General Terms and Conditions
Section 1 Contracting party, scope of application
(1) The following General Terms and Conditions ("GTC") apply to the provision of advertising and marketing services on the internet as well as the associated services of Mawave Marketing GmbH ("Agency") for its clients ("Client") (Agency and Client individually "Party" and collectively "Parties").
(2) The agency's GTC apply exclusively. They apply to all offers, deliveries, and services of the agency. To the extent that the client did not have the opportunity to take note of them at the time of contract conclusion, they shall nevertheless apply if the client knew or should have known the general terms and conditions from previous transactions.
(3) Conflicting terms and conditions of the client that deviate from the GTC do not apply. If the agency carries out the delivery or service incumbent upon it under the contract with knowledge of such general terms and conditions of the client, it does not thereby recognize those general terms and conditions of the client that do not conflict with these GTC.
(4) The client acquires the agency's service for their business within the meaning of Section 14 BGB.
Section 2 Conclusion of contract, subject matter of the contract
(1) The agency advises the client on the design and handling of their social media presence, manages their social media ad managers, develops and places content for social media, and manages their social media accounts. The agency's services are detailed in the agency's offer. Services not listed there do not become part of the contract.
(2) Both parties agree that the signing of all contracts and offers by means of a simple electronic signature (which does not have to meet the requirements of Section 126a BGB) leads to the conclusion of a legally binding contract or similar.
(3) The client may propose changes or extensions to the contractually agreed scope of services during a project. If the agency does not accept such a change proposal, the agreed services remain in effect. If the agency performs agreed supplementary services without a supplementary remuneration agreement being made, Section 4 (4) applies.
(4) Even if the parties agree on contracts or additional services verbally, these are binding. The agency is entitled to have the client confirm the verbally agreed contracts and additional services in text form without delay. An order is considered placed if the agency begins part of the order execution with the client's knowledge before an agreement on all points of an order has been reached, without the client objecting immediately. An order can also be accepted by the agency through the execution of the activity if there is already clarity on all points of an order.
(5) The agency is entitled, at its own discretion, to perform the service itself or to have it performed by knowledgeable third parties as subcontractors. The agency is entitled to change the internet infrastructure used and the subcontractors (service providers and vicarious agents) commissioned with the execution at any time, provided this does not result in any disadvantages for the client. In principle, the client will be informed in text form two weeks before a change and requested to communicate any concerns regarding the planned change.
(6) The agency may also provide the services in the course of technical progress through newer or different technologies, systems, processes, or standards, provided this does not result in any disadvantages for the client.
(7) The agency also offers digital products that arise from the agency's core business.
Section 3 Offer, information, service
(1) The presentation of "offers" by the agency on the website is merely an invitation to the client to submit an offer.
(2) Offers in the legal sense on the part of the agency only exist if the agency approaches the client with them and they contain detailed services and associated prices.
(3) Notwithstanding Section 312i (1) nos. 1 to 3 of the German Civil Code (BGB), the client has no claim to the provision of technical means for correcting their order (Section 312i (1) no. 1 BGB), separate information on the technical steps for concluding the contract within the meaning of Art. 246c of the Introductory Act to the German Civil Code (EGBGB), in particular information on the storage of the contract, the available languages, and codes of conduct (Section 312i (1) no. 2 BGB), or an immediate confirmation of their order (Section 312i (1) no. 3 BGB).
(4) The agency will provide the agreed services according to the recognized rules of technology. For search engine optimization, advertising measures, and social media management, a specific result cannot be guaranteed.
Section 4 Prices, payment terms, offsetting, retention
(1) The remuneration to be paid by the client is derived from the agency's offer and/or contract. This may be a flat-rate fee, an effort-based fee (in particular hourly or daily rates), or a variable performance-based fee. A flat rate only covers the services detailed in the offer.
(2) All prices are net prices plus the applicable statutory value-added tax, provided this is incurred and nothing else has been agreed.
(3) The agency is entitled to request a reasonable down payment upon placing the order. The agency is entitled to request reasonable installment payments for project parts already delivered to the client and to issue partial invoices according to project progress.
(4) The contractual remuneration applies only to the extent that this and the corresponding contractual services have been agreed upon. Agreed or incurred additional services covered by these GTC are to be remunerated according to the contractual rates contained in the offer for identical or comparable services, or alternatively, according to the customary, reasonable local rate. Accompanying services such as user introductions, documentation, training, support, or similar are not included in the order by default, but only become part of the contract if this has been expressly agreed.
