Allgemeine Geschäftsbedingungen Kreativleistungen
‍der ODESEA Digital Creative UG (haftungsbeschränkt)
Warschauer Str. 59A
10243 Berlin

1. APPLICABILITY  

(1) These General Terms and Conditions (“GTC”) apply to the services of ODESEA Digital Creative UG  (haftungsbeschränkt) (hereinafter also referred to as “ODESEA”), which are provided for the commissioning  company (hereinafter referred to as the “Customer”). In the following, ODESEA and the Customer shall each  be referred to individually as the Party and jointly as the Parties.

(2) As soon as the Customer accepts the offer from ODESEA or signs or accepts the agency agreement, the  Customer shall commission ODESEA with the provision of the services specified in the agency agreement or  in the offer or in “Binding Agreements” (joint agreement on the adjustment, supplementation or amendment  of the provision of services at least in text form - e-mail is sufficient) under the conditions specified therein  and in these GTC (hereinafter also referred to collectively as “Order”).

(3) ODESEA addresses these GTC and the services to be provided exclusively to entrepreneurs within the meaning  of § 14 BGB (German Civil Code) as well as legal entities under public law and special funds under public law,  but not to consumers (§ 13 BGB).

(4) The Customer's terms and conditions of business shall not apply, even if their validity is not expressly  contradicted in individual cases.

(5) The basis of the business relationship between ODESEA and the Customer shall be, in addition to these GTC,  ODESEA's offer to the Customer, within the framework of which the Parties agree on the essential features of  the provision of services. Provisions in the agency contract, offer or other binding agreements that deviate  from these GTC shall take precedence over these GTC.

(6) Unless the Parties agree otherwise, the services to be provided by ODESEA are services within the meaning of  §§ 611 ff. BGB.

2. OBJECT  

(1) The Customer shall commission ODESEA with the provision of services in relation to consulting, advertising,  marketing and sales promotion for a brand, a company logo, a product or a service (hereinafter also “Project”). (2) ODESEA's activities shall include in particular the initial consultation, brand building, web design and web  development as well as the conception and implementation of specific advertising measures including the  associated sales promotion measures agreed with the Customer on a case-by-case basis, if necessary also with  the involvement of selected third Parties (e.g. freelancers).  

(3) If the Parties have not expressly agreed this, ODESEA shall not be obliged to bring about success with its  services. ODESEA shall only be obliged to observe the diligence of a prudent businessman when rendering its  services.

(4) ODESEA shall be entitled to have services and/or partial services in an order rendered by subcontractors (in  particular by commissioning third companies as well as affiliated companies of ODESEA), insofar as the  Customer does not expressly object (text form is sufficient) to the rendering of services by the subcontractors

selected by ODESEA for understandable and comprehensible reasons. In the latter case, ODESEA shall remain  obliged to provide services independently, but shall be entitled to terminate the business relationship with the  Customer in accordance with Section 13 (2) or (3) of these GTC.

(5) In the event that ODESEA commissions a subcontractor, ODESEA shall always commission the subcontractor;  ODESEA shall be responsible for the corresponding provision of services. If, in individual cases, a direct contract  is concluded between the Customer and the subcontractor, ODESEA shall also assume the corresponding  coordination and processing of the services upon express request. In this case, however, the subcontractor  shall itself be responsible to the Customer for the provision of services and the Customer shall assume all rights  and obligations arising from the contractual relationship concluded between it and the subcontractor.

3. SERVICES  

(1) The services of ODESEA shall include the contents described in the offer.

(2) The individual subjects of ODESEA's services may include the following subject areas in particular: a. Consulting: ODESEA's consulting services may include the following services in particular:

i. Comprehensive analysis and strategy formulation tailored to the Customer's business needs; ii. Detailed study of market trends and competition to identify opportunities;

iii. Regular strategy meetings and performance reviews to ensure continuous improvement; iv. Clear, step-by-step plan to implement the strategy effectively;

v. Recommended tracking and adjustment of strategies based on key performance indicators. b. Brand: The brand building services to be provided by ODESEA may include in particular:

i. Creation of logos, color schemes and typography to define the Customer's brand; ii. Developing a unique voice and communication strategy that speaks to the Customer's audience; iii. Designing marketing collateral such as business cards, brochures and social media graphics; iv. Creating a comprehensive guide to maintain brand consistency across all platforms; v. Complete overhaul of existing brand identity to improve market presence.

