§ 1 General Terms and Conditions of TMRW Assembly
(1) TMRW Assembly is a brand under the ownership of TMRW Assembly GmbH, with its registered office at Böhmersweg 1, 20148 Hamburg, Germany.
(2) These General Terms and Conditions (GTC) of TMRW Assembly are an essential part of the contractual relationship between TMRW Assembly and the Client, and they apply exclusively. Contrary or deviating conditions of the Client are not recognized unless expressly agreed upon in writing. The performance of an order with knowledge of opposing or deviating conditions of the Client does not constitute acceptance of such conditions. These GTC apply to all mutual commercial transactions, including all future business with the Client. The version of our GTC in effect at the time of contract formation shall apply. Any modifications or amendments to these GTC shall be governed by Clause § 13 (4).
(3) The conclusion of a contract shall be deemed to have occurred when the Client has countersigned and returned the contract or has provided written authorization for an order. All offers are subject to change and are non-binding.
(4) In cases where there are written agreements with the Client, such agreements shall take precedence over these GTC. Verbal agreements shall be binding upon us only if expressly confirmed in writing.
§ 2 Offers and Commencement of Order Fulfillment
(1) Our offers are subject to change without prior notice and are non-binding, unless we have explicitly designated them as binding.
(2) Verbal orders are considered binding. We reserve the right to request immediate written confirmation from the Client for any orders placed verbally. The order contract is considered valid if we begin fulfilling the order before all terms have been negotiated, and the Client does not object to this commencement to the extent they are aware of it.
§ 3 TMRW Assembly's Responsibilities and Scope of the Agreement
(1) TMRW Assembly provides services in the field of Digital Marketing and Digital Consulting, which may include tasks such as developing digital marketing strategies, conducting commercial or e-commerce due diligence, Search Engine Optimization, Search Engine Marketing, data analytics, creating online content, assisting with website relaunches, or planning and executing social media strategies.
(2) TMRW Assembly reserves the right to modify, expand, or enhance the services provided under the agreement at any time, as well as to reallocate its focus, as long as the budget (excluding taxes) is not exceeded by more than 10%. TMRW Assembly may exercise this right, especially if it is necessitated by changes resulting from a contractual partner or other third parties (e.g., Google) due to legal changes in statutory law or shifts in market conditions. TMRW Assembly will make this decision at its own discretion, while considering the Client's legitimate interests, and will seek agreement with the Client whenever possible. In any case, TMRW Assembly will promptly and adequately inform the Client of any necessary adjustments.
(3) The specific services to be provided will be determined by the nature and scope of the contract.
(4) This contract solely covers agreed-upon services and does not guarantee specific economic outcomes.
(5) Any activities beyond the scope of this contract shall be added through a contract amendment in accordance with § 2 (2).
(6) In case of conflicting provisions, the following order of precedence shall apply:
(7) TMRW Assembly is authorized to subcontract whole or partial orders to third parties, provided that there are no Client interests worth protecting to the extent that the services should not be outsourced.
§ 4 Fees
(1) Our fees are net prices and do not include the applicable statutory value-added tax. In case of a change in the tax rate, the prices including value-added tax will be adjusted accordingly without the Client having the right to terminate the agreement as a result.
(2) If the budget (excluding taxes) exceeds the agreed amount by more than 10%, TMRW Assembly must obtain approval from the Client.
(3) Any significant expenses will be billed separately. Idle time of our employees caused by the Client will be billed as service hours.
(4) Travel expenses and related costs (including parking, accommodation, meals, incidentals, etc.) will be invoiced separately unless otherwise agreed in the contract. Rental vehicles will be charged at market rates. Company-owned vehicle trips will be billed at a rate of 0.35 € per kilometer. In the event of damages, the excess will be billed to the Client, unless the damage was intentionally or grossly negligently caused. If flights or overnight stays in hotels are necessary for Client projects, arrangements will be made in advance with the Client. Flights up to 4 hours will be booked in economy class; otherwise, business class will be used. Train journeys will be booked in 1st class.
