General Terms and Conditions
Translation of official Terms and Conditions into English from 2011
The Vision64 GmbH & Co KG (hereafter referred to as “Vision64”) offers services in the field of search engine optimization and marketing. In particular, Vision64 provides assistance to customers who wish to improve the position of their website in the results list when customer specific search terms are entered in conventional search engines. The customer would like to increase the level of awareness for his web site and therefore utilizes the know-how of Vision64. The contracting parties hereby agree to the following:
§ 1 Validity of the general terms and conditions
The general terms and conditions are valid for all business relations between the customer and Vision64. The general terms and conditions of the customer are explicitly not considered contractual content even if they are not specifically refused by Vision64. In case the customer does not accept the following general terms and conditions then he must inform Vision64 of this in advance and in writing.
SECTION 1: SERVICES PROVIDED BY VISION64
§ 2 Type and scope of services: search engine optimization
1. Within the framework of search engine optimization Vision64 provides the following services as described under numbers 2 – 4. Vision64 is not obligated to provide a certain outcome or more specifically a certain PageRank. Vision64 has the right to invoice for the provision of partial services. The customer can change the name of the designated domain after placement of the initial order as long as the domain stipulated in the contract is redirected to the new domain.
2. Link packages
a) Vision64 creates advertising scripts (in the form of item descriptions) with hyperlinks to the Internet site of the customer on the number of websites stipulated in the contract. The linked websites are located on a separate Vision64 domain or on the domain of a Vision64 partner. Changes to the applicable page ranking stated in the offer of this website at the time the hyperlink is established have no influence on the contract or the amount of payment.
b) The customer receives a list with the names of the domains on which the item descriptions are placed.
c) If a domain is already registered under a customer name then this registration is carried out under the name of and at the expense of Vision64. The customer ensures his entitlement to the name and its exemption of third party rights. The customer grants Vision64 a non-exclusive usage right to the domain.
d) The item descriptions placed on the website are maintained at the expense of Vision64.
e) If the contract is temporary and not agreed otherwise, Vision64 is not obligated to modify item descriptions placed on the website to match new hardware or software conditions, or if changes are made to the search engine algorithms, or if there are changes in the business environment, or if there are shifts in the advertising strategy of the customer’s competitors.
3. Web catalogue
a) Vision64 registers the website stipulated in the contract on behalf of the customer with different directory services and in item catalogues (subsequent platforms) which are subject to continuous change, are free of charge, and are selected by Vision64 without prior consultation with, review of, or reference made to the customer. At this time Vision64 supplies the name, contact information, and publicly available information of the customer. Vision64 is not obligated to cancel the registration at a later date.
b) Unless agreed otherwise registration can also be made with other platforms that charge a fee.
c) The registration is carried out on behalf of the customer. The required authorization is already implied and granted to Vision64 by the customer upon conclusion of the contract.
4. Social media
Vision64 makes entries, contributions, and publications in opinion forums, blogs, and social platforms that are available to the broad public for the period and in the quantity agreed upon in the contract, and if not stipulated as such, for the period of the contract in a quantity that corresponds with the mutual interest of the contracting parties. At this time the stipulated website of the customer or the services provided on the website are advertised in text form.
§ 3 Type and scope of services: search engine marketing
1. Vision64 provides the services described below under numbers 2 and 3 within the framework of search engine marketing. Vision64 cannot influence nor is it obligated to provide a certain outcome or more specifically a certain position in the results list. Vision64 has the right to invoice for the provision of partial services.
2. Orders to draft advertisements for the web site stipulated in the contract are placed with outside service providers (§ 9). The advertisement utilizes text, graphics, and key words (e.g. Google AdWords) and is optimized to function as an advertisement in combination with the system of the outside service provider and typically appears in the results list of a search performed for potential clients of the customer. The draft is submitted to the customer for review and confirmation.
3. After the customer confirms the advertisement it is registered by Vision64 with the stipulated outside service providers. Vision64 acts on behalf of the customer in this regard. The contractual relationship is established between the customer and the outside service provider. The corresponding authorization is already implied and granted to Vision64 by the customer upon conclusion of the contract. Vision64 is only obligated to carry out the registration based on the order confirmation.
§ 4 Type and scope of services: domain sales
1. Within the framework of transferring domain names, Vision64 offers Internet domains for purchase by the customer as specified in the respective proposal. Vision64 is thereafter obligated to transfer the contract domain to the customer as purchaser. The customer purchases the contract domain including all rights and duties.
