ALPHA POOL GmbH
General Terms and Conditions
of
ALPHA POOL GmbH
Kaiser-Friedrich-Str. 90 D-10585 Berlin
As of 1 January 2026
Contents
PART I GENERAL CONDITIONS
1.Fundamental Provisions
1.1.The following terms and conditions apply to all contracts concluded between ALPHA POOL GmbH, Kaiser-Friedrich-Str. 90, 10585 Berlin (hereinafter referred to as "ALPHA POOL" or, in abbreviated form, "AP") and a company as well as its corporate representatives (hereinafter referred to as the "Contractual Partner").
1.2.Unless otherwise agreed, the inclusion of any of the Contractual Partner's own terms and conditions is hereby objected to. Diverging or conflicting contractual terms shall only be effective with the express consent of ALPHA POOL.
1.3.A consumer within the meaning of the following provisions is any natural person who enters into a legal transaction for purposes that are predominantly outside their trade, business or self-employed professional activity. An entrepreneur is any natural or legal person or a partnership with legal capacity that, when entering into a legal transaction, acts in the exercise of its self-employed professional or commercial activity.
1.4.Insofar as ALPHA POOL brokers, initiates or prepares business or business opportunities for the Contractual Partner, the statutory provisions of commercial agency law, in particular Sections 84 et seq. of the German Commercial Code (HGB), shall apply in addition. In doing so, ALPHA POOL shall always act on a non-exclusive basis, unless expressly agreed otherwise in writing. This does not establish any sole agency, non-compete obligation, minimum activity obligation or duty to act exclusively in the interests of the Contractual Partner.
1.5.These General Conditions set out in Part I apply to every contractual relationship with ALPHA POOL. In addition, the special conditions for certain specific services for businesses apply, which follow this general part and are designated as special conditions.
2.Entrepreneur Status
2.1.ALPHA POOL's services are directed exclusively at entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) who order and use the services within the scope of their self-employed, professional or commercial activity.
2.2.ALPHA POOL reserves the right to request evidence of entrepreneur status at any time and to verify this regularly, including after conclusion of the contract.
3.Subject Matter of the Contract
3.1.ALPHA POOL GmbH is a specialist for end-to-end omnichannel services and exclusive marketing, media and communication solutions with many years of experience. AP offers its clients a one-stop service that integrates strategy, implementation, control and operations across online and offline channels. The scope of services – in each case specified in separate individual project contracts (Statements of Work (SOW), offers and/or contracts) – includes in particular: (i) pan-European omnichannel management, consulting, project control and coordination of eCommerce, fulfillment, logistics, payment and marketplace processes; (ii) sales services into retail (key accounts & specialist retail – on- and offline); (iii) marketing services on- and off-channel (TV, retail media, OOH, social, D2C, etc.); (iv) celebrity & influencer marketing; (v) brand collaborations & co-creation; (vi) PR & communications and all services required in this context for the implementation of projects. Merchant-of-record services are provided by ALPHA POOL only where this is expressly designated in the respective offer as ALPHA POOL's own service.
3.2.ALPHA POOL's core task is to provide the fundamental omnichannel infrastructure and, beyond that, to bring the best sales partners, service providers and solution providers to the table in order to achieve the best possible setting for its clients in all sub-areas of omnichannel. To this end, ALPHA POOL uses not only its own resources but also draws on many external partners and vetted service providers and solution providers.
3.3.ALPHA POOL connects its Contractual Partners with the respectively best sales partners, solution providers, suppliers and talents for the specific challenges the Contractual Partners are currently facing.
3.4.In order to be able to do this, ALPHA POOL draws on a network of sales partners, suppliers and solution providers and continuously expands it.
3.5.The protection of this network and the business opportunities arising from it is therefore of high priority for ALPHA POOL's work and requires particular care.
3.6.In order to identify a supplier or solution provider in such a way that the most precise possible "matching" between the KPIs of the challenge and the performance parameters of the supplier can take place, a thorough analysis of the actual situation and an exact definition of the objectives is required – provided the Contractual Partner commissions this.
3.7.This data feeds into a concept or strategy that precisely describes and classifies the challenge and identifies solutions or solution paths. The solutions are in each case described precisely with regard to all decisive parameters in order to achieve the set objectives.
3.8.On this basis, suitable suppliers are identified and qualified.
3.9.On the basis of this approach, ALPHA POOL is independent of individual services and suppliers and can advise the Contractual Partners at any time in an independent, solution-oriented and comprehensive manner.
3.10.ALPHA POOL remains involved in the projects at all times, since a large part of the success of projects of any kind depends on the quality of the project management. This is provided by ALPHA POOL's employees.
3.11.If ALPHA POOL acts as an intermediary and brokers or initiates business between the Contractual Partner and other companies, persons or other business partners, ALPHA POOL acts as a non-exclusive brokerage agent within the meaning of Sections 84 et seq. of the German Commercial Code (HGB) for the Contractual Partner. This does not apply to talent outreach or talent placement; there, ALPHA POOL acts exclusively as a mediating point of contact between talent and client, unless expressly agreed otherwise.
3.12.Areas in which ALPHA POOL is active include, among others:
3.12.1.Sales of products and services of Contractual Partners
3.12.2.Marketing & communications
3.12.3.Digital commerce, eCommerce, fulfillment, logistics
3.12.4.Payment & financing
3.12.5.Content production in the areas of film, video, photo and text
3.12.6.Event marketing and production
3.12.7.Media buying
3.12.8.Online and social media marketing
3.12.9.IT services such as the development of software and interfaces
3.12.10.Development of web presences – in particular shop systems
3.12.11.Implementation of software systems
3.12.12.Development and execution of concepts and strategies
3.12.13.Consulting for companies and entrepreneurs
3.12.14.All services, products and tools that companies need to conduct their business activities in omnichannel sales & marketing.
3.13.The specific subject matter of the contract results from the respective specific offer of ALPHA POOL.
3.14.Insofar as the subject matter of the contract comprises services that are handled through the brokerage, coordination or use of services of third parties, affiliated companies or independently contracting service providers, the respective rights and obligations additionally result from the relevant contract documents, service descriptions, service agreements and general terms and conditions of these service providers.
3.15.Insofar as the respective offer or other contract documents provide for services in connection with a merchant-of-record model, eCommerce handling, payment processing, the sale of goods to end-consumers, marketplace operation, fulfillment or returns management, the following applies: ALPHA POOL provides these services itself only to the extent that this is expressly designated in the respective offer as ALPHA POOL GmbH's own service.
3.16.Insofar as merchant-of-record services are provided via IDEAL-ALPHA GmbH, a separate contractual relationship comes into existence between the Contractual Partner and IDEAL-ALPHA GmbH with regard to these services. IDEAL-ALPHA GmbH thereby acts as an independent contracting party and not as a mere subcontractor of ALPHA POOL GmbH.
3.17.Services of IDEAL-ALPHA GmbH are governed exclusively by the contractual terms agreed with IDEAL-ALPHA GmbH, in particular its general terms and conditions as well as the respectively agreed special conditions for the merchant-of-record model.
3.18.In this context, unless expressly agreed otherwise, ALPHA POOL owes exclusively the consulting, coordination, brokerage, project management, strategy, sales or marketing services described in the offer. Vis-à-vis end-consumers, ALPHA POOL does not become the seller of the goods, does not accept end-consumer payments in its own name and does not provide any payment services, insofar as these services are provided by IDEAL-ALPHA GmbH or another independent service provider.
4.Conclusion of Contract
4.1.ALPHA POOL's offers on the internet are non-binding and do not constitute a binding offer to conclude a contract.
4.2.Potential Contractual Partners have the option of submitting an enquiry to ALPHA POOL by telephone, e-mail or contact form. These enquiries are non-binding.
4.3.On the basis of the enquiry, ALPHA POOL submits a binding offer in text form (e.g. by e-mail or post), which the potential Contractual Partner may accept within the period stated in the offer. If no period is stated in the offer, the offer lapses without acceptance after 7 calendar days.
4.4.The processing of the offer and the transmission of all information required in connection with the conclusion of the contract takes place by e-mail, in part automatically. The Contractual Partner must therefore ensure that the e-mail address provided to ALPHA POOL is correct, that the receipt of the e-mails is technically ensured and, in particular, is not prevented by SPAM filters.
5.Cooperation Obligations of the Company, Collaboration with Third Parties and Service Providers
5.1.The Contractual Partner is obliged to provide ALPHA POOL in good time with all documents, information, texts or files necessary for the provision of services, and in particular the access data necessary for the respective project that are required for the conception, creation and implementation of the commissioned orders.
5.2.Insofar as the Contractual Partner provides ALPHA POOL with the documents and information referred to under 5.1, the Contractual Partner warrants that it is entitled to hand over and use these templates, data and information.
5.3.Agreed service periods only begin once all execution details have been fully clarified. Compliance with the service obligation presupposes the timely and proper fulfilment of the Contractual Partner's cooperation obligations (in particular general provision of information, answering queries, timely approvals).
5.4.In the event of a delay for which the Contractual Partner is responsible or which is based on force majeure, the service period shall be extended by the duration of the delay.
5.5.If the agreed deadlines and dates are culpably not met, the respective party shall be set a reasonable period for performance; after expiry of the grace period, default shall occur without further notice.
