Terms and Conditions

‍Section 1 Contracting Parties, Scope‍

(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. Insofar as the client had no 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 business terms 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 contradict these GTC.
(4) The client acquires the agency's service for their company within the meaning of § 14 BGB.

§ 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 services of the agency are derived in detail from 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 § 126 a BGB) leads to the conclusion of a legally binding contract or similar.
(3) The client can offer changes or extensions to the contractually agreed scope of services during a project. If the agency does not accept such an offer of change, the agreed services remain in effect. If the agency performs agreed supplementary services without a supplementary remuneration agreement being made, § 4 Para. 4 applies.
(4) Even if the parties agree on contracts or additional services verbally, these are binding. The agency has the right 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 is 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 that no disadvantages arise for the client. In principle, the client will be informed in text form two weeks before a change and asked to communicate any concerns regarding the planned change.
(6) The agency can also provide the services in the course of technical progress through newer or different technologies, systems, processes, or standards, provided that no disadvantages arise for the client from this.
(7) The agency also offers digital products that arise from the agency's core business.

§ 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 § 312 i Para. 1 No. 1 to 3 of the German Civil Code (BGB), the client has no claim to the provision of technical means for correcting their order (§ 312 i Para. 1 No. 1 BGB), separate information on the technical steps for concluding the contract within the meaning of Art. 246c EGBGB, in particular information on the storage of the contract, the available languages, and codes of conduct (§ 312 i Para. 1 No. 2 BGB), as well as an immediate confirmation of their order (§ 312 i Para. 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 success cannot be guaranteed.‍

§ 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 can be a flat-rate remuneration, an effort-based remuneration (in particular hourly or daily rates), or a variable performance-based remuneration. A flat rate only covers the services offered in detail in the offer.
(2) All prices are net prices plus the applicable statutory value-added tax, insofar as this applies and nothing else has been agreed.
(3) The agency is entitled to demand a reasonable down payment upon placement of the order. The agency is entitled to demand 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 corresponding contractual services have been agreed. 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 remuneration. Accompanying services such as user introductions, documentation, training, support, or similar are not included in the order by default, but are only part of the contract if this has been expressly agreed.
(5) Travel costs of the agency for trips 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. The client must bear these additionally.
(6) Payments by the client are due at the beginning of the 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 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 prosecution costs.
(8) The client can 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 for 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.

§ 5 Social Media Management

(1) To the extent commissioned for corresponding remuneration, the agency will implement marketing measures for the client via their social media accounts or manage them in their entirety.
(2) The agency will, to the agreed extent, optimize the client's accounts if necessary, and create and publish content, in particular texts, images, videos, plans, maps, sound recordings, animations, drawings, and graphics ("Content") for the client.
(3) The agency will – as far as agreed – propose the content of the publications on its own responsibility and publish them after approval by the client. Approvals must always be received in text form in a timely manner (at least 48 hours) before the planned date for publication. The parties can 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 on the success of the publications at the agreed intervals, including the agreed key figures.
(5) Content created by the agency for the client is generally only kept by the agency for up to 2 weeks after its publication. No storage beyond this period takes place for the client.

§ 6 Provisions, Difficulties

(1) Costs for software or other third-party products required for the realization of the contract (e.g., purchased themes, plugins, advertising budgets, advertising materials, etc.) are, unless otherwise agreed, not included in the agreed remuneration. Functionalities, responsive web design, and browser compatibility can only be guaranteed within the scope of the requirements of the third-party software product. The same applies to restrictions of any necessary third-party products, such as functionalities of advertising platforms.‍ (2) In the event of unforeseen difficulties caused by third parties (provider, external software provider, advertising platform, etc.) that lead to additional work, the client is obligated to pay for the additional effort on an hourly basis according to the contractually agreed or, alternatively, the customary, reasonable remuneration. (3) The integration and processing of images (e.g., cropping, retouching, converting file formats) or other media (PDFs, music, video, graphics, etc.) is, unless separately agreed, not included in the agreed remuneration. The client is responsible for ensuring that the media is provided in the agreed size and resolution, and in the agreed file and color format. Otherwise, the client is obligated to pay for the additional processing effort on an hourly basis according to the contractually agreed or, alternatively, the customary, reasonable remuneration. (4) Unless otherwise agreed in the offer, one correction loop with one change each is included per service item (products & services) from the offer, provided the correction is not necessary for the fulfillment of contractual obligations. Reversing desired changes, follow-up changes, and functional or structural changes must be paid for additionally by the client on an hourly basis according to the contractually agreed or, alternatively, the customary, reasonable remuneration, as well as changes made subsequently after the start of a new project phase.

§ 7 Performance Time, Force Majeure

(1) The start of any specified performance 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 plea 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 potentially agreed date or within a potentially agreed period, shall change the performance times by the duration of the performance disruption caused by the circumstances. ‍

§ 8 Obligations of the Client to Cooperate

(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 key figures) and data (e.g., navigation structure, media to be used, legal texts, etc.) in a timely and unsolicited manner. The duty to provide information 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, however, be booked additionally.
(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. The drafting and checking of such legal texts is not possible for the agency, and it is also not permitted to provide this service under the Legal Services Act (Rechtsdienstleistungsgesetz).
(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 necessary usage rights are granted, in particular, reproduction, distribution, and processing rights to the extent necessary for the realization of the contract and the work of the agency. The verification of the legal admissibility of the transfer of the necessary usage rights with regard to intellectual property and copyright law by the agency is not the subject of the order.
(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 the subject 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 has been 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 appropriate 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. The agency is not liable for lost data to the extent that it would still be available if the client had performed proper data backups.

