Imprint & Terms and Conditions

Clickpear Agency
Vallespir 190, 08014 Barcelona
Spain

phone: +4915679276477

mail: info@clickpear.de

UstID: ES7718528H
CEO & Founder: Adrian Duske

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We are neither obliged nor willing to participate in a dispute settlement procedure before a consumer arbitration board.

Terms and Conditions- Performance Marketing Services

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§ 1 Contractual Partner, Scope

(1) The following general terms and conditions ("GTC") apply to the provision of advertising and marketing services on the Internet and the associated services of the agency.

(2) The general terms and conditions of the agency apply exclusively. They apply to all offers, deliveries and services of the agency. Insofar as the customer was not able to gain knowledge of them when the contract was concluded, they still apply if the customer 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 general terms and conditions of the agency do not apply. If the agency carries out the delivery or service incumbent on it with knowledge of such terms and conditions of the client, it does not recognize such terms and conditions of the client, which the present general terms and conditions of the agency do not contradict.

(4) These General Terms and Conditions only apply to entrepreneurs within the meaning of Section 14 of the German Civil Code and not to consumers within the meaning of Section 13 of the German Civil Code.

(5) Both parties agree that the electronic signature on all contracts and offers is legally binding.

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§ 2 Subject of the contract

(1) The agency advises the client on the design and handling of his social media appearances, looks after social media and search engines (SEA) advertisement managers, develops and switches content for social media and looks after social media accounts. The agency's services result in detail from the agency's offer. Services not listed there are not part of the contract.

(2) The customer can offer changes or extensions to the contractually agreed scope of services during a project. If the agency does not accept such a change offer, the agreed services remain. If the agency performs additional services without an additional remuneration agreement being made, Section 4 (3) applies.

(3) Insofar as the client places orders with the agency orally, these are binding. The agency is entitled to the client immediately confirming verbally placed orders in text form. An order is deemed to have been placed if the agency, before reaching an agreement on all points of an order, begins to carry out part of the order with the knowledge of the client and without the client objecting. An order can also be accepted by the agency by carrying out the activity if clarity has already been established about all points of an order.

(4) The agency is entitled, at its own discretion, to carry out the service itself or to have it provided by competent third parties as subcontractors. The agency is entitled to change the internet infrastructure used and the service providers and vicarious agents commissioned with the implementation at any time, provided that this does not result in any disadvantages for the client. In principle, the client is informed two weeks before a substitution and asked to communicate any concerns about the planned substitution.

(5) The agency can also provide the services in the course of technical progress using newer or different technologies, systems, processes or standards, provided that the client does not suffer any disadvantages as a result.

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§ 3 Offer, information, service

(1) The presentation of offers from the agency on the website is only an invitation to the client to submit an offer.

(2) The agency will make the client an offer with the services and associated prices contained in detail.

(3) Deviating from § 312 g Para. 1 No. 1 to 3 BGB, the customer has no right to the provision of technical means to correct his order, separate information on the technical steps to conclude the contract, information about the storage of the contract, the available languages and codes of conduct as well as an immediate confirmation of his order.

(4) The agency will provide the agreed services according to the rules of technology. A certain success cannot be guaranteed for search engine optimization, advertising measures and social media support.

(5) The customer is aware that third-party providers such as Facebook and Google are entitled to stop/discontinue advertising campaigns at any time without giving reasons. The Agency is not responsible for such an approach. The agency's claim for remuneration remains unaffected in these cases.

(6) Any advertising costs incurred by third parties are not included in the agency's remuneration and must be borne separately by the customer.

(7) If the contractual partner instructs the agency to pause any campaigns in the meantime or if a pause of the campaign is necessary through no fault of the agency, this does not affect the agency's claim for remuneration.

(8) The customer is solely responsible for the legal conformity of any advertisements, landing pages, etc. A pre-screening by the customer's legal counsel is suggested.