c. Web design and development: The services to be provided by ODESEA with regard to web design and web  development may include in particular:

i. Creating user-friendly and visually appealing websites tailored to the Customer's brand; ii. Ensuring seamless performance across all devices;

iii. Implementing best practices to improve search engine visibility;

iv. Developing online stores with secure payment integrations;

v. Ongoing updates and technical support for the smooth operation of the website.

d. Advertising measures: The services to be provided by ODESEA with regard to the implementation of  advertising measures may include in particular:

i. Development of targeted advertising strategies to maximize ROI for various advertising channels; ii. Designing and producing compelling advertising materials for different platforms; iii. Detailed analysis and reporting to monitor and optimize campaign performance; iv. Testing different ad versions to determine the most effective approach;

v. Efficient allocation and management of your advertising budget.

(3) With regard to the agreed subjects of performance, ODESEA shall offer all partial services, from mere support  and technical checks through to complete implementation and support. Against separate agreement, ODESEA  shall also offer workshops on all subjects of performance. In these workshops, ODESEA shall inform the  Customer's company interactively (analog or digital) about the corresponding topics in ODESEA's range of  services.

(4) Should ODESEA only provide preparatory services for the Customer's marketing and not implement these  services itself through posts or the placement of advertisements, the handover of the drafts in a manner that  enables the Customer's own implementation of the service obligations resulting from the purpose of the  contract/order, i.e. predominantly in digital form, shall be obligatory with regard to the service obligations.  The delivery of so-called “open” files is generally not owed. Unless otherwise agreed, ODESEA shall owe up to  two correction loops subsequent to the provision of its services in the first draft status.

(5) Should ODESEA, in agreement with the Customer, take over the printing of the objects of performance, the  delivery can also be carried out by a service provider. The costs incurred for this shall be borne by the Customer.

4. CONTRIBUTION OBLIGATION  

(1) The Customer shall be obliged to support ODESEA in the provision of services to the best of its ability and  shall provide ODESEA with all necessary data, information, rights and documents, such as an existing brand  book or its brand guidelines (when commissioning brand building or design services) or read access to the  tracking and implementation platform used for advertising (when commissioning advertising measures) in  good time, if necessary within 48 hours of a corresponding request by ODESEA, without infringing any rights.  If the platform is not made available in good time, any agreed performance period shall be extended by the  duration of the delay.

(2) The Customer further undertakes to perform all obligations incumbent on it within the scope of the  cooperation, such as in particular the provision of the products to be advertised in sufficient quantities, the  timely sending of these products to the selected third Parties, the bearing of all costs in this respect, including  shipping costs, or the making available of corresponding filming locations or locations to be advertised, in  particular the bearing of all (rental) costs in this respect and, if applicable, travel and catering costs of the  selected third Parties, as well as the availability of corresponding budgets for the agreed advertisements.

(3) Unless otherwise stated in the offer, the Customer must inform ODESEA in writing (text form is sufficient)  within ten working days of receipt of the offer whether he accepts it or wishes to make changes to it. The  Customer must inform ODESEA in writing (text form is sufficient) of any change requests.

(4) For the duration of the project and for a period of six months after completion of the project, the Customer  undertakes not to approach a third party involved by ODESEA for the provision of services within the scope of  the project independently and bypassing ODESEA and not to enter into independent cooperation with it.

(5) If the Customer cancels projects agreed with ODESEA (a project is agreed if the offer has been accepted by  ODESEA or a contract has been signed) or refrains from them without stating important reasons and without  ODESEA being at fault, the Customer shall nevertheless pay the agreed remuneration as compensation. If the  agreed services are ongoing services, the Customer must pay the agreed remuneration for the first year of the  contract as compensation. The right to claim further damages remains reserved.

(6) If ODESEA does not expressly guarantee that persons depicted in film or photo recordings or holders of rights  have given their consent to the utilization intended by the Customer, the Customer must obtain any necessary  consent from these third Parties independently in individual cases. For events of all kinds in particular, the  Customer is obliged to inform all persons depicted that a photographic/film document is being created and  must obtain all consents and rights of use for this.

