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Terms and conditions

Makaly is committed to protecting the privacy and personal data of its users. This Privacy Policy describes how we collect, use, and share user information through our website and services (collectively, the “Service”).

‍§ 1 Scope, Order Placement

1. These general terms and conditions (”TERMS AND CONDITIONS“) apply to all contracts and orders (hereinafter”treaties“) between Nils Lüdtke & Basel Alalwani GbR, also known as ALWA Marketing or Makaly, Alte Dorfstraße 14A, 70599 Stuttgart (hereinafter”contractors“called) entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 paragraph 1 BGB (hereinafter”client“)

2. Unless otherwise expressly agreed, the terms and conditions apply in the version valid at the time of the order or in the version last notified to the client. The terms and conditions also apply to similar future contracts between the parties, without the contractor having to refer to them again in each individual case.

3. These terms and conditions apply exclusively. Divergent, conflicting or supplementary general terms and conditions of the client only become part of the contract if the contractor has expressly agreed to their validity in writing. This consent requirement applies in any case, for example even if the contractor provides services in knowledge of the client's general terms and conditions.

4. Individual agreements made with the client in individual cases (including ancillary agreements, additions and amendments) always take precedence over these terms and conditions. Subject to proof to the contrary, a written contract or written confirmation from the contractor is decisive for the content of such agreements.

5. All agreements and legally relevant declarations within the framework of the contract may be submitted in writing or text form (e.g. letter, e-mail, fax).

‍§ 2 Modification of the service

1. The contractor provides services in the area of digital marketing and corporate communication, such as the development and implementation of marketing strategies, implementation of e-mail marketing, content, image and video creation, graphics and image processing, development of corporate design and logo design, community management, design and preparation of corporate communication in social media and the creation and support of ads on social media and search platforms. The detailed description of the services to be provided is set out in the respective contract.

2. The contractor points out to the client that he also uses AI tools and generative AI functionalities to create works and provide the services under the contract.

3. If the contract requires the design of a website as a service, the contractor's work typically includes the development of a concept and the graphic design of the website concept coordinated with the client. Unless explicitly agreed in the contract, the technical implementation, programming and long-term maintenance of the website are not required. Web hosting, availability research or registration of a domain as well as the transfer of open data (e.g. uncompiled source code, Photoshop files) for further processing by the client are also not owed unless this has been expressly agreed.

4. In the case of social media services, the client is aware that there are separate regulations in the terms of use of the respective providers which regulate the use of these platforms for marketing purposes and other advertising measures. The client is the publisher and responsible for the content of the respective marketing campaign on a social media platform. The contractor assumes no liability for the fact that the respective publication on these platforms complies with the regulations and terms of use there and recommends that the client obtain legal advice in this area. In the case of services in the social media sector, the contractor only owes action without any separate profit. In particular, no guarantee can be given for the achievement of a specific ranking

5. Unless otherwise stated in the offer, all offers from the contractor are subject to change.

6. The contractor points out that the client may have to pay contributions to artists' social security for the remuneration paid. The client will make himself aware of this.

7. Legal and tax consulting services are neither promised nor provided.

8. The contractor may involve third parties to provide the services without the prior consent of the client. Freelancers or third parties are therefore vicarious or vicarious agents of the contractor.

9. The contractor is entitled to provide all services online or remotely if this is possible under the circumstances.

10. During the term of the contract, the contractor may also work for other clients without the client's consent being required.

‍§ 3 Customer obligations

1. Customer cooperation is crucial for the success of the services. The customer is required to provide the agency with appropriate support and to provide necessary information and materials.

2. The rights of use granted by the contractor under the respective contract are only transferred after full payment of all claims to which the contractor is entitled under the contract.

3. Rights of use are only transferred to work results that the client accepts as being in accordance with the contract, not to those that are only provided for review or selection, such as alternative drafts or concepts.

4. If the contractor uses third parties to fulfill the contract, he will acquire the rights to use their services to the extent agreed upon in the contract. If this is not possible or only at disproportionately high costs, the contractor will inform the client accordingly and proceed in accordance with his instructions. Any additional costs arising from this shall be borne by the client.