(5) TMRW Assembly may invoice its fees on a monthly basis. The agreed-upon fees must be paid within ten (10) calendar days after receiving an invoice without any deductions. Our invoices are considered accepted if the Client does not raise any written objections within seven (7) days of receiving the invoice.
(6) The Client is only entitled to set-off claims that are undisputed, acknowledged by TMRW Assembly, or legally binding by a final judgment. This provision does not apply to claims that are in a synallagmatic relationship with our claims. The Client may only exercise rights of retention if their counterclaims arise from the same contractual relationship.
(7) Once payment becomes due, interest will be charged on outstanding amounts at a rate of nine (9) percentage points above the base rate, as well as a lump sum of 40 Euros. TMRW Assembly retains the right to claim additional damages caused by the delay.
§ 5 Data Protection & Confidentiality
(1) The Client agrees to the collection, storage, processing, and transfer of business and personal data to the extent necessary for the designated purpose of the contract. TMRW Assembly commits to treating all Client data confidentially and solely for the purpose of providing its services.
(2) This confidentiality obligation does not apply to information that (i) is publicly known at the time of disclosure or becomes publicly known through no wrongful act on the part of the receiving party; (ii) is lawfully and without a breach of any confidentiality obligation disclosed to the receiving party by sources other than the disclosing party or its affiliates; (iii) is independently developed by the receiving party; (iv) the receiving party is required to disclose to governmental authorities by applicable laws; or (v) the receiving party is required to disclose by order of a court or regulatory authority.
(3) The contractual agreement allows TMRW Assembly to include the Client as a reference in its corporate communications unless otherwise explicitly excluded in the contract.
§ 6 Client's Obligations
(1) The fee to be paid by the Client is subject to the contractual agreement between the Client and TMRW Assembly.
(2) The Client shall independently guarantee that they possess all necessary rights to fulfill this contract and to transfer these rights to TMRW Assembly without infringing upon any third-party rights. Specifically, the Client guarantees ownership of all copyrights and other protective rights related to any shared content and for the publication and distribution of these contents to third parties, as necessary for contract performance. The Client bears sole and unrestricted responsibility for the content and is solely liable for any infringements. The Client guarantees that any content and its use by TMRW Assembly, as well as links to other websites, do not violate applicable statutory laws. The Client specifically guarantees not to provide any content whose offering or distribution violates legal prohibitions (e.g., Criminal and Administrative Offences Law), breaches moral standards, or the rights of third parties (naming, privacy, copyrights, data protection, or other commercial protective rights, etc.). Furthermore, the Client shall not provide any content glorifying war, potentially undermining the morality of children or young persons, presenting persons who are or were dying or exposed to serious physical or mental suffering while reporting actual facts without any justified public interest in such a form of presentation, and other means of violating human dignity, or violating the laws governing narcotics, drugs, and firearms or may not be made publicly accessible, such as all files containing viruses, Trojan horses, or similar programs suitable for damaging, surreptitiously intercepting, or deleting data and systems.
(3) In the case of infringements of § 6 (2), the Client shall immediately rectify the breach, compensate TMRW Assembly for all costs and damages generated by the violation, exempt TMRW Assembly from all third-party claims arising from the breach, and reimburse all full costs incurred for legal defense. In the event of a legal dispute caused by the breach, the Client shall join the legal proceedings on the part of TMRW Assembly upon request. In the event of a breach, TMRW Assembly is entitled to immediately cease all contractually agreed services and terminate the contract without notice.
