General Terms and Conditions

Table of contents

1. Scope and definitions
2. Agency services
3. Formation of the contract
4. Service delivery and collaboration
5. Changes to services (change requests)
6. Client cooperation obligations
7. Fees and payments
8. Contract term and termination of ongoing contractual relationships
9. Rights to use deliverables
10. Confidentiality and data protection
11. Exclusivity and non-compete obligations
12. Liability for defects (warranty)
13. Liability
14. Applicable law and jurisdiction
15. Final provisions

1) Scope and definitions

1.1 These General Terms and Conditions (hereinafter “Terms”) of Consuelo Di Carlo, trading as “Futuracle” (hereinafter “Agency”), apply to all contracts concluded between a business customer (hereinafter “Client”) and the Agency concerning the services described by the Agency on its website or in other media. The inclusion of the Client’s own terms and conditions is expressly rejected unless otherwise agreed.

1.2 A business customer within the meaning of these Terms is a natural or legal person or a partnership with legal capacity that, when entering into a legal transaction, acts in the exercise of its commercial or independent professional activity.

2) Agency services

2.1 The purpose of the collaboration between the Client and the Agency is to optimize and, where appropriate, expand the market presence of the Client’s business and/or its products.

2.2 Within the scope of the services specifically agreed in the contract, the Agency provides comprehensive communication and marketing services for the Client, including, where applicable, consulting, planning, concept development, and implementation.

2.3 Depending on the specific agreement between the parties, the Agency’s contractual services may include, in particular, the following areas:
– Consulting on digital visibility and brand positioning
– Development and implementation of marketing, branding, and communication strategies
– Concept development, planning, and implementation of marketing and advertising campaigns
– Monitoring, reporting, and performance evaluation of the marketing tools used
– Management and strategic development of social media channels
– Content creation services, such as the creation of text, images, videos, posts, reels, stories, and other content
– Search engine optimization (SEO) and AI optimization (AIO)
– Placement of advertisements, such as banners

2.4 The parties specify the precise content, objectives, and schedules in a separate project plan or other document.

3) Formation of the contract

The Client may submit a non-binding request for a quotation to the Agency by telephone, fax, email, letter, or through the online contact form provided on the Agency’s website.

In response to the Client’s request, the Agency sends the Client a binding offer by email, fax, or letter for the provision of the service previously selected by the Client.

The Client may accept this offer within seven (7) days of receipt by submitting a declaration of acceptance to the Agency by fax, email, or letter, or by paying the fee specified in the Agency’s offer. The day on which the offer is received is not included when calculating this period. For acceptance by payment, the date on which the Agency receives payment is decisive. If the final day of the acceptance period falls on a Saturday, Sunday, or officially recognized public holiday at the Client’s place of business, the next working day replaces that day. If the Client does not accept the Agency’s offer within this period, the Agency is no longer bound by its offer. The Agency will specifically draw the Client’s attention to this again in its offer.

4) Service delivery and collaboration

4.1 The Agency provides its services online and/or at the Client’s premises in accordance with the contractual agreement. The scope of the specific service is set out in the Agency’s offer.

4.2 The Agency may refuse to enter into a contract with the Client or to provide services for the Client if performing the contract or providing the services would violate statutory or regulatory requirements, or if doing so would otherwise be unreasonable for the Agency, for example because it would conflict with the principle of ideological, political, or religious neutrality, or because of the Client’s insolvency, even if only temporary.

4.3 The Agency provides its contractual services in accordance with the agreed requirements or, unless otherwise agreed, in accordance with the principles of proper professional practice. Unless otherwise stated in the Agency’s offer, the Agency does not undertake to achieve any specific outcome. In particular, the Agency does not guarantee that the Client will achieve a particular result or objective. Such outcomes also depend, among other things, on the Client’s personal commitment and willingness, over which the Agency has no influence.

4.4 The Agency and the Client consult with each other at reasonable intervals regarding the performance of the commissioned services. If there are deviations from the agreed services or procedures, the parties notify each other without undue delay.

4.5 Unless continuous service delivery has been agreed, the Client requests individual services by placing an order in text form, for example by email. The Agency undertakes to send an order confirmation specifying the scope of services, implementation schedule, and any additional costs within three (3) working days of the request. Services are considered bindingly commissioned only once the Client has approved them in at least text form.