(5) Travel expenses incurred by the agency for travel outside the city of Munich, Bavaria, which are necessary for the fulfillment of the contract by the agency, are not included in the contractually agreed remuneration. These must be borne additionally by the client.
(6) Payments by the client are due at the start of service provision. The invoice amount is payable within 14 days without deduction. The client is advised that they will be in default no later than 30 days after receipt of the invoice.
(7) In the event of late payment, the client must pay default interest at a rate of 9 (nine) percentage points above the respective base interest rate p.a. Furthermore, the agency may charge a flat fee of 40 euros. The agency reserves the right to assert claims for higher interest and/or further damages. The flat fee according to sentence 2 shall be credited against any owed damages, provided the damage is based on legal costs.
(8) The client may only offset if their counterclaims have been legally established, are undisputed, or have been acknowledged by the agency, or if the client's counterclaims are based on incomplete or defective performance from the same contractual relationship.
(9) The agency is authorized to exercise a right of retention regarding all claims against the client arising from the business relationship with the client.
(10) For all payments to creators and influencers processed via Mawave, Mawave charges an additional fee of 10% on the net amount. This fee covers the remittance of legally required levies, in particular the artists' social security contribution (KSK), as well as other administrative and legal obligations in connection with the remuneration of independent creative services.
Section 5 Social media management
(1) To the extent commissioned for a corresponding fee, the agency will implement marketing measures for the client via their social media accounts or manage them entirely.
(2) The agency will, to the agreed extent, optimize the client's accounts if necessary and create and publish content, in particular text, images, videos, plans, maps, audio recordings, animations, drawings, and graphics ("Content") for the client.
(3) The agency will—to the extent agreed—propose the content for publications on its own responsibility and publish it after approval by the client. Approvals must always be provided in text form in a timely manner (at least 48 hours) before the scheduled publication date. The parties may develop a framework for social media publications within which the agency can create and publish content without prior individual coordination.
(4) The agency will provide the client with a report containing the agreed key performance indicators regarding the success of the publications at the agreed intervals.
(5) Content created by the agency for the client is generally only stored by the agency for up to 2 weeks after its publication. No further storage for the client takes place.
Section 6 Provisions, complications
(1) Unless otherwise agreed, costs for third-party software or other products required for the implementation of the contract (e.g., purchased themes, plugins, advertising budgets, advertising materials, etc.) are not included in the agreed remuneration. Functionalities, responsive web design, and browser compatibility can only be guaranteed within the scope of the third-party software product's requirements. The same applies to restrictions of any required third-party products, such as the functionalities of advertising platforms.
(2) In the event of unforeseen difficulties caused by third parties (provider, external software vendor, advertising platform, etc.) that lead to additional work, the client is obligated to pay for the additional effort on an hourly basis at the contractually agreed rate or, alternatively, at the customary, reasonable local rate.
(3) Unless separately agreed, the integration and processing of images (e.g., cropping, retouching, converting file formats) or other media (PDFs, music, video, graphics, etc.) is not included in the agreed remuneration. The client is responsible for ensuring that the media are provided in the agreed size, resolution, and file and color format. Otherwise, the client is obligated to pay for the additional processing effort on an hourly basis at the contractually agreed rate or, alternatively, at the customary, reasonable local rate.
(4) Unless otherwise agreed in the offer, one correction cycle with one change each is included per service item (products & services) from the offer, provided the correction is not required to fulfill contractual obligations. Reversing requested changes, follow-up changes, and functional or structural changes must be paid for additionally by the client on an hourly basis at the contractually agreed rate or, alternatively, at the customary, reasonable local rate, as must any changes made after the start of a new project phase.
Section 7 Delivery time, force majeure
(1) The start of any specified service time is subject to the clarification of all technical, legal, and design questions and the timely and proper fulfillment of the client's obligations. The defense of non-performance of the contract remains reserved.
(2) Force majeure or operational disruptions occurring at the agency or its subcontractors, e.g., due to riots, strikes, pandemics, epidemics, or lockouts, which temporarily prevent them through no fault of their own from delivering the service by a possibly agreed date or within a possibly agreed period, will extend the service times by the duration of the service disruption caused by these circumstances.
