General terms and conditions
Online Marketing Services
Peak Ace AG, Leuschnerdamm 13, 10999 Berlin
(Version July 2023)
These General Terms and Conditions (“GTC“) shall apply to all contractual relationships between the client (“Client“) and Peak Ace (“Peak Ace“) (Client and Peak Ace are hereinafter also referred to as the “Parties“) in the version applicable at the time of conclusion of the contract.
Within the scope of an existing business relationship, the GTC shall also apply in particular to new orders placed in writing, by e-mail, by fax or by telephone.
Other conflicting or supplementary terms and conditions of the Client shall not be valid, even if Peak Ace does not object to them in individual cases. This shall also apply if Peak Ace provides services without reservation in the knowledge that these conflict with or deviate from the terms and conditions of the Client.
1. Contractually agreed services
1.1. Peak Ace shall advise and support the Client in the various online marketing service areas, in particular and including services for search engine optimisation (SEO), PPC advertising (PPC), performance social advertising (PSA), content marketing (CM) and marketing technology (MAT). The contractual services (hereafter referred to as “Services“) are described in detail in the respective offer or service agreement (hereafter referred to as “Service Agreements“).
1.2. Unless expressly agreed otherwise, offers made by Peak Ace are subject to change. A contract shall only be concluded with the confirmation of the order by Peak Ace or with the start of provision of Services.
1.3. The Services agreed in each of the service areas shall be provided with regard to the Client’s websites as specified in the Service Agreements (hereinafter referred to as “Target Websites“, including all sub-sites).
1.4. The Search Engines at which the Services are aimed (hereafter collectively referred to as “Search Engines“) or in case of PSA services the networks (hereafter collectively referred to as “Networks”) are each named in the respective Service Agreement.
1.5. To the extent that Peak Ace places orders or makes bookings with Search Engines or Networks within the framework of PPC or PSA services, this is done on behalf and, if not agreed otherwise, for the account of the Client, if necessary via the Client’s account(s) in the booking tool relevant for the internet service(s) (hereafter “Client Account”). The Client hereby grants power of attorney to Peak Ace to place or make the contractually agreed orders and/or bookings with the Search Engines or Networks for the Client. Any Client Accounts are managed by Peak Ace as part of the agency account for the Search Engines or Networks, for Google for example via Multi Client Center (MCC).
1.6. Peak Ace will apply best efforts to optimise the interaction with the contractually-agreed Search Engines or Networks (e.g. optimised findability of the target websites (SEO) or optimised placement of advertisements (PPC or PSA)), utilising expert consideration of the business information known about the Client and the publicly-known parameters of the Search Engines or Networks which are relevant for findability and placement. Despite this, a certain level of success with regard to findability or placement is not owed, since this ultimately depends on the non-public algorithms of the respective Search Engine or Networks. In addition to the factors which can be influenced by the Parties, which differ for each of the Services (e.g. keywords, maximum costs per click, ad texts, campaign structure, website contents, URL-structure, structure of the source text, etc.), other parameters which cannot be influenced may be of relevance for the algorithms.
2. Client’s cooperation duties
2.1. The Client shall provide Peak Ace with meaningful information about its company, its products, the campaign objectives and the market segment it serves, and will inform Peak Ace of all known circumstances which are of importance for the performance of the contracted services.
2.2. The Client shall immediately notify Peak Ace in writing of any changes in its company name, address or contact person as well as any change in a power of representation granted to Peak Ace (in particular a power of attorney). This obligation to notify Peak Ace also exists if the change in the power of representation has been entered in the commercial register.
2.3. As far as required for the performance of the contracted services, the Client will provide Peak Ace with the company’s own content (e.g. logos, images, videos, product information, keyword lists and, if applicable, texts) necessary for the creation of content (e.g. advertisements or advertisement content, texts, images, etc.) (“Client Content“). The Client guarantees that he has the necessary rights regarding the Client Content for the performance of the Agreement and that he shall indemnify Peak Ace in this respect against the assertion of third parties at first request.
2.4. For the duration of this Agreement, the Client will always share with Peak Ace its own current plans and strategies which could be relevant for the Services in order to ensure the best possible support and information transparency.
