibility for the choice of keywords. This covers in particular the duty to verify the acceptability of keywords suggested by Performics. If the client does not object to keywords suggested by Performics in writing within 3 working days, they shall be deemed released.
(9) The client shall report all and any legal disputes which are or may be related to this contract and about the course of any proceedings being conducted to Performics in text form without undue delay and also discuss which steps are to be taken with Performics.
(10) In the event of recourse for alleged or actual legal infringement and/or breach of third-party rights due to the choice of keywords or the design of advertising measures and/or due to the linked target pages and their contents, the client shall hold Performics free and harmless for all the resulting claims of third parties and undertakes to reimburse all and any costs incurred by Performics due to the recourse by third parties. The reimbursable costs include in particular the costs of pursuing and defending legal suits incurred by Performics.
(11) Unless expressly declared otherwise in writing, where individual SEO, SEA or other consulting services are ordered by a company affiliated with the client within the meaning of Section 15 German Stock Corporation Act (AktG) Performics can assume that the company is acting in the name of and with the authorisation of the client. The client shall thus be liable jointly with the respective company affiliated with him for receivables relating to SEO, SEA or other consulting services rendered by Performics for the company affiliated with the client.
10. Prices, settlement and terms of payment
(1) If remuneration as per effort is agreed, there shall be a monthly settlement on the basis of man days and project units (PU) at the per diem rate agreed between the parties.
(2) Additional costs incurred by Performics, for example for booking keywords under SEM contracts, shall be invoiced separately and paid by the client without surcharge.
(3) The client is obliged to bear Performics’s travel expenses incurred under this contract after settlement by Performics.
(4) All the agreed prices are net prices and are quoted without the statutory value-added tax.
(5) Flat-rate prices are not fixed and can be changed by Performics after prior announcement in text form with one month’s notice to the half-year end. If the client objects to a price change within two weeks, the old prices shall remain valid. In this case Performics shall be entitled to extraordinary termination. If the client does not object within the aforementioned period, the new prices shall apply from the date stated in the change notification.
(6) In so far as the client provides Performics with a budget for the agreed services for a given period, the parties are aware that such a budget cannot always be exactly used up. In that case Performics is therefore authorised to carry over any part of the budget not used up to apply it with services of the following period.
(7) Performics shall invoice the client to the end of each month covering the flat-rate prices for the current moth and the success-related prices for the prior month. The due date of the payment of the agreed remuneration shall be determined from the payment periods stated in the invoice. If no payment period is stated, the payment shall be due and payable within 10 days.
(8) In the event of default of payment, the client shall be charged default interest of 8 percentage points above the base rate. In the event of such payment default Performics can suspend execution of ongoing orders until full payment has been rendered.
11. Warranty and liability
(1) Performics renders solely advice and support. Warranty shall otherwise be determined by the statutory provisions, whereby the client’s claims against Performics due to defective performance or defects in the performance of services shall be time barred six months from when the claim arises and knowledge or grossly negligent or intentional ignorance of the circumstances giving rise to the claim.
(2) Performics shall strive to carry out its measures in conformity with the policies of the respective search engine. The parties are, however, aware that individually agreed measures for search engine optimisation may infringe the policies of individual search engines and that this shall not constitute defective performance by Performics.
(3) Performics and/or its agents and/or legal representatives shall be liable for damages other than personal injury only in case of intention or gross negligence. Contractual and extra-contractual liability for the client’s property and financial harm, foregone profit and consequential losses is excluded for minor negligence in so far as this relates to liability for breach of cardinal duties. Cardinal duties are those duties whose fulfilment renders the proper execution of the agreement possible in the first place and on whose compliance the client may generally rely. In cases of slightly negligent breach of a cardinal duty, there shall only be liability for losses or damage typical for comparable transactions of this nature, with a maximum not exceeding the order value of the prior year orders before the event triggering the damage becomes known.
(4) Otherwise liability is excluded, whereby the exclusion of liability does not apply in the case of loss of life, personal injury, impairment of health, or for liability according to the Product Liability Act (ProdHaftG).
(5) As a service provider, Performics shall not be liable for any damage arising from technical problems or performance problems at other providers or other third parties. Nor shall Performics be liable for any damage which the client could have prevented through reasonable measures, especially regular, at least daily, program and data backup.
12. Term, termination
(1) Unless expressly agreed otherwise between the parties, the contract shall be open ended and can be terminated with four weeks‘ notice to the end of a month.
(2) Unless expressly agreed otherwise, the contract shall have a minimum term of 6 months. If a minimum term has been agreed, termination is permitted only after the minimum term expires.
(3) Ordinary termination is excluded. This shall be without prejudice to the right to terminate extraordinarily for cause.
(4) Performics shall have cause for extraordinary termination in particular if
– the client fails to meet his duty to pay the remuneration despite receiving a reminder;
– the client is in default with payment of the monthly remuneration to an amount equivalent to the fees for two months;
– third parties make claims against Performics or the client for alleged legal infringement in conjunction with the services rendered for the client;
– the client grossly breaches participation obligations under this contract.
13. Final Provisions
(1) Should one or more provisions of this contract be or become invalid, this shall have no effect on the validity of the remaining parts of the contract.
(2) This Agreement shall be governed by German law exclusively with exclusion of for the UN Sales Convention. Place of fulfilment and legal forum for all disputes under and in conjunction with this contract, regardless of the legal grounds, shall be the place of Performics’s registered offices at the time the contract is concluded.
(3) The client may set off against Performicss receivables only with claims arising from this contract and bindingly established by a court of law or expressly acknowledged by Performics in a written declaration.
(4) All changes or additions to these GTC must be in text form (Section 126b German Civil Code (BGB)). This shall also apply to any change to this clause. Performics is authorised to amend these contractual clauses. Any change shall be notified to the client in text form, without the amended individual conditions or the new version of the terms and conditions as a whole having to be sent or otherwise notified; notification of the fact that changes have been made as such shall suffice. In so far as the client does not expressly object to the change within two weeks of announcement, this shall be deemed as consent to the change; Performics shall draw attention to this consequence in the change notification. If the client does object in due time, Performics shall be entitled to extraordinary termination.
(5) Performics is authorised to transfer this contract with all its rights and duties to a company of its choice. The transfer shall become effective 28 days after notification to the client. Transfer of this contract to another company shall give rise to a special termination right for the client which must be asserted within one week of said notification.