§ 1: Scope and Applicability
- The services provided by Hurra™ are exclusively for businesses. These services are subject to the following terms and conditions in the version valid at the time of the order. These terms and conditions also apply to future transactions with the customer.
- Changes to the terms and conditions will be communicated in writing to the customer, highlighting the amended provisions, in the case of ongoing contractual relationships, and are deemed agreed if the customer continues the ongoing contractual relationship without objecting within a reasonable period.
§ 2: Formation of the Contract
- The offers made by Hurra™ are non-binding.
- If Hurra™ submits an "offer" to the customer using a form, this constitutes a binding offer to conclude a service contract without requiring a signature, unless another type of contract is expressly indicated. The customer accepts the offer by returning the signed form. In all other cases, the customer's written or telephone order constitutes a binding offer to conclude a service contract for the ordered services. A contract is formed when Hurra™ sends the customer an order confirmation in writing or text form after reviewing the customer's information, or when Hurra™ executes the order by creating and making the ordered content available online. Hurra™ may accept the customer's telephone offers over the phone.
- To simplify additional and amendment orders, Hurra™ may also send the customer a standard order form. The customer can then notify Hurra™ of any desired changes via email during the ongoing month. The email must be sent to the customer's personal contact at Hurra™ and cc'd to firstname.lastname@example.org. The change becomes valid once the customer has received a confirmation in writing or text form from Hurra™. Otherwise, the original agreement remains in effect.
- Telephone additional orders require confirmation by Hurra™ in writing or text form or by telephone declaration.
§ 3: Services Provided by Hurra™
The services offered by Hurra™ include, in particular, the services listed below. However, Hurra™ is entitled to provide additional services within the agreed budget, which serve the purpose of the contract, at its dutiful discretion and based on the agreed prices of Hurra™.
Hurra™ offers the following services, among others:
- Amazon AMS und SEO
- Google Shopping & PLA
- Social Media Marketing
- Retargeting und Online Display Advertising
- Affiliate Marketing
- Addressable & Programmatic TV
- TV-Sync Campaigns
- Programmatic Video Advertising & Video Retargeting
§ 4: Customer Obligations
The customer shall provide necessary cooperation. The following services are not exhaustive:
- Tracking Tool: The customer integrates the tracking tool provided by Hurra™ according to Hurra™'s instructions into the customer's website and makes the Shop Sales (orders) available for review of deviations. If deviations are higher than 10% compared to the Shop System or Google Analytics, an appropriate adjustment will be made.
- The customer refrains from using or allowing the use of software, files (e.g., robots.txt), settings, or search engine optimization techniques (e.g., using subdirectories) that prevent or hinder search engine crawlers' access or that may impair the results of Hurra™'s contractual services.
- In case of a violation of the obligations regulated in §4 points 1 or 2, Hurra™ is entitled to claim lump-sum damages in the amount of the difference between the average remuneration in the last three months before the breach of duty and the remuneration after the breach of duty. The claim for damages under this provision exists as long as the remuneration does not reach the amount used as a basis for calculation. The customer is free to prove the occurrence of lesser damages.
Non-Solicitation of Employees:
The customer acknowledges that Hurra™'s services are provided based on business and technical know-how, embodied in Hurra™'s qualified employees (both salaried and freelance), who have been acquired through international recruitment and received subsequent training. To protect this know-how and the integrity of Hurra™'s business, the parties agree on a time-limited non-solicitation clause. The customer undertakes not to directly or indirectly solicit employees (salaried and freelance) of Hurra™ during and until six months after the termination of the respective contract. For each breach of the non-solicitation obligation in §4 point 4, the customer shall pay a contractual penalty equal to twice the gross annual salary (including bonuses, royalties) of the employee who is solicited by the customer in violation of the obligation according §4 point 4. The gross annual salary of the employee, as received in the year prior to the imposition of the contractual penalty, shall be the basis for calculating the contractual penalty.
§ 5: Price Adjustments
- Hurra™ is entitled to pass on cost increases that have occurred since the start of the contract for procurement or personnel deployment (wages and wage-related costs) by increasing the prices affected by this to the extent necessary to compensate for these changes to the customer.
- Hurra™ is also entitled to adjust the prices that generally apply to the customer.
- Price increases will be announced to the customer by Hurra™ in writing, in text form, or by phone and will become effective at the beginning of the month following the month after next.
- The customer has a special right of termination with a notice period of 1 month to the end of the month preceding the effectiveness of the price increase if the price increase amounts to more than 10% of the total remuneration in the billing period. The percentage increase results from the comparison of the total remuneration incurred for the last billing period with the total remuneration that would have been incurred if the price increase had already taken effect for this billing period.
§ 6: Remuneration
- The parties agree on monthly budgets. If the parties do not make a provision, the last agreed budget will continue.