(9) The customer assumes the necessary accommodation and travel expenses from the agency that are related to the fulfillment of the contract. This includes accommodation costs in hotel categories up to and including 5 stars, car journeys (€0.30 per kilometer travelled), business class flight tickets, 1st class train journeys and other travel costs for the use of public transport, taxes and parking fees.

§ 4 Prices, terms of payment, offsetting, retention

(1)The remuneration to be paid by the client results from the agency's offer. This can be a lump-sum payment or an expense-related payment (in particular an hourly or daily rate) or a term payment. A flat rate is only sufficient to the extent that the services offered are detailed in the offer.

(2) All prices to entrepreneurs are net prices plus the applicable statutory value-added tax, insofar as this is incurred and nothing else has been agreed.

(3) The agency is entitled to request a down payment of an appropriate amount when the order is placed. The agency is entitled to demand reasonable advance payments for project parts that have already been delivered to the customer and to issue partial invoices according to the progress of the project.

(4) The contractual remuneration only applies if contractual services have also been agreed. Additional services are to be remunerated according to the contractual rates according to the offer, alternatively according to the local, reasonable remuneration. Accompanying services such as user introductions, documentation, training, support or similar are not included in the order as standard, but only part of the contract if this has been expressly agreed.

(5) The customer's payment is due immediately. The client is informed that he will be in default no later than 14 days after receipt of the invoice. If the customer is in arrears with the payment, he is obliged according to § 288 BGB to pay interest on arrears and the lump-sum compensation regulated there.

(6) The client can only offset if his counterclaims have been legally established, are undisputed or recognized by the agency or the right to offset is based on rights of the client due to incomplete or defective performance from the same contractual relationship.

(7) The agency is authorized to exercise a right of retention for all claims arising from the business relationship with the client.

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§ 5 Social media support

(1)Insofar as commissioned against appropriate remuneration, the agency will implement marketing measures for the client via his social media accounts or supervise them as a whole.

(2) The agency will optimize the client's accounts to the agreed extent, if necessary, and create and publish content for the client.

(3) The agency will - if agreed - independently propose the contents of the publications and publish them after approval by the client. Approvals must always be available in good time (at least 24 hours) before the planned publication date. The parties can develop a framework for publications on social media, within which the agency can create and publish content without prior individual approval.

(4) The agency will provide the client with a report on the success of the publications at the agreed intervals with the agreed key figures.

§ 6 Provisions, difficulties

(1)Costs for third-party software or other products that are required for the realization of the project (e.g. purchase theme, plugins, advertising budgets, advertising materials, etc.) are not included in the price, unless otherwise agreed. Functionalities, responsive web design and browser compatibility can only be granted within the framework of the requirements of the third software product. The same applies to restrictions on any required third-party products, such as advertising platform functionalities.

(2) In the event of unforeseen difficulties caused by third parties (provider, external software provider, advertising platform, etc.) and which lead to additional work, the client is obliged to pay the additional work by the hour based on the contractually agreed or locally appropriate remuneration .

(3) The integration and processing of images (e.g. cropping, retouching, converting the file format) or other media (PDFs, music, video, graphics, etc.) is not included in the price, unless otherwise agreed. The customer is responsible for ensuring that the media are made available in the correct size and resolution, in the correct file and color format. Otherwise, the customer is obliged to pay the additional processing time based on the contractually agreed or locally appropriate remuneration.

(4) Unless otherwise agreed in the offer, a correction loop with one change each is included for each item from the offer. Reversal of desired changes, consequential changes and functional or structural changes are also to be paid by the client hourly based on the contractually agreed or locally customary remuneration, as are subsequently made changes after the start of a new project phase.

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§ 7 Performance time, Force majeure

(1) The start of any specified performance time requires the clarification of all technical, legal and design issues and the timely and proper fulfillment of the client's obligations. The agency reserves the right to object that the contract has not been fulfilled.