2. After the purchase price is received, Vision64 is obligated to immediately execute all necessary procedures and submit all required declarations to its provider, the DENIC or other third parties in connection with the transfer of the contract domain.
3. The customer and the purchaser are obligated to provide all necessary cooperation and submit all required declarations to its provider and to the previous provider of vision64, the DENIC or other third parties in connection with the transfer of the contract domain.
4. The customer is aware, that according to the respective registration guidelines of the Domain Name Registrar, the data of the authorized user of the contract domain such as name, address, and telephone number will be recorded in public databases (“whois”) and that this data may be available to the public and distributed within the framework of informational services. Upon request, the customer will be provided with the respective domain guidelines and domain conditions of the Domain Name Registrar.
5. Vision64 does not examine whether the registration is in violation of trademark laws and/or the content-related use of the contract domain by the customer.
6. Vision64 ensures that it is the owner of the contract domain and that it has not received any warning letters concerning violations of trademark law with respect to the contract domain. In addition, Vision64 ensures that it has no knowledge by other means of enforced injunctions or claims for damages against the contract domain due to violation of trademark law.
7. Irrespective of the accuracy of the representations made in paragraph 6, warranty against defects of title is excluded.
SECTION 2: PERFORMANCE OF THE CUSTOMER
§ 5 Terms of payment; payment dates and prices
1. All prices are quoted exclusive of any applicable value added tax and are payable to Vision64 upon receipt of the invoice and prior to the performance of service.
2. Unless otherwise stipulated, all invoices from Vision64 are due within 14 days of the invoice date and payable in full. The relevant date of payment is the date the payment is credited to the account of Vision64. In the event of late payment, Vision64 is authorized to withhold further performance of service. In the event of late payment, Vision64 is entitled to charge late payment interest at 8% above the base interest rate.
3. Unless otherwise stated in the order, the customer pays a base monthly fee for services independent of the success rate as outlined in § 2. The monthly fee is based on the minimum period of the contract chosen, and if applicable, the exclusiveness of the desired search terms for the domain specified in the order. Furthermore, the customers pays an additional performance related fee for services rendered in accordance with § 2. The amount of this fee is calculated proportionate to the advertising volume and is due at the end of the invoice period, if one of the items described in the advertisement has established itself in the Google Ranking. The rankings that result for each of the particular search terms in the domain stipulated in the contract may be utilized on other domains chosen by the customer after placement of such orders in accordance with § 2 No. 1 Phrase 3 and therefore also generate an additional fee as outlined under Phrase 2 if a respective domain switch is made.
§ 6 Orders and customer cooperation
1. The customer is obligated to provide Vision64 with complete and accurate information and the data and files (advertising material) required for placement of the advertisements. Graphic files must be stored in GIF or JPEG format. Complete and accurate link destinations must also be specified.
2. The complete advertisement material must be supplied to Vision64 no later than 10 business days prior to the performance of the service. Additional costs that result from late delivery or delivery that is not in the form described above will be charged separately.
3. The customer is obligated to immediately examine the item descriptions and other advertising efforts submitted for his confirmation and approval and assert any claims for flaws prior to placement of the advertisement order. The advertising effort is considered accepted once the order is placed and the customer bears the cost for subsequent requests to change the material. However, Vision64 still remains obligated to carry out the advertising effort.
4. The customer ensures that the advertising content and the reference links to third part web sites
a) do not violate German law or other laws affecting the online presence
b) do not have pornographic, racist, or extreme political content
c) do not contain advertisements for narcotics or other illegal stimulants
d) do not violate the principles of netiquette
SECTION 3: CONCLUSION OF THE CONTRACT
§ 7 Internet orders
1. All offers placed on the web sites of Vision64 represent non-binding invitations to the customer and are subject to change without notice. Items can be purchased by completely filling out one of the orders forms that is available to customers on the website mentioned above. The order form can be mailed, faxed, called in over the phone, or transmitted via Email. The customer makes a binding offer to conclude a purchase contract by submitting the order. Confirmation of the order receipt by Vision64 does not constitute binding acceptance of the order.
2. Vision64 can accept the order by sending an order confirmation or refuse to accept the order. The order confirmation can be forwarded by mail, Email, telephone or fax.
3. The specific item prices listed in the order shall apply. An order is not considered effected if the price initially appears to be incorrect or Vision64 is entitled to challenge the price on the grounds of misrepresentation.