2.5. Unless otherwise agreed, the Client shall promptly make decisions requested by Peak Ace (e.g. regarding required approvals) for the smooth performance of the Agreement and shall inform Peak Ace about these in writing (also by e-mail). If the Client is unable to reach a requested decision within fourteen (14) days, the decision shall be deemed to be rejected, unless otherwise provided. The release of content created by Peak Ace (e.g., within the scope of CM Services) is governed separately in clause 4 (4).
2.6. The Client guarantees Peak Ace access to all Client Accounts required for the performance of the Agreement during the term of the Agreement. As far as required, the Client will provide Peak Ace with the necessary power of attorney and/or registration confirmations for the performance of the Agreement upon request from Peak Ace, in a timely manner.
2.7. Insofar as conversion tracking is part of the Services for the purpose of measuring success and/or controlling costs, the Parties agree to use the conversion tracking tool of the relevant search engine (e.g. Google Conversion Tracking) as their method for measuring conversions. The Client shall ensure that the tracking code of the relevant search engine (hereafter the “Tracking Code“) is integrated into the target websites, that Peak Ace receives access to it and that the Tracking Code is not removed before the end of the term of the Agreement and contract term.
2.8. In addition, Peak Ace shall also receive (administrator) access to all other relevant areas of the Target Website on request, insofar as this may be helpful with regard to information transparency or to perform the contracted tasks.
2.9. The execution of the Agreement requires a cooperative collaboration of the parties. If the Client cannot fulfil his duties to cooperate in whole or in part, Peak Ace shall not be obliged to perform or shall only be obliged to perform on the basis of the cooperation that has been provided. Additional expenses incurred by a culpable violation of duties to cooperate by the Client shall be compensated by the Client.
3. Business Secrets
3.1. The contents and structures developed and continuously optimised by Peak Ace within the scope of the Services (e.g. keyword strategies, analyses, lists, SEO-strategy, processes of ideation, content creation, seeding and outreach in content marketing, advertising texts or account structures) are based on the specialised know-how of Peak Ace and constitute a trade and business secret of Peak Ace (“Peak Ace Know-How“). This does not apply to Client Content.
3.2. Peak Ace grants the Client a simple right of use of Peak Ace Know-How for the duration of the Services, which may not be transferred to third companies who are not affiliated to the Client in accordance with Art. 15 ssq. German Stock Corporation Act (Aktiengesetz, AktG) (“Third Parties“).
3.3. The Client undertakes to keep Peak Ace Know-How confidential from Third Parties during the term of the Agreement and to make it accessible to employees only if and when an effective, and at least comparable, obligation of confidentiality is imposed, and only if the employee’s knowledge is necessary for the participation in the campaign.
3.4. The Client will not hand over access data to any Client Accounts to Third Parties and will store them carefully and securely. Any release of access data to Third Parties during the term of the Agreement requires the prior written Agreement of the Parties (also possible by e-mail).
3.5. In all other respects, the Peak Ace Know-How shall be subject to the stipulations on confidentiality pursuant to clause 10.
3.6. For the duration of the minimum term of the respective service (see clause 14 (3) below), the Client is not entitled to use and exploit the keyword lists and the account structure for his own purposes. In the event of termination of the Agreement prior to the expiry of the minimum term, the Client is obliged to destroy and/or delete all Peak Ace Know-How in its possession. After the expiry of the minimum term of the respective Service, the Client is entitled to use and exploit the keyword lists and the account structure according to clause 3 (2).
4. Exclusive Work Results and Interactive Contents
4.1. As far as Peak Ace creates content itself and exclusively for the Client during the provision of the Services, such as landing pages, graphics, infographics, whitepapers or illustrations in the context of CM Services or advertisements in the context of PPC and PSA- Services, (hereafter “Exclusive Work Results”), Peak Ace shall grant to the Client all exclusive, transferable rights in the Exclusive Work Results for the company-related use of the same without time limitation and within the contractually agreed framework, i.e. territorially and content-wise limited to the contractually agreed online use.
4.2. As far as restrictions with regard to the aforementioned granting of rights result from the necessary obtaining of rights from Third Parties, Peak Ace will inform the Client accordingly.
