XINGU General Terms and Conditions

Valid from 1.10.2024

1. Scope of General Terms and Conditions

1.1. These General Terms and Conditions (GTC) apply to all business relationships between Xingu Advertising GmbH (hereinafter “XINGU”) and the client (hereinafter “CLIENT”) – together referred to as the “CONTRACTING PARTIES” – in the version valid at the time of conclusion of the contract.
1.2. Deviating, conflicting, or supplementary terms and conditions of the client shall not become part of the contract, even if known, unless their validity is expressly agreed to in writing.

2. Contract formation

2.1. The contract between XINGU and the CLIENT is concluded either by the written acceptance of the individual service agreement by both parties or by an offer signed by the CLIENT (hereinafter referred to as the CONTRACT). The CONTRACT contains specific provisions that take precedence over these General Terms and Conditions.
2.2. Changes or additions to the contractual terms must be made in writing.

3. Scope of services 

XINGU offers services in the areas of online marketing, marketing intelligence, technologies, as well as content creation and optimization. The specific scope of services will be agreed upon in the CONTRACT between XINGU and the CLIENT.

4. Pricing

4.1. The compensation for services provided by XINGU is determined by the respective contractual agreements.
4.2. The media costs incurred in connection with Amazon DSP, Sponsored Ads, or other platforms will be charged to the CLIENT by XINGU after the end of the month, provided that XINGU was the invoicing party. The CLIENT cannot dispute the media costs paid by XINGU.
4.3. XINGU reserves the right to engage third parties to fulfill its contractual obligations. In this case, XINGU will assume responsibility for the services provided by the third parties, and no direct contractual relationship will be established between the CLIENT and the third party.
4.4. Third-party services that are coordinated and commissioned by XINGU with the CLIENT in advance will be reimbursed to XINGU based on the effort incurred, upon proof of expenses.
4.5. Additional costs for special measures initiated and approved by the CUSTOMER will be billed separately.
4.6. In the event of Regulatory Advertising Fees incurred due to ads served in countries with local Digital Services Taxes (DST), these fees will be charged to the CLIENT. These fees are not media costs but additional fees that XINGU cannot influence. The CLIENT cannot dispute the regulatory advertising fees paid by XINGU.

5. Payment terms

5.1. The CLIENT’s payments are due within 14 (fourteen) calendar days after receipt of a properly issued and verifiable invoice.
5.2. All prices are exclusive of the applicable statutory value-added tax.
5.3. Invoicing will be done electronically on a monthly basis to the CLIENT at the beginning of the following month, and payments must be credited to the account specified in the invoice. The invoiced items will be considered accepted by the CLIENT unless the CLIENT raises an objection in text form within one month of receipt of the invoice.
5.4. In the event of a negative creditworthiness assessment, the parties agree that all payments shall be made in advance. In the event of an improvement in the KUNDEN’s creditworthiness, the CONTRACTING PARTIES shall revert to the regular payment terms as specified in the contract.
5.5. If the CLIENT is charged for expenses in foreign currencies, the exchange rate at the time of payment of the expenses by XINGU will be decisive. Any bank fees incurred will be borne by the CLIENT.
5.6. For services provided by XINGU not at its business location, travel expenses, allowances, and, if applicable, accommodation costs will be billed separately for services billed on a time and materials basis. Travel by public transportation and accommodation costs will be charged based on the actual incurred costs, while travel by the CUSTOMER’s own vehicle and allowances will be calculated according to the applicable tax-deductible maximum rates.
5.7. In the event of payment default, XINGU is entitled to terminate the contract extraordinarily after a fruitless expiry of a reasonable deadline. The claim for payment remains unaffected. Furthermore, according to § 286 (3) of the German Civil Code (BGB), default occurs no later than 30 days after the invoice due date. From the beginning of the default, XINGU is entitled to charge interest on the claim at 5 percentage points above the base interest rate.
5.8. A CUSTOMER’s objection to an invoice does not automatically result in the termination of the AGREEMENT. The CONTRACTING PARTIES agree to resolve the dispute amicably and within a reasonable period of time. Until the dispute is resolved, the contractual relationship remains unaffected and continues unchanged.

