Terms of Service
of Heinrich Marketing GmbH

Status: February 2020

§ 1 Scope, Definitions

(1) The following general terms and conditions (GTC) of Heinrich Marketing GmbH - hereinafter referred to as "Heinrich Marketing" - are the content of the contract. Conflicting or deviating conditions of purchase or other restrictions by the customer will not be recognized unless Heinrich Marketing has expressly consented to them in writing in individual cases.

(2) The contracting parties are free to decide whether and under what conditions they conclude individual contracts. An individual contract is usually concluded when both parties sign an offer or the customer signs an offer and Heinrich Marketing confirms the order. The content of the respective individual contract then results from the offer and the terms and conditions. Provisions of an individual contract take precedence over the general terms and conditions in the event of contradictions.

(3) Offers from Heinrich Marketing expire no later than one month after their submission, unless their content expressly states otherwise.

§ 2 Services of the provider

(1) The type and scope of the services are described as far as possible in the individual contract. The basis for this are the preliminary discussions between the contractual partners and the documents created in the process. On this basis, the project management services are continuously developed.

(2) Heinrich Marketing is free to decide how it designs and implements the services, unless specific requirements have been agreed or the customer has made use of the authorization granted to him to manage and control projects.

(3) If the customer wishes a subsequent change to a service description, he will inform Heinrich Marketing as a change request as soon as possible in a concrete and verifiable form.

(4) Heinrich Marketing can discontinue further service provision if there is a change request. Heinrich Marketing will inform the customer of this in each case. If the customer objects to the cessation of services, Heinrich Marketing will continue to provide the originally agreed service.

(5) Heinrich Marketing will roughly examine the change request with regard to technical feasibility and with regard to additional expenditure in terms of time and costs. If it turns out that the additional effort can be easily quantified, this will be communicated to the customer. If, in the opinion of Heinrich Marketing, an in-depth examination that is to be remunerated according to the work involved is necessary, Heinrich Marketing estimates the additional work involved. The customer then decides immediately whether he or she would like Heinrich Marketing to conduct a fee-based review.

(6) The contractual partners will promptly make a decision on the implementation of the change request and the resulting consequences after the examination has been completed. Change requests result in a corresponding postponement of the dates by the review and coordination period. Otherwise, the originally agreed service content remains until an agreement is reached.

(7) If Heinrich Marketing provides more than insignificant additional services at the request of the customer, in case of doubt these will be remunerated on a time fee basis according to the general rates of Heinrich Marketing. The general remuneration rate is currently € 105 plus VAT per hour. An additional service is considered insignificant if it does not take up more than 30 minutes of working time.

§ 3 Third-party services, third-party service providers, subcontractors

(1) Insofar as third-party services, in particular standard software or media (e.g. images, photos, sounds, moving images, films, data feeds) from third-party providers, are shown in the individual contract or otherwise, Heinrich Marketing is authorized by the customer to do so on behalf of the customer or by Heinrich Marketing procure or mediate at the expense of the customer (including any follow-up costs) in accordance with the conditions. The customer will observe all relevant conditions for third-party services (including open source, freeware or creative commons conditions) and, if necessary, undertake any necessary contract or license extensions independently. Heinrich Marketing is not obliged to outsource external services. If the customer engages other service providers (hereinafter: third-party service providers), these are deemed to be the customer's vicarious agents.

(2) Heinrich Marketing is entitled to engage subcontractors or freelancers, unless there is an important reason against the engagement that Heinrich Marketing can identify.

§ 4 retention of title, usage and exploitation rights to services by Heinrich Marketing

(1) Heinrich Marketing reserves title to its services until full payment has been made.

(2) The granting of usage and exploitation rights by Heinrich Marketing is subject to the condition precedent that the customer has paid for the services in full. Until full payment has been made, use is only revocable within the scope of the actions to be performed by the customer in accordance with the contract (e.g. tests). The revocable permission ends automatically if the customer is in arrears with the payment of a remuneration component, unless the payment arrears are insignificant.

(3) Unless otherwise stipulated in the individual contract for services from Heinrich Marketing, the customer receives a simple, non-transferable right to use for the contractually intended purposes.