§ 7 Client's Right to Acquisition
(1) Unless otherwise agreed, the Client has the exclusive, transferable, temporal, spatial, and unlimited content right to the entirety of the results amassed from the services provided by TMRW Assembly (e.g., Software) on the condition that full payment of the agreed sum has been received. TMRW Assembly has the right to use all results amassed from the respective services (e.g., software, including the source code and source documentation) for internal purposes and future client projects only. In particular, this includes the Client's right, at their own discretion, to edit or alter the respective final product (e.g., the source code with source code documentation) while maintaining the same rights as the original version.
(2) In the event of a premature termination of the contract, paragraph 1 shall apply to the already completed part of the services.
§ 8 Liability of TMRW Assembly
(1) In the event of fault-based liability, TMRW Assembly shall only be liable, regardless of the cause in law, in the following cases:
In the case of a breach of a material contractual obligation caused by slight negligence, the liability will be limited to the typically foreseeable damage. The liability is hereby restricted to an amount of 100% of the yearly contract value (compensation excluding expenses for third-party services). Material contractual obligations shall be defined as such obligations, which have to be granted to the Client under the contract in terms of subject matter and purpose, whose fulfilment makes the due performance of the contract possible in the first place, where the Client regularly relies on and may rely on compliance with such obligations. In all other cases, the liability of TMRW Assembly shall be excluded for whatever legal reason.
The aforementioned limitations to liability shall also be valid in favour of our legal representatives, managing employees, all staff as well as our proxies and vicarious agents. A reversal of the burden of proof is not associated with the aforementioned provisions.
(2) The aforementioned limitations of liability shall not apply in cases of compulsory legal liability, especially in accordance with applicable laws.
(3) Notwithstanding any shorter periods prescribed by law, any claims arising from or in the context of the use of the services or these terms and conditions must be brought to court within one (1) year of their occurrence. Contrary statutory regulations shall remain unaffected.
§ 9 Warranty
(1) TMRW Assembly provides its consulting and project services in a manner that generally complies with the specified characteristics. In case of defects, the Client shall be obliged to provide us with all necessary information for error analysis and rectification in writing. TMRW Assembly makes no guarantees, including those regarding specific features or characteristics.
(2) TMRW Assembly takes great care and precision in preparing analyses when performing its services. However, TMRW Assembly cannot always reliably measure the quality of the data and information available for these analyses. Therefore, TMRW Assembly does not guarantee nor is responsible for the representativeness and completeness of the results, as they are subject to certain assumptions, specific estimates, and individually drawn conclusions.
(3) In the case of proven defects, TMRW Assembly shall, at its discretion, provide subsequent services by either offering new, defect-free services or rectifying the defect. During this period, the Client is not entitled to demand a reduction or rescission. A claim for compensation of expenses after the elimination of defects by the Client or any third parties commissioned by the Client shall not be accepted. If subsequent fulfilment is ultimately unsuccessful, the Client will have the option to request a reduction or to withdraw from the contract.
(4) TMRW Assembly shall only provide damages or compensation for futile expenditures due to a defect within the boundaries defined in Clause § 8. The Client is not entitled to any rights arising from defects not explicitly stated in the General Terms and Conditions, unless otherwise contractually agreed.
(5) All Client's warranty rights expire, except in cases of wilful intent or gross negligence by us or our agents, as follows: in the case of § 634a Abs. 1 No. 1 BGB, at the latest one (1) year after the supply of the contractual services; in the case of § 634a Abs. 1 No. 3 BGB, at the latest one (1) year after the end of the year in which the claim arose and the customer became aware of the circumstances justifying the claim or was able to acquire such knowledge without gross negligence.
§ 10 Contract Duration & Termination
(1) The duration of the contract shall be determined by the respective agreement between the Client and TMRW Assembly.
(2) Unless otherwise agreed, the Client shall have the right to terminate the contract in writing at any time following the expiration of the agreed minimum contract term and any agreed automatic renewal. After the minimum contract term or the automatic renewal has expired, the contract can be terminated with a notice period of three (3) months and with effect from the end of the quarter. The date of receipt of notice shall be decisive.
