General Terms and Conditions of EFJ Advisory Partners GmbH, Kullenbergstr. 15, 70195 Stuttgart, Germany (hereinafter referred to as “EFJ”)
§ 1 Scope of application
(1)The following General Terms and Conditions (GTC) apply to all contracts that EFJ concludes with its customers if they are entrepreneurs, legal entities under public law or special funds under public law (hereinafter referred to as “Customer” or “Client”).
(2) EFJ does not conclude any contracts with consumers within the meaning of Section 13 of the German Civil Code (BGB). The Customer assures that they are acting as an entrepreneur according to Section 14 of the German Civil Code BGB) or as a merchant according to the German Commercial Code (HGB) when concluding a contract with EFJ.
(3) These General Terms and Conditions shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Customer shall be contractually valid only if and to the extent that EFJ has expressly consented to the application thereof. This requirement of approval shall apply in any case, for example even if EFJ begins to provide the services without making a reservation while having knowledge of the Customer’s general terms and conditions.
§ 2 EFJ’s services/customer involvement
(1) EFJ provides online marketing and management consultancy services for Customers. Unless expressly agreed upon otherwise in writing, EFJ does not owe any supply of articles. In particular, EFJ can only forecast the success of certain consultancy and/or advertising measures based on empirical values. The Customer is aware that success shall not be owed on the part of EFJ. If separate remuneration has been agreed upon for achieving a specific success for an advertising measure, this shall be paid as a bonus based on success. In principle, however, customers have no right to claim a specific success.
(2) The Customer must always perform the duties of cooperation incumbent on them completely and on time. If the Customer fails to cooperate, thus preventing EFJ from providing the service, EFJ’s claim for remuneration shall remain unaffected.
(3) With regard to the consultancy services to be provided by EFJ, EFJ is entitled to a performance determination right according to Section 315 of the German Civil Code (BGB).
§ 3 Conclusion of contracts
(1) A conclusion of contract between EFJ and the Customer can take place by telephone (video chat, phone, etc.) or in writing. Should the contract be concluded by telephone, then the Customer shall not be entitled to receive the contents of the contract again in writing from EFJ, unless otherwise agreed upon.
(2) Contracts between EFJ and the Customer by telephone shall be concluded by concurrent declarations of intent. The Customer consents to EFJ recording the telephone call and/or the respective video chat for evidence and documentation purposes.
§ 4 Payments, prices, conditions
(1) The prices quoted and communicated by EFJ, be it by telephone or in writing, shall be binding. The stated prices are to be interpreted as net prices plus statutory sales tax.
(2) Payment to EFJ for its services shall be made immediately after the invoice has been issued, in principle by means of a SEPA direct debit mandate. Remuneration for our services is due when the contract is concluded unless our offer states otherwise. A (SEPA) direct debit authorisation issued to us shall also apply to further business relationships until revocation.
The Customer must use the following specimen for this:
I authorise EFJ Advisory Partners GmbH, Kullenbergstraße 15, 70195 Stuttgart, Germany and their vicarious agents, to collect recurring, due payments from my account
via SEPA direct debit mandate. At the same time, I instruct my bank to redeem the direct debits drawn on my account by EFJ Advisory Partners GmbH, Kullenbergstraße 15, 70195 Stuttgart, Germany and their agents. I may request a refund of the charged amount within eight weeks of the debit date. The terms and conditions agreed upon with my bank for payments by direct debit through the SEPA core direct debit scheme shall apply.
First name and surname of the account holder
Street and house number of the account holder
Postcode and town/city
Credit institution/bank (name and BIC-code)
Date and place
Account holder’s signature
(4) EFJ will issue the Customer with a proper invoice showing the sales tax amount after direct debiting has been successfully completed (if necessary by vicarious agents).
(5) In the event that agreed direct debits cannot be withdrawn from the Customer’s account and a chargeback occurs, the Customer shall be obliged to transfer the amount owed to EFJ within three working days after the chargeback and to assume the costs caused by the chargeback.
(6) Offsetting with counterclaims is only permissible on a mutual basis if the other contractual partner has acknowledged the offsetting or this has been established as legally binding. The same applies to the exercise of a right of retention by a contracting party.