4.3. The provisions in clause 2 (3) and clause 5 (1) remain unaffected.
4.4. Where Peak Ace creates content for the Client which requires a separate release by the Client, e.g. design services in the context of CM Services, Peak Ace will submit a final draft to the Client, with the granting of a reasonable period of time for a written release (also possible by e-mail), which shall be at least eight hours during Normal Business Hours (see clause 6 (3)). If no approval is given within this period, the draft shall be considered accepted. Peak Ace is obliged to submit a maximum of two rectification drafts at the Client’s request.
4.5. The interactive content created by Peak Ace works best with the latest version of popular browsers: Chrome, Firefox, Safari and Edge. However, Peak Ace also provides support with regard to the following browsers:
- Google Chrome: latest version, including the two earlier versions
- Mozilla Firefox: latest version, including the two earlier versions
- Apple Safari: latest version, including the two earlier versions
- Microsoft Edge
Tablet and smart phone:
- Android Chrome on all Android devices with version Android OS 6 and higher
- Mobile Safari on all iOS devices with iOS version 10 and higher
Further compatibility and support cannot be guaranteed.
4.6. Rights of use for designs which have been rejected by the Client and not executed shall remain with Peak Ace. This shall also and especially apply to Peak Ace’s Services which are not the subject of special statutory rights, in particular copyright.
5. Responsibility for Legal Requirements
5.1. Peak Ace is not obligated to review the keywords selected within the scope of the execution of the contract and performance of the Services, or the published and linked content (including designed advertisements and linked websites) for compatibility with legal requirements, e.g. with regard to telemedia, press, competition or trademark law provisions, as well as recognised rules of the conduct of professional associations (in particular the German Advertising Council); this is the sole responsibility of the Client.
5.2. Insofar as the Client expressly commissions the use of a third party trademark (e.g. booking of a Third Party trademark as a keyword) (commissioning by e-mail is sufficient), the Client shall bear all risks associated with this and shall indemnify Peak Ace from all claims of Third Parties which they may assert with regard to the use of the trademark. The same shall apply if third parties assert claims against Peak Ace due to possible infringements or violations of third party rights resulting from content provided by the Client.
5.3. The Parties agree to notify each other immediately of any possible infringement as soon as they become aware of any risk of such an infringement, e.g. by means of a notice from the rights holder.
5.4. If, within the scope of the provision of PPC or PSA services, an advertisement is retrievable due to an infringing keyword or placement, which is possible, for example, through automated advertising via Internet services, even if this keyword has not been booked, Peak Ace will exclude the keyword in question from the advertising campaign immediately after becoming aware of it (during Normal Business Hours in accordance with clause 6 (3)). Peak Ace does not guarantee that the respective search engine operator will adhere to the exclusion.
6. Communication and Contact Persons
The parties shall make the following contact persons available for communication for the implementation of this Framework Agreement:
Peak Ace: Sara Schaarschmidt
Email: [email protected]
(Hereafter referred to as “Contract Manager“).
6.2. The Parties will also appoint contact persons for the individual service areas, who are authorised to issue binding declarations for their respective areas of responsibility. These are specified in the Service Agreement.
6.3. Peak Ace ensures a contact person can be reached on weekdays between 9.00 and 18.00 hours CET with the exception of Berlin public holidays (“Normal Business Hours”).
7.1. All prices quoted are in euros and exclusive of statutory value added tax.
7.2. Where the Parties agree on a period-related budget (e.g. monthly budget) (hereafter referred to as “Retainer Budget“) in the Service Agreement for the respective Service, e.g. for SEO or CM services, this will be invoiced subsequently after the end of the invoicing period (e.g. month). Peak Ace services are generally charged according to time spent, i.e. according to service hours rendered. The composition of the hours spent may vary from one accounting period to another, depending on the activities required. At the end of each month, the Client shall receive a complete report of hours spent (broken down by employees deployed) against the Retainer Budget. If less Retainer Budget than agreed is used in one accounting period, the unused retainer budget is carried forward to the next accounting period (e.g. following month). The Retainer Budget from this carryover can be used within the following three (3) months and shall expire if not used. Upon termination of the Agreement, any Retainer Budget not used up shall expire. If the agreed Retainer Budget is exceeded in an accounting period, Peak Ace shall decide independently up to an excess of a maximum of 10% whether the overtime will be performed; in this case, the excess is deducted from the Retainer Budget of the next accounting period (e.g. following month). If it becomes apparent that the agreed Retainer Budget will be exceeded by more than 10% in the accounting period, Peak Ace will inform the Client accordingly and only perform the additional work in excess of 10% with approval by the Client (also possible by e-mail). The additional budget used in excess of the 10% limit will be invoiced separately at the end of the accounting period.