4.6 Dates and deadlines are binding only if expressly designated as such. Otherwise, they are target dates that may be adjusted on an ongoing basis during the collaboration. Once a reasonable period has elapsed after a target date, the Client may require the Agency, in at least text form and setting a reasonable deadline, to provide any outstanding services. The Client’s claim for performance becomes due upon expiry of that deadline.

4.7 The Client is solely responsible for ensuring that the content or other information on its online presences, as well as any content or other information it supplies or approves, is legally permissible. The Agency is not required to conduct or arrange a legal review of its deliverables, particularly with regard to competition law, trademark law, personality rights, or copyright law, and does not conduct such a review. This expressly also applies to trademark searches and assessments, including those concerning potential trademark infringements.

4.8 Within the scope of its contractual services, the Agency posts, distributes, and publishes content and other information on the online presences of the Client and any third parties, such as social media channels and websites, only after the Client has approved the respective content, unless otherwise agreed. Unless otherwise agreed, the Client must approve content and other information within three (3) working days of being requested to do so, by a declaration made in at least text form. After this period has expired, the service is deemed approved unless the Client refuses approval within that period.

4.9 The Agency uses suitably qualified personnel to provide the commissioned services. The Agency selects the personnel assigned to individual contractual services at its reasonable discretion. In particular, the Agency reserves the right to replace assigned personnel with other personnel with suitable qualifications for good cause or another justified reason. The Agency may also engage third parties acting on its behalf as subcontractors. In that case, the Agency remains the Client’s sole contractual partner and remains responsible for proper service delivery. The Agency ensures that any subcontractors are bound by confidentiality obligations and, where necessary, appropriate data protection obligations. Unless otherwise stated in the Agency’s offer, the Client has no right to select a particular person to perform the requested services.

4.10 The Agency’s employees or other personnel are not integrated into the Client’s business and do not enter into an employment relationship with the Client.

5) Changes to services (change requests)

5.1 Either party may propose changes to the agreed services at any time. The Agency reviews the Client’s change requests within a reasonable period and submits an offer for implementing the changes, specifying, in particular, their scope, timing, costs, and impact on the schedule.

5.2 Changes to services are considered agreed only once both parties have confirmed them in at least text form, for example by email. The original contract or order remains unchanged until the changes have been accepted.

5.3 If a Client’s change request results in substantial additional work, the Agency may request an adjustment to the agreed fees and schedule.

6) Client cooperation obligations

6.1 The Client must provide the Agency, free of charge, with all information, documents, approvals, access credentials, and access to decision-makers required to perform the contractual services, completely, truthfully, and in a timely manner, unless obtaining these falls within the Agency’s responsibilities under the contract.

6.2 In particular, upon request, the Client provides the Agency with suitable access to its social media accounts, websites, analytics tools, and other services and electronic platforms insofar as this is necessary to perform the contractual services. Where applicable, this also includes granting administrator rights or creating user accounts with sufficient permissions.

6.3 The Client warrants that the documents, such as templates, samples, and supporting materials, content, and other information it provides for the performance of the contractual services are free from third-party rights that would prevent lawful performance of those services. The Client indemnifies the Agency against all third-party claims and the reasonable costs of related legal proceedings or legal defense, particularly those arising under competition, copyright, and trademark law.

6.4 The Client is solely responsible for ensuring that user data on its online presences is collected, stored, and processed in accordance with applicable requirements, particularly data protection requirements under the EU General Data Protection Regulation (GDPR). This includes, in particular, obtaining any necessary consent from users of its online presences and providing them with information in a GDPR-compliant privacy policy. The Client indemnifies the Agency against all related third-party claims and the reasonable costs of associated legal proceedings or legal defense.

6.5 Where an assessment at the Client’s premises has been agreed under the specific contract, the Client grants the Agency access to the physical or digital facilities to be assessed and, where applicable, makes suitable specialist personnel selected by the Client available to the Agency insofar as this is necessary to perform the contractual services.

6.6 If the Client plans to redesign or restructure its online presences, such as social media channels or websites, it informs the Agency in advance and coordinates implementation with the Agency.

