General Terms and Conditions (GTC)
§ 1 General Validity
(1) OMMAX is a sales brand of AcanthosVentures GmbH located in Friedrichstr. 22, 80801 Munich, Germany.
(2) The following General Terms and Conditions (GTC) by OMMAX shall be an integral part of the contractual agreement between OMMAX and the Client and apply exclusively. We do not accept conditions of the Client contradicting or deviating from our Terms and Conditions, unless we have agreed with their validity in writing. Nor shall we be deemed to have accepted differing conditions, if we unconditionally perform an order in the knowledge that the Client has opposing conditions or conditions deviating from our GTC. Our GTC apply for mutual commercial transactions including all future business with the Client. It shall be the version of our GTC in force when the contract is signed, which shall apply. Clause § 13 (4) applies to any modifications or amendments made to the GTC from time to time.
(3) This contract shall be deemed concluded if and when the client has countersigned and sent back the contract or has submitted a written order authorization. All offers are subject to change and non-binding.
(4) Any written agreements with the Client shall prevail over our GTC. We shall be bound to verbal agreements only if and insofar we expressly confirm such in writing.
§ 2 Offers – Commencement of Order Performance
(1) Our offers are subject to alteration without notice and without obligation, unless we have particularly denominated them to be obligatory.
(2) Any orders given in verbal form are binding. We may demand immediate written evidence by the client confirming the verbally placed orders. The order contract is deemed to be valid, if we commence with performing under the order before all issues have been negotiated and the client does not have any objections against this commencement to the extent he knows about it.
§ 3 OMMAX’s Obligations – Subject Matter of the Contract
(1) OMMAX provides services in the area of Digital Marketing and Digital Consulting, by amongst other things the development of digital marketing strategies, the implementation of commercial or E-commercial Due Diligences, Search Engine Optimization, Search Engine Marketing, data analytics, online content creation, assistance of homepage relaunches or the planning and implementation of social media strategies.
(2) OMMAX reserves the right to modify, expand or improve its agreed provided services at any time as well as to redistribute its focuses insofar as the budget (excl. taxes) is not exceeded by more than 10%. Hereto OMMAX is especially entitled, if it is prescribed by changes caused by a contractual partner or other third parties (e.g. Google) through legal changes in the statutory law or by changes to market conditions. OMMAX will decide upon this at its own discretion, nevertheless taking into account the legitimate interests of the Client and where possible it will try to reach agreement with the Client. In any case OMMAX will notify the Client immediately and in a timely fashion of any required adjustments.
(3) The service to be performed will be determined by the nature and extent of the contract.
(4) The subject matter of this contract shall only be agreed-upon services, not the achievement of certain economic successes.
(5) Notwithstanding § 3 (2) any activities outside the subject matter of the contract, shall be added through a contract amendment in accordance with § 2 (2).
(6) In the event of contradictions, the following shall apply in the order of precedence shown:
- the contract with attached terms of reference
- the General Terms and Conditions (GTC)
- the Bürgerliches Gesetzbuch (BGB), in the currently valid version at the point in time of concluding the contract
(7) OMMAX is entitled to pass entire or partial orders on to third parties, assuming that there are not any interests of the Client that are worth protecting to the extent that the services should not be used.
§ 4 Fees
(1) Our prices are net prices, plus the respectively applicable rate of statutory value-added tax. In the event of a change in tax rate, the prices included the value-added tax will be adapted accordingly without a right of termination accruing for the Client from this.
(2) Where the budget (excl. taxes) overruns the agreed amount by more than 10%, OMMAX must obtain approval from the Client.
(3) Any material expenditure is to be separately reimbursed. Any idle time of our employees caused by the Client will be charged as service hours.
(4) Travel costs and expenses (incl. parking, accommodation, board, incidental expenses, etc.) will be charged through a claim for travel expenses where this has not been separately contractually agreed. Rental vehicles are to be rented at market prices. Trips with a company owned vehicle will be charged at 0.35 € per kilometre. In the event of a claim for damages, the excess will be charged to the Client, unless the damage was caused intentionally or through gross negligence. Should flights or overnight hotel stays be required for Client projects, these will be coordinated in advance with the Client. Flights up to 4hrs will be booked in economy class, otherwise business class. Train journeys are to be booked 1st class.