7.3. Insofar as the Parties agree on a flat monthly minimum remuneration for the Services based on the time spent or the advertising budget (hereafter referred to as “Agency Service Minimum“), the Agency Service Minimum shall be credited against the hourly or advertising budget-dependent remuneration. Peak Ace will invoice the Agency Service Minimum monthly in arrears, i.e. after the end of the month to be settled. If the hourly or conversion-based remuneration exceeds the Agency Service Minimum, a subsequent invoice will be made on the basis of the man-hours or conversions exceeding the Agency Service Minimum at the agreed prices. At the end of each month, the Client shall receive a complete report of hours spent (broken down by employees deployed) or, as applicable, by conversions obtained.
7.4. Insofar as the Parties agree on a percentage remuneration for PPC or PSA services, which is dependent on the amount of the advertising budget spent each month (hereafter “PPC or PSA Advertising Budget“), this will be invoiced monthly in arrears, i.e. after the end of the month to be settled, on the basis of the advertising budget booked at the end of each month, e..g, in the form of a Google Data Studio Report.
7.5. Where the Parties agree on a purely hourly-based remuneration, this shall be calculated as a monthly remuneration according to the man-hours worked in the month (hereinafter “Hourly-Based Remuneration“). The Hourly-Based Remuneration is invoiced monthly in arrears, i.e. to be settled after the end of the month, on the basis of the agreed hourly rates. At the end of each month, the Client shall receive a complete report of hours spent (broken down by employees deployed).
7.6. Where the Parties have agreed on a one-off fixed price remuneration in the Service Agreement for the respective Service or for a project, this will be invoiced – at Peak Ace’s discretion – on a monthly basis according to the status of the project or after the end of the project, but in either case after the end of the month to be invoiced.
7.7. Where Peak Ace is instructed by the Client to book advertising budgets for the Client with Third Parties in the performance of the Agreement, Peak Ace will charge the Client the costs incurred by Peak Ace within this scope plus a handling fee in the amount of 4% of the costs incurred for advertising budgets (hereafter “Handling Fee“), and the Client shall compensate Peak Ace accordingly. The Handling Fee includes the following services provided by Peak Ace in this context: handling of advertising budgets, additional expenses for bookkeeping and invoicing as well as additional administrative expenses, currency conversion costs and credit card fees. The expenses and the Handling Fee shall be invoiced monthly at the end of the month. In the event that the monthly Handling Fee is less than € 500.00, the Parties agree that Peak Ace is entitled to charge a Handling Fee of € 500.00 at the end of the month.
7.8. To the extent that the Parties agree on performance-based compensation for certain Services, they shall jointly set forth such compensation and the underlying factors in writing in a separate agreement that shall become an integral part of the Agreement.
7.9. If the producer price index for the economic sector of services information and communication (No. WZ08-J) for Germany (overall index), officially determined by the German Federal Statistical Office (Erzeugerpreisindex für den Wirtschaftszweig Dienstleistungen Information und Kommunikation für Deutschland (Nr. WZ08-J) des Statistischen Bundesamtes), has changed by more than 3% upwards or downwards since the start of the contractual services or the date on which the last adjustment based on this clause took effect, either party may demand an appropriate adjustment of the remuneration by written notification to the other party. The adjustment may be requested no earlier than the first of the month following receipt of the notice. The amount of the adjustment shall be based on the change in the index.
8. Accounting and Invoicing
8.1. For the contracted services of Peak Ace, the Client shall pay the remuneration agreed upon in the Service Agreement upon presentation of an invoice which complies with the VAT regulations according to Art. 14, 14a German Act on Value Added Taxes (Umsatzsteuergesetz, UStG).
8.2. Invoices are due immediately without deduction and payable within fourteen (14) calendar days from the date of the invoice, unless another due date has been agreed.
8.3. If Peak Ace becomes aware that the Client’s creditworthiness index is significantly downgraded or classified as “weak” according to the objective criteria of a customary credit agency (Creditreform, CRIF Bürgel, etc.), Peak Ace shall be entitled to switch the billing of the Services to advance payment by notifying Client accordingly (also possible by email).