5. The contractor assumes no liability for statutory claims by authors for subsequent increases in remuneration in accordance with Sections 32, 32a UrhG. These are taken over by the client and the client releases the contractor from such claims upon first request. The client is aware that, under the Copyright Act, an author is entitled to further legal claims against the owner of rights of use (e.g. for information, accountability and recall), which cannot be excluded by contract.

6. Notwithstanding the transferred rights of use, the contractor remains entitled to present the work results, in particular websites, logos and social media content, free of charge for reference purposes in all media including the Internet, social media and in presentations by the contractor and to this extent to use the client's name and trademarks even after the contract has ended.

‍§ 4 Implementation of services

1. The agency carries out the services independently and in compliance with the contractual requirements and the relevant legal provisions.

2. The customer is liable for the quality and legal compliance of the content provided by him.

3. Insofar as, in individual cases, contracts for necessary external services are concluded in the name and for the account of the contractor, the client undertakes to indemnify the contractor internally from all compensation claims arising from the conclusion of the contract. The contractor is entitled to charge these costs as soon as they are invoiced by the third party.

4. In the event of changes or cancellations of orders by the client or if the requirements for the provision of services are changed, the contractor will be reimbursed for all costs incurred as a result and the contractor will be released from any liabilities to third parties by the client.

5. The contractor will invoice the client for the services provided in accordance with the applicable legal provisions.

6. The right to remuneration arises for a service as soon as it has been provided by the contractor. In the case of recurring services, the agreed lump sum must be paid at the end of the month in which the service is provided. Payment for work services is due upon delivery of the work in accordance with the contract. Acceptance may not be refused for design-artistic reasons. There is freedom of design within the scope of the contract. Claims for defects regarding artistic design are excluded.

7. Unless otherwise agreed, the invoice amount must be paid without deduction within 10 working days of receipt of the invoice. Statutory regulations apply to the occurrence of late payment and its consequences.

8. The parties agree that the remuneration is appropriate and that the remuneration covers all contractual services provided by the contractor; in particular, the agreed remuneration is an appropriate remuneration for granting the rights of use.

‍§ 5 Contractual disorders

1. If there are obstacles to the performance of the service for which the agency is not responsible, this will be immediately notified to the customer.

2. The client is obliged to independently and conscientiously check the legal admissibility of the designs and other work results produced on his materials before using them in business transactions. The contractor will inform the client in good time of legal risks associated with the content or design of planned advertising measures, but will not carry out its own legal review. If the contractor considers a legal (e.g. competition or trademark law) review by a particularly competent person or institution to be necessary to implement the measures, the client shall bear the costs after coordination.

3. The client will not remove any copyright notices on third-party materials or use them outside of the rights of use granted.

4. The client releases the contractor from claims for compensation from third parties based on the violation of an obligation set out in paragraphs (1), (2) and (3).

5. The client must ensure that, even without special request, all information and data necessary for the execution of the order and in the possession of the client is provided to the contractor in good time and that the contractor is informed of all processes and circumstances that may be important for the execution of the order.

6. The client appoints a contact person and a representative as permanent references for all matters relating to the services.

7. The client undertakes to pay any fees that may arise to collecting companies, such as GEMA. If these fees are paid by the contractor, the client undertakes to reimburse them against proof. This can also take place after termination of the contractual relationship.

8. Legal responsibility, in particular telemedia, press and competition law as well as trademark and copyright responsibility for the content of its Internet and social media presence, is borne exclusively by the client.

9. The client is prohibited from concluding similar marketing contracts with other providers during the duration of the contract. Exceptions require the written consent of the contractor.

10. If the client does not comply with his obligations to cooperate and for this reason the contractor is unable to complete his services in whole or in part within the agreed time, the agreed period shall be extended accordingly.

11. The client's support services are provided without charge.

‍§ 6 Data transmission and documents

1. The term is defined in the contract. If no term is specified, the contract ends with the provision of the service or acceptance of the work. A contract with a minimum term is automatically extended by the respective term length unless it is terminated thirty (30) days before the respective end of the term. In addition, contracts without a minimum term can be terminated at any time with a notice period of thirty (30) days.

2. The client may also terminate the contract for a work at any time, even without good cause. However, this does not affect the contractor's claim for compensation. Section 648 BGB applies.