(5) OMMAX may invoice its fees on a monthly basis. The agreed fees shall be paid within ten (10) calendar days after receipt of an invoice without deductions our invoices are deemed to have been accepted if the Client does not oppose them in writing within seven (7) days from receipt of the invoice.
(6) The Client has only the right to set-off with claims which are undisputable or acknowledged by OMMAX or which are legally binding by final judgement. The above shall not apply to claims, which are in a synallagmatic relationship with our claims. The Client shall only be entitled to rights of retention if his counter claims are based on the same contractual relationship.
(7) Once payment has fallen due, interest must be paid on outstanding amounts applying a rate of nine (9) percentage points over and above the base rate as well as a lump sum of 40 Euro. The right of OMMAX to claim further damages caused by the delay shall remain unaffected.
§ 5 Data Protection & Secrecy
(1) The Client consents to the collection, storage, processing and transferal of business and personal data to the extent of the contract’s designated purpose. OMMAX undertakes to treat all Client data confidentially and only for the use of rendering its services.
(2) This confidentiality obligation shall not apply with respect to information that (i) is generally known to the public at the time of disclosure or becomes generally known through no wrongful act on the part of the receiving party; (ii) lawfully and without breach of any confidentiality obligation becomes known to the receiving party through a disclosure by sources other than the disclosing party or of one of its affiliates; (iii) has been developed independently by the receiving party; (iv) the receiving party is required to disclose to governmental authorities by applicable laws or (v) that the receiving party is required to disclose by order of a court or regulatory authority.
(3) The contractual agreement entitles OMMAX to list the Client as a reference in its corporate communication, unless otherwise explicitly contractually excluded.
§ 6 Client’s Obligations
(1) The fee to be paid by the Client is subject to the contractual agreement between the Client and OMMAX.
(2) The Client shall guarantee by the way of an independent guarantee, to have all rights necessary to perform this contract and to transfer these rights to OMMAX without infringing any third-party rights. The Client specifically guarantees, to hold all copyrights and other protective rights regarding any shared content and for the publication and distribution of these contents to third parties for the purpose of publishing the content being necessary for the contract performance. The Client bears the sole and unrestricted responsibility for the content and is solely liable for any infringements. The Client guarantees that any content and its use through OMMAX as well as links to other websites do not infringe the applicable statutory law. The Client specifically guarantees not to deliver any content, whose offering or distribution violates legal prohibitions (e.g. Criminal- and Administrative Offences Law), breaches moral standards or the rights of third parties (naming, privacy, copyrights, data protection or other commercial protective rights etc.). Furthermore the Client shall not deliver any contents glorifying war, potentially undermining the morality of children or young persons, presenting persons who are or were dying or exposed to serious physical or mental suffering while reporting actual facts without any justified public interest in such form of presentation, and other means of violating human dignity, or violating the laws governing narcotics, drugs and firearms or may not be made publicly accessible such as all filings containing viruses, Trojan horses or similar programs suitable for damaging, surreptitiously intercepting or deleting data and systems.
(3) In the case of infringements of § 6 (2), the Client shall immediately rectify the breach, compensate OMMAX for all costs and damages generated by the violation, exempt OMMAX from all third-party claims arising from the breach and reimburse all full costs incurred for legal defence. In the event of a legal dispute caused by the breach, the Client shall join the legal proceedings on the part of OMMAX upon request. In the event of a breach, OMMAX is entitled to stop all contractually agreed services immediately and terminate the contract without notice.
