Terms of Service
MiToU GmbH (hereinafter referred to as “MiToU” for short) is an independent service provider providing consultancy services on behalf of the customer for his 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 of MiToU is always decisive for the service content owed.
2. Validity clause
These general terms and conditions govern the contractual relationship between MiToU and the client. They apply exclusively; conditions of the client are hereby contradicted; they do not apply unless they are expressly accepted in writing by our management.
3. Reservation of changes to the terms and conditions of business
We reserve the right to change these general terms and conditions. We will inform the customer of any changes or modifications to these General Terms and Conditions in good time before they come into effect. If the customer does not object within two weeks of receipt of the notification of change, which contains a separate reference to this consequence, the amended terms and conditions shall be deemed approved. If the customer does not accept the amended conditions, we shall be entitled to a special right of termination with a period of three months, which we may exercise within two months of the customer’s objection.
4. Services of MiToU
MiToU accepts in particular the following services, which can be ordered by the client cumulatively, alternatively or in packages: Access to MiToU website and content, cost checkup, strategic optimization, telephone support and repricing support as well as access to MiToU partner programs and partner discounts. The above services include in particular the following parameters: 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 on the financial and strategic orientation of online activities including advice on profitable systems and distribution channels. MiToU may use its own developments or third-party pre-existing tools, software, systems, etc. to prepare the aforementioned consulting services. This partly requires the passing on of the client’s data, with which the client agrees.
5. Conclusion of contract
The contract between MiToU and the client is concluded at the request of the client with the acceptance of the same by MiToU (order confirmation). There is no claim to the conclusion of a contract; MiToU may not accept offers from a customer at any time without stating reasons. MiToU offers the service exclusively to entrepreneurs within the meaning of § 14 BGB (German Civil Code). The services are not offered to consumers within the meaning of § 13 BGB under any circumstances; if a consumer obtains a contract under the pretence of an alleged entrepreneurial activity, he cannot invoke specific consumer rights. MiToU’s contractual partners must have reached the age of 18 by the time the contract is concluded, provided they are natural persons.
6. Obligation of the customer to cooperate
The customer is obliged to provide complete and truthful information about himself and/or his company. The client must provide MiToU with all necessary access data for his online activities for which he has commissioned the MiToU consulting service, completely and truthfully, in particular with regard to any passwords. Relevant changes in this data must be reported to MiToU in writing immediately and without being requested to do so (e-mail). If MiToU does not receive the necessary access data for the provision of the ordered services from the customer or does not receive them in full, MiToU shall be released from the obligation to perform until the data is available, the customer remains obliged to pay for this period. If the delivered data is insufficient or not usable, MiToU will inform the customer about this and remind the customer of the subsequent delivery once. The customer is also obliged to provide MiToU with all information on his online activities required for the provision of the contractual services, in particular target group, turnover, articles, expectations, price levels, sales markets, etc.. MiToU is entitled, but not obliged, to request from the customer any missing data and information for the provision of the contractual services.
The respective contract with MiToU begins with the order confirmation and runs over the agreed period, be it according to our service packages or according to individual service agreements. For our service packages, the initial term is 6 or 12 months (basic term), depending on the customer’s choice. The contract shall be extended by the agreed basic term in each case if it is not terminated in writing by one of the contracting parties with 1 month’s prior notice. The date of receipt by the recipient of the notice shall be decisive for the timeliness of a notice of termination. MiToU grants the customer and itself a special right of termination in the first basic term as follows: The customer or MiToU may terminate the contract until the end of the first month of the contract without giving reasons by giving written notice with immediate effect; here, too, the receipt by the termination recipient shall be decisive for the timeliness of the termination. In this case, any payments already made by the customer beyond the contractual period will be refunded pro rata. The right to terminate for important reasons shall remain unaffected by the above provisions.
For the remuneration of MiToU, the remuneration agreed with the customer plus value added tax shall apply. If the remuneration is agreed on the basis of a price list, the currently valid price list shall apply for the respective contract period. If the remuneration according to the price list increases by more than 20% from one contract period to the next, the customer is entitled to an extraordinary special right of termination until the end of the first contract month without giving reasons by written notification with immediate effect; here, too, the receipt by the recipient of the termination 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 payable pro rata. This is due in advance and will be collected by MiToU by direct debit with the approval of the customer. The payment of the first fee is a prerequisite for the commencement of MiToU’s performance, unless otherwise agreed individually. The client is only entitled to set off undisputed or legally established claims from the same contractual relationship. The customer may only derive rights of retention from the same contractual relationship, unless these are undisputed or have been legally established. MiToU is entitled, in case of delay, to temporarily withhold the services until the complete settlement of payment by the customer, including incidental costs and legal prosecution costs; for expired periods of time, a catch-up of our services is excluded.