(2) Force majeure or operational disruptions occurring at the agency or its subcontractors, e.g. B. due to riot, strike, pandemic, epidemic, lockout, which temporarily prevents you from delivering the service on a possibly agreed date or within a possibly agreed period through no fault of your own, change the service times by the duration of the performance disruption caused by the circumstances . If a corresponding disruption leads to a delay in performance of more than 2 months or if the customer's interest in the fulfillment of the contract objectively ceases before that, the customer is entitled to withdraw from the contract.

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§ 8 Obligations to cooperate of the customer, liability

(1)The client is obliged to provide the agency with all necessary information (e.g. existing accounts on platforms, previous and current advertising measures, previous conversion rates and other marketing-relevant key figures) and data (e.g. navigation structure, media to be used, legal texts, etc.) to be made available in a timely manner. This includes in particular all information on conflicting copyrights or trademarks.

(2) The client is responsible for access to the necessary social media platforms; the agency can only provide its services within the framework of the customer's existing accounts on Facebook, Instagram, TikTok, Pinterest, Snapchat, Twitter, Linkedin, Xing, etc . However, help with the creation of accounts can also be booked.

(3) The customer is informed that he needs a data protection declaration and an imprint for his social media account. The client must integrate this himself; the agency is not able to draft and check such legal texts and it cannot provide this service under the Legal Services Act. The client must therefore have an imprint and a data protection declaration created and used by a lawyer for his social media accounts.

(4) The client is obliged to hand over the required materials in a common, directly usable digital format. The client ensures that the necessary rights of use are granted, in particular also reproduction, distribution and processing rights to the extent necessary for the realization of the project and the work of the agency. The verification of legal admissibility with regard to intellectual property and copyright can only be carried out by a lawyer and is not part 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 customer provides such materials, the customer himself must ensure that he has acquired all the necessary rights, possibly subject to a fee. A search by the agency for conflicting trademarks, copyrights or other industrial property rights is not the subject of the contract.

(6) The client is obliged to provide the agency with all access to his accounts on websites, platforms or other places required for the execution of the order and to carry out the transmission securely and encrypted. After completion of the order, the client is obliged to change the password immediately so that subsequent misuse is ruled out. This does not apply if further support by the agency has been agreed.

(7) If the client provides the agency with physical or non-physical objects, in particular image, text or sound files, which infringe the rights of third parties, the client is obliged to indemnify the agency against any third-party claims upon first request . This includes in particular the costs of legal action.

(8) The client is obliged to carry out the necessary data backups independently as part of his own backup, in particular before the start of the order. The agency is not liable for lost data insofar as it would still be available if the client had properly backed up the data.

(9) The client is obliged to maintain confidentiality with regard to remuneration, details of the service description and internal communication with third parties.

(10) The client is advised that advertising on social media is currently subject to a particularly large number of legal changes. The agency cannot assess the exact limits and requirements of social media and marketing campaigns and it cannot provide this assessment under the Legal Services Act. The client is obliged to obtain a final legal examination of all measures and campaigns."

§ 9 Default of the client, default of acceptance, withdrawal

(1) If the customer fails to fulfill one of his obligations to cooperate as agreed, the resulting consequences, such as additional services and delays, shall be borne by the customer. The agency can charge the client for the additional work done.

(2) If information, access, documents or templates such as texts or photos are not available in time and in full, the agency is entitled not to start the service or to work with placeholders as a makeshift. Subsequent entry of the material that was sent late counts as a change to the order and is to be remunerated in accordance with the contractually agreed, or alternatively the customary, appropriate remuneration.

(3) The client is informed that the agency works on a project basis and does not take on more than a certain number of projects at the same time. If the client is in (acceptance) default with his obligations to provide, cooperate or accept, the agency is entitled to postpone the performance time. This applies in particular if this results in a conflict with other agency projects that have already been scheduled.

(4) If there is a delay in the implementation of the order caused by the client of more than three weeks, the client is obliged to pay for the services rendered by the agency up to that point and the additional time required for induction on the part of the agency when the project is resumed agency according to the contractually agreed, alternatively the customary, appropriate remuneration, additionally to be paid.