6.7 Where formal acceptance of an Agency service is required in an individual case, the Client must accept the service within eight (8) working days of being requested to do so, by making a declaration in at least text form or performing any other cooperation required for acceptance. After this period has expired, the service is deemed accepted unless the Client has notified the Agency of defects in the service in at least text form within that period. The Client may not refuse acceptance because of minor defects. If the Client makes substantial use of the service without prior acceptance, acceptance is deemed to have taken place when the service is used.

6.8 If the Client fails to fulfill its cooperation obligations, this may affect deadlines, services, and quality. In that case, the Agency is not responsible for any resulting delays or quality defects. Any additional work incurred by the Agency in such circumstances is charged to the Client in accordance with the agreed payment terms, such as the agreed hourly rate.

7) Fees and payments

7.1 Unless otherwise stated in the Agency’s offer, the stated prices are total prices inclusive of statutory value-added tax.

7.2 The Client must pay the agreed fees to the Agency by the applicable due date. Depending on the parties’ agreement, fees are charged as a monthly flat fee in the agreed amount, on the basis of actual time spent at an hourly rate, or otherwise as agreed between the parties.

7.3 Special or additional services provided by the Agency that are not included in the originally agreed services require prior commissioning by the Client in at least text form and are charged separately.

7.4 The Client must reimburse expenses and other incidental costs necessarily incurred by the Agency in performing this contract, provided that these have been agreed with the Client in advance.

7.5 Unless otherwise stated in the Agency’s offer, travel costs, accommodation, and meals associated with services provided on-site, together with other expenses and incidental costs, are not included in the Agency’s fees. These costs must be borne by the Client on the basis of actual expenditure and supporting documentation, provided that the Client has approved them in advance.

7.6 Following prior agreement with the Client, the Agency may purchase third-party services required to perform this contract in the Client’s name and at the Client’s expense. This applies in particular, but not exclusively, to the acquisition of licenses or rights to use images, graphics, text, software, or other protected materials. The Client undertakes to grant the Agency the necessary authorization and hereby grants that authorization. Where such third-party services are purchased, the Client undertakes, as between the Client and the Agency, to indemnify the Agency against all payment claims arising from contracts concluded with the respective third-party providers. The Agency may invoice these costs as soon as it has itself been invoiced by the third party.

7.7 The available payment methods are communicated to the Client in the Agency’s offer.

7.8 Where payment by invoice has been agreed, payment is due without deduction fourteen (14) days after receipt of the invoice, unless otherwise agreed.

7.9 Where advance payment by bank transfer has been agreed, payment is due immediately upon conclusion of the contract unless the parties have agreed on a later due date.

7.10 Statutory provisions apply in the event of late payment.

8) Contract term and termination of ongoing contractual relationships

8.1 The contract is concluded for an indefinite period and may be terminated by the Client with effect from the end of any month.

8.2 The Agency’s and the Client’s right to terminate the contract for good cause remains unaffected. Good cause exists if, taking into account all circumstances of the individual case and weighing both parties’ interests, the terminating party cannot reasonably be expected to continue the contractual relationship until the agreed end date or the expiry of a notice period.

8.3 Notice of termination may be given in writing or in text form, for example by email.

9) Rights to use deliverables

9.1 Unless otherwise agreed or indicated by the circumstances, the Agency holds all rights of use and exploitation in the deliverables and work products it creates under the contract with the Client, and in the content and information used and provided, including concepts, preliminary drafts, drafts, layouts, designs, text, graphics, videos, or other materials (hereinafter “Content”) that may be provided to the Client or used for the Client, in any form, in connection with the Agency’s services.

9.2 Unless otherwise agreed, the Agency grants the Client a non-exclusive, non-transferable right to use and exploit the Content for the agreed purpose and to the agreed extent. These rights are granted without territorial or time limitations for the agreed use, exploitation, and purpose.

9.3 The Client may use and exploit Content provided by the Agency in connection with its services only to the extent agreed or required by the purpose of the contract. Without the Agency’s separate consent, the Client is not otherwise entitled, in particular, to edit, modify, imitate, reproduce, distribute, or make the Content publicly available, in whole or in part, or to transfer or grant third parties rights of use or exploitation in the Content, in whole or in part.