SECTION 4: PROTECTION OF SERVICE
§ 8 Refusal provision and control of content
Vision64 reserves the right to refuse placing advertising content that is in violation of § 6 No. 4. Payments already received by Vision64 will not be refunded. Vision64 retains the right to withdraw, with immediate effect, advertising content that violates § 6 No. 4 and / or if action is being taken against it by third parties. Vision64 is entitled to this right in advance if there is reason to believe that such a violation exists.
§ 9 Outside service providers
1. Vision64 utilizes outside service providers in order to execute and increase the efficiency of the services stipulated in the contract). Within the framework of this cooperation the outside service providers are provided with customer data to the extent it is relevant, helpful or required to execute the service. The customer grants Vision64 advance permission for the transmission of such contract relevant data in particular with respect to the following outside service providers: Google Germany GmbH, Google Inc., Yahoo! Search Marketing, Yahoo! Inc., Mirago plc Deutschland and Miva Deutschland GmbH.
2. The contractual relationship with the outside service provider is immediately established between him and the customer. Vision64 is only considered the proxy. The power of attorney is granted by the customer at the conclusion of the contract. The customer is obligated to provide Vision64 with all data required for the purpose of registration and support.
3. Should it become necessary, for purposes of executing the contract, to transmit contract relevant data to a party other than the outside service providers mentioned above, then the customer will be immediately informed of this by Vision64 either in writing, per fax, or via Email. If the contract partner does not object in writing or by fax within seven calendar days of receiving this notice then approval to transmit relevant data to such outside service providers will be considered as granted.
4. Vision64 provides no guaranty that the services of the outside service providers, in particular those of network service providers, are always interruption free, accurate, secure and available.
§ 10 Exemption
1. The customer shall bear responsibility for ensuring that his advertising content does not violate applicable law, public morals, statutory or official restrictions.
2. The customer ensures that he is in possession of all usage rights such as copy rights, patents, trademarks, personal rights and all other rights required for distribution of the data or advertising materials he is provided with for execution of the service stipulated in the contract. Vision64 does not examine this data or advertising materials for violations of the law.
3. The customer exempts Vision64 from any third party claims that may arise from the placement of advertising material which violates one of the rights mentioned above.
4. The customer will bear the cost incurred by Vision64 for claims it asserts against misleading advertising as defined in the contract or if the laws of the Federal Republic of Germany are violated. This pertains especially to attorney’s fees and other costs related to petitions filed by Vision64 for preliminary injunctions.
§ 11 Liability
1. Vision64 is liable in cases of intentional or gross negligence in accordance with the provisions of law. Vision64 is only liable in the case of minor negligence if a material contractual obligation (cardinal obligation) is violated or in cases of default or objective impossibility. In cases of liability arising from slight negligence, the liability is limited to losses which were predictable and / or typical. Liability for lack of guaranteed quality, for malice, personal damage, legal defects pursuant to the German Product Liability Act (Produkthaftungsgesetz) and the Federal Data Protection Act (Bundesdatenschutzgesetz) remain in effect.
2. If there are legitimate reasons to disconnect the Webserver, e.g. hacker attacks, denial-of-service-attacks, flooding, computer viruses or similar phenomena, the parties agree to consider it force majeure and mutually agree to forego seeking liability damages as long as the shutdown of the network does not exceed 48 hours.
3. If claims are asserted by Vision64 based on warrantee or liability issues, contributory negligence of the customer is to be considered where appropriate, in particular with respect to insufficient error messages or insufficient data protection. Insufficient data protection applies especially in cases where the customer failed to implement appropriate state-of-the-art security measures to protect against external influences, in particular with regard to computer viruses and other phenomena which could endanger single data or entire data bases.
SECTION 5: IMPLEMENTATION OF THE CONTRACT
§ 12 Termination
1. Unless agreed otherwise the notice periods stipulated in the contract will also apply for temporary contract relationships notwithstanding, however, the right to immediate termination for important reasons.
2. Each of the contracting parties can terminate the business relationship by observing a termination period of 6 weeks prior to the end of the quarter for contracts or business relationships where no definite time period or no alternate termination provisions are arranged. The right to immediate termination for important reasons remains in effect.
