General terms and conditions

§ 1 Scope of application

(1) The following General Terms and Conditions (“GTC”) shall apply to all contractual relationships with Freaks 4U Gaming GmbH, An der Spreeschanze 10, 13599 Berlin, Germany (“F4UG”), unless otherwise expressly agreed in writing. Deviating, conflicting or supplementary terms and conditions of the Client of F4UG (“Client”) (individually referred to as the “Party”, collectively referred to as the “Parties”) shall only become part of the contract if F4UG has expressly agreed to their validity in writing.

(2) The range of services offered by F4UG is aimed exclusively at entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law.

§ 2 Conclusion of contract and cancellation

(1) Unless otherwise expressly stated, offers made by F4UG are subject to change and non-binding. By signing and returning this non-binding offer to F4UG, the Client submits a corresponding binding order. The written form requirements set out in Section 14(4) of these Terms and Conditions shall apply. The Client is then bound by its order for twenty-one (21) days. F4UG reserves the right to reject orders.

(2) Contracts with the Client shall only be concluded if F4UG accepts the order by countersigning and returning it. The written form requirements set out in Section 14(4) of these Terms and Conditions shall apply. The mutually signed order is referred to as the “Project Contract”.

(3) If the Client itself uses the services of F4UG as an agent for a third party, the Client must provide full details of this third party, including, but not limited to, name, address, managing director, VAT ID and e-mail contact. F4UG is entitled to request proof of the agency relationship and is entitled to withdraw from the Project Contract if the Client does not provide this proof within ten (10) days.

(4) Should F4UG be in delay with its service, the Client shall be entitled to exercise the rights to which it is entitled by law after setting a reasonable grace period of at least two weeks.

§ 3 Principles of service provision by F4UG

(1) The scope of the agreed services results from the respective Project Contract. Subsequent changes and ancillary agreements must be made in writing.

(2) Unless expressly stated in the Project Contract, additional and external services such as travel, accommodation or translation costs shall be remunerated separately.

(3) If and to the extent that the Client does not provide any specifications for the provision of the service (for example with regard to concept, design and/or technology), F4UG shall be free to implement the provision of the service.

(4) If the Client wishes to make changes during or after the performance of the services that go beyond the scope of the Project Agreement, the Client shall bear the additional costs.

(5) If the implementation of the Project Contract is delayed for reasons for which the Client is responsible, F4UG may demand a reasonable increase in remuneration.

(6) Unless expressly agreed otherwise between the Parties, F4UG is entitled to perform the agreed services itself in whole or in part or to have them performed by third parties and subcontractors associated with F4UG (e.g., influencers, sub producers, freelance production personnel, etc.).

§ 4 Obligations of the Client to cooperate

(1) Each of the Parties shall appoint a project manager for the duration of the implementation of the Project Contract. The measures necessary on both sides in accordance with the contractual provisions for the realisation of the project shall be coordinated between the project managers. If the project manager(s) have not already been named in the Project Contract, they shall be named in text form (usually by e-mail) within a period of five (5) days after conclusion of the Project Contract with the respective other Party. Changes in the project management shall be notified to the other party in text form without delay.

(2) If the Parties have agreed that the Client itself shall provide materials, e.g. graphics, audio, photographic or film materials, sketches, logos, products, voucher codes, websites or other material required by F4UG for the provision of the agreed services (“Client Material”), the Client shall make such material available for use free of charge at F4UG’s place of business at the time agreed between the Parties. If no express delivery date has been agreed for the Client Material, the Client shall make it available within three (3) working days (Monday to Friday excluding public holidays at F4UG’s place of business) from receipt of a corresponding request. Costs and additional expenses incurred by F4UG due to failure to provide the Client Material on time shall be borne by the Client.

(3) F4UG is not obliged to check the Client Materials, in particular with regard to whether they are suitable for achieving the purpose pursued with the commissioned service. The technical, legal and content-related responsibility for the Client Materials provided lies exclusively with the Client. Only in the case of obvious defects F4UG is obliged to point out defects in the Client Materials towards the Client.

(4) To this extent as the Client transfers data to F4UG, the Client shall make backup copies thereof beforehand. The Client assumes sole responsibility – including for claims of third parties – for data provided by it to F4UG. F4UG accepts no liability in the event of loss of data. In this respect, transport shall be at the Client’s expense.

