Terms of Use

1. Scope of Application
These General Terms and Conditions (“GTC”) shall apply exclusively to the entire business relationship (offers, deliveries, and services), including all future transactions, between xy GmbH (hereinafter referred to as “VIVALU”) and the customer, in the version valid at the time the contract is concluded.
Any deviating, conflicting, or supplementary terms and conditions of the customer shall not become part of the contract unless VIVALU has expressly agreed to their applicability in writing. This shall also apply if VIVALU performs services without reservation in knowledge of conflicting or deviating terms of the customer.

2. Conclusion of Contract and Subject Matter
VIVALU is an independent agency focusing on a holistic approach to digital advertising. The agency’s work is based on the four core elements Programmatic | Data | Media | Creation and their interaction. The flexible and transparent use of technologies, holistic media strategies, and corresponding creative solutions is individually tailored to each client and continuously developed further. The objective is to develop innovative, future-oriented control and optimization logics in order to significantly increase the marketing success of clients through revolutionary and customized campaigns.
Unless otherwise agreed, offers made by VIVALU are non-binding.
The type and scope of VIVALU’s services shall primarily be governed by the individual contractual agreements set out in separate contracts and cost estimates, and otherwise by these GTC.
Individual orders shall only become effective if accepted in writing by the customer through countersignature.

The subject matter of the contract shall be the services described in the respective offer issued by VIVALU. Where the offer contains individual contractual provisions, in particular regarding the scope of services, prices, and payment terms, such provisions shall prevail over these GTC.

3. Changes to Services
If the customer requests changes to the services, scope of services, or contract duration, the customer shall submit a written request (including by email) to VIVALU.

VIVALU shall review the impact of the requested changes, in particular with regard to scope of services, deadlines, contract duration, or remuneration, and shall inform the customer of such effects, if applicable, by means of an amended offer.

Section 2 shall apply accordingly to the conclusion of an amendment agreement.
Unless otherwise agreed, changes shall only become effective for the future upon written confirmation by VIVALU.

4. Media Budgets
Due to external influences, exact compliance with agreed budget limits cannot always be guaranteed. The agreed media budget may therefore be exceeded or undercut by up to 5%.

Volumes offered in connection with media services, such as ad impressions and clicks, are based on experience values and may not be fully deliverable by marketers or publishers within the planned campaign period. In such cases, VIVALU shall be entitled to extend the campaign period until the booked volumes are achieved and, where necessary, to use comparable placements if the originally booked placement is no longer available at the end of the original campaign period.

Specified target values such as Cost-per-Mille (CPM), Return-on-Ad-Spend (ROAS), Cost-per-Order (CPO), Cost-per-Lead (CPL), or Cost-per-Click (CPC) may be subject to price fluctuations due to programmatic bidding processes or seasonal variations and therefore cannot be guaranteed.

5. Obligations of the Customer
The customer shall design its online offering in compliance with applicable laws, in particular consumer protection and data protection regulations.

The online offering shall not contain violent depictions, sexually explicit or pornographic content, or discriminatory statements or depictions relating to race, gender, religion, nationality, disability, sexual orientation, or age, nor shall it link to such content.

The customer undertakes to design its website in a manner that does not infringe industrial property rights or intellectual property rights of third parties.
The customer is free to enter into contracts for advertising services with other agencies or third parties and is not obliged to commission VIVALU exclusively.
The customer guarantees the availability of the systems operated by it that are required for contract fulfillment. In the event of a system failure affecting contractual performance, the customer shall notify VIVALU without undue delay.

Until the system is restored or a new billing model is agreed, VIVALU shall be entitled, at its discretion, to remuneration amounting to 10% of the campaign budget spent, or the remuneration that would have been calculated based on the average transactions measured during a comparable period.

VIVALU is entitled, but not obliged, to edit and adapt content to achieve optimal advertising use.

6. Customer’s Duty to Cooperate
Proper performance of VIVALU’s services requires cooperative collaboration with the customer. The customer shall therefore provide all necessary information, documents, and required access rights in a timely manner.

If the customer fails to comply with its cooperation obligations despite a request, VIVALU shall be released from its obligation to perform. If VIVALU nevertheless performs, it shall invoice the additional effort incurred.