§ 8 Cooperation Obligations of the Client
(1) The client is obligated to provide the agency with all information necessary for the execution of the contract (e.g., existing accounts on platforms, previous and ongoing advertising measures, previous conversion rates, and other marketing-relevant metrics) and data (e.g., navigation structure, media to be used, legal texts, etc.) in a timely and unsolicited manner. The duty to inform expressly includes all information regarding conflicting copyright or trademark rights.
(2) The client is responsible for access to the necessary social media platforms themselves. The agency can only provide its services within the scope of the client's existing accounts on Facebook, Instagram, Pinterest, TikTok, Snapchat, LinkedIn, Xing, etc. Assistance with setting up accounts can be booked as an additional service.
(3) The client is advised that they require a privacy policy and a legal notice (Impressum) for their respective social media account. The client must integrate these themselves. Drafting and checking such legal texts is not possible for the agency, and it is not permitted to provide this service under the Legal Services Act.
(4) The client is obligated to hand over the materials required for the execution of the contract in a common, immediately usable digital format. The client ensures that the rights of use required for the execution of the contract are granted, in particular, reproduction, distribution, and editing rights to the extent necessary for the realization of the contract and the agency's work. The verification of the legal admissibility of the transfer of the required rights of use with regard to intellectual property and copyright law by the agency is not part of the assignment.
(5) The client is advised that content in social media accounts originating from third parties (in particular photos, texts, plans, graphics, maps, sound recordings, videos, animations, and drawings) may be protected by copyright. If the client provides such materials, the client must ensure themselves that they have acquired all necessary rights, if necessary for a fee. An examination by the agency regarding conflicting trademark, copyright, or other industrial property rights is not part of the contract.
(6) The client is obligated to provide the agency with all access to their accounts on websites, platforms, or other locations necessary for the execution of the order and to carry out the transmission securely and in encrypted form. After completion of the order, the client is obligated to change the password immediately. This does not apply if further support by the agency is agreed upon.
(7) If the client provides the agency with physical or non-physical objects, in particular image, text, or sound files, that infringe the rights of third parties, the client is obligated to indemnify the agency against any claims by third parties upon first request. This also includes, in particular, the costs of reasonable legal defense.
(8) The client is obligated to carry out necessary data backups independently as part of self-protection, especially before the start of the order. There is no liability on the part of the agency for lost data insofar as it would still be available with proper data backup by the client.
§ 9 Confidentiality
(1) The agency and the client undertake to treat all knowledge of confidential information and trade secrets of the other party obtained during the preparation of negotiations and the execution of this contract as confidential for an unlimited period and to use them only for the purposes of executing this contract. These trade secrets also include the services and conditions provided under this contract – subject to conflicting provisions in these GTC or the contract – as well as the agency's contacts with business partners and internal communication between the parties.
(2) The above obligations do not apply to trade secrets that (i) were already generally known at the time of their transmission by the parties or were known to the other party; (ii) became generally known after their transmission by the party without fault of the other party; (iii) were made accessible to the other party by a third party in a non-infringing manner and without restrictions regarding assertion or exploitation after their transmission by the party; (iv) were independently developed by a party without using the trade secrets of the other party; (v) must be published due to laws, official orders, or court decisions, provided that the publishing party notifies the other party immediately and provides the opportunity to assist in defending against such official orders or decisions; or (vi) insofar as the use or disclosure of trade secrets is permitted under mandatory law or this agreement.
§ 10 Default of the Client, Default of Acceptance, Withdrawal
(1) If the client fails to fulfill one of their cooperation obligations under § 8 as agreed, the resulting consequences, such as additional services required by the agency and delays, are at the client's expense. The agency may invoice the client for the additional effort incurred in accordance with § 4 (4).
(2) Should information, access, documents, or templates such as texts or photos not be available in a timely and/or complete manner, the agency is entitled not to begin the service or to work provisionally with placeholders. The subsequent integration of late-submitted material counts as a change to the order and must be additionally remunerated in accordance with § 4 (4).
(3) The client is advised that the agency works on a project basis and does not take on more than a certain number of projects simultaneously. If the client is in default of acceptance regarding their obligations to provide, cooperate, or accept, the agency is entitled to postpone the service time. This applies in particular if this creates a conflict with other projects already scheduled by the agency.