(5) If the subject of the Project Contract is the creation of content by F4UG (e.g. promotional videos on the Client’s website or social media accounts), which the Client distributes online in a form that enables the Client to obtain anonymized user data (e.g. clicks, views, user demographics data, etc.), the Client shall provide F4UG with a tracking link or comparable tracking mechanisms upon request. F4UG shall treat such tracking data as confidential information and use it solely for internal evaluations and, if necessary, for billing purposes.

§ 5 Approval

(1) F4UG is entitled to demand approval of part or all of the services delivered by F4UG from the Client, even if this has not been expressly agreed beforehand.

(2) All services provided by F4UG (in particular all drafts, test versions, raw material, etc.), on the basis of which F4UG must provide subsequent services or commission third parties to provide subsequent services, must be checked by the Client immediately after delivery and either released for further use in text form (as a rule by e-mail) or complained about within three (3) working days. Upon acceptance by the Client, the accepted part of the services shall be deemed to be free of defects and may be used by F4UG, if necessary, for the further provision of the agreed services. If neither a release nor a complaint is made within this period, the release shall be deemed to have been granted by the Client.

(3) In this respect as digital services are concerned, F4UG shall transmit the performed services to the Client by e-mail or shall provide the Client with a link by e-mail to a server from which the corresponding services can be downloaded. The Client shall be obliged to approve the respective services within a period of five (5) working days from the time when F4UG has informed the Client of the completion of the services, provided that the performance services correspond to the approved concept. The Client confirms the approval in text form (e.g. by e-mail).

(4) If no formal approval is requested or if the approval requested by one Party does not take place due to a circumstance for which the Client is responsible, the contractual performance of F4UG shall be deemed to have been approved if the Client makes use of the delivered services or does not notify F4UG in writing of any significant defects within five (5) working days of receipt of the services.

§ 6 Rights of use

(1) If and to the extent that the production of copyright-protected works is the subject of the Project Contract, the Client shall only be granted the rights and licences to this expressly stated in the Project Contract.

(2) Unless expressly agreed otherwise between the Parties, F4UG is entitled to use the material produced for the Client for self-promotional purposes and as reference material, in particular in pitch documents, on its own website and on its own social media channels.

(3) F4UG is entitled to name the Client and use its logo as a reference on its own website and/or pitch documents.

§ 7 Terms of payment

(1) The remuneration to be paid by the Client, including any discounts and discounts granted, is set out in the respective Project Contract. All prices and costs contained in offers or in the Project Contract are net figures and do not include the applicable value added tax, unless stated otherwise in the Project Contract.

(2) Invoicing shall take place at the time specified in the Project Contract. If no time for invoicing is agreed in the Project Contract, invoicing shall take place immediately after signing of the Project Contract. The invoice amount is due for payment without deductions within fourteen (14) days after receipt of the respective proper invoice. Upon expiry of the agreed payment period, the Client shall be in delay with the payment. Any bank charges associated with the payment shall be borne by the Client.

(3) In the event of delay in payment, interest on arrears shall be payable at a rate according to Section 288 BGB . This shall not exclude the assertion of further damages caused by delay. In the event of delay in payment by the Client, F4UG shall be entitled to withhold further services until the amounts due have been paid in full. Offsetting with counterclaims or the assertion of rights of retention by the Client is only permissible if the counterclaims are undisputed or have been legally established. In the event of a bilateral commercial transaction, Section 353 HGB (German Commercial Code) shall apply in addition.

(4) Agency commission shall not be granted as a matter of principle. Should an agency commission have been expressly agreed between the parties, subsequent booking changes (e.g. cancellations or additional bookings) shall be taken into account retrospectively for the calculation of the agency commission.

(5) Unless expressly agreed otherwise in writing, the remuneration does not include any licence fees for the use of copyrighted works and performances payable to collecting societies such as GEMA for making the advertising material available online.

(6) If the Project Agreement expressly states that the amount of F4UG’s remuneration shall be calculated on the basis of performance-related factors or targets agreed in advance (“Key Performance Indicators” or “KPIs”) (e.g. views, impressions, registrations, downloads, etc.), only the data of the software used by F4UG to evaluate the tracking mechanisms provided by the Client or the data of the AdServers of the social media platform used shall be decisive for the collection of the relevant KPIs or factors. Data collected by the Client are expressly not relevant for calculating the amount of the remuneration.