6. Copyrights

6.1. The CLIENT grants XINGU the right, for the duration and purposes of the CONTRACT, to distribute the content supplied by the CLIENT worldwide via the Internet, to display it on websites and thus make it available to anyone, as well as to make it usable for mobile end devices, such as cell phones, PDAs and other areas of information technology.
6.2. The license also includes 
a. the multimedia and online right as the right to digitize the supplied content, to store it on any media, to combine it with other works, in particular advertising, as part of a multimedia production, to make it usable interactively through electronic or other means, and to reproduce it on any data carriers, distribute it, rent it and/or lend it, and to make the content supplied available for online use in such a way that members of the public or closed user groups can access it at places and times of their choice; and
b. the database right as the right to record the supplied content in digital form, in particular in electronic form, and to store and process it on any known storage media, alone or together with other elements, in particular works, including other advertising.  
6.3. For the purpose of the CONTRACT, the CLIENT grants XINGU the non-exclusive right, unrestricted in terms of space and content and limited in time to the term of the CONTRACT, to reproduce and distribute, digitally and otherwise, the name, logo, company name and trademark of the CLIENT, including all other brand names belonging to the CLIENT and including all forms and variations approved by the CLIENT, whether or not protected under company or trademark law. XINGU has the right to publish the CLIENT’s company logo in connection with the presentation of its own references.
6.4. As far as XINGU creates content such as texts, images, graphics, or other works within the framework of the CONTRACT, XINGU grants the CLIENT all necessary usage rights to this content, particularly the rights to reproduce, distribute, modify, and publish. The transfer of usage rights occurs without spatial or temporal limitations, unless explicitly agreed otherwise.
6.5. XINGU remains the author of the created content but may use the created content for its own reference purposes with the prior consent of the CLIENT.
6.6. Should additional license fees arise for certain elements (e.g., when using stock images or specific fonts), the CLIENT will be informed and shall bear the costs.

7. Liability and indemnification

7.1. In the case of fault-based liability, the CONTRACTING PARTIES are liable – regardless of the legal basis – only in the following cases:
a. In the event of intentional or grossly negligent injury to life, body, or health by one of the parties, their legal representatives, or vicarious agents
b. For all other damages, the liable party is only responsible for intentional or grossly negligent breaches of duty.
7.2. In the event of slightly negligent breaches of essential contractual obligations, liability is limited to the typical and foreseeable damages. In such cases, liability for loss of profit, indirect damages, consequential damages, and claims of third parties is excluded. Liability is capped at an amount equal to 100% of the annual contract value (fees excluding third-party services). In the case of slightly negligent data loss, liability is limited to the typical recovery efforts that would have occurred with proper backups.The aforementioned limitations of liability shall not apply in cases of mandatory statutory liability, in particular under the Product Liability Act.
7.3. The CUSTOMER is solely responsible for the legality, accuracy, and appropriateness of the content they provide. XINGU assumes no liability for verifying the content for legal violations. The CUSTOMER guarantees that the provided content does not infringe upon third-party rights, does not violate legal regulations, and does not contain viruses or harmful programs. Should XINGU be held liable by third parties, the CUSTOMER will indemnify XINGU from all resulting justified damages and costs. In the event of a violation, XINGU may immediately suspend services and terminate the contract without notice.
7.4. The aforementioned limitations of liability do not apply in cases of mandatory statutory liability, particularly under the Product Liability Act.
7.5. The CUSTOMER acknowledges that any failure to meet deadlines, provide necessary information, or fulfill obligations in a timely manner may impact XINGU’s ability to deliver or perform services. XINGU cannot be held liable for delays, additional costs, or negative effects arising from such failures by the CUSTOMER.
7.6. XINGU makes no warranty that content uploaded on behalf of the customer on platforms like Amazon will go live or be published. XINGU cannot be held liable for delays or non-publication of such content.