3. The right to extraordinary termination remains unaffected. In particular, the contractor may give extraordinary notice if the client is in default of payment and does not pay or only makes irregularly despite a reminder or if the client fails to comply with other significant contractual obligations within a reasonable period of time despite a warning. In addition, Section 648a BGB applies to work services.

4. The termination must be made in writing. Text form is sufficient.

5. The contractor must return or delete work and business documents and other work equipment provided to him immediately and without request after termination of the contract. Electronic data from the client must be completely deleted. Documents and data for which there is a longer legal storage obligation, but only until the end of the respective storage period, are excluded from this.

‍§ 7 Liability and indemnification

1. The contractor has unlimited liability

  • in case of intent or gross negligence,
  • for injury to life, limb or health,
  • in accordance with the provisions of the Product Liability Act and
  • to the extent of a guarantee provided by the contractor.

2. In the event of slight negligence of an obligation that is essential to achieving the purpose of the contract (cardinal obligation), the contractor's liability is limited in amount to the damage that is foreseeable and typical according to the nature of the transaction in question.

3. The contractor has no further liability.

4. Unless otherwise agreed, the client himself is responsible for securing his data, in particular for creating regular backups. The contractor is not liable for loss of data that the client suffers as a result of backups not carried out regularly, in particular not for data loss over which the contractor has no influence.

5. The contractor assumes no liability towards the client for orders placed on behalf of and for the account of the client, unless the contractor is at fault when selecting the third party. In these cases, the contractor only acts as an intermediary.

6. Insofar as the liability of the contractor is excluded or limited under this § 7, this also applies to the personal liability of the contractor's employees, workers, representatives and vicarious agents.

‍§ 8 Termination and Withdrawal

1. Both parties may terminate the contract extraordinarily in the event of material breaches of the terms of the contract or if the other party fails to pay.

2. The client must check and approve drafts or final drawings for any defects (accuracy of image, text, figures, etc.). Drafts approved by the client are void of any warranty on the part of the contractor for apparent defects.

3. Complaints about obvious defects must be submitted in writing to the contractor within seven (7) working days after delivery of the work. It is sufficient to send the complaint in good time to meet the deadline.

4. Claims made by the client expire one year from the provision of the contracted services. Excluded from this are claims (i) due to injury to life, body or health and (ii) for damage caused by gross negligence or intentional and (iii) claims arising from the assumption of a warranty or from product liability. In the cases mentioned, the statutory limitation periods apply.

‍§ 9 Acceptance of benefits

1.”Confidential information“means all information and documents from the other party that are marked as confidential or are regarded as confidential based on the circumstances, in particular information about operational processes, business relationships and know-how. The parties agree to maintain confidentiality about such confidential information. This obligation continues after termination of the contract.

2. Confidential information (i) which was demonstrably already known to the recipient at the time the contract was concluded or is subsequently made known by a third party without thereby violating a confidentiality agreement, statutory regulations or official orders; (ii) which is publicly known when the contract is concluded or is subsequently made public, unless this is based on a breach of this contract; (iii) which is based on legal obligations or An order issued by a court or authority must be disclosed. To the extent permitted and possible, the recipient required to disclose will notify the other party in advance and give it the opportunity to object to the disclosure.

3. The parties will only grant access to confidential information to consultants who are subject to professional secrecy or who have previously been subject to obligations in accordance with the confidentiality obligations of this Agreement. Furthermore, the parties will only disclose confidential information to employees who they need to know in order to carry out this contract.

‍§ 10 Adjustment of conditions

1. When providing the contractually owed services, the contractor will comply with all relevant laws and regulations on the protection of personal data.

2. The contractor will take appropriate organizational and technical measures in accordance with the state of the art to protect the client's data.

3. If the contractor processes personal data on behalf of us, the parties will conclude an order processing contract within the meaning of Article 28 GDPR before such processing.

‍§ 11 Intellectual property

1. These terms and conditions and the contractual relationship between the contractor and the client are governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Sales Convention.

2. The exclusive — including international jurisdiction — for all disputes arising directly or indirectly from the contractual relationship is the contractor's place of business. However, in all cases, the contractor is also entitled to file an action at the place of performance or at the general place of jurisdiction of the client. Overriding statutory provisions, in particular on exclusive competencies, remain unaffected.

3. Should individual provisions of these terms and conditions be or become invalid or void, this shall not affect the effectiveness of the remaining provisions.

As of July 2024