(7) Statements of account shall be deemed to have been approved if the Client does not object to the respective statement of account in writing within one week of receipt, stating detailed reasons, and F4UG has pointed out this consequence in the statement of account.

(8) In the event that a governmental authority or governmental body charges taxes that require the Client to withhold such tax from the payments to F4UG, the Client shall be entitled to withhold such tax from the payments and/or pay such tax to the relevant tax authority, unless F4UG provides the Client with evidence of a valid tax exemption from the relevant tax authority. The Client shall promptly provide F4UG with official tax certificates from the relevant tax authorities or such other evidence as F4UG may reasonably require to establish that such taxes have been paid.

(9) If the Client is an agent acting on behalf of a third party, the Client assigns its claims against this third party to F4UG upon conclusion of the Project Contract in the amount of the remuneration agreed in the Project Contract. F4UG accepts the assignment by countersigning the Project Contract. It is only entitled to inform the third party of the assignment if the Client is more than thirty (30) days in arrears with a payment.

§ 8 Liability of the Client

(1) The Client warrants that it owns all necessary rights to the materials provided and, in particular, that they do not infringe any intellectual property rights or other rights of third parties and that the Client or its subcontractors do not require the consent of any third party or make any payments to any third party for the use of the materials in accordance with the Project Contract.

(2) The Client warrants that the contractual use by F4UG or its subcontractors of the materials provided by the Client does not violate any legal provisions, in particular any provisions against unfair business practices, advertising labelling or provisions for the protection of minors. In addition, the Client acknowledges that F4UG is entitled to place any labelling or consumer information that F4UG deems legally necessary on the service results provided.

(3) The Client warrants that no products or services advertised on its behalf (or on behalf of its client) through F4UG’s services are subject to any advertising restriction, including but not limited to youth protection regulations, drug regulations or other health protection regulations.

(4) The Client guarantees that none of the materials provided by Client contains obvious or hidden content that is xenophobic, sexist, discriminatory, racist, offensive or pornographic.

(5) The Client shall indemnify F4UG, its bodies and its employees, as well as the subcontractors and third parties used by F4UG to provide the services against any claims, losses or costs of third parties (including, but not limited to, reasonable legal defence costs) arising from the breach or alleged breach by a third party of the aforementioned warranties upon first demand. F4UG will inform the Client without delay of the claim due to such (alleged) infringement by a third party.

§ 9 Liability of F4UG & Statute of Limitations

(1) F4UG shall be liable – except in the case of breach of material contractual obligations, injury to life, limb or health or in the case of claims under the Product Liability Act – only for intent and gross negligence.

(2) F4UG shall only be liable for damage caused by simple negligence if it or its vicarious agents breach a cardinal obligation. Cardinal obligations are those essential contractual obligations which each party is entitled to maintain and the breach of which jeopardises the achievement of the contractual objectives. In the event of a breach of cardinal obligations, liability shall be limited to the amount of the damage typically to be expected under these circumstances.

(3) The limitation period for claims arising from material defects is 12 months. Claims under the Product Liability Act shall remain unaffected by this provision. The limitation period with regard to defects of title shall commence at the time when a third party asserts claims for defects of title against the Client or the Client learns of the defect of title. The limitation period in this respect is 6 months. Otherwise, claims of the Client arising from a breach of duty by F4UG or its vicarious agents shall become statute-barred one year after the statutory commencement of the limitation period.

§ 10 Termination

(1) Termination of the Project Contract is only allowed for both parties for good cause.

(2) If the Client terminates the contract for good cause for which F4UG is not responsible, the Client shall pay F4UG the total agreed remuneration as compensation. The Client reserves the right to prove that a lower damage than specified above is reasonable for the specific case. F4UG reserves the right to prove that it has incurred higher expenses and costs.

(3) The Parties agree that the following reasons shall entitle them to terminate the contract for cause:

a) the respective other Party has committed an incurable breach of contract (this also includes a breach of the obligation to maintain confidentiality pursuant to Section 12 of this GTC);

b) the respective other Party has not ceased and/or cured a breach of its contractually agreed obligations for which it is responsible within a reasonable period of fourteen (14) days after a corresponding warning from the other party or repeatedly fails to comply or seriously and finally refuses to comply with such obligations;

c) the other Party becomes insolvent or is no longer able to pay its debts. The same applies to the extent that the other Party is threatened with insolvency or liquidation or enters into an agreement with its creditors or a part thereof to redistribute its debts which does not involve a mere restructuring measure;

d) a performance of the other Party has been judged by an authority or a court to be unlawful or in breach of the law.