(4) Heinrich Marketing can, in particular, continue to use the components and elements (e.g. libraries, modules, kits, templates, tools) in the course of its business operations and freely exploit them without customer-specific details.

(5) No rights are transferred in the case of pitches, offers or cost estimates that are free of charge for the customer. The customer is not entitled to otherwise use or exploit the services of Heinrich Marketing contained therein or to have them used or exploited.

(6) The customer will retain copyright notices (e.g. copyright notices) or other references to Heinrich Marketing in or with services unchanged.

§ 5 Remuneration and Terms of Payment

(1) The respective remuneration is specified in the individual contract.

(2) The fixed prices expressly stated in the individual contract are neither undercut nor exceeded, subject to the provisions in § 2 (change request). If Heinrich Marketing specifies expected expenses for services (e.g. as a cost overview in the offer), this represents a cost estimate (KV).

(3) If the KV is exceeded by more than 15% - Heinrich Marketing points this out to the customer - the customer can terminate the corresponding order for this reason within two weeks after becoming aware of the excess; Heinrich Marketing then receives reimbursement for the services actually provided and the costs incurred.

(4) For services that Heinrich Marketing does not provide at its headquarters in agreement with the customer, separate travel times, costs and expenses in the amount of the respective maximum rates or against individual evidence will be invoiced. Travel times are 50% working hours.

(5) Heinrich Marketing may demand a reasonable amount of down payments. In the case of billing on a time-based basis, Heinrich Marketing is entitled to bill on a monthly basis. Unless otherwise agreed in the individual contract, 50% are due upon conclusion of the contract, 40% after acceptance of the final version and 10% after handover in the case of KV or fixed prices; In the case of work-related services, the customer is entitled to withhold 15% the resulting remuneration until acceptance.

(6) All prices are exclusive of the applicable statutory sales tax. Payments are due when the invoice is issued. No discount is granted. From 30 days after the due date and receipt of an invoice, Heinrich Marketing can charge interest at a rate of 8 percentage points above the respective ECB base rate. The assertion of further damages remains unaffected.

§ 6 Obligations of the customer

(1) The customer supports Heinrich Marketing unsolicited to a reasonable extent in the provision of services, in particular by immediately providing instructions and approvals and responding to inquiries.

(2) The customer will provide the necessary (technical) information, test data, materials and documents (hereinafter collectively: material). The customer will only deliver such material that has the formats required by Heinrich Marketing and is quality assured with regard to content and carrier (including checking for viruses or other technical problems).

(3) The customer keeps a copy of the material while working together. Heinrich Marketing is entitled to use the material in accordance with the purpose of the contract, unless it is expressly indicated otherwise by the customer.

(4) The customer ensures and is responsible for the fact that the material provided by him does not violate legal or official regulations (e.g. for the protection of young people, data protection and competition law) and is free from third party rights (in particular personal rights or copyrights), which could restrict intended use. If the customer has undertaken to procure materials to Heinrich Marketing as part of the performance of the contract, the customer must make these available to Heinrich Marketing immediately and in a common, immediately usable, digital format if possible. The customer ensures that Heinrich Marketing receives the necessary rights to use these materials. If a claim is made against Heinrich Marketing by a third party due to an infringement of property rights resulting from materials provided by the customer to Heinrich Marketing, regardless of the legal reason, the customer releases Heinrich Marketing from all claims.

(5) Any necessary name and label searches, corresponding entries and checking for legality (e.g. according to data protection, competition and / or trademark law) are the responsibility of the customer, unless otherwise agreed in the individual contract.

(6) If the customer is in default with the performance of an act of cooperation or if he does not perform it properly, Heinrich Marketing may request appropriate compensation. Heinrich Marketing's other rights remain unaffected.

(7) He fulfills the obligations of the customer according to § 6 at his own expense.

§ 7 contract duration and termination

(1) The provisions of these GTC remain in force for all individual contracts concluded under them even after their termination.

(2) Unless otherwise agreed in writing, the contract is automatically extended to the end of the current month and then by the specified contract period, unless terminated in writing with one month's notice to the end of the contract period or the respective extension period . In the case of any contracts for work and services, the statutory provisions apply exclusively.

(3) Any notice of termination must be in writing (letter or email) to be effective.