- The parties may also agree on a separate remuneration for the services of Hurra™ (Service Fee). The remuneration can be agreed upon as a one-time or periodically due lump sum or as a commission.
- The remuneration agreed upon in the order/service contract includes an hourly amount calculated for each client. Once these hours have been provided, the customer will be informed by Hurra™ and can extend them if necessary, in writing or orally. The order is concluded as soon as Hurra™ has sent the customer an order confirmation in writing or text form or has declared it by phone.
- The customer makes a monthly minimum prepayment in the amount of the budget applicable for the following month. The prepayment is used for media purchasing. The prices published by the media company apply. Discounts, rebates, etc. remain with Hurra™. The agreed Service Fee is also due in advance, with periodic remuneration due at the end of the billing period for the following billing period, e.g., for monthly remuneration, for the following month.
- CPO remuneration can be agreed upon as a CPO lump sum or CPO commission. Here, the remuneration always takes place afterward (at the end of the month).
- Hurra™ is not obliged to purchase media if the prepayment made by the customer is insufficient. Hurra™ may exceed the budget for media purchasing by up to 10%.
- Media purchases exceeding the prepayment according to the above provision will be invoiced and, if possible, offset with the next prepayment. The customer makes a corresponding additional payment.
- Unused prepayments can be offset against later prepayments, minus any lump-sum remuneration.
- The customer receives a monthly statement. This is checked by the customer immediately, and any complaints must be made within 4 weeks.
- Refunds (Adjustment) from a search engine operator are only to be refunded to the customer if they exceed a total amount of EUR 250. Smaller amounts expire in favor of Hurra™. The purpose of this clause is to avoid accounting effort for small refunds in the mutual interest.
- If the parties agree on prepayments, they are due on the first of each month unless otherwise agreed.
- Hurra™ is entitled to the agreed remuneration for the services provided up to the end of the contract, even after the end of the contract. The customer may only deactivate the tracking tool after the end of the month following the termination of the contract.
- If a digital tax is charged by the publisher, these costs will be passed on.
Unless otherwise agreed, all prices are in EURO.
§ 7: Monthly Budget
- The client's budget request to Hurra™ is made one month in advance, i.e., the notifications are sent to the client's personal contact at Hurra™ via email and to Hurra™'s accounting department at email@example.com by the 1st of the preceding month. The client will use the standard form provided by Hurra™ via email. The parties may also agree on budget changes via phone.
- Each account has a separate budget.
- In addition to the monthly budget, an additional one-time or multi-month budget can be agreed upon in advance.
- The monthly budget invoice, together with the flat and variable service fee, is to be settled by the client in advance by the 1st of each month. Hurra™ will issue invoices at least 14 days before the due date of the amount.
- If no budget is invested in a month, the variable service fee will not be charged. If no budget is invested in a month, this month will not be considered for the duration at the end of which the account will be transferred to the client free of charge, nor within the notice period.
- Changes to the monthly budget:
The client can inform Hurra™ of a desired budget change during the current month via email. The change becomes valid once the client has received a confirmation email from Hurra™. The parties may also agree on budget changes via phone. An increase in the budget requires that the increased monthly budget has been received by Hurra™.
- Settlement after the end of each month:
After the end of the month, the actual budget consumed by individual accounts with search services will be offset against the set monthly budget. If a difference in favor of the client arises, the difference will be credited. The credits can be paid out by Hurra™ in the following month at the client's request or invested for the following months. No additional service fee is incurred for the use of credits in the following months.
§ 8: Payment Terms, Prepayment Obligation
- Invoices from Hurra™ are due immediately and without deductions.
- For bank transfers, timeliness depends on the arrival of funds with Hurra™.
- Hurra™ is entitled to offset payments against the oldest due invoice, even if the client specifies a different offsetting provision.
§ 9: Business Hours
Hurra™ performs activities during regular business hours from 9:00 AM to 5:00 PM, Monday through Friday, except on public holidays.
For services provided from Mon. – Fri. between 6:00 PM and 10:00 PM, and between 6:00 AM and 8:00 AM, as well as on Saturdays between 6:00 AM and 6:00 PM, 150% of the required time will be charged.
For services provided from Mon. – Fri. between 10:00 PM and 6:00 AM, as well as on Saturdays from 12:00 AM to 6:00 AM and from 6:00 PM to 12:00 AM, and on Sundays and public holidays, 200% of the required time will be charged.
§ 10: Termination/Termination Periods
The collaboration begins on the day of the first billing period. For agreements that have neither a term nor a different termination provision, either party may terminate within the first three months with a 30-day notice period to the end of the term. Subsequently, the contract automatically converts to an annual contract. If the contract is not terminated, it will automatically extend by another year. It can then be terminated with a three-month notice period to the end of the extended contract term. After a contract term of five years, the contract may be terminated with a six-month notice period to the end of the contract term.