(4) In addition, the following circumstances entitle F4UG to terminate for cause:

a) the Client is more than thirty (30) days in delay with a payment and the payment has not been made within ten (10) days despite a request by F4UG;

b) the Client breaches its representations or warranties;

c) the Client is in delay with the provision of its own materials for more than thirty (30) days and does not deliver the materials within a further ten (10) days despite being requested to do so;

d) F4UG ceases its business operations in relation to the subject matter of the Project Contract or no longer participates in trading.

(5) In the event of termination, F4UG shall at least be entitled to payment of that part of the agreed services which has already been provided or was ready for acceptance at the time of termination.

(6) Services published by F4UG do not have to be removed from commercial circulation (e.g. digital platforms or physical trade) after the end of the Project Contract. This does not apply if the parties have explicitly agreed otherwise or F4UG is legally obliged to do so.

§ 11 Force majeure

(1) Neither Party shall be liable for any delay in the performance of its obligations under any Project Contract due to causes beyond its control, including earthquake, fire, strike, war, riot, acts of civil or military authorities, natural disaster, judicial action, unavailability or shortage of labour, material or equipment, terrorism or threat thereof, outbreak of disease (e.g. Covid-19 pandemic or other public health hazard), failure or delay in deliveries by suppliers or delays in deliveries (“Event”). In such Event (a) the party unable to perform its obligations shall promptly notify the other party in writing of the circumstances, (b) the provisions of this Project Contract shall remain in effect with respect to all other obligations under this Project Contract not affected by such Event, in force, and (c) either party shall have the right to terminate this Project Contract extraordinarily if the Event prevents the proper performance of the Contract for more than thirty (30) days or, in the case of a fixed date for the performance of the service, the service cannot, in the opinion of F4UG or the Client, be performed at a later date.

12 Secrecy

(1) The Parties undertake to maintain confidentiality about confidential information concerning the other party and to use it only for the implementation of the cooperation and the purpose pursued with it.

(2) “Confidential Information” means all information and documents coming to the knowledge of the Client or F4UG from and about the sphere of the respective other Party, in particular those relating to business transactions such as key figures, prices, print documents, layouts, numerical material, drawings, audio tapes, film material, images, videos, storage media, interactive products and / or other copyrighted materials. In addition, Confidential Information of each Party is information that by its nature is recognisable as confidential.

(3) The obligation of confidentiality shall not apply to information which was already lawfully known, published and/or expressly released for disclosure to the other Party without an obligation of confidentiality at the time of the conclusion of the contract or which must be disclosed pursuant to a decision or a requirement of a court, an administrative authority or another governmental body or authority. The foregoing restrictions are subject to the receiving Party promptly notifying the disclosing Party of the existence of any of the foregoing grounds so that the disclosing Party may otherwise prevent or limit such disclosure.

(4) If confidential information is disclosed to a Party by a third party, it shall notify the other Party in writing. The Parties shall not use such information without the consent of the other Party.

§ 13 Miscellaneous

(1) F4UG is entitled to amend this GTC at any time with effect for the future. To the extent that orders which have already been concluded and are still in progress are affected, F4UG shall send the Client the amended GTC by e-mail at least two weeks before they come into force. If the Client does not reject to the GTC within four weeks of receipt of the GTC, the amended GTC shall also apply to these orders with effect for the future.

(2) The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods and the reference provisions of German private international law.

(3) Should individual provisions of this GTC be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. Should the provisions of the Project Contract and these GTC contradict each other in terms of content, the provisions of the Project Contract shall prevail.

(4) Amendments or supplements to a Project Contract must be made in writing to be effective. This shall also apply to a waiver of this written form requirement. “In writing” or “in written form” means (a) hand-signed and transmitted by letter, (b) a scanned copy of a hand-signed document transmitted by email, (c) via recognised simple electronic signature methods (e.g. Dropbox Sign or a similar electronic tool for signing documents) or (4) a combination of the above methods (a) to (c).

(5) The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Berlin, Germany.