(7) With regard to the logos, brands, designs, company trademarks or other rights (hereinafter “intellectual  property” or “IP”) provided by ODESEA for the provision of services, the Customer shall be solely responsible  for complying with legal and statutory admissibility. This means, for example, that the Customer must carry  out trademark law checks or ensure that the use of ODESEA's services or the services of selected third Parties

involving the Customer's IP does not infringe the rights of third Parties. Should this be the case and should  ODESEA be held liable for this, the Customer shall indemnify ODESEA from this liability and, should the  Customer not assume the corresponding legal prosecution itself, reimburse ODESEA for the costs of  appropriate legal prosecution.

5. SERVICES / CONTRACT FOR WORKS  

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(1) In principle, ODESEA shall provide all services to be rendered as services within the meaning of §§ 611 ff. BGB  (GERMAN CIVIL CODE). Should ODESEA owe a success in individual cases, which applies for example in the  case of a corresponding agreement with regard to web design and web development, ODESEA shall clearly  indicate this in the offer. The owing of a result is generally characterized by the fact that ODESEA is  commissioned by the Customer to produce a concrete result, the desired criteria of which the Customer  specifies precisely to ODESEA in advance and ODESEA undertakes in return to produce this result for the  agreed fee. If such a work performance exists in an individual case, ODESEA shall naturally guarantee that it is  free from material defects and defects of title.

(2) Within the scope of the warranty, the regulations for liability for defects for work services in accordance with  §§ 634 ff. BGB APPLY. Should the Customer discover defects in the performance result, i.e. defects which deviate  so much from the agreed quality of the performance result that the Customer cannot accept it as being in  accordance with the contract, ODESEA shall rectify these within the scope of the agreed costs.

(3) Work services are subject to acceptance in accordance with the provisions of § 640 BGB. Acceptance shall  commence when ODESEA provides the Customer with the service result as ready for acceptance. The  acceptance period is ten working days. The result of the service shall then be deemed to have been accepted.  Acceptance may not be refused for creative-artistic reasons. There is freedom of design in this respect.

(4) Unless otherwise agreed in each case, the result of the service must correspond to the recognized state of the  art in science and technology.

6. COLLABORATION  

(1) ODESEA shall provide the Customer with joint systems for the duration of the cooperation. These joint systems  may, in particular, consist of corresponding software in which the Customer can track the completion of  services by ODESEA and, if applicable, reporting on the performance of projects. The Customer is obliged to  use these joint systems as part of the cooperation.

(2) The Customer shall review the content created by ODESEA in the area of advertising measures in good time  and may make one-off changes to this. Should the Customer request a further feedback loop, the Customer  shall pay for this separately, unless this is covered by the offer in the form of a flat rate. Additional change  requests, additional services or other additional services requested by the Customer shall also be remunerated  separately. The corresponding amount of remuneration shall be based on the amount of the corresponding  item in the initial offer or according to the individual agreements between the Parties, if applicable within the  framework of a new offer or according to the actual expenditure incurred for this at the conditions of the  hourly or daily rates of ODESEA.

7. REMUNERATION  

(1) ODESEA shall receive remuneration for the provision of the services described in the offer, in binding  agreements and in the GTC in the amount specified in each case.

(2) Unless otherwise specified in the offer, the remuneration stated in the offer is exclusive of the “adspents”, i.e.  the expenses paid directly to the operators of social media channels or search engines for the placement of

advertising. The adspent is regularly paid additionally by the Customer. The amount of the adspent shall be  agreed in detail between the Parties.

(3) Should ODESEA involve third Parties in consultation with the Customer to fulfill the agreed tasks and services,  a management fee of 7.5% shall be charged on the net amounts provided by the third Parties. (4) Unless already expressly mentioned in the offer, all of ODESEA's services shall be subject to remuneration plus  statutory value added tax, if and insofar as this is applicable.

(5) Payments shall be due in each case within 10 days of the corresponding invoice being issued without any  deductions.

(6) ODESEA shall be entitled at any time to demand partial payments for self-contained parts of an order. In  particular, ODESEA shall be entitled to demand 50% of the agreed remuneration in advance as a down  payment. Should ODESEA be commissioned to provide one-off services, ODESEA may also demand 100% of  the agreed remuneration in advance as a down payment.