(3) Both TMRW Assembly and the Client have the right to terminate the contractual agreement without notice for a good cause. A good cause entitling TMRW Assembly to terminate the contract without notice occurs if the Client's behavior endangers existing contractual relationships with other clients, the Client is in default with two (2) successive monthly instalments, the Client declares insolvency, especially in the case of opening insolvency proceedings due to a lack of funds (insolvency, cessation of payments, or suspension or dissolution of business activities - for whatever reason - shall be considered insolvency), or the Client is in breach of any essential provision of the GTC.
§ 11 Use of References
(1) TMRW Assembly is entitled to use the Client's name, company name, and contact persons for reference purposes. This includes the use of the company logo and a description of the services provided by TMRW Assembly. This reference may be used on TMRW Assembly's websites, blogs, social media channels, press releases, printed advertisements, company brochures, and for decorative purposes at conferences, trade shows, and on company premises. The use of the Client's text or detailed specifications of a customer success story requires prior authorization from the Client and a separate agreement.
(2) This customer reference agreement remains in effect for five (5) years after the termination or suspension of the contract without the need for notice.
§ 12 Exceptional Circumstances
(1) In case TMRW Assembly is unable to perform its obligations due to exceptional circumstances, including but not limited to shortages of raw materials, energy, and labor force, strikes, transport disruptions, unforeseeable and unavoidable operational disruptions, non-imputable official measures, pandemics, or any other events beyond its control, TMRW Assembly shall not be obliged to provide the agreed-upon services for as long as the event preventing service delivery persists. TMRW Assembly shall immediately inform the Client in writing of such circumstances. If these obstacles persist for more than four (4) months, TMRW Assembly reserves the right to terminate the contract if it no longer has an interest in fulfilling the contract due to the impediment and has not assumed a procurement or production risk. Upon the Client's request, TMRW Assembly will decide whether to terminate the contract or fulfill its obligations within a reasonable notice period after the expiration of the notice period.
§ 13 Usage Data Collection
(1) TMRW Assembly is authorized to collect and store anonymized user data resulting from the Client's digital marketing activities ('Usage Data') conducted by TMRW Assembly, both on the Client's website and on third-party websites. (2) TMRW Assembly has the right to continuously utilize the Usage Data for the purpose of enhancing and optimizing aggregate statistics, metrics, and general trend data, which are employed for the benefit of the Client and other clients' marketing activities. (3) While using the Usage Data, TMRW Assembly will not disclose the Client's identity to third parties. (4) The Client is responsible for ensuring that its website complies with applicable data protection laws and contains an appropriate data protection notice.
§ 14 Final Provisions
(1) The contractual agreement between TMRW Assembly and the Client shall be interpreted in accordance with the laws of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11.04.1980. (2) The place of jurisdiction for any disputes arising from the contractual relationship or related to it shall be the office location in Munich for all parties, unless mandatory law dictates otherwise. (3) If the contractual agreement requires written form, all agreements between the contracting parties must be made in writing to be effective. This also applies to supplements and amendments to the GTC, as well as the cancellation of any clauses requiring written form. (4) TMRW Assembly reserves the right to make modifications and amendments to these General Terms and Conditions of use. In such cases, the Client will receive written notification. The modifications and amendments shall be considered accepted if the Client does not object in writing within six (6) weeks after the announcement of the amendments. TMRW Assembly will notify the Client of this when announcing the modification. In the event of an objection by the Client, the contractual agreement will continue without the proposed modification. This shall not affect the parties' right to terminate the contract. (5) Severability Clause: If any part or provision of the GTC between TMRW Assembly and the contractor is deemed unenforceable or in conflict with the applicable law of any jurisdiction, the validity of the remaining parts or provisions shall not be affected. The void, ineffective, or unenforceable provision shall be replaced by an appropriate provision that most closely approximates the intent and purpose of this agreement, as if the parties had considered the voidness, ineffectiveness, or unenforceability from the outset.