(5) If the customer does not meet his/her obligations to cooperate even after a period of grace has expired without result, the agency can withdraw from the contract and demand damages instead of performance. This includes in particular the remuneration already earned and the lost profit (or the unearned contribution to overhead costs) less saved expenses of the agency.

§ 10 Term / Termination

(1)Consulting, coaching, support or other term-dependent services can be commissioned with a certain scope (e.g. number of posts, meetings, appointments) and/or depending on the term. The agreement of a specific quota or a specific term is binding.

(2) Unless a different term or termination regulation has been agreed, termination is possible with a notice period of 3 months to the end of the quarter, provided that this does not fall below a certain quota.

(3) The right to termination without notice for important reasons remains unaffected. In particular, the agency is entitled to terminate the contract without notice,

- if the client is more than 1 month in arrears with a payment that is due

- the client culpably violates a contractual obligation even after a warning.

(4) A prior warning is not required if the client's breach of duty is so serious that the continuation of the contract would be unreasonable for the agency. This is particularly the case if the agency itself would be liable to third parties for the breach of duty.

(5) If the client terminates the contract without there being an important reason, the client is obliged to pay the agreed remuneration less what the agency saves on expenses and earns or maliciously fails to earn by using its labor elsewhere. Alternatively, the agency is entitled to 5% of the part of the remuneration that is attributable to the service that has not yet been rendered. The same applies if the client is responsible for the termination without notice by the agency, but in this case the client is also obliged to compensate the agency for any further damage. If the agency is responsible for termination without notice by the client, the agency must reimburse the client for any advance payments that have not been used and compensate for any damage that goes beyond this.

§ 11 Rights of Use

(1)After payment, the client acquires the simple, non-exclusive right of use to any designs of the agency.

(2) If works are used that are used under a CC license or an open source license, these license terms apply.

(3) With the license, the client acquires the right to edit, redesign or delete the design, the text or the other content supplied.

(4) The client agrees that the agency names the service for the client as a reference on its website and in other publications online and offline. The agency may display or run excerpts from your work for the client, link the account and use the client's name, brand and logo for this purpose. The client can revoke this consent with effect for the future for good cause.

§ 12 Defect rights, statute of limitations

(1) As far as marketing, social media support, search engine optimization or other advice is part of the contract, a specific (economic) success cannot be guaranteed. In this respect, these are service contracts for which there is no warranty for defects.

(2) Within the scope of the order, there is freedom of design. Claims for defects in artistic designs only exist if these designs deviate significantly from the pre-contractual proposals and these deviations cannot be attributed to technical causes, insufficient granting of rights or lack of cooperation on the part of the client. If changes beyond this are desired, these are to be remunerated in accordance with the contractually agreed, alternatively the customary, reasonable remuneration.

(3) If changes are made to the service by the client, the warranty shall not apply if the client does not refute a corresponding substantiated assertion by the agency that only such a change caused the defect.

(4) Advertising information from third parties, in particular from manufacturers of software used by the agency for the provision of services, is not binding for the agency.

(5) If the customer is a company, the rights of the customer due to defects in the service expire one year after the handover or acceptance of the service. This also applies to the customer's rights to compensation or compensation in lieu of performance, also for all damage to other legal assets of the customer that have arisen as a result of the defect, unless the damage to life, limb or health of the customer is involved or the agency is responsible for the defect due to intent or gross negligence.

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§ 13 Contract documents, right of lien

(1)The agency reserves all property rights and copyrights to illustrations, drawings, calculations, sketches, drafts, photographs, graphics, designs and other documents. They are not part of the contract, the customer cannot demand that they be returned.

(2) For the agency's claims against the client arising from this contract, the client provides a contractual lien on the objects and rights given by the client to the agency for processing, such as software, texts, images and other objects protected by copyright and intellectual property rights and rights. This contractual right of lien also secures other claims of the agency against the client that do not stem directly from the order.