(7) In the case of extensive orders of longer duration (longer than 3 months since the conclusion of the contract),  ODESEA shall be entitled to demand partial payments irrespective of the completion of self-contained parts  of the order. The prerequisite for this is that the services invoiced in each case are comprehensible to the  Customer from the respective invoice.

(8) Should ODESEA be commissioned to provide services to be rendered on a permanent basis, ODESEA shall  invoice monthly in arrears.

(9) Special services, such as in particular the reworking or modification of drafts, final artwork, concepts or  additional correction loops, shall be remunerated for the time spent in the amount stated in the offer. (10) Should defects or errors occur on platforms, i.e. in particular social media platforms and search engines, which  ODESEA uses to provide services in consultation with the Customer, or should the Customer's user accounts  or accounts on these platforms be hacked or compromised, and should the Customer be at fault for this, e.g.  in the event that the Customer has not taken suitable security precautions, ODESEA shall nevertheless be  entitled to the agreed remuneration. This applies in particular to periods in which the Customer's user accounts  and accounts are not accessible.

(11) Reimbursement of expenses and travel costs incurred by ODESEA in the fulfillment of tasks within the scope  of the business relationship and not already covered by the remuneration shall be reimbursed by the Customer  upon presentation of the original receipts or also in advance by presentation of corresponding offers, orders  or invoices. This also applies in particular to the expenses and costs incurred by ODESEA for the commissioning  of subcontractors.

8. REFERENCE  

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ODESEA shall be entitled to use the Customer's brands, logos, names, designs or other business identifiers in any  form for its own marketing purposes during the business relationship and beyond, without the obligation to pay  separate remuneration.

9. RIGHTS OF USE  

(1) If a rights of use agreement is missing from the offer, ODESEA shall grant the Customer all transferable rights,  in particular copyright rights of use, trademark registration rights and naming rights for the utilization of the  services rendered during a project at the time of their acquisition by ODESEA. Drafts and final artwork may not  be changed without the consent of ODESEA.

(2) The aforementioned granting of rights shall expressly only apply as long as and insofar as ODESEA was/is  entitled to grant rights. This applies in particular to audio, music and sound effects (“audio rights”), which  ODESEA licenses exclusively for the specific service (advertisement/ad). Beyond this, the audio rights may not  be used by the Customer. Should there be other restrictions on use due to the granting of rights to which

ODESEA is entitled, the Customer must observe these independently. ODESEA shall inform the Customer  accordingly.

(3) The granting of rights to the Customer shall not be exclusive, unless separately agreed. The Customer shall be  permitted the right to process, use and transfer the rights granted.

(4) ODESEA is and remains entitled, subject to separate agreements, to use all services rendered to the Customer  during the business relationship with the Customer for the fulfillment of the contract, in particular ideas, drafts  and designs, designs, files, etc., within the framework of business relationships with other Customers, without  restriction in terms of time and place, in particular in a modified form, or to further transfer or otherwise deal  with them without restriction. In the context of business relationships with other Customers, ODESEA shall be  entitled to use, exploit, transfer or otherwise deal with them in any form without restriction in terms of time  and place, in particular in a modified manner, provided that this does not impair the rights of the Customer,  which it has provided in particular against the background of the services provided and paid for by ODESEA  in the context of the order.  

(5) Should ODESEA engage third Parties under its own responsibility to fulfill the performance obligations arising  from the business relationship with the Customer, ODESEA shall ensure that ODESEA is granted their copyright  usage rights as well as other rights arising from the fulfillment of performance by the third Parties to the extent  necessary for the Customer.  

(6) Should the Customer violate the aforementioned granting of rights and, if applicable, their restrictions and  should ODESEA be held liable by third Parties due to this violation, the Customer shall indemnify ODESEA from  any liability in this regard upon first request and, if applicable, also pay reasonable costs of legal defense.