5.6.Insofar as services are provided by third parties and service providers whom ALPHA POOL has brokered to the Contractual Partner, collaboration with the third party is only possible if ALPHA POOL is likewise involved in the execution of the contract.
5.7.If ALPHA POOL is, for whatever reason, not involved in the collaboration with third parties, ALPHA POOL excludes any liability and warranty for the services provided there, since ALPHA POOL then has no control whatsoever over the optimisation and management of the processes and, above all, over the monitoring of success.
5.8.Insofar as the Contractual Partner, within the scope of an offer, simultaneously concludes its own contractual relationship with an affiliated company of ALPHA POOL, in particular IDEAL-ALPHA GmbH, this affiliated company is independently responsible for the services it has assumed, provided it acts in its own name and on its own contractual responsibility.
5.9.The Contractual Partner is obliged to provide the information, data, product documents, mandatory legal details, approvals and cooperation actions required for the provision of services by affiliated companies or third parties to these service providers as well, in good time, completely and correctly.
5.10.ALPHA POOL assumes no responsibility for service disruptions, delays, damages, end-consumer claims, regulatory objections or payment-processing risks that are based on services, systems, decisions or breaches of duty of an independently contracting affiliated company or third party, insofar as ALPHA POOL is not itself responsible for these.
6.Rights and Obligations of ALPHA POOL
6.1.Insofar as ALPHA POOL acts as an intermediary in an individual case, any duties to make efforts and to safeguard interests pursuant to Section 86 (1) of the German Commercial Code (HGB) are limited to the specifically commissioned, non-exclusive brokerage or initiation activity. This does not establish any minimum activity obligation, sole agency, prioritisation obligation or duty to act exclusively in the interests of the Contractual Partner.
6.2.ALPHA POOL informs the Contractual Partner about relevant business brokering and business initiation within the scope of the respective engagement.
6.3.To perform its services, ALPHA POOL may engage assistants and subcontractors, who likewise act accordingly.
7.Rights and Obligations of the Contractual Partner
7.1.The Contractual Partner is obliged to notify ALPHA POOL without delay of the conclusion of a contract with a company brokered by ALPHA POOL and, upon first request, to provide ALPHA POOL with a complete copy of the contract.
8.Commission-Bearing Transactions, Amount of Commission, Commission Statement
8.1.ALPHA POOL is entitled to a commission for all transactions brokered by AP that are attributable to AP's activity, Section 87 (1) of the German Commercial Code (HGB). A precondition for the commission claim is that the conclusion of the transaction has taken place during the existing agency contract, irrespective of the time of the brokering of the transactions. Diverging provisions in special brokerage or contact contracts (e.g. talent outreach) take precedence.
8.2.For transactions concluded after the termination of this contract, ALPHA POOL is entitled to a commission if AP brokered the transaction or initiated or prepared it in such a way that the conclusion of the transaction is predominantly attributable to AP's activity and the transaction is concluded within a reasonable period after termination of the contractual relationship, or if the offer of the company or the service provider to conclude the respective transaction was received by the other party before the termination of the brokerage contract.
8.3.ALPHA POOL's commission claim arises as an unconditional claim as soon as and to the extent that the Contractual Partner has executed the commission-bearing transaction. Where the Contractual Partner is obliged to perform in advance, the commission claim already arises when and to the extent that the Principal fulfils its obligation to perform in advance.
8.4.The amount of the commission – unless otherwise agreed in writing – is 15% of the order value plus statutory value added tax. The basis for calculating the commission is the net invoice amount ("order value") less all price reductions granted by the contractor or claimed by the Principal. Cash discounts are not to be deducted. The same applies to ancillary costs (e.g. for freight, postage, customs, taxes, etc.), unless the ancillary costs are invoiced separately.
9.Lapse of the Commission Claim
9.1.In the event of the complete or partial non-execution of a concluded transaction, the commission claim only lapses if and to the extent that this is based on circumstances for which the Contractual Partner is not responsible, Section 87a (3) of the German Commercial Code (HGB).
9.2.The commission claim also lapses if it is established that the Principal does not perform; it is reduced if the Principal performs only in part. Section 87a (2) of the German Commercial Code (HGB).
10.Commission Statement
10.1.The Contractual Partner must settle the commissions due to ALPHA POOL for each calendar month, namely by the 20th of the following month at the latest. The commission statement must record those commission claims (net commission) that have arisen as unconditional claims by the end of the previous month as a result of the execution of the transaction by the Contractual Partner.
10.2.In the commission statement, advance payments made are to be taken into account; the VAT attributable to the commissions is to be shown separately in the commission statement.
10.3.The commission claim becomes due at the end of the accounting month, Section 87a (5) of the German Commercial Code (HGB).
11.Contractual Penalty
11.1.The Contractual Partner undertakes to pay ALPHA POOL, for each breach of the foregoing provisions, in particular in the event of circumvention of the commission claim, a contractual penalty in an amount to be determined by ALPHA POOL at its reasonable discretion and, in the event of dispute, to be reviewed by the competent court. In the event of enforcement of contractual penalties, their amount shall be set off against a claim for damages. The claim for compensation of damages exceeding the contractual penalties remains unaffected. The contractual penalty does not apply to talent outreach following talent approval.
12.Contract Term, Termination
12.1.Unless otherwise agreed, all contracts, in particular those for brokerage services, commence upon conclusion of the respective contract and are concluded for the duration of the project or for the agreed term. The contract ends automatically as soon as the agreed service has been rendered by ALPHA POOL or the agreed term ends.
12.2.Otherwise, the term of the contract results from the order or the service description. If the contract is concluded for a fixed term, no separate termination is required. There is no tacit extension of the contractual relationship.
12.3.If no term is agreed, the contractual relationship between ALPHA POOL and the Contractual Partner is concluded for an indefinite period. If the contractual relationship is concluded for an indefinite period, it may be terminated in the first year of the contract term with one month's notice, in the second year with two months' notice and in the third to fifth year with three months' notice to the end of the month. After a contract term of five years, the contractual relationship may be terminated with six months' notice to the end of the month, Section 89 (1) of the German Commercial Code (HGB).
12.4.The right to terminate without notice for good cause remains unaffected.
12.5.To be effective, the termination must be in text form (e.g. by e-mail).
13.Changes to Services and Delays
13.1.The Contractual Partner may in principle request changes to the content, schedule and scope of the services. This also applies to parts already rendered and delivered that have not yet been accepted by the Contractual Partner.
13.2.ALPHA POOL will determine the time delays and additional effort arising as a result of the requested changes, and the parties will agree on a corresponding adjustment to the contract. If the parties do not reach agreement, ALPHA POOL is entitled to reject the change request. The calculation of these changes is charged at a flat rate of 290 euros plus the costs & fees incurred as a result of the change.
13.3.ALPHA POOL cannot assert additional remuneration for changes to services for which the Contractual Partner is not responsible.
13.4.All changes to services are to be regulated, before execution begins, in a supplementary agreement in which the additional remuneration and any changes to the timeline are to be recorded.
13.5.Delays attributable to fault of the Contractual Partner and of third parties commissioned by it, such as shipping service providers, are the full responsibility of the Contractual Partner. In this case, ALPHA POOL must not incur any disadvantages, in particular of a financial nature. Should delays caused by third parties trigger additional hourly effort on the part of ALPHA POOL, ALPHA POOL may invoice these additionally accordingly.
13.6.In principle, all hourly efforts relate to services within the normal opening hours of ALPHA POOL. These are Monday to Friday, from 9 a.m. to 6 p.m. German time.
13.7.Services outside normal opening hours are in principle possible but must be agreed separately. Unless otherwise stipulated, the following surcharges are charged:
13.7.1.For overtime:
13.7.1.1.From the 8th to the 10th working hour: 25%
13.7.1.2.From the 10th hour onwards: 50%
13.7.2.Outside regular working hours, i.e. before 9 a.m. or after 6 p.m. German time: 50%
13.7.3.On Saturdays and Sundays: 75%
13.7.4.On major public holidays such as Christmas or Easter: 100%
13.8.If a service is booked with ALPHA POOL and not called off – whether or not the commissioning company is responsible – a cancellation fee of 50% of the originally offered budget becomes due. It is the responsibility of the commissioning company to safeguard itself against cancellation risks of all kinds by means of appropriate insurance.
14.Third-Party Rights and Indemnification
14.1.The Contractual Partner undertakes not to transmit any data the content of which infringes the rights of third parties (in particular copyrights, name rights, trademark rights) or violates applicable laws. ALPHA POOL does not check the transmitted data for substantive correctness and assumes no liability for errors in this respect.
14.2.The Contractual Partner expressly indemnifies ALPHA POOL against all third-party claims asserted in this connection. This also concerns the costs of the legal representation required in this connection. The indemnification is subject to the condition that any settlement or acknowledgement regarding third-party claims is made only with the prior written consent of the Contractual Partner.
14.3.Insofar as ALPHA POOL has been commissioned to create concepts, AP creates these solely from a creative perspective. After the Contractual Partner has selected a concept, the Contractual Partner will review the concept as to whether it infringes, in particular, trademark and identification rights, name rights, copyrights and other third-party rights. If this is the case, the Contractual Partner is free to select an alternative from the other concepts submitted or to commission ALPHA POOL with a revision of the selected concept. The revision of the concept is to be remunerated by the Contractual Partner, unless ALPHA POOL can be shown to have intentionally or grossly negligently disregarded third-party rights when creating the first concept.