(4) Should a delay in the realization of the order for which the client is responsible exceed three weeks, the client is obligated to pay immediately for the services provided by the agency up to that point and to additionally remunerate the extra time required for the agency to re-familiarize itself with the project upon resumption, as an additional service pursuant to § 4 (4).
(5) If the agency sets a grace period for the client to fulfill their cooperation obligations and the client fails to do so even after the period has expired without result, the agency may withdraw from the contract and demand damages in lieu of performance. This includes, in particular, the contractual remuneration for services already provided and the further lost profit from the agreed contract execution, minus the agency's saved expenses.
§ 11 Duration / Termination
(1) Consulting, coaching, management, or other duration-dependent services may be agreed upon with a specific scope/quota (e.g., number of posts, sessions, appointments) and/or duration. The agreement of a specific quota or duration is binding.
(2) Unless a different duration or termination policy is agreed upon in the contract, termination is possible with 3 months' notice to the end of a quarter, provided this does not result in falling below a specific quota.
(3) The right to extraordinary termination for good cause remains unaffected. The agency is particularly entitled to extraordinary termination if the client is in default of a due payment for more than 1 month or if the client culpably violates a contractual obligation even after a warning.
(4) A prior warning is not required if the respective breach of duty is so serious that the continuation of the contract would be unreasonable, if further performance of the contract is impossible, or if it is seriously and finally refused by the other party. In the case of a breach of duty by the client, this is particularly the case if the agency would be liable to third parties due to the breach of duty.
§ 12 Rights of Use
(1) Upon full payment, the client acquires a simple, non-exclusive right of use for any content created by the agency. The right of use for the agency's content is granted to the client only to the extent necessary for the agency to fulfill the contract. The client may use the content only for the contractually agreed purposes, e.g., publishing content on one of the client's social media channels. Upon the client's request, the granting of a more extensive right of use is possible.
(2) Where works are used that are subject to a CC license or an open-source license, those license terms apply.
(3) With the license, the client acquires the right to edit, redesign, or delete the design, text, or other delivered content.
(4) Rights of use for assets outside the contractually agreed services can be extended to other advertising spaces following individual consultation and payment of buy-outs.
(5) The client agrees that the agency may name the service provided for the client as a reference on its website and in other online and offline publications. The agency may display or play excerpts of its services for the client, link to the account, and use the client's name, brand, and logo for this purpose. The client may revoke this consent with future effect.
§ 13 Rights Regarding Defects, Limitation Period, Liability
(1) Where marketing, social media management, search engine optimization, or other consulting services are the subject of the contract, a specific (economic) result cannot be guaranteed. These are service contracts for which no warranty for defects exists.
(2) There is creative freedom within the scope of the assignment. Claims for defects regarding artistic designs exist only if these designs deviate significantly from the contractual agreement and such deviations are not attributable to technical causes, lack of rights clearance, or lack of cooperation by the client. If the client requests changes, the remuneration for these change requests is governed by § 2 (3).
(3) If the client makes changes to the service, the warranty (insofar as it applies under mandatory regulations) is void. In the event of a dispute, the client must refute the agency's substantiated claim that such a change caused the defect.
(4) Advertising claims made by third parties, particularly by manufacturers of software used by the agency for service provision, are not binding on the agency.
(5) The client's rights due to defects in the service expire one year after the handover or acceptance of the service. This also applies to the client's rights to damages or compensation in lieu of performance, including for all damages to other legal assets of the client caused by the defect.
(6) The agency is liable for damages only if they were (a) caused intentionally or through gross negligence by the agency, or (b) caused by the agency through slight negligence and these damages are based on the breach of a material contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the client regularly relies or may rely). Otherwise, the agency's liability, regardless of the legal basis, is excluded, unless the agency's liability is mandatory by law, particularly due to injury to life, body, or health, the assumption of an express guarantee, fraudulent concealment of a defect, or under the Product Liability Act. In the case of sentence 1, letter (b), the agency's liability is limited to the foreseeable damage typical for the contract.
§ 14 Contract Documents, Lien
(1) The agency retains all ownership and copyright interests in illustrations, drawings, calculations, sketches, drafts, photographs, graphics, designs, and other documents underlying the specific service provided to the client. These are not part of the contract, and the client cannot demand their surrender.
