MiToU GmbH (hereinafter referred to as “MiToU”) provides consulting services as an independent service provider on behalf of the client for the client’s online activities with the aim of optimisation. MiToU is legally and economically independent of all e-commerce sales platforms. MiToU offers its services as a package service or individual contractual service; the order confirmation from MiToU is always decisive for the service content owed.
These General Terms and Conditions govern the contractual relationship between MiToU and the Client. They apply exclusively; terms and conditions of the client are hereby rejected; they do not apply unless they are expressly accepted in writing by our management.
We reserve the right to amend these General Terms and Conditions. We shall inform the customer of any changes or modifications to these General Terms and Conditions in good time before they come into force. If the customer does not object within two weeks after receipt of the notice of amendment, which contains a separate reference to this consequence, the amended terms and conditions shall be deemed to have been accepted. If the customer does not accept the amended terms and conditions, we shall be entitled to a special right of termination with three months’ notice, which we may exercise within two months of the customer’s objection.
MiToU accepts in particular the following services, which may be ordered by the Client cumulatively, alternatively or in packages: Access to MiToU website and the content there, cost check-up, strategic optimisation, telephone support and repricing support, as well as access to MiToU partner programmes and partner discounts. The aforementioned services include the following parameters in particular: Product and system comparison, knowledgebase (experience and knowledge compendium online), analysis of the existing e-commerce system together with provider comparison and savings proposals, advice regarding financial and strategic orientation of online activities including advice regarding profitable systems and sales channels. For the preparation of the aforementioned consulting services, MiToU can use its own developments or external pre-existing tools, software, systems, etc.. In some cases, this requires the disclosure of client data, with which the client agrees.
The contract between MiToU and the client is concluded upon the client’s request and acceptance of the same by MiToU (order confirmation). There is no right to conclude a MiToU GmbH, Frankfurter Str. 720-726, 51145 Cologne contract; MiToU may not accept offers from a client at any time without giving reasons. MiToU offers the service exclusively to entrepreneurs in the sense of § 14 BGB (German Civil Code). The services are not offered to consumers in the sense of § 13 BGB under any circumstances; if a consumer obtains a contract under pretence of a supposed entrepreneurial activity, he cannot invoke specific consumer rights. The contractual partners of MiToU must be over 18 years of age to conclude the contract, provided that they are natural persons.
The Client is obliged to provide complete and truthful information about himself and/or his company. The client must provide MiToU with all the necessary access data for its online activities for which it has commissioned MiToU’s consultancy service, completely and truthfully, in particular with regard to any passwords. Relevant changes in this data must be communicated to MiToU in writing (e-mail) without being requested and without delay. If MiToU does not receive the necessary access data for the provision of the commissioned services from the client or does not receive it in full, MiToU will be released from the provision of the service obligation until the data is available, the client remains obliged to pay for this period. If the delivered data are insufficient or not usable, MiToU will inform the client about this and remind the subsequent delivery once. Likewise, the client is obliged to provide MiToU with all information necessary for the provision of the contractual services regarding its online activities, in particular target group, sales, articles, expectations, price levels, sales markets, etc.. MiToU is entitled, but not obliged, to request from the client any missing data and information for the provision of the contractual services.
The respective contract with MiToU begins with the order confirmation and runs for the agreed period of time, either according to our service packages or according to the individual service agreement. In the case of our service packages, the initial term is 6 or 12 months (basic term), depending on the client’s choice. The contract shall be extended in each case by the agreed basic term if it is not terminated in advance in writing by one of the contracting parties with a notice period of 1 month. Decisive for the timeliness of a termination is the receipt by the recipient of the termination. MiToU grants the client and itself a special right of termination in the first basic term as follows: The client or MiToU may terminate the contract by written notice with immediate effect until the end of the first month of the contract without giving any reason; again, the receipt by the recipient of the notice is decisive for the timeliness of the termination. In this case, any payments already made by the client beyond the contract period will be refunded on a pro rata basis. MiToU GmbH, Frankfurter Str. 720-726, 51145 Cologne. The right of termination for good cause remains unaffected by the above provisions.
For the remuneration of MiToU the respective remuneration agreed with the client plus VAT shall apply. If the remuneration is agreed on the basis of a price list, the currently valid price list shall apply for the respective term of the contract. If the remuneration according to the price list increases by more than 20% from one contract term to the next, the client is entitled to an extraordinary special right of termination until the end of the first contract month without giving reasons by written notice with immediate effect; also in this case the receipt by the recipient of the notice is decisive for the timeliness of the termination. MiToU may at its own discretion determine pro rata payment periods within the term of the contract (e.g. months, weeks, quarters) and accordingly make the agreed remuneration due pro rata. This is due in advance and will be collected by direct debit by MiToU with the approval of the client. The payment of the first remuneration is a prerequisite for the start of the provision of services by MiToU, as long as nothing else has been individually agreed. The client is only entitled to set-off with undisputed or legally established claims from the same contractual relationship. The client may only derive rights of retention from the same contractual relationship, unless these are undisputed or legally established. MiToU is entitled, in the event of default, to temporarily withhold the services until full settlement of payment, including ancillary costs and legal costs, by the client; for expired periods, a catch-up of our services is excluded.