14.4.If the Contractual Partner is sent a proof for correction by ALPHA POOL, this is to be checked by the Contractual Partner without delay. If the Contractual Partner agrees with the draft, it releases the proof for execution by countersigning in text form (e.g. e-mail).
14.5.Execution of the design work does not take place without the approval of the Contractual Partner.
14.6.The Contractual Partner is responsible for checking the proof for correctness and completeness and for notifying ALPHA POOL of any errors. ALPHA POOL assumes no liability for errors that have not been objected to.
15.Transfer of Usage Rights
15.1.Insofar as ALPHA POOL creates texts, images, graphics, videos, content and designs for the Contractual Partner within the scope of the individual provision of services, these are subject to copyright.
15.2.ALPHA POOL is the author of all documents, in particular designs, sketches and plans, that are produced within the scope of the conception, creation, planning and implementation of the orders. AP reserves all copyrights and other ancillary copyrights to the analyses, concepts, programming work and other work results created by AP. The rights arising from copyright law also accrue to AP in respect of services that do not qualify as works within the meaning of Section 2 of the German Copyright Act (UrhG).
15.3.Unless the engagement of ALPHA POOL provides otherwise, any use, reproduction or alteration of individual parts or complete content without the express consent of AP is not permitted.
15.4.Unless otherwise agreed, ALPHA POOL grants the Contractual Partner a time-limited right of use to the copyright-protected works created for the Contractual Partner. The duration of the right of use results from AP's offer. The parties remain free to agree by individual contract an extension of the right of use or the transfer of a right of use unlimited in time in return for payment of a licence fee. The Contractual Partner is expressly prohibited from making the protected works or parts thereof available to third parties in any way, privately or commercially, unless a transfer to third parties is covered by the purpose of the contract.
15.5.The transfer of the right of use is subject to the condition precedent of full payment of the agreed remuneration.
15.6.The Contractual Partner consents in particular to the project being named as a reference on ALPHA POOL's company website. The Contractual Partner may object to the reference in text form, e.g. by e-mail.
16.Protection of Intellectual Property
16.1.All documents drawn up by ALPHA POOL, such as in particular letters, e-mails, minutes, assessments, calculations, forecasts, evaluations and concepts, are protected by copyright. Any use is only permitted after written consent has been given by ALPHA POOL and after settlement of the fees or costs charged for this.
16.2.Should concepts be presented – in particular, but not only, in pitch situations – initially without an invoice, these concepts may likewise only be used after the contracting parties have agreed on a usage fee and ALPHA POOL has approved the use in writing.
16.3.In every case of a breach, ALPHA POOL is entitled to set a contractual penalty in an amount to be determined by ALPHA POOL at its reasonable discretion and, in the event of dispute, to be reviewed by the competent Regional Court.
17.Prices, Payment Terms, Price Adjustment
17.1.The prices and brokerage commissions are listed in the respective offer. These are exclusive of statutory value added tax.
17.2.Unless otherwise stated, the remuneration or commission claims are due immediately upon arising.
17.3.ALPHA POOL reserves the right, upon placing of the order, to demand security of up to 100% of the total amount or to render the service subject to full payment in advance. ALPHA POOL informs the Contractual Partner of this before the order is placed. In this case, ALPHA POOL may make the commencement of the activity dependent on receipt of the down payment.
17.4.If ALPHA POOL owes works performance, the remuneration is due after acceptance of the work and is to be paid by the Contractual Partner within 10 calendar days of receipt of the invoice.
17.5.In the event of a contract being concluded between two companies or between a company and a further contractual party as a result of a successful brokering by ALPHA POOL for which ALPHA POOL has not agreed any remuneration, ALPHA POOL levies a commission from the Contractual Partner.
17.6.If remuneration is agreed on an hourly basis, the Contractual Partner receives a verifiable statement. The invoice amount is due for payment within a period of ten calendar days of invoicing. Billing is carried out for each commenced working hour in increments of 15 minutes.
17.7.If the Contractual Partner does not pay after the due date, it must pay ALPHA POOL default interest of 9 percentage points above the base interest rate. The Contractual Partner's obligation to pay default interest does not preclude the assertion of further default damages by ALPHA POOL.
17.8.Cost estimates and budget plans are in principle non-binding, unless otherwise agreed in the individual case. ALPHA POOL will inform the Contractual Partner of any imminent exceedance of cost estimates and budget plans, insofar as ALPHA POOL has recognised these or should have recognised them.
17.9.Unless otherwise agreed in the individual case, additional effort for the services commissioned by the Contractual Partner is to be remunerated separately.
17.10.ALPHA POOL is entitled, at its own discretion, to bill additional effort deviating from the agreed service for services to be rendered, insofar as this is indicated to mitigate damage in the event of imminent emergencies. This applies, among other things, if the emergency situation jeopardises the execution of the order as such, the time deadlines or the reputation of the Contractual Partner. ALPHA POOL will subsequently inform the Contractual Partner of this without delay.
17.11.GEMA fees and other usage-rights remunerations, artists' social-insurance contributions and customs costs are shown in cost estimates or in the offer and are borne by the Contractual Partner under the conditions stated therein. Should these fees and other usage-rights remunerations not be shown separately in cost estimates or offers, this merely means that they are not part of the cost estimate or the offer and are charged separately.
17.12.Insofar as an agreed monthly time allowance is not fully used by the Contractual Partner, the remaining hours are not – unless a diverging arrangement is made in the offer – carried over into the new contract month.
17.13.ALPHA POOL is entitled to increase the agreed prices for the contractual services appropriately to offset increases in personnel and other costs. AP is entitled to do so in particular if and to the extent that third parties whom AP must engage to fulfil its contractual obligations in turn adjust their prices accordingly. The possibility of price increases also applies with regard to raw materials such as paper, which ALPHA POOL must purchase as an input product.
17.14.ALPHA POOL will announce these price increases to the Contractual Partner in writing or by e-mail; the price increases do not apply to the periods for which the Contractual Partner has already made payments.
18.Subcontractors
18.1.ALPHA POOL is entitled to engage third parties (subcontractors) for the provision of services.
18.2.ALPHA POOL is liable for the actions of such third parties as for its own actions only insofar as these act exclusively as vicarious agents of ALPHA POOL and there is no independent contractual relationship between the Contractual Partner and the third party or affiliated company concerned.
18.3.Affiliated companies, in particular IDEAL-ALPHA GmbH, as well as other third parties with whom the Contractual Partner contracts on the basis of its own contractual relationship, are not deemed to be subcontractors of ALPHA POOL insofar as they render their services in their own name and on their own contractual responsibility.
18.4.Joint and several liability of ALPHA POOL for the obligations of such independently contracting affiliated companies or third parties exists only insofar as this is expressly agreed in writing or mandatorily ordered by law.
18.5.The mere naming, coordination, involvement or organisational alignment of such an affiliated company or third party by ALPHA POOL does not establish any own service obligation of ALPHA POOL for the services assumed by that company.
19.Assignment, Right of Retention and Retention of Title
19.1.The assignment of claims against ALPHA POOL to third parties is only possible with written consent.
19.2.The Contractual Partner may only exercise a right of retention insofar as it concerns claims arising from the same contractual relationship.
19.3.The right to set-off is only available to the Contractual Partner if its counterclaims are ready for decision, have been finally and legally established, are undisputed or are acknowledged by ALPHA POOL, or would unreasonably impair the statutory rights of retention.
19.4.Ownership or any usage rights remain the property of ALPHA POOL until full payment of the agreed remuneration. Only upon full settlement of all claims arising from the ongoing business relationship do ownership or any usage rights pass to the Contractual Partner.
19.5.In this connection, the following furthermore applies:
19.5.1.Prior to the transfer of any usage rights, pledging or transfer by way of security is not permitted.
19.5.2.In the event of the combination and intermixture of any usage rights, the Contractual Partner acquires co-ownership of the new item in the ratio of the invoice value of the usage rights to the other rights at the time of processing.
20.Liability
20.1.ALPHA POOL is liable to the Contractual Partner exclusively for intent and gross negligence in accordance with the statutory provisions for damages or compensation of futile expenses.
20.2.In the event of gross negligence, liability for indirect damages and consequential damages (in particular business interruptions, production stoppages, lost profit and futile expenses) is excluded.
20.3.In other cases, ALPHA POOL is liable only for the breach of a contractual obligation the fulfilment of which makes the proper performance of the agreement possible in the first place and on the observance of which the parties may regularly rely (so-called cardinal obligation), and then limited to compensation of the foreseeable and typical damage. In all other cases, liability is excluded.
20.4.ALPHA POOL's liability for damages arising from injury to life, body or health, under the Product Liability Act, in the event of fraudulent concealment and in the event of an assumed guarantee remains unaffected by the foregoing limitations and exclusions of liability.
21.Confidentiality
21.1."Confidential information" means all information and documents of the respective other contracting party that are marked as confidential or are to be regarded as confidential by their nature, in particular internal processes, know-how, print documents, layouts, storyboards, figures, drawings, images, videos, DVDs, CD-ROMs, interactive products and such other data that contain other copyright-protected materials of the contracting parties or of companies affiliated with the contracting parties.