The customer shall inform VIVALU without request and without delay of any circumstances relevant to the provision of services that VIVALU may not be aware of. This applies in particular if advertising measures must be discontinued or modified due to legal requirements or third-party rights.

The customer shall implement changes to its websites or services suggested by VIVALU in a timely manner, provided such changes are necessary for proper performance and do not conflict with the customer’s legitimate interests.

VIVALU is entitled to suspend campaigns if third parties assert injunctive claims against VIVALU due to the content used or if it subsequently becomes apparent that content violates Section 7.4.

7. Third-Party Services
In accordance with individual contractual agreements, VIVALU may use or broker third-party services (e.g. Facebook).
To the extent necessary to achieve the contractual purpose, VIVALU shall transmit customer data and information to such third parties. The customer hereby expressly consents to this.

The contractual terms of third-party providers may apply. If changes in such terms, scope of services, or early termination by the third party affect VIVALU’s services, VIVALU shall inform the customer as early as possible. The parties shall then agree on an adjustment that most closely reflects the originally intended economic objective.
VIVALU does not warrant uninterrupted, error-free, or secure availability of third-party services.
Unless expressly agreed otherwise, VIVALU has no obligation to monitor third-party providers, in particular to review publisher websites for unlawful content.

8. Campaign Interruption and Indemnification
VIVALU is entitled to interrupt campaigns with immediate effect for justified reasons, such as overdue invoices exceeding twice the payment period.
Campaigns may be temporarily paused for technical adjustments or deployments.
Complete campaign interruption by the customer without a contractually agreed opt-out requires VIVALU’s explicit consent.

9. Copyright, Trademark, and Other Intellectual Property Rights
Subject to full payment, VIVALU grants the customer the agreed usage rights to contractual services. Rights for customer-specific services are granted exclusively; otherwise non-exclusively, unlimited in content, territory, and time.

No usage rights are granted to drafts, pitch materials, concept presentations, briefings, or idea sketches.
Rejected or unused drafts remain the property of VIVALU.

VIVALU grants all transferable rights—including copyright, trademark, and name rights—free of third-party rights, for unlimited use across all known and future media. This includes reproduction, distribution, broadcasting, digital and online use, and sublicensing.

Where third parties are involved, VIVALU shall acquire and transfer their rights accordingly.
GEMA fees, artists’ social insurance contributions, and customs duties shall be invoiced separately.
VIVALU shall not reuse ideas or designs created under this contract for other clients.
VIVALU may use the customer’s name and logo for reference and marketing purposes unless otherwise agreed.

10. Remuneration and Payment Terms
Remuneration is based on individual contractual agreements and is subject to statutory VAT.
Invoices are payable within 14 days, unless otherwise agreed. Invoicing may be electronic.
For orders exceeding EUR 20,000, VIVALU may invoice 30% upon order placement, with further installments aligned to milestones.
Late payments are subject to statutory interest (currently 8.12% p.a.) and a reminder fee of EUR 40.
Collection and enforcement costs shall be borne by the customer.

11. Liability
11.1 Liability of VIVALU
VIVALU is liable without limitation for intent and gross negligence. For slight negligence, liability is limited to breaches of essential contractual obligations and foreseeable damages.
These limitations do not apply to personal injury or liability under the Product Liability Act.
VIVALU indemnifies the customer against third-party claims arising from content created by VIVALU.

11.2 Liability of the Customer
The customer indemnifies VIVALU against third-party claims arising from customer-provided content, including legal defense costs.

12. Contract Term and Termination
The agreed contract term applies. Ordinary termination during the term is excluded.

If no term is specified, either party may terminate with three months’ notice to the end of a month.
Termination for cause remains unaffected.
Termination must be in text form (email or fax sufficient).

13. Data Protection
Applicable data protection laws shall be observed, in particular the EU GDPR. Data shall be processed exclusively within the contractual framework.
The customer remains the data owner at all times.

14. Assignment and Set-Off
Assignment of customer rights is excluded. Set-off is permitted only with undisputed or legally established claims.

15. Amendments to the Terms and Conditions
VIVALU may amend these GTC at any time. Amendments shall be notified in writing.
If the customer does not object within two weeks, the amendments shall be deemed accepted.

16. Final Provisions
German law shall apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
Place of performance and jurisdiction is Düsseldorf, provided the customer is a merchant.
Invalid provisions shall not affect the validity of the remaining provisions.