Rechtliches

General Terms and Conditions

Version: 16.03.2023

Art. 1 Preamble

Working Digital, owned by Marcus Eckert, Dottistrasse 15, 10367 Berlin (hereinafter referred to as „Working Digital“) is an online marketing agency specialising in search engine optimisation in the sense of link building / link marketing and other areas of online marketing. In this sector, Working Digital advises corporate clients in various countries on improving their web presence and search engine rankings over the long term.

Art. 2 Scope, Amendment

The following terms and conditions conclusively govern the contract relationship between Working Digital and its Clients and apply exclusively. Any terms and conditions of the Client that conflict with or deviate from these General Terms and Conditions (“GTCs”) are not acknowledged unless Working Digital has expressly agreed to them in an individual case.
These GTCs apply exclusively to entrepreneurs. An entrepreneur within the meaning of these GTCs is a natural person or legal entity or a partnership with legal capacity acting in the exercise of commercial or independent professional activity when placing an order.
Working Digital reserves the right to amend the GTCs at any time without giving reasons. Working Digital will notify the Client of the amendment to the GTCs no later than 2 weeks before the amendment comes into effect and send it to the Client. If the Client does not agree to the amended GTCs within 2 weeks of receipt of the notification of amendment, Working Digital is entitled to terminate the contract relationship in question with effect from the time the amended GTCs are to come into force or to continue it on the previous terms.
Contracts are concluded solely in German or English, depending on prior agreement with the Client in question. These GTCs and the contracts concluded with reference to them shall be governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
All price quotations are quoted as net Euro prices, to which the applicable statutory rate of value-added tax will be added.
In the event of conflicts in the contract relations between the Parties, the following order of precedence shall apply:
1. individual contracts
2. these GTCs
3. the provisions of applicable law.

Art. 3 Formation of contract, subject matter of contract, scope of performance, place of performance

The individual contract is concluded when the Client confirms, in text form, the offer submitted by Working Digital. Working Digital shall be bound by its offer for 14 days.
Working Digital shall commence with the agreed service at the time agreed in the individual contract or in the offer and the underlying order documents. Deadlines are automatically extended by the period in which Working Digital is prevented from performing the services through no fault of its own. This is particularly the case in cases of force majeure, strikes, pandemics and epidemics and lack of cooperation on the part of the Client as defined in Art. 6 of these GTCs.
Working Digital provides services in the areas of SEO (Search Engine Optimisation) and online marketing in general. Within the scope of these activities, Working Digital acts exclusively in an advisory and/or executive capacity without the promise of concrete success. This advice relates in particular to the following areas: Better ability to find the websites on search engines, increase in traffic on websites, meaningful reporting on the success of the measures.
In this case, Working Digital shall not be liable for the success of the services or of the service objectives sought the Client. The Client is aware that, particularly in the case of marketing services, Working Digital is not obliged to achieve successful outcomes in the form of improved organic rankings or inclusion or retention of certain articles or content in the index of one or more search engines, inasmuch as, on an objective view, such successful outcomes cannot be promised. Such successful outcomes lie exclusively in the discretion of the search engine operator. In addition, there is no obligation to achieve a constant, static positioning of a placement that has been achieved and verified by ranking report.
Insofar as a certain number of links or other publications on the internet is stipulated as an obligation under the individual contract, such obligation only refers to the one-time publication on the internet and not to permanent accessibility by the public. Working Digital undertakes to publish the content commissioned by the Client on the agreed domain for a period of at least 12 months. This means that the published content must be accessible and findable by users for such period. In the event of premature deletion, the Client shall be entitled to publication of a replacement or reimbursement of the remuneration paid.
The individual deliverables as well as the concrete scope of the services to be provided by Working Digital are derived from the information in the individual project and service descriptions, the individual offer as well as the individual contracts and/or these GTCs.
Processes or events arising after the completion of work steps or the assignment itself shall not oblige Working Digital to update the findings already developed or to revise information passed on to the Client.
Working Digital reserves the right to extend its services and make improvements to them if these contribute to technical progress, appear necessary to prevent misuse or if Working Digital is obliged to do so by law.
Working Digital shall be entitled to engage third parties (in particular, it may engage subcontractors) for all of its services. These are then deemed vicarious agents of Working Digital. Working Digital is specifically entitled to engage further specialists on detailed questions, to replace project staff it has employed or designated with comparably qualified resources at any time, to use subcontractors who are natural or legal persons, and, in particular, to deploy third party software. Without prejudice to the rights of Working Digital, the periods of service provision shall be extended due to default of the Client by the period in which the counterparty in question does not fulfil its obligations to Working Digital.
Depending on the service to be provided, Working Digital uses third-party software/services in certain situations. It is pointed out that in these cases Working Digital can only provide a service if the Client agrees to these conditions and installs the respective software where necessary.
If Working Digital is in default with the services it is required to supply, the Client is only entitled to resile from the contract if Working Digital fails to cure the default within a grace period set by the Client.
As a basic principle, the place of performance is the registered office of Working Digital or the registered office of the Client, unless otherwise specified in the individual contract or unless this follows from the nature of the activity.