21.2.Both contracting parties agree to maintain secrecy regarding confidential information and to use it only for the performance of this contract and the purpose pursued thereby. In particular, the Principal undertakes to treat confidentially the matters that come to its knowledge within the scope of the contractual relationship. This obligation continues to exist after termination of the contract.
21.3.Both contracting parties undertake to impose the confidentiality obligation on all employees and/or third parties (e.g. suppliers, graphic designers, printers) who have access to the aforementioned business matters. This obligation likewise continues to exist for a period of six months after termination of the contract.
21.4.Excluded from this obligation is such confidential information
21.4.1.that was demonstrably already known to the recipient at the conclusion of the contract or becomes known thereafter from a third party, without thereby breaching a confidentiality agreement, statutory provisions or official orders;
21.4.2.that is publicly known at the conclusion of the contract or is made publicly known thereafter, insofar as this is not based on a breach of this contract;
21.4.3.that must be disclosed due to statutory obligations or by order of a court or authority. Insofar as permissible and possible, the recipient obliged to disclose will inform the other party in advance and give it the opportunity to take action against the disclosure.
22.Data Protection
22.1.The parties undertake to comply with the respectively applicable data protection regulations, in particular the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG). ALPHA POOL's data protection role is determined by the specifically agreed service.
22.2.Insofar as ALPHA POOL processes personal data exclusively on behalf of and according to the documented instructions of the Contractual Partner, the parties act on the basis of a separately concluded data processing agreement pursuant to Article 28 GDPR.
22.3.Insofar as ALPHA POOL processes personal data for the independent performance of contractually owed services, for safeguarding its own rights, for fulfilling statutory obligations or for defending against claims, ALPHA POOL acts as its own controller within the meaning of the GDPR.
22.4.Insofar as, in connection with the respective offer, services are provided by IDEAL-ALPHA GmbH or another affiliated company as an independent contracting party, the data protection role of this company is determined exclusively by the contractual relationship existing between the Contractual Partner and this company. ALPHA POOL is responsible for independent data processing by such companies only insofar as ALPHA POOL itself decides on the purposes and means of the processing.
22.5.The Contractual Partner remains responsible for the lawfulness of the personal data, product data, customer information, advertising consents, mandatory information and other content provided by it and indemnifies ALPHA POOL against third-party claims that are based on an unlawful, incorrect or incomplete provision by the Contractual Partner.
22.6.Insofar as personal data must be transmitted to IDEAL-ALPHA GmbH or another independent service provider for the implementation of a merchant-of-record model, for eCommerce handling, payment processing, fulfillment, returns, service or marketplace handling, the Contractual Partner is obliged to create the respectively required data protection prerequisites for this and to properly inform the data subjects, insofar as this obligation applies to it.
22.7.Insofar as both parties jointly decide on the purposes and means of a processing, the parties will conclude a separate agreement on joint controllership pursuant to Article 26 GDPR, provided this is legally required.
23.Contract Language, Storage of Contract Text, Information on the Formation of the Contract
23.1.These GTC are drawn up in both German and English. Both versions are deemed equivalent. In the event of discrepancies or inconsistencies between the two versions, the German version takes precedence and governs the interpretation and enforcement of these GTC.
23.2.The same applies to contracts and offers of any kind. In the event of discrepancies or inconsistencies, the German version always takes precedence and governs the interpretation and enforcement.
23.3.The complete contract text is not stored by ALPHA POOL. The General Terms and Conditions are sent again to the Contractual Partner by e-mail.
23.4.The technical steps for concluding the contract and the conclusion of the contract itself take place in accordance with the foregoing provisions.
24.Choice of Law, Place of Performance, Place of Jurisdiction
24.1.German law applies.
24.2.The exclusive local place of jurisdiction for disputes arising from a contract or a collaboration is the registered office of ALPHA POOL in Berlin, Germany.
24.3.The provisions of the UN Convention on Contracts for the International Sale of Goods expressly do not apply.
24.4.The place of performance for all services arising from the business relationships existing with ALPHA POOL, as well as the place of jurisdiction, is the registered office of ALPHA POOL. The same applies if the Contractual Partner has no general place of jurisdiction in Germany or the EU, or if its domicile or habitual residence is unknown at the time the action is brought. The power to bring proceedings before a court at another statutory place of jurisdiction remains unaffected.
24.5.Amendments and supplements to the foregoing General Terms and Conditions must be in writing to be effective.
25.Warranty
25.1.Unless otherwise regulated below, the statutory rights relating to liability for defects apply.
26.Reservation of Amendment
26.1.ALPHA POOL reserves the right to amend these GTC insofar as this is necessary for valid reasons, in particular due to a changed legal situation or case law, technical changes or further developments, efficient handling of mass transactions, regulatory gaps in these GTC, a changed product range or other equivalent reasons, and provided the amendments do not unreasonably disadvantage the Contractual Partner.
26.2.Amendments to the GTC are communicated to the Contractual Partner by e-mail at least six weeks before they come into force. The amendments become effective if the Contractual Partner does not object in writing or by e-mail within this period and ALPHA POOL has pointed out to the Contractual Partner in the amendment notice the legal consequence of a failure to object. In the event of an objection, the contract between ALPHA POOL and the Contractual Partner ends at the next possible termination date.
26.3.General price increases are communicated to the Contractual Partner at least six weeks before the date on which they come into force. If the Contractual Partner does not object to the price increase, the price increase comes into force at the beginning of the next renewal period.
PART II Annexes to Special Conditions
Annex A: Special Conditions for Contracts for Work
1.Provision of Works Performance
1.1.Insofar as the subject matter of the contract is the provision of works performance, the following provisions apply by way of derogation:
1.2.Only ALPHA POOL's own specifications and the agreements of the parties shall constitute the condition of the work.
1.3.The Contractual Partner is obliged to inspect the goods or service rendered by ALPHA POOL without delay and with due care for quality deviations and to notify ALPHA POOL of obvious defects in writing without delay, but at the latest within 3 calendar days of receipt of the goods; timely dispatch suffices to meet the deadline. This also applies to hidden defects discovered later, as of their discovery. In the event of a breach of the obligation to inspect and give notice of defects, the assertion of warranty claims is excluded.
1.4.In the case of defects, ALPHA POOL provides warranty, at its option, by rectification or replacement delivery. If the remedying of the defect fails, the Contractual Partner may, at its option, demand a reduction in price or withdraw from the contract. The remedying of the defect is deemed to have failed after an unsuccessful third attempt, unless something else results in particular from the nature of the item or of the defect or from the other circumstances. In the case of rectification, ALPHA POOL is not obliged to bear the increased costs arising from moving the goods to a place other than the place of performance, provided the move does not correspond to the intended use of the goods.
1.5.The warranty period is six months from delivery of the goods.
1.6.The shortened warranty period does not apply to damages attributable to ALPHA POOL and culpably caused arising from injury to life, body or health, and to damages caused by gross negligence or intent or by fraud, as well as to recourse claims pursuant to Sections 478, 479 of the German Civil Code (BGB).
1.7.Any further-reaching contractual or statutory rights of the Contractual Partner, in particular any existing claims for damages as well as the right to demand compensation of futile expenses, remain unaffected.
2.Acceptance of Works Performance
2.1.A schedule is agreed for the provision of the individual works performance. The deadlines set out therein are binding and may only be changed with the consent of the Contractual Partner.
2.2.ALPHA POOL must submit the properly rendered execution results for acceptance; partial acceptances do not take place, unless the parties have agreed otherwise in the schedule.
2.3.ALPHA POOL indicates the work's readiness for acceptance. If the Contractual Partner does not identify any defects or additions within 5 calendar days of this notice, the work is deemed accepted.
2.4.If the works performance is not in conformity with the contract and the Contractual Partner therefore rightly refuses acceptance, or if acceptance takes place subject to the remedying of the identified defects, ALPHA POOL is obliged in each case to render a contractually compliant service without delay and to remedy the defects, to communicate the expected duration of the defect remedying and, upon completion of the rework, to indicate the remedying of the defects.
3.Termination
3.1.If, in the case of a contract for work, the Contractual Partner exercises its right of termination pursuant to Section 649 sentence 1 of the German Civil Code (BGB), ALPHA POOL may demand 15% of the agreed remuneration as a flat-rate fee if execution has not yet begun.
3.2.If execution has already begun, 80% of the agreed remuneration is to be paid.
Annex B: Special Conditions for Talents / Influencers (AVBT)
1.Fundamental Provisions
1.1.The following General Contractual Conditions for Talents (AVBT) apply to all business relationships between ALPHA POOL and talents, in particular influencers, key opinion leaders, digital opinion leaders, musicians, actors, speakers and other celebrities and VIPs (hereinafter referred to individually or collectively as "Talent"), unless an amendment is agreed in writing between the parties. Diverging or conflicting contractual terms shall only be effective with the express consent of ALPHA POOL.
1.2.As a public figure, the Talent is networked, among other things, on social networks and is known to the public there and far beyond. As a result, the Talent has a strong presence and a high reputation among its followers and fans, which the Talent uses for advertising and marketing projects and services. The Talent will use its reach to market the projects and services of ALPHA POOL or of a Contractual Partner of ALPHA POOL (hereinafter referred to as "Contractual Partner" or "company") and to promote awareness.