8.4. If the Client defaults on the payment of invoiced Services in whole or in part, all outstanding invoice amounts shall become due for payment immediately.
8.5. If the monthly renumeration (e.g., the agency minimum pursuant to Section 7.3 or the handling fee pursuant to Section 7.7) exceeds the limit for retrievables (“Credit Limit”) set by Peak Ace’s factoring partner (currently Targobank), Peak Ace shall be entitled, upon prior written notice to the Client (also possibly by email), to charge a one-time security deposit in the amount of two monthly renumerations (“Security Deposit”). The Security Deposit shall be payable by the Client within thirty (30) days of express written demand by Peak Ace.
8.6. Peak Ace is entitled to charge interest on arrears at the statutory rate (Section 288 para. 2 of the German Civil Code – BGB) from the first day of default. If the Client is in default with the payment of an invoiced service for more than 14 days, Peak Ace shall be entitled to suspend the performance of further services and to start again only after the outstanding amounts including interest have been paid to Peak Ace.
9. Travel Costs
9.1. Peak Ace is entitled to compensation for the travel costs and expenses specified below and approved in advance by the Client: costs of travel to and from the Client’s location (train, flight, rental car, taxi). In addition, the necessary accommodation costs of a 3- or 4-star hotel or apartment will be reimbursed. Peak Ace will have travel expenses approved in advance by the Client in writing (email is sufficient).
9.2. Travel time for required trips approved by the Client shall be invoiced in the amount of 50% of the remuneration rate agreed for the employee used.
9.3. Travel expenses shall be invoiced in accordance with the accounting pursuant to clause 8.
10.1. Each of the Parties shall treat internal information regarding the operations as well as other obviously confidential information (hereafter together referred to as “Information“) they are made aware of by the respective other Party in connection with this Agreement and its implementation as confidential business and trade secrets, and will not disclose these to Third Parties.
10.2. This applies for all Information (a) that is accessible or has become known to the public without their involvement, or (b) was made accessible to the receiving party without a confidentiality obligation by a Third Party who was entitled to do so, or (c) is or was to be disclosed on the basis of a final governmental or a final court decision or a law.
10.3. The burden of proof regarding the existence of one of the above exceptions lies with the Party invoking the exception.
10.4. Affiliated companies of the Parties within the meaning of Art. 15 ssq. AktG may only receive confidential information to the extent that they need it to perform their contractually-agreed Services or to fulfil internal reporting obligations within the group. The affiliated companies are themselves bound to secrecy. Sub-contractors may only be granted access to Confidential Information to the extent that they need it to perform their specific services and the sub-contractors are themselves bound to secrecy. The contracting parties shall be liable to each other for any breach of the confidentiality obligation under this clause 10 by affiliated companies and/or sub-contractors in the same way as for their own breaches of the confidentiality obligation.
10.5. The contractual partners warrant to each other that they will oblige their employees – to the extent that these may gain knowledge of Information – in accordance with this confidentiality obligation unless they are already obliged to confidentiality under their employment contracts.
10.6. The confidentiality obligation shall lapse two years after termination of this Framework Agreement.
Neither Party may offer to employ employees of the other Party for the duration of this Agreement and until the end of one (1) calendar year thereafter (“Agreement on Non-Solicitation”). This Agreement on Non-Solicitation shall also apply to the Parties’ affiliated companies within the meaning of Art. 15 ssq. AktG whereby the Parties shall be deemed liable for any solicitation by their respective affiliated companies. Any other Agreements which have the effect that an employee’s work, in whole or in part, no longer benefits the company hiring them, but the soliciting Party, shall be deemed equivalent to an employment contract infringing this Agreement on Non-Solicitation. A general job advertisement that is not specifically directed at employees of the other Party shall not be considered a violation of this Agreement on Non-Solicitation.
12. Data Protection
12.1. The Parties undertake to comply with all applicable data protection regulations, in particular the applicable EU General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG).
12.2. As far as Peak Ace processes personal data on behalf of the Client, the Parties shall conclude a separate Agreement on Data Processing.