(2) To secure the agency's claims against the client arising from this contract, the client grants a contractual lien on the items and rights provided by the client to the agency for processing, particularly software, texts, images, and other objects and rights protected by copyright and intellectual property law. This contractual lien also secures all existing and future claims the agency may acquire against the client in connection with the business relationship.
(3) The client is obligated to provide the agency with their current address for as long as the lien exists. Otherwise, the client cannot derive any rights if the agency sells the item or right in the event of a justified lien sale and has sent the notice of the lien sale only to the last address known to the agency.
§ 15 Data Protection
(1) For the purpose of the contract, contract data is collected in accordance with Art. 6 (1) (b) GDPR (e.g., name, address, email address, any services utilized, and all other data transmitted electronically or for storage purposes that are necessary for the performance of the contract), insofar as it is required for the establishment, content-related design, or modification of a contract.
(2) Contract data will only be disclosed to third parties if it is necessary for the performance of the contract (pursuant to Art. 6 (1) (b) GDPR), if it corresponds to the overriding interest in effective service provision (pursuant to Art. 6 (1) (f) GDPR), or if consent (pursuant to Art. 6 (1) (a) GDPR) or other legal authorization exists. Data will not be transferred to a country outside the EU unless the EU Commission has determined that such country provides a level of data protection comparable to that in the EU, consent for this has been provided, or standard contractual clauses have been agreed upon with the third-party provider.
(3) Data subjects have the right at any time to:
- withdraw consent previously given in accordance with Art. 7 (3) GDPR. Once withdrawn, data processing based on that consent may no longer be carried out, although the withdrawal does not affect the lawfulness of the data processing performed prior to the withdrawal;
- request information about the processed personal data in accordance with Art. 15 GDPR; this includes, in particular, information regarding the purposes of processing, the categories of personal data, the categories of recipients to whom the data has been or will be disclosed, the planned storage period, the source of the data if not collected here, as well as information about automated decision-making, including profiling, and the existing rights explained herein;
- request the immediate rectification of inaccurate or incomplete personal data in accordance with Art. 16 GDPR;
- to request that stored personal data be erased without undue delay pursuant to Art. 17 GDPR, provided that the processing is not necessary, in particular, for exercising the right of freedom of expression and information, for compliance with a legal obligation (within the meaning of Art. 17 (3) lit. b) GDPR), for reasons of public interest in the area of public health, for archiving purposes, or for the establishment, exercise, or defense of legal claims;
- to request that the processing of personal data be restricted pursuant to Art. 18 GDPR if the accuracy of the data is contested, if the processing is unlawful but erasure is refused, if the data is no longer needed but the data subject requires it for the establishment, exercise, or defense of legal claims, or if the data subject has objected to the processing pursuant to Art. 21 GDPR;
- to request that the provided data be handed over or transmitted to another controller in a structured, commonly used, and machine-readable format pursuant to Art. 20 GDPR;
- to lodge a complaint with the competent supervisory authority pursuant to Art. 77 GDPR if the data subject believes that the processing of their personal data is unlawful. The competent authority is generally the supervisory authority in the Member State of the data subject's habitual residence, place of work, or place of the alleged infringement, or the location of our company's registered office.
- to object, provided that the personal data is processed on the basis of legitimate interests pursuant to Art. 6 (1) sentence 1 lit. f) GDPR, if there are reasons for doing so arising from the data subject's particular situation
(4) In principle, data is only stored for as long as the purpose of the respective data processing requires. Further storage may be considered if it is still necessary for legal proceedings or legitimate interests, or if there is a legal obligation to retain the data (e.g., tax retention periods, limitation periods).
§ 16 Place of jurisdiction, place of performance, dispute resolution(1) Unless otherwise stated in the order confirmation or the contract, the place of performance is the agency's registered office.
(1) Unless otherwise stated in the order confirmation or the contract, the place of performance is the agency's registered office.
(2) This contract is governed exclusively by German law, excluding the UN Convention on Contracts for the International Sale of Goods.
(3) The exclusive place of jurisdiction is the agency's registered office. The agency remains entitled to file suit at the client's registered office.
(4) Should any provision of this contract be prohibited, unlawful, or unenforceable under applicable law as determined by a competent court, such provision shall be severed from the contract to the extent required by such laws and replaced by another provision that has substantially the same effect, without altering the remaining provisions.