2.Conclusion of Contract
2.1.ALPHA POOL's offers on the internet are non-binding and do not constitute a binding offer to conclude a contract.
2.2.The Talent has the option of submitting an enquiry to ALPHA POOL by telephone, e-mail or contact form. These enquiries are non-binding for ALPHA POOL.
2.3.Upon an enquiry from ALPHA POOL, the Talent submits to ALPHA POOL a binding offer in text form (e.g. by e-mail), which ALPHA POOL may accept within the period stated in the offer. If no period is stated in the offer, ALPHA POOL may accept it within 30 calendar days.
2.4.The processing of the order and the transmission of all information required in connection with the conclusion of the contract takes place by e-mail, in part automatically. The Talent must therefore ensure that the e-mail address provided to ALPHA POOL is correct, that the receipt of the e-mails is technically ensured and, in particular, is not prevented by SPAM filters.
3.Services of the Talent
3.1.The Talent undertakes to render services within the term of the contract with ALPHA POOL or for the projects of a Contractual Partner designated in the order. The specifications to be observed by the Talent in this connection regarding implementation result from the service description submitted and are part of the owed contractual service.
4.Services of ALPHA POOL
4.1.ALPHA POOL is obliged to provide the Talent, free of charge and in good time before the performance of the owed services referred to in Clause 3, with the project information and/or the image and text material required to fulfil this contract.
4.2.The parties coordinate by mutual agreement on the specific design of the Talent's services. In doing so, ALPHA POOL communicates the specific specifications to the Talent in good time.
4.3.The image and text material provided by ALPHA POOL is to be returned by the Talent to ALPHA POOL without delay after termination of this contractual relationship or, insofar as return is not possible, to be deleted. Clause 10.3 of this AVBT applies in addition to this.
4.4.Irrespective of the foregoing, ALPHA POOL is entitled at any time to demand the deletion of the services owed by the Talent under this AVBT and already published.
4.5.ALPHA POOL is entitled to waive the agreed provision of services by the Talent prematurely. The right of termination pursuant to Clause 9 of this AVBT is likewise not affected.
5.Remuneration
5.1.ALPHA POOL pays the Talent the agreed remuneration for the services rendered. The amount of the remuneration results from the respective service description / the order.
5.2.With payment of the agreed remuneration, all costs, such as travel costs, incurred by the Talent in the preparation and execution of the owed services are settled.
5.3.After full provision of services, the Talent issues an invoice and sends it to ALPHA POOL. The invoice is due within 30 calendar days of receipt by ALPHA POOL and is to be transferred to the account stated by the Talent in the invoice.
6.Illness, Inability to Work
6.1.Insofar as the Talent is unable to render the services owed under Clause 3 of this AVBT as agreed due to illness or another important reason, it is obliged to inform ALPHA POOL of this and of the expected duration of the impediment without delay, but at the latest within 24 hours of becoming aware. Likewise, the Talent must inform ALPHA POOL without delay of the cessation of the impediment.
6.2.After cessation of the impediment, the Talent is obliged to make up the services owed under Clause 3 immediately, but at the latest within one week of the cessation of the impediment, insofar as this is expedient for the performance of the contract.
7.Labelling of Advertising
7.1.Insofar as the Talent is an influencer, the influencer is obliged to label the services owed under this AVBT in the agreed social network(s) with the term "advertising" or "ad" or a similar formulation. The corresponding labelling must be placed clearly legibly and well recognisably. In the event of missing or incorrect advertising labelling, the influencer is solely liable.
8.Responsibility for Content
8.1.The Talent is expressly prohibited from using techniques for the covert or subliminal influencing of addressees.
8.2.Furthermore, it is the sole responsibility of the Talent to ensure that no images/photographs or graphics are used whose use or content is punishable or otherwise violates criminal law provisions.
8.3.Furthermore, the Talent bears sole responsibility for ensuring that its services owed under Clause 3 of this AVBT comply with all statutory requirements. In particular, the requirements of the Interstate Broadcasting Treaty (RStV) and other media, competition, youth protection and press law requirements are to be observed. In this connection, the Talent is obliged to observe the clear and distinct provider identification and the visual separation of advertising from editorial content. The Talent must design the provider identification to be permanently available and accessible as well as easily recognisable.
8.4.The Talent is obliged to ensure that its owed services are lawful and do not infringe any third-party rights.
8.5.The Talent is furthermore prohibited from inviting participation in unfair prize competitions, pyramid schemes, chain letters, pyramid games and comparable statutory actions, and from disseminating false warnings about viruses, malfunctions, unfair advertising, spam and the like.
9.Term and Termination
9.1.The term of the contract results from the order or the service description. If the contract is concluded for a fixed term, no separate termination is required. There is no tacit extension of the contractual relationship.
9.2.If the contract is concluded for an indefinite period, the parties may terminate the contract with one month's notice to the end of the month.
9.3.The right to terminate without notice for good cause remains unaffected.
9.4.ALPHA POOL is furthermore entitled to terminate this contract without notice if
(a)the Talent has culpably failed to properly fulfil its obligations under this contractual relationship and ALPHA POOL has, in all cases, called upon it to perform the contract by way of a warning, setting a reasonable deadline, or
(b)the Talent, through statements or actions in public, displays conduct that significantly damages, or is suitable to damage, the image of the projects advertised by it under this AVBT, of the company or of ALPHA POOL, in particular if its conduct violates public morals or the sense of decency, or
(c)the Talent, through conduct for which it is itself responsible, causes serious image damage to its own person in public, in particular if it becomes strongly suspected of a serious criminal offence.
9.5.Every termination must be in text form (e.g. by e-mail).
10.Usage Rights for Image and Text Material
10.1.ALPHA POOL and the company are entitled to use the Talent's services created within the scope of this contractual relationship for their own purposes, in particular for their own advertising. This also applies to translations, transformations or other adaptations of the Talent's agreed services. Insofar as required for this, the Talent grants both the company and ALPHA POOL the exclusive, irrevocable right of use, unlimited in time and territory, to the Talent's content, insofar as the Talent has acquired a copyright, ancillary copyright or other right in the content of the services owed under Clause 3 of this AVBT.
10.2.At the request of the entrepreneur or ALPHA POOL, the Talent provides them with everything necessary for their own use of the services. This does not establish any claim to remuneration for the Talent.
10.3.The image and text material provided by the entrepreneur or ALPHA POOL under Clause 4 of this AVBT may be used by the Talent exclusively for rendering the services agreed and owed in this contractual relationship. Exclusively for this purpose, the Talent receives from the rights holder a non-transferable and revocable right of use limited in time to the duration of this contractual relationship.
Annex C: Special Conditions for the Rental of Software
1.Rental of Software and Services
1.1.Insofar as the Principal is an entrepreneur, the following provisions apply to the provision of services within the scope of the rental:
1.2.A claim for damages under Section 536a of the German Civil Code (BGB) is excluded.
1.3.If a defect in the provision of services becomes apparent in the course of the contract term, the Principal must notify AP of this without delay. If the Principal fails to give notice, it is obliged to compensate AP for the resulting damage. Insofar as AP was unable to provide a remedy as a result of the failure to give notice, the Principal is not entitled to reduce the agreed service fee, to assert the damages arising from Section 536a (1) of the German Civil Code (BGB) or to terminate the contract.
1.4.If AP does not succeed in remedying a material and/or legal defect within a reasonable period, the Principal is entitled to set AP a reasonable grace period. Insofar as restoration times have been contractually defined, these are deemed to be a reasonable period within the meaning of the preceding sentence with regard to material defects. After this grace period has expired without success, the Principal is entitled to reduce the agreed fee appropriately. Termination of the contract or withdrawal from the contract is excluded. The Principal's right to terminate for good cause remains unaffected by this.
1.5.Claims due to defective services become time-barred within one year.
Annex D: Special Conditions for the Use of IDEAL360
1.Scope of Application
1.1.These special conditions only apply insofar as the Contractual Partner is granted access to the software or platform IDEAL360 within the scope of an offer or other agreement.
1.2.IDEAL360 serves the organisation, control, documentation and traceability of eCommerce, order, marketplace, fulfillment, returns, product data, reporting and handling processes.
1.3.IDEAL360 is not an independent subject matter of a software provision by ALPHA POOL, unless this is expressly agreed in writing. Use takes place exclusively within the scope of the respectively agreed services.
2.Operation and Rights
2.1.IDEAL360 is generally provided and operated by IDEAL-ALPHA GmbH or another authorised operator.
2.2.All rights to IDEAL360, including software, interfaces, data structures, system architectures, workflows, configurations, evaluation logics and documentation, remain with the respective rights holder.
2.3.The Contractual Partner has no claim to the surrender of source code, system architecture, technical documentation, interface descriptions, data structures, configurations or process logics.
3.Usage Rights
3.1.Insofar as the Contractual Partner is granted access to IDEAL360, it receives, for the duration of the agreed contract term, a simple, non-exclusive, non-transferable and non-sublicensable right of use for the use of IDEAL360 within the scope of the agreed purposes.
3.2.Use for third parties, the passing on of access data, sublicensing, commercial exploitation or use outside the agreed purpose of the contract is not permitted.