3. An important reason for termination without notice exists if it is unreasonable to expect the terminating party to continue the business relationship. However, the legitimate interests of the other contracting party must be considered as well. An important reason but not an exclusive one exists for Vision64 if the financial situation of the customer changes for the worse or represents a significant risk or the customer suspends payment or declares his intent to suspend payment to Vision64. An important reason also exists if debt collection proceedings or insolvency proceedings are being executed against the assets of the customer.
4. The contracting parties have a special right of termination if an analysis and feasibility study regarding the potential of the individual web sites determines that the project is not feasible. The special right of termination can only be exercised if the non-feasibility of the project is confirmed by both contracting parties in writing and then mailed or faxed to the other party.
5. If the business relationship is terminated then any outstanding fees payable to Vision64 become due immediately. In addition, the customer is obligated to release Vision64 from any obligations assumed for or on behalf of the customer. Vision64 is authorized to terminate obligations assumed for or on behalf of the customer.
§ 13 Exclusion of competition and joint advertising
An exclusion of competition is not possible. Joint and collective advertising is ruled out. Exceptions require individual verbal agreements.
§ 14 Joint advertising
The contracting parties are allowed to advertise their cooperation. All advertising efforts must be approved in advance by the respective contracting parties in writing, per fax, or by Email.
§ 15 Documentation, proof clause and burden of proof
1. Data which is stored in electronic indexes or otherwise in electronic form at Vision64 is considered to be legitimate proof of data transmission, page ranking, contracts, and the transaction of payments between the parties.
Within the framework of search engine optimization, Vision64 documents the final rank of an invoice period in accordance with § 5 No. 3 Phrase 2 using an automatic software controlled data retrieval application (“SiteRanks”-Application). Data that is read-out using this method is furnished with a time stamp and stored as read only files in an index archive and submitted to the customer in readable form along with the performance based invoice statement. This bookkeeping method is accepted by the customer as a mandatory basis for the invoice statement. Objections will not be considered unless they are received in writing and within one week of the invoice date.
2. If the customer claims identity misuse in violation of the contractual agreement then he must immediately provide Vision64 with all facts and circumstantial evidence supporting this claim. If this obligation has been violated and if there is sufficient circumstantial evidence to warrant action by the customer and not by a third party then the customer has the burden to prove that an actual case of identity misuse exists.
§ 16 Confidentiality
Vision64 and the customer are both obligated to treat all business and trade secrets of the other party confidentially for an unlimited period of time and not pass them to third persons or utilize them for commercial purposes. The documents, drawings and other information obtained by either party during the course of the business relationship may only be used by the respective contracting party for the purpose of performing the contract.
§ 17. Data Protection Act
1. Vision64 is allowed to collect, process, and use the stored data, invoicing data, and the usage data of the customer to the extent required and for the purpose of performing the contract without having to obtain the express consent of the customer in advance.
2. Vision64 is allowed to process, utilize, and pass on to third parties the stored data for other purposes (e.g. consulting, advertising, market research) only with prior consent of the customer or in cases where allowed by law.
3. The customer has been informed that for contractual purposes Vision64 collects, stores, and processes the customer’s data in machine readable form.
4. The customer has the right to request, free of charge and at any time, information with regard to the storage of his personal data. The information must also be supplied in electronic form if so requested by the customer.
5. The customer has the right to demand the revision, blocking, and deletion of his customer data in accordance with statutory provisions.
6. Vision64 implements appropriate technical and organizational measures to guarantee that unauthorized third parties are not able to examine or access the data stored “internally.”
§ 18 Miscellaneous
1. Should individual provisions of these general terms and conditions be invalid, this shall have no effect on the validity of the remaining provisions. Such provisions which may be deemed unenforceable or invalid shall be replaced by those provisions that come closest to the intended purpose of the contract.
2. No ancillary verbal agreements have been made. Amendments to the contract are only effective if they are confirmed in writing. This also applies to the cancellation of this clause.
3. The customer may only assign rights from a business relationship with Vision64 after obtaining express written permission of Vision64. An offsetting of accounts by the customer is only authorized for counterclaims that have been allowed or deemed legally valid.
4. The business relationship between the contracting parties shall be subject exclusively to the laws of the Federal Republic of Germany. References made to foreign legal systems will not be considered valid.
5. The place of performance for all deliveries and services is the address stipulated in the contract or the business address of Vision64 in cases of doubt. The place for performance of payment is the point of payment stated on the invoice. Jurisdiction for both parties is, to the extent permissible under law, the business address of Vision64.