Art. 4 Prices, terms of payment, default

The amount of remuneration as well as the mode of settlement is based on the individual contract or on these GTCs.
If it is expressly made clear in the offer that the amount of remuneration stated is a provisional estimate, subsequent deviations are possible based on concrete substantiations or updates to the project planning. Working Digital will then notify the Client if the estimated expenditure will be exceeded by more than 10% and will consult with the Client on the further course of action.
Where the parties agree on flat-rate hourly quotas per month or year for services required under the contract, these shall cover services up to the agreed amount. Unused quotas cannot be carried over to the following month or year.
Travel and accommodation costs will be invoiced separately in line with actual expenditure. Travel expenses include, in particular, expenses for meals in the amount of the statutory meal allowance per day of travel, flights, overnight stays, 1st class rail travel, rental cars, taxis, car use, car sharing or other transport service providers, parking fees and the like. If Working Digital staff travel by car, a mileage reimbursement of EUR 0.50 per kilometre is payable.
Similarly, travel and accommodation costs incurred by Working Digital prior to the conclusion of the contract, e.g. in the context of preparing the offer, will be invoiced in line with actual expenditure.
The remuneration falls due for payment when the invoice is issued. In line with the agreed terms of payment, Working Digital issues its invoice by e-mail or by post at the beginning of the period of its services agreed by contract. Invoices must be paid within the period stated on the invoice.
The Client’s satisfaction of its payment obligation occurs when the claim stipulated by contract is credited to the account of Working Digital.
Objections to invoices must be notified to Working Digital in text form. Invoices from Working Digital are deemed to have been approved by the Client if no objection to them is raised within 4 weeks of receipt. To meet the deadline, it is sufficient to send the objection in good time.
If the Client is in default of payment for 2 months and fails to meet its obligations, Working Digital is entitled to withhold further services, interrupt ongoing services and resile from the contract with immediate effect or terminate the contract without notice.
In the event of premature termination of the contract, the Client must remunerate Working Digital for the services already rendered by it up to date the termination notice takes effect, in accordance with the provisions of the Parties’ contract. The foregoing is without prejudice to any legal claims to which Working Digital is entitled based on premature termination. Any claims arising from this sec. 10 will be set off against any claims arising by law.

Art. 5 Termination

Unless otherwise agreed either Party may terminate the contract relationship in writing upon 2 weeks’ notice to the agreed end of the contract, or to the end of the month, if no contract term has been agreed. Contracts with automatic termination do not need to be terminated by express notice and end automatically when the end of the term is reached.
The right of the Parties to terminate for good cause remains unaffected. Good cause shall be deemed to exist in particular if
1. the Client ceases to make payment
2. the Client is in default with the payment of the invoice within the meaning of Art. 4 of these GTCs, and the default already includes two consecutive payment dates
3. the Client has filed an application for the initiation of insolvency proceedings
4. the Client fails to fulfil its duty under these GTCs to cooperate in a timely manner.