3.3.The Contractual Partner is obliged to keep access data secret, to protect it against unauthorised access and to inform ALPHA POOL or the respective operator without delay of any suspicion of misuse or unauthorised access.
4.Changes and Availability
4.1.The operator of IDEAL360 is entitled to further develop, change, replace or restrict functions, user interfaces, interfaces, processes and technical procedures, insofar as the contractually agreed purpose of the service is not thereby materially impaired.
4.2.A claim to specific functions, interfaces, evaluations, forms of presentation, technical procedures or a specific availability exists only insofar as this has been expressly agreed.
4.3.ALPHA POOL does not owe any specific economic results, revenues, rankings, conversion rates, marketplace activations or other business successes in connection with the use of IDEAL360, unless this is expressly agreed.
5.Data and Content
5.1.The Contractual Partner is responsible for the correctness, completeness, currency and legal admissibility of the data, product information, images, texts, prices, mandatory information and other content provided by it.
5.2.The Contractual Partner grants ALPHA POOL, IDEAL-ALPHA GmbH and the respectively involved service providers the usage rights to this data and content required to perform the agreed services.
6.Third-Party Connections
6.1.Insofar as IDEAL360 is connected to shop systems, marketplaces, payment service providers, logistics service providers or other third-party systems, the availability and functionality of these connections also depends on the respective third-party providers.
6.2.ALPHA POOL does not warrant that third-party providers will keep their systems, interfaces, conditions, prices, data formats or availabilities unchanged. Adjustments or additional effort arising from changes by such third-party providers must be remunerated separately, unless otherwise agreed.
7.Remuneration
7.1.Remunerations, setup fees, ongoing usage fees, transaction-based fees, revenue-based fees, development services, interface adjustments and other costs in connection with IDEAL360 result exclusively from the respective offer, the service description or the respectively agreed price list.
Annex E: Special Conditions in the Area of Accounting
1.Setup Fee
1.1.The setup fee comprises the setting up of the respective clients in the in-house accounting system, the reconciliation of the accounts and the chart of accounts, as well as the setting up of invoice and reminder forms.
2.Special Effort
2.1.Services that are not marked with the addition "flat rate" are charged at the hourly rate "Extended Commercial Service". Should no hourly rate for the "Extended Commercial Service" be agreed in the order form, an hourly rate of €59 applies to these services.
3.Automated Incoming Payments
3.1.All items connected with payment systems (bank accounts, credit card statements, instant transfers, etc.) must be made available electronically (in file form, MT940 or CAMT) and must be electronically processable. In order to achieve the highest possible match rate of automated incoming payments (electronic bank statement) at item level, the Contractor supplements the standard interpretation algorithms with so-called "search patterns".
4.Bank Transfers
4.1.Electronic bank statements are collected daily by the Contractor from the bank. Payments that cannot be allocated as well as payments with incorrect amounts are not automatically posted by the system. These are reworked by the Contractor's employees and, where applicable, posted as "unplaceable" payments to the dummy accounts provided for this purpose ("clearing account") or transferred back to the remitter. In order to process the electronic bank statement to be handled in the Contractor's accounts-receivable management as efficiently as possible, a separate account is required for end-consumer payments on the part of the Principal.
5.Direct Debit Authorisations (Direct Debit Run)
5.1.Direct debit collections are likewise handled via the deployed PSP. For this, under the new SEPA guidelines, a creditor ID is required, and the Principal must ensure that the correspondingly prescribed mandates are in place. Refunds are made via the corresponding bank account.
6.Incoming Cheques
6.1.Incoming cheques are submitted to the bank on the same day. The accounting recording of the cheque receipt takes place on the same day, the posting to the debtor on the following day. The credit to the debtor takes place initially irrespective of whether the cheque is actually covered or not.
6.2.Insofar as cheques are received directly by the Principal, these are to be forwarded to the Contractor on the same day.
7.Generation of Invoices
7.1.In general, the dispatch of invoices is possible if the data required for this is made available electronically in sufficiently comprehensive form from the CRM, shop or other upstream system. The invoice data is transmitted to the Contractor and sent to the end-consumer by e-mail.
8.Generation of Reminders
8.1.In accordance with a defined workflow, reminders are generated automatically. Reminders can be sent in writing or by e-mail.
8.2.Dispatch of reminders in writing is likewise possible. This is charged as special effort.
9.Processing of Partial Payments
9.1.Partial payments or underpayments are posted directly to the respective transaction; a remaining balance is recorded on the debtor or against the relevant item and reminded at the next reminder interval.
10.Documentation and Handling of Non-Allocable Postings
10.1.Payments that cannot be allocated as well as payments with incorrect amounts are not automatically posted by the system. These are reworked by the Contractor's employees and, where applicable, posted as "unplaceable" payments to the dummy accounts provided for this purpose ("Principal clearing account"). The subsequent allocation to individual accounts is thereby ensured at all times. A repayment to the remitter can also be agreed.
11.Cancellation of the Receivable
11.1.Such business transactions are to be transferred electronically from the CRM/shop system to the Contractor's system in the same way as all others.
12.Goodwill Write-Off / Partial Cancellation of Receivables
12.1.The CRM/shop system is within the responsibility of the Principal. If a posting transaction or voucher is generated in the CRM or shop system, this can be transmitted electronically to the Contractor's system and automatically generates a voucher-relevant posting there.
12.2.The tolerance amounts to be defined for the clearing of open items are set in accordance with the Principal's specifications.
13.Execution of Changes to the Payment Method
13.1.Necessary rebookings or forwarding of misdirected payments, e.g. to another bank account, can be handled, rebooked and cleared via a clearing account still to be defined.
14.Handover of Receivables to Debt Collection
14.1.A handover to the IFS debt-collection division is carried out as needed and by arrangement.
15.Posting of Debt-Collection Receivables
15.1.The posting of incoming payments and the forwarding of funds from the IFS debt-collection division takes place electronically and daily.
15.2.Debt-collection payment receipts to be posted manually from possibly other debt-collection agencies are special effort.
16.Processing of Irrecoverable Receivables
16.1.The transfer of indicators for blocking a customer account in the CRM system is to be defined in the workflow and can be carried out fully electronically in the daily data exchange. A block can take place at both account and voucher level.
16.2.The definition is made in the IT area on the subject of the interface.
16.3.Irrecoverable receivables are processed in accordance with the specifications.
17.Company Code
17.1.The Principal is managed in the Contractor's system as an independent client.
18.Fiscal Year Variant
18.1.In general, the calendar year is also the fiscal year. Deviations are possible by contract.
19.Chart of Accounts
19.1.The Contractor's system works with the chart of accounts SKR04, whereby all chart-of-accounts-dependent and general data (account number and text) are created for the entire chart of accounts. (Part of flat rate)
19.2.The new creation or blocking of general ledger accounts is carried out manually and exclusively on the basis of a written instruction from the Principal.
19.3.The cost and revenue types to be maintained in the Contractor's system are likewise created manually. (Special effort)
19.4.It is thus ensured at all times that all general ledger and P&L accounts relevant in connection with the management of accounts-receivable accounting can be reconciled at total level with the accounts maintained in the general ledger.
20.Cost Centres / Profit Centres / Business Divisions / …
20.1.The creation of posting dimensions such as cost centres, profit centres, business divisions, internal orders, WBS elements, etc. is carried out analogously to the Principal's specifications.
20.2.In principle, all posting logics are specified by the Principal. Accordingly, new creations, blockings and deletions of debtors are transferred automatically via an interface still to be defined from the leading merchandise-management/invoicing system. This ensures that the systems communicating with each other do not "drift apart".
21.Assignment of Customer Numbers
21.1.In order to avoid reconciliation problems as well as laborious and possibly error-prone data conversions, the customer numbers can be adopted from the Principal.
22.New Creation
22.1.The recording of new customers (the definition of the "optional and mandatory fields" in the debtor master data is by arrangement) takes place in the Contractor's system, whereby the end-consumer master data is transferred electronically to the Contractor's system. The Contractor's system creates the new customer in the Contractor's accounts-receivable accounting within one working day.
23.Changes
23.1.Changes to end-consumer master data are likewise made electronically. Necessary changes to end-consumer master data (address, telephone, fax, legal form, etc.) ascertained by the Contractor's accounts-receivable management in the course of its activity are reported promptly to the Principal's systems via the established electronic data exchange.
24.Returned Direct Debits / Returned Cheques
24.1.Cheques that bounce for lack of payment/cover or direct debits charged back are posted by the Contractor's accounts-receivable management on the same day.
24.2.Returned cheques/returned direct debits charged by the bank for lack of payment (cover) can be charged to the debtor on the same day (directly via batch processing), including external fees and own fees; processing fees or reminder charges may, where applicable, be additionally invoiced to the Principal.
25.Write-Off of Receivables
25.1.The direct write-off of receivables is carried out by the Contractor's accounts-receivable management exclusively on the basis of a written posting instruction from the Principal. The Contractor's accounts-receivable management writes off the receivable with income effect, taking into account the correct VAT posting and general-ledger posting.
26.Balance Confirmations
26.1.Balance confirmations are generated by the Contractor's accounts-receivable management in close coordination with the Principal and its specifications within the scope of the periodic closings.