MiToU does not guarantee the possible success expected or intended by the client with the commissioning of MiToU. In particular, MiToU does not guarantee that the portals, systems, software, product partners, dealer networks, websites, tools, etc. mentioned by MiToU in the context of the consultancy will lead to an increase in turnover or other sales successes for the client. MiToU guarantees, however, that the services provided by it within the framework of the order are carried out to the best of its knowledge and belief, taking into account the current and immediately established developments in the market for online activities. To this end, MiToU keeps itself continuously informed about such developments and trends in the online market. In the event of a failure to perform, i.e. if MiToU does not provide a contractually agreed service or does not provide it properly, MiToU is entitled to subsequent performance of the service. A failure of the supplementary performance requires at least two unsuccessful attempts of supplementary performance. In all other respects the statutory warranty provisions shall apply.
We shall only be liable for direct and/or indirect damage, including consequential damage, incurred by the customer or third parties, irrespective of the basis of the claim, in the event of intent or gross negligence, provided that this does not involve liability for MiToU GmbH, Frankfurter Str. 720-726, 51145 Cologne initial defects. In the event of injury to life, limb and health and in the event of a breach of material contractual obligations, we shall also be liable for simple negligence, whereby liability in the event of a breach of material contractual obligations shall be limited to the typically foreseeable damage. The liability is limited in amount (except in the case of intent or gross negligence) to the sum of the contractual fees paid by the client for the period of two years prior to the occurrence of the damaging event under the specific contractual relationship. MiToU is only liable for the consultancy services it provides. MiToU is not liable for the technical or other implementations of the consultancy, including the development and installation of software, analysis tools, optimisation systems or other technical or software-based developments, which may be carried out by third parties on the basis of the consultancy services; these third parties are not vicarious agents of MiToU in relation to the client. MiToU will not commission such third parties. This is the responsibility of the client. The client is required to make and regulate its own arrangements and law with regard to the liability and responsibilities of third parties. This also applies to any warranty claims etc. of the client against third parties. MiToU is not liable for the constant technical accessibility or availability of the website, for data security, operability, usability, processing systems etc.. The operation and maintenance of the online activities to which the advice of MiToU relates is and remains the responsibility of the client.
The client guarantees that, if he conducts online activities on portals operated by third parties, he will observe and duly comply with all registration requirements and conditions of participation of these portals. Furthermore, he undertakes not to use MiToU’s consultancy services for products which violate applicable laws and regulations, in particular industrial property rights of third parties, such as copyrights, competition rights, personal rights, etc., of third parties, and in particular not to commit any infringement of public order. of third parties and in particular does not constitute a breach of public order and criminal law and morality. The client guarantees that it is fully entitled and able to offer and sell the products it has freely offered and that its advertising measures concerning the sale of its products also comply with the above conditions. If third parties assert claims against MiToU which are in contradiction to the above guarantees of the client, the client hereby indemnifies MiToU in the internal relationship from the claim including the legal costs on first demand. The client undertakes to check whether the prices proposed by MiToU are correct and, if necessary, to confirm this at the request of MiToU. The client is entitled to correct the proposed prices and also chooses on his own responsibility and decision the products and prices he wants to offer to his buyers online in the web shops or other online activities. The customer shall be liable for all damages arising from a breach of the contractual provisions, insofar as he is responsible for such breach. The compensation also includes the reasonable costs of a necessary legal defence. MiToU GmbH, Frankfurter Str. 720-726, 51145 Cologne, Germany.
MiToU guarantees that the access data and passwords provided by the client are kept strictly confidential and secured. These are stored exclusively on MiToU’s own servers in Germany. MiToU collects, stores, modifies and transmits personal data of the client exclusively in compliance with the Federal Data Protection Act. The client is hereby informed that MiToU reserves the right to use the name of the client as well as his address for the purpose of advertising or market or opinion research as well as for its own offers and to transmit them to third parties for the purpose of advertising. The customer can object to this use at any time with effect for the future. The objection does not need to contain any reasons and is to be sent to MiToU without any formalities. The client also has the right to object to the use of the data vis-à-vis the third party to whom the data has been transmitted within the framework of the aforementioned purposes.
This agreement shall be governed exclusively by German law to the exclusion of international agreements. Amendments or supplements to this agreement must be made in writing in order to be effective. This also applies to amendments to the written form agreement. The place of performance and jurisdiction for all services is Cologne.