§ 9 Confidentiality

(1) The agency and the client undertake to treat all 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 regulations in these GTC or in 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 or known to the other party at the time of their transmission by the parties; (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) to the extent that 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 any of their obligations to cooperate as set out in § 8 in accordance with the agreement, the resulting consequences, such as additional services required from the agency and delays, shall be borne by the client. 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 to refrain from commencing 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 remunerated additionally in accordance with § 4 (4).
(3) The client is advised that the agency works on a project basis and does not handle more than a specific number of projects simultaneously. If the client is in default of their obligations to provide, cooperate, or accept (default of acceptance), the agency is entitled to postpone the performance 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 obligation to cooperate and the client fails to do so even after this period has expired without result, the agency may withdraw from the contract and claim damages in lieu of performance. This includes, in particular, the contractual remuneration for services already provided and the further lost profit for the agreed contract execution, minus any expenses saved by the agency.

§ 11 Term / Termination

(1) Consulting, coaching, support, or other term-dependent services may be agreed upon with a specific scope/contingent (e.g., number of posts, sessions, appointments) and/or term-dependent. The agreement of a specific contingent or a specific term is binding.
(2) Unless a different term or termination policy is agreed upon in the contract, termination is possible with a notice period of 3 months to the end of a quarter, provided that this does not result in falling below a specific contingent.
(3) The right to extraordinary termination for good cause remains unaffected. The agency is entitled to extraordinary termination in particular 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, further performance of the contract is impossible, or 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 to any content provided by the agency. The right of use to the agency's content is granted to the client only to the extent necessary for the fulfillment of the contract by the agency. The client may use the content only for the contractually agreed purposes, e.g., the publication of content on a social media channel of the client. Upon request by the client, the granting of a more extensive right of use is possible.
(2) Insofar as works are used that are subject to a CC license or an open-source license, these license terms apply.
(3) Rights of use for assets outside the contractually agreed service provision can be extended to further advertising spaces after individual consultation and payment of buy-outs.
(4) The client agrees that the agency may name the service provided for the client as a reference on its website and in other publications, both online and offline. The agency may display or play excerpts of its services for the client for this purpose, link to the account, and use the client's name, brand, and logo. The client may revoke this consent with effect for the future.

§ 13 Warranty Rights, Limitation Period, Liability

(1) Insofar as marketing, social media management, search engine optimization, or other consulting services are the subject of the contract, a specific (economic) success cannot be guaranteed. These are service contracts for which no warranty for defects exists.‍ (2) There is creative freedom within the scope of the order. Claims for defects regarding artistic designs exist only if these designs deviate significantly from the contractual agreement and these deviations are not due 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 a corresponding substantiated assertion by the agency that such a change was the cause of the defect. (4) Advertising statements by third parties, in particular 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 insofar as they (a) were caused intentionally or through gross negligence by the agency, or (b) were 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, in particular 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 reserves all ownership and copyrights to 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) For 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, in particular on software, texts, images, and other items and rights protected by copyright and intellectual property law. This contractual lien also secures all existing and future claims of the agency against the client that the agency acquires 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 contract, contract data is collected pursuant to Art. 6 (1) lit. b) GDPR (e.g., name, address, and 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 they are necessary for the establishment, content-related design, or modification of a contract.
(2) Contract data will only be passed on to third parties insofar as it is necessary for the performance of the contract (pursuant to Art. 6 (1) lit. b) GDPR), corresponds to the overriding interest in effective service provision (pursuant to Art. 6 (1) lit. f) GDPR), or if consent (pursuant to Art. 6 (1) lit. a) GDPR) or other legal permission exists. Data will not be transferred to a country outside the EU unless the EU Commission has determined that a level of data protection comparable to that in the EU exists, consent has been given, 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 once given pursuant to Art. 7 (3) GDPR. In this case, data processing based on this consent may no longer be carried out, although the withdrawal does not affect the lawfulness of the data processing carried out up to that point;
• to request information pursuant to Art. 15 GDPR regarding the processed personal data; this includes, in particular, information about the purposes of processing, the category 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 automated decision-making including profiling and the existing rights explained herein;
• to request that inaccurate or incomplete personal data be rectified without undue delay pursuant to Art. 16 GDPR;
• to request that the stored personal data be erased without undue delay pursuant to Art. 17 GDPR, provided that the processing is not required, 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, insofar as the accuracy of the data is contested, the processing is unlawful but the erasure of the data is refused, the data is no longer required but the data subject needs it for the establishment, exercise, or defense of legal claims, or 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 is of the opinion that the processing of their personal data is unlawful. As a rule, the competent authority is 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 registered office of our company.
• 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 specific situation of the data subject

(4) In principle, data is only stored for as long as the purpose of the respective data processing requires. Further storage may be considered, in particular, 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 specified in the order confirmation or the contract, the agency's registered office is the place of performance.

(1) Unless otherwise specified in the order confirmation or the contract, the agency's registered office is the place of performance.
(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 affecting the remaining provisions.