§ 5 Termination, term
(1) The contract is firmly concluded for the term agreed upon in the respective main contract. There is no automatic extension.
(2) Notice of termination must be given in writing to be valid.
(3) This shall not affect the right to exercise extraordinary termination at any time.
§ 6 Default/withdrawal
(1) Deadlines for EFJ’s provision of services shall not begin before EFJ has received the invoice amount and the data required for the services, as agreed upon, are fully available to EFJ or the necessary act of cooperation has been performed in full.
(2) If the Customer is in arrears with due payments, EFJ reserves the right not to perform further services until the outstanding amount has been settled.
(3) If the Customer is in default of at least two payments due to EFJ in the case of instalment payments, EFJ is entitled to extraordinary termination of the contract and to cease the services. EFJ will assert the entire remuneration that is due by the next regular termination date as compensation.
(4) Any free Customer termination rights are excluded.
§ 7 Fulfilment
(1) EFJ will perform the agreed services according to the offer with necessary diligence. EFJ is entitled to use the help of third parties for this.
(2) The Customer is aware that, unless otherwise agreed upon in writing, EFJ owes the provision of services and no manufacturing of articles. At the Customer’s request, EFJ will provide information on the services provided under the contract within a reasonable period of time.
(3) If EFJ is prevented from providing the agreed services and the reasons for the hindrance emanate from the Customer, EFJ’s claim for remuneration shall remain unaffected.
§ 8 Conduct and consideration
(1) If the Customer takes part in EFJ communities and groups (e.g. on Facebook), they are obliged to protect EFJ’s interests there. EFJ is entitled to temporarily or permanently exclude the Customer from taking part in communities and groups should the Customer violate or impair the interests of EFJ within the group/community (for example through statements that are detrimental to business). In particular, the Customer shall be not entitled to poach other customers from EFJ.
§ 9 Rights of use
(1) The Customer shall receive a simple right of use with regard to the content made available by EFJ, exclusively for the duration of the contract. A passing on to third parties or copying the content provided is strictly prohibited.
(2) The Customer shall not receive any right of use with regard to advertising texts/advertisements published by EFJ on its websites or in forums/groups.
(3) Violations of Paragraphs 1 and 2 will be prosecuted under civil and criminal law.
§ 10 Liability
(1) EFJ shall only be liable for damages – for whatever legal reason – in the case of intent and gross negligence. In the event of simple negligence, EFJ shall only be liable
a) for damage resulting from infringement of life, body or health,
b) for damage arising from the breach of an essential contractual duty (an obligation whose fulfilment is essential to the proper carrying out of the contract and which the contracting partner often relies on and may rely on); in this case, however, liability is restricted to reimbursement for foreseeable and typically occurring damage.
(2) Within the limits of Paragraph 1, EFJ shall not be liable for any loss of data and programs. The liability for loss of data shall be limited to the amount of the typical recovery outlay that would be incurred in the case of a regular and risk-adequate creation of backup copies. Liability under the Product Liability Act remains unaffected, as does that for assuming a guarantee.
(3) The Customer is aware that third-party providers such as Facebook are entitled, according to their guidelines, to delete/remove individual advertising campaigns from their offers at any time. EFJ shall not be liable for such courses of action.
§ 11 Data protection and security
(1) The Customer assures that they will comply with the provisions of the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG) when transferring data to EFJ.
(2) The Customer shall completely indemnify EFJ from liability for violations of the GDPR and the BDSG unless EFJ is solely responsible for these violations.
§ 12 Final provisions
(1) Any variations from these General Terms and Conditions shall only become effective after they have been agreed upon in writing. Individual understandings made with the Customer (including collateral understandings or additions or modifications) shall prevail over these General Terms and Conditions in all events. The contents of such agreements must be set forth in a written agreement or written confirmation from EFJ.
(2) The law of the Federal Republic of Germany shall apply. Place of performance shall be the registered office of EFJ. The exclusive commercial place of jurisdiction shall be the registered office of EFJ.
General Terms and Conditions effective as of 17/03/2019 ©