(4) At the end of the contract, Heinrich Marketing will offer the customer the customer's own data in the state in which it is available at Heinrich Marketing for download by providing access data for a period of one month. After this period, Heinrich Marketing is entitled to delete it. Any additional services are only provided for a separate fee.

(5) In the event of the termination of contracts - for whatever reason - the provisions, which by their nature continue to have an effect, in particular § 4, 10 and 11 of these General Terms and Conditions, remain in force.

§ 8 Times of performance and acceptance

(1) Dates for the provision of services are only binding in the event of a final agreement. Otherwise, these are target dates that will be further developed as part of project management. In the case of target dates, the customer may request in writing one month after the completion of the provision of the outstanding services, setting a reasonable deadline; at the end of this period, the customer's claim to this service is due.

(2) Service disruptions in the customer's area of responsibility (e.g. failure to provide cooperation services on time) or due to force majeure (e.g. strike, lockout, official orders, general disruptions in telecommunications, etc.) entitle Heinrich Marketing to the services concerned for the duration of the hindrance plus one postpone a reasonable lead time.

(3) Dates for the provision of services may only be promised by Heinrich Marketing in writing or in text form. Dates, the non-compliance of which a contracting party falls into arrears without a reminder according to § 286 paragraph 2 of the BGB (binding dates) must always be set in writing or in text form and designated as binding. Service disruptions due to force majeure (e.g. strikes, lockouts, official orders, general disruptions in telecommunications, etc.) and circumstances in the customer's area of responsibility (e.g. failure to provide cooperation services on time, delays by third parties attributable to the customer, etc.) are not responsible for Heinrich Marketing and entitle Heinrich Marketing to postpone the provision of the services concerned by the duration of the hindrance plus a reasonable start-up time. Heinrich Marketing will notify the customer of service disruptions due to force majeure.

(4) If Heinrich Marketing is responsible for bringing about a certain level of success (contractual obligation), the contractual partners will regulate the requirements and the procedure for acceptance in the respective individual contract. The customer checks and tests the service handed over to him according to the agreed procedure; Heinrich Marketing can also hand over testable partial services independently. A total acceptance only takes place if no partial acceptance has taken place.

(5) The customer ensures that Heinrich Marketing's services are not used productively before the tests and acceptances have been completed, unless something else has been agreed between the contractual partners.

(6) If the services or partial services from Heinrich Marketing correspond to the agreed requirements or if there are only insignificant deviations, the customer shall immediately declare acceptance; the acceptance should take place in text form. In particular, those deviations which only negligibly impair functionality are insignificant. If the customer does not declare acceptance within one month after handing over a service and if he has not reported any significant defects to Heinrich Marketing during this time, then the services or partial services from Heinrich Marketing are deemed to have been accepted.

(7) The acceptance can also take place by way of coherent behavior by the customer, in particular through productive use of the service, through unconditional payment or calling up further services based on the service or the service result.

§ 9 Warranty and Liability

(1) In the case of doubt, technical data in the offer or individual contract are information on properties and not the subject of a guarantee or assurance.

(2) The duty to examine and notify applies in accordance with Section 377 of the German Commercial Code, in particular with regard to the approval in accordance with Section 377 (2) and (3) of the German Commercial Code. Any warranty claims by the customer expire 1 year after delivery or acceptance, insofar as acceptance is provided for by law.

(3) Warranty claims by the customer are excluded if the customer has made changes to the services of Heinrich Marketing without prior consent, if instructions or advice from Heinrich Marketing are not followed by the customer or if the services are handled improperly or if assumptions from the individual contract are not complied with, unless the customer can prove that the defects are not due to this or that the warranty work is not or only insignificantly difficult as a result.

(4) The customer reports defects in writing, if possible, describing the circumstances of their occurrence and their effects. The customer supports Heinrich Marketing to a reasonable extent in identifying and eliminating errors and grants access to documents from which further information can be obtained.

(5) In the event of a defect, Heinrich Marketing can, at its discretion, remove the defect or deliver it again (subsequent performance).

(6) Further claims of the customer remain unaffected. The agreement of a guarantee must be in writing.