Art. 6 Duties of cooperation on the part of the Client

The Client’s duties arise out of the individual project and service descriptions, the individual offer as well as the individual contracts and/or these GTCs.
The Parties shall cooperate in a spirit of trust. If a Party sees that any details or requirements, whether its own or those of the other Party, are incorrect, incomplete, ambiguous or impracticable, it shall promptly inform the other Party of this fact and of the consequences it is able to discern. The Parties shall then seek and endeavour to achieve a solution in their mutual interests, if necessary in accordance with the provisions on changes to the scope of services. The Client’s duties to co-operate generally result from the individual offer and these GTCs. The list of obligations referenced therein is not exhaustive. In particular, the Client shall provide the following deliverables free of charge:
1. The Client shall cooperate to a reasonable extent in the creation, design and maintenance of websites and related marketing campaigns. In particular, the Client shall implement the recommended on-page measures and install an analysis tool with access data on its websites and shall, at regular intervals, provide Working Digital with material to a reasonable extent for the creation of specific marketing campaigns. In addition, the Client shall proofread and approve articles or other content created by Working Digital on its behalf and published in its name.
2. The Client shall provide its data in a complete and truthful manner when concluding the contract. In the event of any changes, these must be communicated to Working Digital without delay.
3. At the outset of the services, all required or requested documents, data, information, process descriptions and further information must be submitted in a complete and truthful manner.
4. Immediately after conclusion of the contract, the Client shall provide the necessary access authorisations and user data for all systems and portals required within the scope of the project. In particular, the Client shall inform Working Digital prior to programming-related changes or modifications to the information architecture of the website and shall investigate to what extent these have a negative impact on the services of Working Digital. Should any changes become necessary, Working Digital must be promptly informed thereof.
5. The Client is obliged to use the services rendered and works created by Working Digital only for the purposes agreed by contract.
6. The Client has a duty to verify, on its own initiative, the legal permissibility of the commissioned services. This applies in particular in the event that the services of Working Digital or the keywords, texts, information, data, files and images provided to Working Digital for this purpose violate competition law, copyright, trademark law, data protection law or other provisions of applicable law and/or infringe on the rights of third parties, unless Working Digital is aware of this or fails to become aware due to its gross negligence. Any content placed on the Client’s website will be marked as the Client’s own content, stating the Client’s full name and address. The Client is advised that an additional legal labelling obligation may exist, for example, if teleservices or media services are offered on the websites. The Client releases Working Digital from any liability with regard to the use of these keywords, texts, information, data, files and images it has provided and shall hold it harmless against any resulting trademark, copyright or competition infringements. Working Digital hereby disclaims any recourse claims of the Client.
7. It is accordingly incumbent on the Client to review, at regular intervals, the advertisements, keywords and settings used by Working Digital for it with the aid of the change log, but at the latest every 4 weeks, in respect of their legal permissibility, and to review the texts created by Working Digital in respect of their legal permissibility, in particular in respect of infringements of trademark, competition and copyright law and other third-party rights. Working Digital is not obliged to review the Client’s website for possible infringements.
8. The Client shall ensure that competent information officers are available and willing to provide information at all times during the contract period.
9. The Client shall ensure that Working Digital consultants attend all meetings necessary for the provision of deliverables of the Client.
10. The Client shall ensure that any service for which a third party is responsible and which may impact on or is connected with the provision of services by Working Digital is provided on time and of the required quality and that Working Digital is provided with all the information and results required in good time.
11. If problems occur that violate the guidelines of the search engines, the Client shall, following guidance by Working Digital, actively cooperate in a timely manner to find a solution.
12. The Client shall independently and regularly save/back-up its settings and data, unless this is part of the deliverables of Working Digital.
In the event that the Client fails to cooperate or fails to cooperate fully and/or properly, Working Digital shall be entitled to claim additional remuneration for the additional work entailed by this at its respective agreed hourly rates.
If the Client fails to comply with its duties of cooperation after a reasonable deadline has been set, Working Digital is entitled to terminate the contract for cause. In such case, Working Digital is entitled to demand the remuneration incurred up to this point in time. Further claims for damages shall remain unaffected thereby.
If third parties assert claims against Working Digital in accordance with the foregoing clauses, Working Digital shall inform the Client thereof without delay. The Client undertakes to indemnify and hold Working Digital harmless against any liability to third parties, to support Working Digital in its legal defence and to bear the costs of such reasonable legal defence, provided that Working Digital is not guilty of contributory negligence.