8. Term of contract and termination 

8.1. The duration of each CONTRACT will be individually determined between the CONTRACTING PARTIES and regulated in the respective CONTRACTS. Unless otherwise agreed, the CONTRACT is considered to be concluded for an indefinite period.
8.2. The ordinary notice period will be regulated in the respective CONTRACTS. If this is not the case, a notice period of three (3) months to the end of the month shall apply. The right to extraordinary termination for good cause remains unaffected. Important reasons include, in particular

a. Cessation of business activities by one of the CONTRACTING PARTIES;
b. Suspension of payments or insolvency of one of the CONTRACTING PARTIES;
c. Failure to remedy a garnishment order on the assets of one of the contracting parties within 4 weeks;
d. Opening of insolvency or settlement proceedings against the assets of one of the CONTRACTING PARTIES or rejection of the opening of insolvency proceedings due to insufficient assets; 
e. Violation of contractual obligations by one of the contracting parties in a significant manner despite warning by the other CONTRACTING PARTY;
8.3. All notices of termination must be in writing.
8.4. XINGU retains read access to all Sponsored Ads accounts for up to 60 days after the termination of the contractual relationship to reconcile corrections made by Amazon to performance data and associated costs or credits with the customer.

9. Force majeure 

If, as a result of force majeure, e.g. war or civil unrest, natural disasters or fire, epidemics or quarantine, government measures or similar circumstances, contractual obligations cannot be fulfilled, cannot be fulfilled on time or cannot otherwise be fulfilled in accordance with the contract, the party concerned shall be released from complying with this obligation within the extent to which it has an impact. The CONTRACTING PARTIES shall inform each other immediately about cases of force majeure.

10. Secrecy, confidentiality and data protection 

10.1. The parties agree not to disclose the content of the CONTRACT or any other related information, documents, or data which is not already publicly known. Third parties in this sense are non-affiliated companies pursuant to Section 15 et seq. AktG (Stock Corporation Act) as well as professional advisers to the parties who are bound to secrecy by agreement, code of professional conduct or law and who are involved in the formation, appraisal or implementation of the CONTRACT on behalf of one of the parties. This applies in particular to auditors, accountants, lawyers, and corporate consultants. The parties agree to take all appropriate measures to meet this obligation, which shall survive the termination of the CONTRACT by two years. The obligation does not apply:
a. to the extent that disclosure is necessary to perform the CONTRACT,
b. to the extent that the CONTRACT or either party expressly authorizes the other to disclose,
c. in respect of information that is generally available and known at the time of disclosure, except in the case of the communication of address details,
d. in respect of information developed independently without the use of the other party’s confidential information,
e. insofar as a party is obligated to disclose the information for legal reasons or due to official or judicial orders, or
f. to the extent that confidentiality precludes a party from exercising its own claims.
The party invoking the above exceptions shall bear the burden of proof.
10.2. Upon termination of the CONTRACT, each party shall at any time be entitled and, upon written request of the other party, obligated to destroy all information and documents obtained, including machine-readable information and documents, all software, and all items and other materials, including copies and/or replicas thereof, including those of an electronic nature, and to provide written confirmation thereof to the other party. This shall not apply if the receiving party is obligated to store the information and documents independently and cannot delegate this to third parties in accordance with the statutory retention obligations or if the information and documents are required for evidence purposes due to ongoing or pending legal disputes. The obligation to destroy also excludes information that is automatically secured by backups of data backup systems and to which there is no systematic access, as well as data to which there is a continuing right of. Otherwise, no right of retention exists. 
10.3. The CONTRACTING PARTIES are obligated to observe and comply with all provisions of data protection law. Reference is made to the data protection regulations. Detailed information can be found in the privacy policy available on the website.

11. Written form

Oral side agreements do not exist. Changes and additions to a CONTRACT must be made in writing. This also applies to the waiver of the written form requirement itself.

12. Publications

The CONTRACTING PARTIES undertake not to make any public statements or disclose or publish any information related to the CONTRACT and the information contained therein without the prior written consent of the other contracting party. This restriction also applies to informational and promotional materials.

13. Final provisions

Should one or more provisions of these GTC be or become wholly or partially ineffective or unenforceable, this shall not affect the validity of the remaining provisions of the GTC. In place of the ineffective or unenforceable provision, the contracting parties will agree on a provision that legally and factually comes closest to the economic purpose of the ineffective or unenforceable provision. In the event that a gap arises from the GTC that cannot be filled by interpreting the remaining provisions, the provision shall be deemed agreed upon that would have come closest to the economic interests of the contracting parties had the issue been considered.

14. Jurisdiction and applicable law

These GTC and the associated CONTRACTS are subject to the law of the Federal Republic of Germany, excluding the UN Sales Convention. The jurisdiction for all disputes arising from this contractual relationship is Munich (Munich District Court).

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