(7) The regulations on Heinrich Marketing's liability in Section 9 (2) and (3) apply to all claims for damages and liability cases regardless of the legal basis on which they are based (e.g. warranty, delay, impossibility, any breach of duty, the existence of an impediment to performance, unauthorized action, etc. .) except for: claims of the customer due to damage to life, limb and health, rights and claims of the customer in the event of fraudulent concealment of a defect by Heinrich Marketing or due to the lack of a quality for which Heinrich Marketing has assumed a guarantee, claims and Rights of the customer based on willful or grossly negligent behavior by Heinrich Marketing itself or its legal representatives, claims of the customer under the Product Liability Act and claims that are covered by Section 44 or Section 44a TKG. For the above exceptions, the statutory regulation remains.

(8) Heinrich Marketing is only liable for slight or simple negligence in the event of a breach of essential obligations, ie obligations that enable the contract to be carried out properly or the purpose of the contract or on which the contractual partner may regularly rely. In the event of a slightly or simply negligent breach of essential obligations, Heinrich Marketing's liability is limited to compensation for the typical damage that was foreseeable for Heinrich Marketing when the contract was concluded. Otherwise Heinrich Marketing's liability for slight or simple negligence is excluded.
(9) Heinrich Marketing is liable for grossly negligent damage caused by its vicarious agents, limited to the replacement of the typical damage that was foreseeable for Heinrich Marketing when the contract was concluded.

(10) The no-fault liability of Heinrich Marketing in the area of tenancy law and similar usage relationships for errors already existing when the contract was concluded is expressly excluded.

(11) Service disruptions due to force majeure (in particular strikes, lockouts, official orders, natural disasters, failure of communication networks or gateways, disruptions in the area of carrier services or the failure of services such as Google Ads) are not responsible for Heinrich Marketing.

(12) The liability for damages in the event of financial loss is limited in each individual case to a total of EUR 25,000. Further claims are excluded.

§ 10 Confidentiality

(1) The contracting parties mutually undertake to keep secret all information of the other contracting party that becomes accessible to them in connection with the individual contracts, which is marked as confidential or, under other circumstances, can be recognized as business or trade secrets of the contracting party, and to the extent that it not required to achieve the purpose of the contract - neither to record nor to pass on or to otherwise exploit. A legally binding non-disclosure agreement is concluded separately by the contracting parties.

(2) The obligation of confidential treatment does not apply to information that is already known to the receiving contractual partner or that becomes known without connection with the contractual relationship.

§ 11 Notes on data protection

(1) The contracting parties will observe the statutory provisions on data protection, in particular the regulation of the Federal Data Protection Act (BDSG), and oblige their employees accordingly. The contracting parties will inform each other as far as the use of personal data is necessary for the provision of services. The respective transferring contractual partner ensures that the necessary permits are available in accordance with data protection regulations and notifies the other contractual partner if there is concern that this is not the case.

(2) The customer agrees that Heinrich Marketing collects, saves, processes and otherwise uses the personal data arising in the context of the execution of the contract for the purposes of the contract. The customer shall obtain the relevant consent from those affected, if necessary. If Heinrich Marketing carries out order data processing within the meaning of §11 BDSG, the customer will specify the use of the data in accordance with the order in writing, unless this has already been done in the contract.

(3) Otherwise, data protection is based on the GDPR and is here visible.

§ 12 final provisions

(1) Heinrich Marketing may name the customer as a reference. The contractual partners may also report publicly on their services for the purpose of self-promotion, provided that there is no conflict with confidentiality or data protection.

(2) Heinrich Marketing is entitled to indicate on the contractual products in a suitable manner that it participated in the creation. For example, such a reference can be made in the source code of Internet pages, in the imprint or footers of print products. The customer can object to this if his legitimate interests are not insignificantly impaired by the naming and otherwise copyright or other references to Heinrich Marketing are retained unchanged.

(3) The assertion of a right of retention or offsetting are only possible for the customer with counterclaims that have been legally established or are undisputed by Heinrich Marketing.

(4) The legal relationship between the contractual partners is exclusively subject to the law of the Federal Republic of Germany.

(5) The place of performance for all obligations arising from the legal relationship between the contractual partners is the registered office of Heinrich Marketing.

(6) All disputes arising from and in connection with the contractual relationship will be decided exclusively by the state courts responsible for the registered office of Heinrich Marketing. Heinrich Marketing may, however, sue the customer at his general place of jurisdiction.