§ 7 Client’s Right to Acquisition
(1) Unless otherwise agreed, the Client has the exclusive, transferable, temporal, spatial and unlimited content right to the entirety of the results amassed from the OMMAX services (e.g. Software) on the condition that full payment of the agreed sum has been received. OMMAX has the right to use all results amassed from the respective services (e.g. software including the source code and source documentation) on the condition that it is for internal purposes and future client projects only. In particular this includes the Client's right at their own discretion to edit or alter in any way the respective final product (e.g. the source code with source code documentation) whilst maintaining the same rights as the original version.
(2) In the event of a premature termination of the contract, paragraph 1 shall apply to the already completed part of the services.
§ 8 Liability of OMMAX
(1) In the event of fault-based liability, OMMAX shall only be liable, regardless of which cause in law, in the following cases:
- Loss of life, physical injury to body or health, which can be attributed to an intentional or negligent breach of duty by OMMAX or to an intentional or negligent violation of obligations by a legal representative or fulfilment assistant of OMMAX; or
- Damages, which can be attributed to an intentional or negligent breach of duty by OMMAX or to an intentional or negligent violation of obligations by a legal representative or a fulfilment assistant of OMMAX.
In the case of a breach of a material contractual obligation caused by slight negligence, the liability will be limited to the typically foreseeable damage. The liability is hereby restricted to an amount of 100% of the yearly contract value (compensation excluding expenses for third-party services). Material contractual obligations shall be defined as such obligations, which have to be granted to the Client under the contract in terms of subject matter and purpose, whose fulfilment makes the due performance of the contract possible in the first place, where the Client regularly relies on and may rely on compliance with such obligations. In all other cases, the liability of OMMAX shall be excluded for whatever legal reason.
The aforementioned limitations to liability shall also be valid in favour of our legal representatives, managing employees, all staff as well as our proxies and vicarious agents. A reversal of the burden of proof is not associated with the aforementioned provisions.
(2) The aforementioned limitations of liability shall not apply in cases of compulsory legal liability, especially in accordance with the German Product Liability Act.
(3) Notwithstanding any shorter periods prescribed by law, any claims from or in the context of the use of the services or these conditions of use must be brought to court within one (1) year of their occurrence. Contrary statutory regulations shall remain unaffected.
§ 9 Warranty
(1) OMMAX provides its consulting- and project services in a way, that basically complies with the stipulated characteristics. In case defects occur, the Client shall be obliged to furnish us with all information necessary for an error analysis and rectification in writing. OMMAX makes no guarantees, also not with regards to certain stipulated features or characteristics.
(2) OMMAX specifically pays attention to prepare analysis with great care and precision when performing its services. OMMAX cannot always reliably measure the quality of the data and information available for this analysis. Therefore OMMAX does not guarantee nor is responsible for the representativeness and completeness of the results, as these are subject to certain assumptions, specific estimates and individually drawn conclusions.
(3) In the case of proven defects, OMMAX shall provide subsequent services at its option by means of providing new, defect-free services or eliminating the defect. During this period, the Client is not entitled to demand reduction or rescission. A claim for compensation of expenses after the elimination of defects by the Client or any third parties commissioned by the Client shall not be accepted. If the subsequent fulfilment is ultimately unsuccessful, the customer will be able to require a reduction or to withdraw from the contract.
(4) OMMAX shall only provide damages or compensation for futile expenditures due to a defect within the boundaries defined in Clause § 8. The Client is not entitled to any rights arising from defects not explicitly stated in the General Terms and Conditions, unless otherwise contractually agreed.
(5) All Client’s warranty rights expire - except in the case of wilful intent or gross negligence by us or our agents – in the case of § 634a Abs. 1 No. 1 BGB at the latest one (1) year after the supply of the contractual services, in the case of § 634a Abs. 1 No. 3 BGB at the latest one (1) year after the end of the year, in which the claim arose and the customer became aware of the circumstances justifying the claim or was able to acquire such knowledge without gross negligence.
§ 10 Contract Duration & Termination
(1) The duration of the contract shall be determined from the respective agreement between the Client and OMMAX.