10. LIABILITY  

(1) ODESEA shall be obliged to carry out all orders with professional and commercial care to the best of its  knowledge and belief and in compliance with the generally recognized principles of the advertising industry. (2) ODESEA shall only be liable for damages incurred by the Customer as a result of defects, delay or non fulfilment of ODESEA's obligations if the defects complained of could not be rectified even after written  notification (text form sufficient) by the Customer specifically naming the defect, delay or non-fulfilment and  setting a deadline of at least 10 working days for their rectification. In this case, the obligation to pay  compensation includes in particular the costs for a new concept, planning and production of the service.  Defects, delays or non-fulfilment shall in particular not be deemed to exist if ODESEA makes several correction  loops in relation to the publication of, for example, an image and/or a related text or in relation to other  services. Defects, delays or non-fulfillment shall also not be deemed to exist if the reason for this lies in the  sphere of the Customer. For example, because the Customer requests the replacement of a third party that  has already been bindingly selected for a project; or if the Customer does not wish to use the content of the  bindingly selected third party even after a corresponding feedback loop, although the Parties have agreed in  advance on the relevant key points of the content and the selected third party has followed them to the best  of its knowledge.

(3) ODESEA shall be liable without limitation for all other damages incurred by the Customer as a result of culpable  conduct on the part of ODESEA in the event of intent and gross negligence and in the event of slight  negligence only in the event of a breach of material contractual obligations and limited to the damages  typically foreseeable at the time of conclusion of the contract. The aforementioned limitation shall not apply  to injury to life, limb or health or if a limitation of liability would violate mandatory law.

(4) Furthermore, ODESEA is not responsible for any defects or errors that occur on third-party platforms, such as  TikTok, Facebook, Google, Instagram etc.. Should problems occur in the sphere of these platforms which have  an influence on the provision of services by ODESEA, any resulting damage cannot be borne by ODESEA. A  corresponding liability on the part of ODESEA is hereby excluded. The same shall apply if a user account or  account of the Customer on a third-party platform is hacked or compromised without ODESEA being at fault.

(5) The liability of ODESEA for indirect damages and consequential damages, in particular also loss of profit, is  excluded.

(6) ODESEA shall expressly not be liable to the Customer or other third Parties for damages caused by misuse of  the services and rights developed within the scope of an order. Such misconduct may include, in particular,  inadequate identification of advertising content of publications in social media networks on the Internet or in  any other medium for the dissemination of advertising messages. The Customer is solely responsible for the  proper use of the services developed by ODESEA, insofar as ODESEA does not manage the social media  channels for the Customer.

(7) Under no circumstances shall we be liable for the success of our services that you expect or that we have not  expressly agreed contractually.  

(8) In all other respects, the statutory liability provisions shall apply.

11. CONFIDENTIALITY  

(1) In the course of the cooperation, both Parties gain knowledge of business secrets of the other party or third  Parties. A trade secret is information that is neither generally known nor readily accessible to persons who  normally deal with this type of information, is therefore of commercial value and is therefore subject to  appropriate confidentiality measures (cf. Section 2 GeschGehG). A trade secret is also information that is  marked as a trade secret, that is protected by industrial property rights or copyright, that is subject to banking  secrecy or data protection and for which there is a legitimate interest in confidentiality. Information which is  known to the other party prior to disclosure, which has become known to the public after disclosure without  the involvement of the disclosing party, which the disclosing party has learned from an authorized third party  and which the disclosing party has developed itself is not a trade secret.

(2) The receiving party and all those who come into contact with trade secrets as intended are obliged to treat  the trade secrets as strictly confidential and only to use them or disclose them to third Parties and employees  if this is necessary in connection with the business purpose. In all other respects, the receiving party shall  protect the trade secrets from being disclosed to third Parties.

(3) Objects, files or other intangible objects containing trade secrets shall be deleted or returned to the disclosing  party immediately at the request of the disclosing party or at the latest upon termination of the contractual  relationship.