The agreement may be terminated without notice for good cause. Important reasons for Hurra™ include, in particular:
- The client is in default of payment, in whole or in part, for more than 30 days.
- The client has violated the usage rights regulations.
- The client files for insolvency proceedings, the court orders provisional measures, or the insolvency proceedings are opened or rejected due to insufficient assets.
§ 11: Usage Rights
- The client is granted a simple, perpetual, non-transferable, and non-sublicensable license to use the software.
- The usage is limited to a single computer. For a network license, this usage right applies to the agreed individual seats within the contractually specified local network.
§ 12: Set-off and Retention Rights, Assignment, Partial Performance
- The client is entitled to set-off only with undisputed or legally established claims. The client may exercise retention rights only with undisputed or legally established claims from the same legal relationship.
- The assignment of claims against Hurra™ is excluded unless § 354a HGB (German Commercial Code) applies.
- Partial deliveries and partial services, as well as corresponding billing, are permissible if they are not unreasonable for the client.
§ 13: Risk of Performance Impairment
- If, after the conclusion of the contract, it becomes apparent that Hurra™'s claim to counter-service is jeopardized due to the customer's insufficient service capacity, the customer is obligated to make advance service, even in the absence of an otherwise required prepayment obligation, if Hurra™'s contractual obligation consists of a work service, or delivery of goods to be procured for the customer that cannot be otherwise readily disposed of (common goods).
- In other respects, § 321 of the German Civil Code (BGB) applies with the proviso that Hurra™ may also refuse its service if there is a risk to other claims arising from the same legal relationship within the meaning of § 273 BGB.
- If installment payments have been agreed upon, the entire remaining claim becomes due if the customer is in default with at least two consecutive installments, in whole or in part. Agreements to defer payment become void if the customer defaults on a service or if the prerequisites of § 321 BGB occur concerning a claim.
§ 14: Acceptance
- If acceptance is required by contract or law, the following provisions apply.
- Upon Hurra™'s request, partial acceptances must be performed for distinguishable service provisions that can be used independently or for service provisions upon which further services are based, provided that the service provisions to be accepted are separately verifiable. If all service provisions have been accepted, the last partial acceptance is also the final acceptance.
- Partial or final acceptance is deemed to be declared if the customer does not refuse acceptance in writing or text form, stating reasons within a further deadline set by Hurra™ in writing or by telephone, after delivery of the service and a reasonable examination period (acceptance fiction).
- If the performance requiring acceptance also includes the delivery of hardware or standard software, Hurra™ is entitled to charge the customer for this, regardless of whether the performance has been accepted.
§ 15: Confidentiality
Both parties are obliged to maintain confidentiality concerning all business and trade secrets of the other party and all non-public information about the other party that becomes known during the contract's execution.
§ 16: Claims for Defects
- If Hurra™'s performance is defective, Hurra™ has the right to remedy the defect. Multiple remedial attempts are permitted. If the remedial attempt fails or is refused, the customer may assert legal claims.
- The customer is obliged to immediately examine the performance provided by Hurra™ or samples provided by Hurra™ and to promptly report any defects. The same applies to the granting of access to the Bid Management Tool. Otherwise, the performance is deemed approved. After approval, the performance, including the visible results in search engines, must be regularly examined and any defects reported. Despite careful examination, non-obvious defects must be reported in writing or in text form within 14 days of their discovery.
- The customer is solely responsible for the content of their website and the content and designs provided by the customer. Unlawful content must not be made accessible by the customer. The same applies to content that leads to access restrictions, particularly under youth protection laws. Hurra™'s services do not include legal review or legal advice (e.g., trademark, copyright, data protection, or competition law) or fulfillment of the customer's legal information obligations (e.g., provider identification, privacy statement, consumer information for distance contracts, examination obligations for link placement, examination obligations for user content, obligations to comply with media regulations, particularly regulations for the protection of children and adolescents, etc.) unless expressly agreed upon. If Hurra™ provides the customer with legal documents and information (e.g., privacy notices or legal opinions), this does not constitute legal advice from Hurra™. If the customer wishes for an individual review or confirmation of the documents for their own company, Hurra™ recommends seeking individual legal advice. Hurra™ may require the customer's approval for measures in cases of legitimate doubts about their legal permissibility and may postpone the implementation of such measures.
- Hurra™ is entitled to temporarily block access to the customer's website until the completion of a legal review if there are indications of a violation of the aforementioned obligations or if the media company, third parties, or authorities raise non-obviously unfounded complaints against the content. The customer should be consulted beforehand if possible.