9. Malfunction of performance / Warranty
MiToU does not guarantee the success expected or intended by the client in commissioning MiToU. In particular, MiToU does not warrant that the portals, systems, software, product partners, dealer networks, websites, tools, etc. named by MiToU within the scope of the consultation will lead to an increase in turnover or other sales successes for the customer. However, MiToU guarantees that the services it provides within the scope of the order are provided to the best of its knowledge and belief, taking into account current and immediately established developments in the market for online activities. For this purpose, MiToU keeps itself continuously informed about such developments and tendencies in the online market. In the event of service interruptions, i.e. if MiToU fails to perform a contractually agreed service or fails to perform it properly, MiToU shall be entitled to subsequent performance of the service. Failure of subsequent performance requires at least two unsuccessful attempts at subsequent performance. Otherwise, the statutory warranty provisions shall apply.
10. Liability (liability limitation clause)
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, unless liability for MiToU initial defects is involved. In case of injury to life, limb and health as well as in case of violation of essential contractual obligations, we shall also be liable for simple negligence, whereby the liability in case of violation of essential contractual obligations shall be limited to the typically foreseeable damage. Liability is limited in amount (except in the case of intent or gross negligence) to the sum of the contractual fees paid by the customer for the period of two years prior to the occurrence of the damaging event within the framework of the specific contractual relationship. MiToU is only liable for the consulting services it provides. There is no liability for the technical or other implementation of the consulting services by third parties on the basis of the consulting services, including the development and installation and setup of software, analysis tools, optimization systems or other technical or software-based developments; these third parties are not vicarious agents of MiToU in relation to the customer. MiToU does not commission such third parties. This is the responsibility of the customer. The customer is obliged to make and regulate his own agreements and rights with regard to the liability and responsibilities of third parties. This also applies to any warranty claims etc. of the customer against third parties. MiToU is not liable for the constant technical accessibility or availability of the website, for data security, functionality, usability, processing systems, etc.. The operation and maintenance of the online activities to which MiToU’s advice refers is and remains the responsibility of the client.
11. Content guarantee by the customer / Confidentiality
The customer guarantees that, if he operates online activities on portals operated by third parties, he observes all registration requirements and participation conditions of these portals and fulfils them properly. Furthermore, he undertakes not to use the consulting services of MiToU for products that violate applicable laws and regulations, in particular industrial property rights of third parties, such as copyrights, competition rights, personal rights, etc., and to not use the consulting services of MiToU for products that do not comply with the applicable laws and regulations. third parties and, in particular, does not constitute a violation of public order, criminal laws or morality. The customer guarantees that he is fully entitled and able to offer and sell the products he has freely offered and that his advertising measures regarding the sale of his products also comply with the above conditions. If third parties assert claims against MiToU which contradict the above guarantees of the customer, the customer hereby releases MiToU internally from the claim including legal costs on first demand. The client undertakes to check whether the prices proposed by MiToU are correct; he confirms this, if necessary, 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 which he wishes to offer his buyers online in the web shops or other online activities. The customer is liable for all damages resulting from a violation of the contractual regulations, insofar as he is responsible for them. The damages also include the reasonable costs of a necessary legal defense.
12. Use of data / Data protection
MiToU guarantees that the access data and passwords provided by the customer are kept strictly confidential and secured. These are stored exclusively on MiToU’s own servers in Germany. MiToU collects, stores, changes and transmits personal data of the customer exclusively in compliance with the Federal Data Protection Act. The customer is hereby informed that MiToU reserves the right to use the customer’s name and address for advertising purposes or for market or opinion research as well as for its own offers and to pass them on to third parties for advertising purposes. The customer may object to this use at any time with effect for the future. The objection need not contain any reasons and must be addressed to MiToU in a form-free manner. The client also has the right to object to the use of the data by the third party to whom the data has been transmitted within the framework of the aforementioned purposes.
13. Final regulations / Other
This agreement is governed exclusively by German law to the exclusion of international agreements. Amendments or supplements to this agreement must be made in written form to be effective. This also applies to changes to the written form agreement. Place of performance and jurisdiction for all services is Cologne.
Cologne, April 2018