(3) The client is obliged to provide the agency with his current address insofar as and for as long as the right of lien exists. Otherwise, the client cannot derive any rights from this if the agency sells the item or the right in the event of - legitimate - pawn sale and has only sent the pawn sale threat to the last address known to the agency, unless a new address for the agency could be determined without further ado through resident registration information

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§ 14 Data protection

(1)Contract data is collected for the contract in accordance with Art. 6 Para. 1 lit. b GDPR (e.g. name, address and email address, any services used and all other data transmitted electronically or for storage which are necessary for execution of the contract), insofar as they are necessary for the establishment, content or modification of a contract.

(2) The contract data will only be passed on to third parties if it is necessary (according to Art. 6 Para. 1 lit. b DSGVO) for the fulfillment of the contract, this is the overriding interest in an effective service (according to Art. 6 Para. 1 lit. f GDPR) or consent (according to Art. 6 Para. 1 lit. a GDPR) or other legal permission is available. The data will not be passed on to a country outside the EU unless the EU Commission has determined that data protection is comparable to that in the EU, consent has been given or the standard contractual clauses have been agreed with the third party provider.

(3) Those affected have the right at any time:

to revoke a given consent in accordance with Article 7 (3) GDPR. Then the data processing that was based on this consent may no longer be carried out, but the revocation does not affect the legality of the data processing carried out up to that point;

to request information in accordance with Art. 15 GDPR about the processed personal data, including information about the processing purposes, the category of personal data, the categories of recipients to whom the data was or will be transmitted, the expected storage period, the origin of the Data, if not collected here, as well as automated decision-making including profiling and the existing rights, which are explained here;

demand that incorrect or incomplete personal data be corrected immediately in accordance with Art. 16 GDPR, in particular if the processing purpose has expired, a required consent has been revoked and there is no other legal basis or the data processing is unlawful;

demand that, in accordance with Art. 17 GDPR, the stored personal data be deleted, unless the processing is necessary to exercise the right to freedom of expression, to fulfill a contract, for reasons of public interest or to assert or defend legal claims;

demand that, in accordance with Art. 18 GDPR, the processing of personal data be restricted if the accuracy of the data is disputed or the processing is unlawful and deletion is rejected and the data is no longer required, but the data subject uses it to assert or exercise or defense of legal claims or has objected to processing pursuant to Art. 21 GDPR;

demand that the data provided be published in a structured, common and machine-readable format or transmitted to another person in charge;

to complain to the competent supervisory authority in accordance with Art. 77 GDPR if the processing of the personal data is not lawful, the supervisory authority of the habitual residence or workplace of the person concerned or the registered office of our company is usually responsible.

to object if the personal data is processed on the basis of legitimate interests in accordance with Article 6 Paragraph 1 Sentence 1 lit. f GDPR if there are reasons for this arising from the particular situation of the person concerned

(4) In principle, the data is only stored for as long as the purpose of the respective data processing requires. Further storage is primarily considered if this is still necessary for legal prosecution or legitimate interests or if there is a legal obligation to retain the data (e.g. tax retention periods, statute of limitations).

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§ 15 Jurisdiction, place of performance, dispute resolution

(1) Unless otherwise stated in the order confirmation or the contract, the agency's place of business is the place of performance.

(2) In the event of disputes arising from the business relationship between the agency and the client, the parties are obliged to seek an amicable solution. If no agreement is reached, they undertake to settle their differences in mediation before taking legal action. The possibility of summary proceedings by way of interim legal protection remains unaffected. The simple non-payment of the remuneration without justification is not a dispute.

AGB - User Generated Content Creator

A. Basic Provisions

2. The parties are companies within the meaning of § 14 BGB.
3. Unless otherwise agreed, the following contractual conditions apply exclusively. Deviating or conflicting terms and conditions are only effective with the express consent of the parties.
4. These GTCs regulate the business relationship between the parties with regard to the creation of User Generated Content (UGC) for the Company's products.