§ 17: Limitation of Liability: Claims for Damages
- Limitation of Liability in Principle
The client may assert claims for damages or claims for reimbursement of futile expenses against Hurra™ solely in the following cases:
a. Damages arising from a minimum of negligent breach of duty resulting in harm to life, body, or health;
b. Other damages arising from a minimum of grossly negligent breach of duty or from a minimum of negligent breach of essential contractual obligations (cardinal obligations);
c. Damages covered under the protection scope of a warranty issued by Hurra™ (guarantee, § 276 para. 1 BGB) or a quality or durability guarantee (§ 443 BGB).
- Limitation of Liability in Amount
Hurra™'s liability for simple negligence or grossly negligent conduct of their vicarious agents who are not statutory representatives or executive employees (simple vicarious agents) is limited to the damage typically expected at the time of the conclusion of the contract and, in the case of claims for reimbursement of futile expenses, to the amount of the interest in performance.
- Liability for Pre-Contractual Obligations and Business Contacts
§17 clauses 1 and 2 also apply to the client's claims for damages resulting from obligations arising from the initiation of contract negotiations, the establishment of a contract, or similar business contacts. If a contract is concluded between Hurra™ and the client, the client hereby waives all claims exceeding the liability under this clause.
- Tortious Claims
This clause also applies to the client's tortious claims.
- Claims from Transferred Rights
All of the client's claims from transferred rights are excluded, which exceed the liability under §17.
- Limitation of Liability in Favor of Third Parties
Insofar as liability under this §17 excluded or limited, this also applies to the personal liability of Hurra™, their employees, representatives, and vicarious agents.
- Indemnification from Third-Party ClaimsThe client indemnifies Hurra™ from all claims of their vicarious agents or other third parties employed by them, which exceed the liability under this paragraph, including claims arising from pre-contractual obligations and business contacts.
§ 18: Limitation Period
The limitation period for claims for defects that are not excluded by these conditions is governed by the following provisions:
- The statutory limitation period applies to claims for damages due to defects and claims arising from tortious acts. All other claims of the client due to defects, in particular for subsequent performance, reimbursement of expenses in case of self-remedy, withdrawal, reduction, and reimbursement of futile expenses, become time-barred within one year.
- Claims for the issuance of statements of account, claims for information about the underlying transactions with media companies and advertising measures, as well as claims for repayment or reimbursement of client services are excluded if they are not asserted within one year after the end of the respective accounting month. The parties acknowledge the complexity and high number of business transactions, the interest in promptly clarifying any disputes, and the difficulties in clarifying and proving after a long period.
- A suspension of the limitation period for the client's claims during negotiations occurs only if Hurra™ has entered into negotiations in writing. The suspension ends three months after Hurra™'s last written statement.
§ 19: Data Protection
In cases where Hurra™ lawfully employs third parties (subcontractors) for the provision of its services, the following provisions apply:
- The parties acknowledge that the client is the "controller" as defined in Article 4(7) of Regulation (EU) 2016/679 of the European Parliament and the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (hereinafter: GDPR).
- If personal data is collected and processed by commissioned third parties during the provision of these services, it is the client's responsibility to inform the affected individuals and, if necessary, obtain the required consents in accordance with the requirements and principles of Article 7 GDPR.
- The client shall ensure that the third parties enter into the appropriate confidentiality and data protection obligations in a timely manner, unless the subsequent provisions apply. The client is aware that third parties may impose conditions for agreements involving rights and obligations concerning joint processing (Article 26 GDPR) or data processing (Article 28 GDPR) and may be subject to foreign law. Hurra™ is not obliged to legally review these agreements or conditions. With this knowledge, the client agrees that Hurra™ concludes such agreements with third parties on its own behalf based on the conditions provided by the third parties. However, Hurra™ is not obliged to conclude such agreements. In the internal relationship between Hurra™ and the client, the rights and obligations arising from such agreements apply to the client, who indemnifies Hurra™ from all obligations resulting from them. Upon request, Hurra™ shall provide the client with the conditions in their entirety free of charge, which may also occur by indicating a source of the text on the internet. The client may object to the conclusion of such agreements in advance, generally, for specific types of agreements or for specific third parties, or make it conditional upon their consent.
§ 20: Applicable Law, Jurisdiction
The law of the Federal Republic of Germany applies. For all disputes arising from the contract, in relation to merchants, the court with jurisdiction for Hurra™'s headquarters shall have exclusive jurisdiction.
§ 21: Severability Clause
If any provision in these terms and conditions or a provision within other agreements is found to be invalid, the validity of all other provisions or agreements shall not be affected. In the case of other provisions agreed between the parties, they are obliged to replace the invalid provisions with valid provisions that most closely approximate the intended purpose of the invalid provisions.
Version 2.6 – 31.03.2023