9.4 The Agency may use the Content for its own promotional purposes and as a reference unless expressly excluded.

10) Confidentiality and data protection

10.1 The Agency treats information obtained about the Client in the course of providing its services as confidential, particularly information concerning private or business matters, and does not disclose it to third parties unless this is necessary to fulfill its own contractual obligations toward the Client.

10.2 Insofar as the Agency processes personal data on behalf of the Client in performing the contract, the parties additionally conclude a separate data processing agreement pursuant to Article 28 of the EU General Data Protection Regulation (GDPR) and, where applicable, other data protection agreements, insofar as these are required under data protection law.

11) Exclusivity and non-compete obligations

11.1 Unless otherwise agreed between the parties, the Agency will not provide services to the Client’s direct competitors during the term of the contract without the Client’s prior express consent, insofar as those competitors compete directly with the Client.

11.2 A competitor within the meaning of this provision is a business that offers products or services comparable to those of the Client and targets the same audience.

11.3 Upon request, the Agency discloses to the Client the other clients for whom it works insofar as this is necessary to assess a potential competitive relationship.

11.4 If the Agency culpably breaches this provision, the Client may terminate the contract for good cause with immediate effect.

12) Liability for defects (warranty)

12.1 Where the Agency provides design services for the Client, it is entitled to artistic and creative freedom.

12.2 Complaints concerning the Agency’s creative freedom do not constitute a defect in the Agency’s services insofar as those services remain within the agreed scope and the exercise of such freedom is customary for services of that kind.

12.3 The Agency’s services are deemed approved insofar as the Client has approved them or they are deemed to have been approved.

12.4 Defects must be reported to the Agency without undue delay, together with a description of the defect.

12.5 In all other respects, the statutory provisions governing liability for defects apply.

13) Liability

13.1 The Agency is not liable for damage caused by disruption to its operations resulting from force majeure, civil unrest, war, natural events, or other circumstances for which the Agency is not responsible, such as strikes, lockouts, transportation disruptions, or orders issued by public authorities in Germany or abroad, or resulting from technical problems not caused by the Agency’s fault. This also applies where such disruptions occur at third parties engaged by the Agency.

13.2 In all other respects, the Agency’s liability toward the Client for damages and reimbursement of expenses arising from contractual, quasi-contractual, and statutory claims, including claims in tort, is governed by the following provisions:

13.3 The Agency is liable without limitation, irrespective of the legal grounds:
– In cases of intent or gross negligence
– In cases of intentional or negligent injury to life, body, or health
– Under a guarantee, unless otherwise provided in relation to that guarantee
– Where liability is mandatory, such as under the German Product Liability Act

13.4 If the Agency negligently breaches a material contractual obligation, its liability is limited to foreseeable damage typical of the contract, unless liability is unlimited under the preceding clause. Material contractual obligations are obligations imposed on the Agency by the content of the contract to achieve its purpose, whose fulfillment makes proper performance of the contract possible in the first place and on whose observance the Client may ordinarily rely.

13.5 In all other respects, the Agency’s liability is excluded.

13.6 The preceding liability provisions also apply to the Agency’s liability for persons engaged to perform its obligations and for its legal representatives.

13.7 The Agency assumes no liability for services provided by third parties that are not engaged to perform the Agency’s obligations, such as hosting providers, social networks, or platforms.

14) Applicable law and jurisdiction

14.1 The law of the Federal Republic of Germany applies to all legal relationships between the parties.

14.2 If the Client is a merchant, a legal entity under public law, or a special fund under public law with its registered office within the territory of the Federal Republic of Germany, the Agency’s place of business is the exclusive place of jurisdiction for all disputes arising from this contract. If the Client has its registered office outside the territory of the Federal Republic of Germany, the Agency’s place of business is the exclusive place of jurisdiction for all disputes arising from this contract if the contract or claims arising from it can be attributed to the Client’s professional or commercial activity. In the preceding cases, however, the Agency is also entitled to bring proceedings before the court at the Client’s registered office.

15) Final provisions

15.1 Amendments and additions to the contract concluded between the parties must be made in at least text form. This also applies to any waiver of this clause.

15.2 If any provision of the contract between the parties is invalid or unenforceable, the validity of the remaining provisions of the contract remains unaffected.