Art. 7 Liability

Working Digital accepts no liability for ensuring that the services provided will lead to the successful outcome sought by the Client. This applies in particular to fluctuations or losses in keyword rankings.
The Client assumes unlimited liability for any losses incurred by Working Digital as a result of the Client’s failure to cooperate or to cooperate fully and/or correctly in accordance with Art. 6 of these GTCs. The Client may, however, provide counterevidence that the breach of its duty of cooperation or its failure to perform such cooperation completely and/or correctly is not the cause of the damage.
Working Digital shall not be liable for the loss of data and/or programs insofar as the damage is due to the Client’s failure to carry out regular data backups at short intervals as is customary in the industry and thereby to ensure that lost data can be restored at reasonable expense, to the extent that the data backup in question is not one of Working Digital’s main deliverables.
Working Digital shall not be liable for the violation of applicable law and/or for infringement of the rights of third parties with regard to keywords, texts, information, data, files and images provided by Clients for the services to be provided or published by Working Digital in their name.
Working Digital shall be liable without limitation for losses caused by its intentional acts or gross negligence, in the event of fraudulent concealment of defects, in the event of the assumption of a warranty of quality, for claims based on the Product Liability Act and for injury to life, limb or health.
Working Digital shall only be liable for other losses if an obligation is breached, compliance with which is of particular importance for achieving the purpose of the contract (Kardinalpflicht).
The foregoing rules on liability shall also apply to the vicarious agents of Working Digital.
In all other respects, liability is hereby disclaimed.

Art. 8 Rights of use

Subject to the condition precedent of satisfaction of all payment obligations under Art. 4 of these GTCs, Working Digital grants the Client the rights of use necessary for the purpose of the contract. The Client is granted a non-exclusive right of use limited in time to the term of the contract and unlimited in geographical scope.
The Client grants Working Digital a right to use its trademarks and company logos, limited to the duration of the Parties’ contract relationship, as well as a right to use and edit the texts and/or other works on its website for a limited period of time.
Working Digital is entitled to freely use any development and any know-how from orders/further developments for further contracts and to exploit them as it sees fit.
The Client undertakes not to remove copyright notices and proprietary notices of Working Digital.

Art. 9 Force majeure

Working Digital shall be released from its obligation to perform the contract in cases of force majeure. Force majeure includes all unforeseen events as well as events whose effects on the performance of the contract are not the responsibility of either party. These events include, in particular, pandemics, epidemics, lawful industrial action, including at third party companies, and official measures.

Art. 10 Final provisions

Exclusive jurisdiction for all disputes arising out the Parties’ contract relations is vested in the courts at the registered office of Working Digital in Germany, provided that the Parties are merchants.
Amendments or addenda to the individual contract shall only be deemed effective if made at least in text form.
Should any provision of this agreement be or become invalid during the term of the agreement, all other provisions of this agreement shall remain unaffected and shall continue to apply in unamended form. The invalid provision shall be replaced by another, permissible provision that comes as close as possible to the meaning and purpose of the invalid provision.