27.Debit Notes / Clarification Letters / Individual Letters
27.1.Clarification letters and individual letters to end-consumers can be printed by the Contractor's accounts-receivable management and enveloped, franked and dispatched in the Contractor's internal mailroom, insofar as this is desired. Debit notes due to returned cheques/returned direct debits should in any case be issued directly by the Contractor's accounts-receivable management.
27.2.The printing and postage costs incurred for this are recorded and passed on on a monthly basis.
28.Archiving
28.1.The files with the received payments, cheque submissions and the associated attachments are kept sorted by posting month in a separate archive.
28.2.Correspondence of the Contractor's accounts-receivable management with the Principal's end-consumers (e.g.: payment advices, copies of transfer slips, individual end-consumer letters, …) is sorted by fiscal year and archived in ascending order in accordance with the statutory requirements.
28.3.Posting vouchers (e.g.: write-offs of receivables, relevant difference postings, debit notes to end-consumers, …) are filed in ascending order by fiscal year.
28.4.Archiving is of course carried out in compliance with the GoBD as well as in accordance with the statutory provisions!
28.5.Any retention in a separate document management system is special effort.
29.Processing of Returned Reminders
29.1.The Contractor processes any returns from the reminder runs promptly.
29.2.The information concerning undeliverable reminders can be made available to the Principal on request in the electronic data exchange.
29.3.An address search and the costs arising from it are special effort.
30.Closing Work / Reporting
30.1.Responsibility for the correct preparation of the monthly and annual financial statements lies solely with the respective Principal. The Principal's responsible balance-sheet accountant and/or tax advisor or the Contractor's balance-sheet accountant may receive corresponding system access to the Contractor's accounts-receivable accounting system (Principal licence) in order to determine or generate the data and lists necessary for the respective monthly and annual financial statements.
31.Balance Lists / Ageing Structure List
31.1.Responsibility for reconciling the balance list with the general ledger lies with the Principal, since the Contractor would otherwise be checking itself. A balance list can be prepared by the Principal. The same applies analogously to the ageing structure list.
32.Advance VAT Return
32.1.The values for the advance VAT return can be determined electronically in the Contractor's system, in each case at the reporting cut-off, and transferred automatically.
33.Recapitulative Statement
33.1.The values for the recapitulative statement can be determined electronically in the Contractor's system, in each case at the reporting cut-off, and transferred automatically.
34.Debtor Balance Carryforward
34.1.The debtor balance carryforward is started once by the Contractor's accounts-receivable management after the turn of the year. Thereafter, the balance carryforward is updated automatically in the event of changes.
35.Specific / Lump-Sum Value Adjustments
35.1.The determination of the specific and lump-sum value adjustments is carried out in accordance with the specifications or the statutory requirements. The posting of the determined value adjustments in the general ledger may be carried out by the Contractor's employees.
36.Minimum Fee
36.1.Unless otherwise agreed in the contract, a minimum fee of €290 per month applies.
Annex G: Special Conditions for Fulfillment Services
1.Scope of Application
1.1.These special conditions only apply insofar as fulfillment services are expressly agreed in the respective offer.
2.Service Content
2.1.Fulfillment services may comprise in particular goods receipt, storage, inventory management, picking, packing, handover for shipping, returns processing, stocktaking support and associated administrative activities. The specific scope of services results exclusively from the respective offer, the service description or a separate fulfillment agreement.
3.Engagement of Fulfillment Service Providers
3.1.ALPHA POOL is entitled to have fulfillment services rendered by affiliated companies or suitable external service providers. A specific storage location, a specific logistics service provider, a specific merchandise-management system, a specific fulfillment partner or a specific shipping service provider is only owed if this is expressly agreed in writing.
3.2.Insofar as the Contractual Partner establishes its own contractual relationship with a fulfillment service provider or affiliated company, this service provider acts in its own name and on its own contractual responsibility. The mere coordination or involvement by ALPHA POOL does not establish any own service obligation of ALPHA POOL for its services.
4.Operational Specifications
4.1.Storage locations, delivery addresses, notification processes, goods-acceptance times, packaging specifications, shipping types, returns processes, cut-off times, service levels and other operational specifications result from the respective offer, the service description or the respectively communicated current specifications of the deployed fulfillment service provider.
4.2.ALPHA POOL is entitled to change fulfillment partners, storage locations, shipping service providers, systems, operational processes and technical connections, insofar as the contractually agreed purpose of the service is not thereby materially impaired. The Contractual Partner is informed of material changes insofar as these are relevant for the performance of the fulfillment.
5.Prices and External Costs
5.1.Storage fees, pick-&-pack fees, shipping costs, returns costs, packaging costs, pallet costs, stocktaking costs, special handling, additional services as well as fees of external service providers result from the respective offer, a price list or the conditions of the deployed service provider. Third-party and external costs can be passed on, unless otherwise agreed.
6.Cooperation Obligations of the Contractual Partner
6.1.The Contractual Partner provides all information, product data, article numbers, barcodes, quantity details, delivery documents, packaging specifications, mandatory legal details, registration numbers, system confirmations, safety information and other documents required for the fulfillment in good time, completely and correctly. Delays, additional effort or damages due to incomplete, late or incorrect details are at the expense of the Contractual Partner.
7.Goods, Product Responsibility and Insurance
7.1.Responsibility for product, labelling, marketability, packaging, registration and compliance remains with the Contractual Partner, unless expressly agreed otherwise. The Contractual Partner remains the owner of the stored goods, unless a diverging arrangement has been made.
7.2.Insurance of stored goods exists only to the extent that this is expressly agreed or is provided as standard by the deployed fulfillment service provider. The Contractual Partner is obliged to check for itself whether insurance cover beyond this is required.
8.Liability and Inventory Discrepancies
8.1.For external fulfillment, storage, shipping, freight-forwarding, customs, IT or other service providers, ALPHA POOL is liable only in accordance with the general liability provisions of these GTC, insofar as ALPHA POOL is itself responsible for this. Service levels, lead times, shipping times and other performance commitments of external service providers are only binding insofar as ALPHA POOL has expressly guaranteed these.
8.2.Stocktakes, inventory reconciliations and the treatment of any inventory discrepancies are governed by the respective service description, the specifications of the deployed fulfillment service provider and the general liability provisions of these GTC, unless expressly agreed otherwise.
Annex H: Special Conditions for Connection to Online Marketplaces and Other Online Portals
1.Scope of Application and Scope of Services
1.1.These special conditions only apply insofar as ALPHA POOL expressly assumes, in the respective offer, the coordination, setup or technical connection of online marketplaces, online portals, shops, platforms or other digital sales channels.
1.2.The specific scope of services, in particular the channels, systems, interfaces, data formats, product data, set-up services, ongoing support services and any service levels to be integrated, results exclusively from the respective offer or a separate service description.
2.Third-Party Platforms
2.1.The admission, activation, visibility, listing, blocking, payout, reach, ranking position or permanent availability of a marketplace or online portal regularly lies outside ALPHA POOL's sphere of influence and is not guaranteed, unless expressly agreed otherwise.
2.2.In addition, the respectively current terms, guidelines, fee models, technical specifications and decisions of the connected marketplaces, payment service providers, interface providers and other third-party platforms apply.
3.Cooperation and Responsibility of the Contractual Partner
3.1.The Contractual Partner is responsible for the correctness, completeness, currency and legal admissibility of the product data, prices, images, texts, mandatory information, labelling, registrations, evidence and other content provided by it.
3.2.ALPHA POOL does not owe any legal, tax, regulatory or product-related review of the content provided by the Contractual Partner, unless this is expressly agreed.
4.Changes and External Costs
4.1.Changes to interfaces, APIs, platform requirements, fees, approval processes, security specifications or other third-party conditions may necessitate adjustments. Additional effort arising from this as well as third-party and external costs can be passed on, unless otherwise agreed.
Annex I: Rights to the Produced Material (Moving Image, Photo, Text, Audio)
1.Rights to the Produced Material (Moving Image, Photo, Text, Audio)
1.1.The entire produced material (moving image, photo, text, audio) is at all times the property of ALPHA POOL, even in the event that damages are paid for it.
1.2.Any use of the material requires a prior written release declaration by ALPHA POOL and is subject to a fee. Use of the material is only permitted to the extent determined by the release declaration. Any use beyond the agreed scope requires a renewed release. In the event of use contrary to the agreement, the user of the material is obliged to pay ALPHA POOL a usage licence amounting to at least 100% of the recording fee and/or the incurred and customary costs of the copyrights.
1.3.The use of the produced material as a working template for sketches or for layout purposes, as well as the presentation to Contractual Partners, already constitutes a fee-bearing use.
1.4.In principle, only simple usage rights are granted to the materials released for use. Thus, among other things, the right of use of the material is granted only for one-time use for the purpose stated by the Contractual Partner and/or in the publication and in the medium or data carrier that the user has stated or that results from the circumstances of the placing of the order. A sub-licensing of the image material by the Contractual Partner/user to third parties is also prohibited in this connection. The acquisition of exclusive usage rights (exclusive rights) and the granting of embargo periods must be expressly agreed and are to be remunerated separately. This applies in particular to:
1.4.1.a secondary exploitation or secondary publication in advertising measures or in other reprints
1.4.2.any editing, alteration or transformation of the image material
1.4.3.the digitisation, storage or duplication of the image material on data carriers of any kind (e.g. magnetic, optical, magneto-optical or electronic storage media such as CD-ROM, CD, floppy disks, hard drives, main memory, microfilm, etc.), insofar as this does not merely serve the technical processing of the image material
1.4.4.any reproduction or use of the image data on the internet or in online databases or in other electronic archives (also insofar as these are internal electronic archives of the Contractual Partner)
1.4.5.the passing on of the digitised produced material by means of remote data transmission or on data carriers suitable for public display on screens or for the production of hardcopies
1.5.Every granting of usage rights takes place subject to the condition precedent that the usage fee is paid in full to ALPHA POOL.