(2) Unless otherwise agreed, the Client shall have the right to terminate the contract in writing at any time following the expiration of the agreed minimum contract term, and any agreed automatic renewal. After the minimum contract term or the automatic renewal has expired, the contract can be terminated with a notice period of three (3) months and with due effect from the end of the quarter. The date of the receipt of notice shall be decisive.
(3) Both OMMAX and the Client have the right to terminate the contractual agreement without notice for a good cause. A good cause entitling OMMAX to the termination of the contract without notice occurs if; the Client’s behaviour endangers existing contractual relationships with other clients, the Client delayed with two (2) successive monthly instalments, the Client declares insolvency, especially in the case of opening insolvency proceedings due to a lack of mass (insolvency, cessation of payments or suspension or dissolution of the business activities – for whatever reason- shall equal insolvency) or the Client is in breach of any essential provision of the GTC.
§ 11 Use of References
(1) OMMAX is entitled to use the customer by mentioning the name of the company and any contact persons as well as using the company logo, and describing the services provided as a reference. This application allows for usage of the reference on all websites, blogs and social media channels. OMMAX has control of this content which can be used for press releases, printed ads, company brochures, decorative purposes on the company premises, at conferences and trade shows, as well as for tenders and company presentations. The use of a Client’s text or the detailed specifications of a so-called customer success story requires prior authorisation from the Client and a separate agreement
(2) This customer reference agreement remains in force in the event of a contract termination or suspension for five (5) years after the contract terminating event without the need to give notice.
§ 12 Force Majeure
(1) If OMMAX is unable to perform as expected due to force majeure, in particular due to shortages of raw materials, energy and labour force, strikes, transport disruptions, unforeseeable and blameless operational disruptions, non-imputable official measures, pandemics or any other events which cannot be justified, OMMAX should not be obliged to render the services agreed, as long as the event preventing delivery of the service lasts and the Client was informed immediately in writing. If these obstructions last for longer than four (4) months, we have the right to withdraw from the contract if we no longer have an interest in fulfilling the contract as a result of the impediment and we have not assumed a procurement or production risk. Upon the Client’s request, we will determine if we withdraw or fulfil our duties within an adequate period of notice on the expiry of the period of notice.
§ 13 Online Usage Data
(1) OMMAX is entitled to obtain and save anonymized user data, generated by the Client’s digital marketing activities (‘Media data’) performed by OMMAX, from the Client’s website and any third-party websites.
(2) OMMAX is entitled to continually use the media data, in order to improve and optimize aggregate statistics, metrics and general trend data used for the Client’s and other clients’ marketing activities.
(3) When using media data, OMMAX shall not identify the Client to third parties.
(4) The Client shall be liable for ensuring that their website complies with the prevailing data protection laws and includes an appropriate data protection notice.
§ 14 Final Provisions
(1) The contractual agreement between OMMAX and the Client shall be interpreted in accordance with the law of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) on 11.04.1980.
(2) The place of jurisdiction for any disputes arising from the contractual relationship or connected with it shall be the office location Munich for all participants, mandatory law does not provide otherwise.
(3) If the contractual agreement requires the written form, all agreements between the parties to the contract must be made in writing to be effective. This also applies to supplements and amendments to the GTC, as well as to the cancellation of this clause requiring the written form.
(4) OMMAX reserves the right to make modifications and amendments to these General Terms and Conditions of use. In this case the Client shall be notified in writing. The modifications and amendments shall be deemed to be accepted if the customer does not object in writing within six (6) weeks after the announcement of the amendments. OMMAX will draw the Client’s attention to this effect when giving notification of the modification. In case the Client objects, the contractual agreement will then be continued without the proposed modification. This shall be without prejudice to the right of the parties to terminate the contract.
(5) Severability Clause: Should any part or provision of the GTC between OMMAX and the contractor be held unenforceable or in conflict with the applicable law of any jurisdiction, the validity of the remaining parts or provisions shall not be affected thereby. The void, ineffective or unenforceable provision shall be replaced by an appropriate provision, which most closely approximates to the sense and purpose of this agreement and which the parties to the agreement would have wished if they had taken into account the voidness, ineffectiveness or unenforceability.