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B. Creator Achievements

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2. The creator undertakes to create new user-generated content videos if there are significant deviations in the content from the briefing.
3. The creator also undertakes to provide the agency with the services specified in paragraph 1 above by a predetermined date.
4. The creator undertakes to create user-generated content videos based on the briefing provided by the agency. The number of videos is defined individually.

C. Company achievements

2. If the company provides the creator with products to fulfill the contract, the creator acquires ownership of these and can freely dispose of them even after the end of the contractual relationship.
3. The parties mutually agree on the specific design of the Creator's services. The company notifies the creator of the specific specifications for creating the content to be created in good time.
4. The company is obliged to provide the creator with the products required to fulfill this contract and/or the required image and text material free of charge in good time before the publication of the services owed as specified in Section B.

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D. Illness, disability

1. After the hindrance has ceased, the Creator is obliged to make up for the services owed under Section B immediately, but no later than one week after the hindrance has ceased, provided this is expedient for the fulfillment of the contract.
2. If the creator is unable to provide the services owed under section B as agreed due to illness or another important reason, he is obliged to inform the company immediately, but no later than within two days of becoming aware of this, as well as the expected duration of the hindrance. Nevertheless, the creator must inform the company immediately that the hindrance is no longer available.

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E. Rights of use for image and text material

1. The creator may only use the image and text material provided by the company in accordance with section C, paragraph 1 of this contract to provide the services agreed and owed in section B of this contractual relationship. For this purpose only, the Creator receives a non-transferrable and revocable right of use limited to the duration of this contract.
2. The company is entitled to use the Creator's services created within the framework of this contractual relationship for its own purposes, in particular for its own advertising. This also applies to translations, transformations or other processing of the Creator's services agreed under Section B. The creator grants the company the exclusive, irrevocable, temporally and spatially unlimited right to use the content of the services, provided that the company has acquired a copyright, performance or other right to the content of the services owed under Section B. The company is entitled to transfer the services created by the creator to third parties.

F. Secrecy

1. The provisions of the Trade Secrets Act remain unaffected. Passing on the information sheet to third parties
2. Excluded from the obligation of confidentiality according to paragraph 1 above are information or documents that are generally known.
3. Each party will treat information and documents that it receives from the other party in connection with the implementation of this contract as confidential. Within your own company, information and documents of the other party may only be brought to the attention of or made accessible to the personnel who need the information and documents to fulfill this contract. Each party will not pass on information or documents from the other party to third parties without their prior written consent, unless they are sworn to professional secrecy. If such consent has been given, the third party must be committed in writing to confidentiality in accordance with the provisions of this paragraph before disclosure.

G. Data protection

2. The company ensures compliance with the European General Data Protection Regulation (GDPR). For further information regarding data processing and information on the rights of data subjects, reference is made to the company's data protection declaration.
3. For the purpose of executing the contract, the company collects and stores personal data of the creator such as name, address, e-mail address and telephone number in accordance with Article 6 Paragraph 1 Sentence 1 lit. b GDPR and passes them on to the managing agency.

H. Miscellaneous

1. Should provisions of this agreement be wholly or partially ineffective or unenforceable or later lose their effectiveness or enforceability, this shall not affect the validity of the remainder of this agreement. The same applies if there is a gap in the agreement. Instead of the invalid or unenforceable regulation or to fill the gap, the parties will make an appropriate regulation which, as far as legally possible, comes closest to what the parties wanted or would have wanted according to the meaning and purpose of the agreement, insofar as they were at the conclusion of the agreement would have considered the point.
   
2. Changes and additions to this agreement must always be in writing. This also applies to the waiver of this written form.
3. The agreement is subject to the law of the Federal Republic of Germany. The place of jurisdiction for all disputes arising from or in connection with the agreement is Barcelona, unless otherwise stipulated by law
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