1.6.Passing on the produced material to third parties, including to other editorial departments of the publisher or to subcontractors, is not permitted, unless it has been released or confirmed in writing by ALPHA POOL. If, in an individual case, passing on is permitted, or if the material is sent to a third party at the instigation of the Contractual Partner/media partner, the Contractual Partner/media partner is liable for the complete return of the material in flawless condition and for the payment of the incurred costs, contractual penalties and usage fees. The Contractual Partner/media partner is responsible for fault of the third party to the same extent as for its own fault.
1.7.Use of the material is in principle only permitted in the original version. Any alteration or transformation (e.g. montage, photo-technical or other distortion, colourisation) and any change in the image reproduction (e.g. publication in excerpts) requires the prior consent of ALPHA POOL. The material may also not be traced, recreated or otherwise used as a motif. Excluded from this is merely the removal of unwanted blurring or colour weaknesses by means of electronic retouching.
1.8.ALPHA POOL may use the material it has conceived, without limitation in time, for its own advertising on its internet website, its social media channels as well as in the presentations and advertising materials created by it for the purposes of its own advertising.
1.9.Usage rights for drafts rejected or not executed by the Contractual Partner remain with ALPHA POOL. This applies also and especially to services of ALPHA POOL that are not the subject of special statutory rights, in particular copyright.
Annex J: Special Conditions for Marketplace Management
1.Scope of Application
1.1.These special conditions only apply insofar as ALPHA POOL is expressly commissioned in the respective offer with the ongoing support, coordination or management of marketplaces, online portals, shops or other digital sales channels.
2.Scope of Services
2.1.The specific scope of services results exclusively from the respective offer or a separate service description. Services may comprise in particular article creation, product data maintenance, coordination with platforms, coordination of campaigns, monitoring, reporting, ticket coordination, returns coordination, operational coordination with fulfillment or payment service providers as well as other project-related support services.
2.2.ALPHA POOL does not assume any seller, merchant-of-record, payment-service-provider, fulfillment, storage, tax-advisory, legal-advisory or product responsibility, unless this has been expressly agreed as ALPHA POOL's own service. Insofar as such services are provided by IDEAL-ALPHA GmbH or other independent service providers, their respective contractual terms apply.
3.Responsibility of the Contractual Partner
3.1.The Contractual Partner remains responsible for product quality, product safety, labelling, prices, product data, mandatory information, legal and regulatory admissibility of the goods, sufficient goods availability as well as the fulfilment of its obligations existing vis-à-vis end-consumers, platforms, authorities and other third parties, unless expressly agreed otherwise.
4.Third-Party Platforms and Liability
4.1.Decisions, blockings, payouts, fees, rankings, visibility, listings, account measures, technical changes and other specifications of marketplace operators, payment service providers or other third-party platforms lie outside ALPHA POOL's sphere of influence and are not guaranteed.
4.2.ALPHA POOL is not liable for amounts that are not paid out, withheld or set off by marketplace operators, payment service providers or other third parties, insofar as ALPHA POOL is not itself responsible for this.
5.Remuneration
5.1.The remuneration, any minimum fees, revenue shares, account fees, third-party fees and billing modalities result from the respective offer or the respectively agreed service description.
Annex K: Special Conditions for Merchant-of-Record Services by ALPHA POOL (Exceptional Case)
1.Application of this Annex
1.1.This Annex applies exclusively where it is expressly stipulated in the respective offer that ALPHA POOL GmbH itself acts as merchant of record. If the merchant-of-record model is provided via IDEAL-ALPHA GmbH or another independent service provider, this Annex does not apply.
1.2.Insofar as merchant-of-record services are provided via IDEAL-ALPHA GmbH, exclusively the contractual terms agreed between the Contractual Partner and IDEAL-ALPHA GmbH apply. In this case, ALPHA POOL does not become the seller vis-à-vis end-consumers, does not accept end-consumer payments in its own name, does not operate any payment processing as merchant of record and does not provide any payment services.
2.Subject Matter of the Contract in the Exceptional Case
2.1.Only in the expressly agreed exceptional case does ALPHA POOL sell the Principal's goods in its own name in web shops, marketplaces or other sales channels for the Principal's account. In this case, the Principal authorises ALPHA POOL to make and receive all declarations required to carry out the sales vis-à-vis end-consumers, marketplaces, payment service providers, shipping service providers and other third parties.
2.2.Even in the event of activity as merchant of record, ALPHA POOL does not owe any specific economic success, in particular no minimum revenues, sales figures, rankings, conversion rates, market shares or listings on specific marketplaces.
3.Services of ALPHA POOL
3.1.Unless regulated otherwise in the offer, the services of ALPHA POOL in the exceptional case may comprise in particular: the creation and maintenance of articles, acceptance of orders, payment processing, invoicing, handling of withdrawals, returns coordination, complaint processing, ticket processing, communication with marketplaces as well as organisational coordination with fulfillment, logistics and payment service providers.
3.2.Further-reaching services, in particular fulfillment, warehousing, marketing, media buying, marketplace advertising, technical development, shop development, sales promotion, product approval, legal review, tax advice or regulatory advice, are only owed if they have been expressly agreed.
4.Obligations and Product Responsibility of the Principal
4.1.In the internal relationship, the Principal remains fully responsible for the goods, product information, product images, texts, mandatory labelling, warning notices, safety information, instructions for use, age ratings, approvals, packaging, trademark rights, copyrights, competition-law admissibility, tax details, customs details and other legally required information provided by it.
4.2.The Principal undertakes to provide ALPHA POOL in good time with sufficient, defect-free, marketable goods that may lawfully be placed on the market, and to inform ALPHA POOL without delay of product defects, recalls, safety risks, official objections, supply shortages, price changes or other circumstances material to the sale.
4.3.The Principal indemnifies ALPHA POOL against all claims of third parties, end-consumers, authorities, marketplace operators, payment service providers, consumer protection associations or other bodies that are based on product defects, incorrect or incomplete details, missing approvals, labelling errors, infringements of rights, tax or customs errors or other circumstances for which the Principal is responsible.
5.Goods, Ownership and Handling
5.1.Unless agreed otherwise, the goods remain the property of the Principal until the transaction-related removal, transfer of ownership or other handling regulated in the offer. The Principal authorises ALPHA POOL to make, within the scope of the performance of the contract, the dispositions over the goods required to handle the end-consumer transactions and to transfer ownership to end-consumers.
5.2.ALPHA POOL is entitled to reject orders, to pause sales, to deactivate products or to restrict sales channels temporarily or permanently, insofar as this is necessary or expedient due to statutory requirements, official notices, requirements of marketplaces, payment service providers, banks, logistics service providers, security requirements, product objections, payment risks or other objective reasons.
6.Remuneration, Costs and Billing
6.1.The Principal owes the remuneration agreed in the respective offer. Insofar as a revenue-based remuneration is agreed, its calculation is based on the net or gross revenues defined in the offer, less or plus the items expressly regulated therein.
6.2.ALPHA POOL is entitled to pass on to the Principal, or to take into account in a revenue-reducing manner in the billing, all costs, fees, levies, charges, chargebacks, payment-service-provider fees, marketplace fees, shipping costs, returns costs, storage costs, packaging costs, insurances, taxes, customs duties, currency conversions and other third-party charges incurred in connection with the handling, unless expressly agreed otherwise.
6.3.Billing takes place, unless agreed otherwise, monthly. Payouts to the Principal take place only after deduction of ALPHA POOL's remuneration, the third-party fees, provisions, security retentions, returns, chargebacks, cancellations, warranty risks and other items relevant to the billing.
7.Liability
7.1.ALPHA POOL is not liable for damages, blockings, payouts, account closures, ranking losses, product deactivations, returns rates, payment chargebacks or other disadvantages that are based on decisions, systems or requirements of marketplaces, payment service providers, banks, shipping service providers, authorities or other third parties, insofar as ALPHA POOL is not itself responsible for these.
7.2.The general liability limitations of these GTC remain unaffected. Mandatory statutory liability provisions likewise remain unaffected.
8.Data Protection
8.1.Insofar as ALPHA POOL itself acts as merchant of record in the expressly agreed exceptional case, ALPHA POOL may act as its own controller within the meaning of the GDPR with regard to certain end-consumer data. Personal data is passed on to the Principal only insofar as this is required for the performance of the contract and permissible under data protection law.
8.2.The Principal is obliged to ensure all legal bases, information, consents and documentation required for its own data processing.
9.Termination and Post-Contractual Obligations
9.1.The termination of the collaboration leaves unaffected order processing already commenced, returns, warranty cases, payment post-processing, tax obligations, retention obligations, provisions, security retentions and other post-contractual obligations. The Principal remains obliged to cooperate in this and to provide ALPHA POOL with the information and means required for this.