13.1. Peak Ace is liable in cases of intent or gross negligence under the statutory regulations. The liability for guarantees is independent of fault. For simple and slight negligence, Peak Ace is liable exclusively according to the regulations of the Product Liability Act (Produkthaftungsgesetz), for injury to life, body or health or for the violation of essential contractual obligations. However, the claim for damages for simple or slightly negligent violation of essential contractual obligations is limited to the foreseeable damage typical for this type of contract, up to a maximum amount of 3 million EUR for financial losses, unless liability is assumed for injury to life, body or health. Peak Ace is liable to the same extent for the fault of vicarious agents and representatives.
13.2. Claims for damages against Peak Ace shall become statute-barred 12 months after they have arisen, unless they are based on a tortious or intentional act.
14. Term and Termination
14.1. Unless otherwise specified in the Service Agreement, the agreement shall commence on the date of signature by both Parties. The validity of the agreement pursuant to these GTC is based on the longest period of validity of the Service Agreements, i.e. it remains in force as long as one of the Service Agreements is valid.
14.2. The commencement date of individual Services is specified in the respective Service Agreement.
14.3. Unless otherwise agreed in the offer or Service Agreement, each Service shall have a minimum term of six (6) months, i.e. it may be terminated for the first time at the end of the sixth full calendar month with eight (8) weeks’ notice (hereinafter “Minimum Term“). Thereafter, a Service Agreement may be terminated at any time by either Party with three (3) months’ notice to the end of a month.
14.4. In addition to ordinary termination, both Parties have the right to terminate one or more affected Service Agreements without notice for good cause. A material reason must given, in specifically:
- If the Client is in default of payment and fails to settle outstanding invoice amounts despite being granted a reasonable grace period;
- In the event of gross violations of contractual obligations or essential cooperation and secondary obligations which are not remedied despite the setting of a reasonable grace period.
14.5. Upon termination of the Agreement, Peak Ace will duly hand over all Client Accounts to the Client and, in particular, shall not delete or restructure these. In the event that PPC or PSA services are provided, Peak Ace is entitled to retain access for another seven (7) working days (Monday to Friday) beyond the end of the Agreement in order to be able to carry out proper billing.
14.6. Terminations must be made in writing (email is not sufficient).
15.1 Peak Ace shall be entitled to name the Client as a reference customer, in particular by using the Client’s company and logo, and to advertise the joint cooperation.
15.2 Peak Ace may use the advertising media designed by it on its own website for self-advertising purposes for an unlimited period of time. This authorisation also extends to companies affiliated with Peak Ace.
16. Factoring, Offsetting, Retention Right
16.1. Peak Ace is entitled to assign all claims arising from the contractual relationship with the Client to factoring partners for assertion and collection (factoring).
16.2. Peak Ace shall be entitled to offset against any and all claims Peak Ace may have against Client, including claims relating to different services (“Cross-Channel”).
16.3. The Client may only offset Peak Ace’s claims against its own claims if the Client’s claims are undisputed or have been legally established. The same shall apply to any right of retention on the part of the Client.
16.4. Any assignment of claims of Client arising from this agreement to third parties shall be excluded without the prior written consent of Peak Ace.
17. Final provisions
17.1. The Client’s terms and conditions shall not be valid, even if Peak Ace does not object to them in individual cases. This shall also apply if Peak Ace renders services without reservation in the knowledge of conflicting and/or deviating terms and conditions of the Client.
17.2. In case of doubt or contradictions, the regulations of the Service Agreement shall take precedence over the regulations of these GTC.
17.3. Unless otherwise expressly provided otherwise, changes to this Agreement must be made in writing (e-mail not sufficient). This shall also apply to the cancellation of this written form and contractually agreed clause. Electronic documents in text form do not fulfill the requirement of written form. The use of electronic signatures on the contractual document is sufficient to fulfill this written form requirement. The same applies to the transmission of a scan of a signed agreement by email.
17.4. Should one or more provisions of this Framework Agreement be or become fully or partly invalid or non-executable, the validity of the other provisions shall not be affected. The wholly or partially invalid or unenforceable provision shall be replaced by a valid provision that comes as close as possible to the economic purpose of the wholly or partially invalid or unenforceable provision. The same shall apply to any gaps in the Agreement.
17.5. Exclusive place of jurisdiction shall be Berlin. This Agreement shall be governed by German law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).