12. STORAGE  

(1) ODESEA shall retain or store all records, documents, data, files etc. made available to it by the Customer for  the provision of services for the duration of the business relationship and for at least two (2) years thereafter. (2) The Customer shall be entitled at any time, subject to the following provisions, to demand the surrender of  these documents or to demand the deletion of data and files, whereby the following shall apply:

a. The raw material (footage) and all project files including associated assets are protected by copyright and  are the property of ODESEA. If the Customer requests the release of this data, in particular open project  data, no transfer of rights shall be associated with the release, unless otherwise agreed. The costs for the  transfer of the data and the data carrier shall be borne by the Customer. All raw data (footage) created  by ODESEA for the production as well as raw files and project files shall be stored by ODESEA with  reasonable technical effort and without separate remuneration for a period of one year, beginning with  the completion of the relevant production. Liability for data loss during archiving shall only be assumed  in the event of intent and gross negligence. After expiry of the retention period or if the contract ends  before expiry of this period, the documents shall be destroyed.

b. The complete release of the raw data (footage) including all rights unlimited in terms of time and place  is referred to as a “buy out”. Unless otherwise agreed, a buy-out shall be invoiced separately at twice the  amount of the project remuneration. The use of the data for reference purposes by ODESEA shall remain  unaffected by the issue of other rights.

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13. TERM & TERMINATION  

(1) The duration of the business relationship between the Parties shall be based on the duration or term of the  project to be carried out hereunder or, alternatively, on the agreements between the Parties in the offer.  (2) If nothing more specific is agreed in the offer, the business relationship shall end upon completion of the  

project and full performance of the respective agreed service obligations or upon expiry of the agreed term. (3) If the Parties have agreed a so-called retainer term, i.e. a permanent provision of services with monthly support  or other support according to time periods or agreed services, the contract term shall be 3 months. (4) The notice period for services to be provided on a permanent basis shall be four weeks to the end of the  contract term. Notice of termination must be given in writing. If notice is not given, the contract term shall be  extended by a further month in each case.

(5) During the term of a specific order, the business relationship may only be terminated by either party for good  cause. Should ODESEA make use of this right of termination, the Customer shall have no right to assert claims  for damages due to the premature termination of the business relationship. The services rendered up to the  time at which the termination takes effect shall be properly invoiced and remunerated.

(6) In the event of extraordinary termination by ODESEA, ODESEA shall remain entitled to demand the agreed fee  for the services rendered up to the effective date of the termination (if applicable on a pro rata basis). Should  the extraordinary termination be based on misconduct or a material breach of contract by the Customer,  ODESEA shall also be entitled to demand compensation for the damages and expenses incurred by ODESEA  as a result of the fact that ODESEA relied on the continuation of the business relationship.

14. MISCELLANEOUS  

(1) ODESEA shall be entitled to assign or transfer the rights and obligations arising from the business relationship  to third Parties in whole or in part after obtaining the prior consent of the other party.  (2) The law of the Federal Republic of Germany shall apply exclusively to the entire business relationship between  the Parties, in particular to the provisions of these GTC and the offer. The application of the UN Convention  on Contracts for the International Sale of Goods is expressly excluded.

(3) The place of jurisdiction for all disputes arising from and in connection with the business relationship between  the Parties, the GTC and/or the offer shall be the registered office of ODESEA, insofar as this does not conflict  with mandatory statutory law.

(4) Amendments and additions to the GTC and all contracts existing between the Parties must be made in text  form in order to be effective. Amendments and additions to the contract which are (or must be) made by  ODESEA due to changed legal or technical requirements for the provision of services and which have no  negative effects on the services to which the Customer is entitled shall become effective if the Customer does  not object to an amendment in text form within one (1) month of receipt of a notification of amendment and  ODESEA has informed the Customer in advance of its right of objection. If the Customer objects to the change,  the contract shall continue to apply unchanged and ODESEA shall be entitled to extraordinary termination of  the contract with a notice period of one (1) month to the end of the next calendar month.

(5) Amendments and additions to the contract that ODESEA wishes to make due to changed performance,  remuneration or other commercial or operational requirements shall only become effective if the Customer  expressly agrees to them. The text form shall also apply to an amendment to this formal clause. The precedence

of individual ancillary agreements remains unaffected. The aforementioned deadlines do not apply and there  is only a right to information about changes to the contract if the changes are necessary to avert an unforeseen  and imminent danger in order to protect the Customer from fraud, malware, spam, data protection violations  or other cyber security risks.

(6) Should one or more provisions of these GTC be or become invalid, this shall not affect the validity of the  remaining GTC. The invalid provision shall be replaced by the provision that comes closest to the economic  intention of the Parties in this respect.

Stand September 2024