General terms and conditions of business
of Heinrich Marketing GmbH

Status: January 2023

§ 1 Scope, Definitions

(1) The following General Terms and Conditions (GTC) of Heinrich Marketing GmbH - hereinafter referred to as "Heinrich Marketing" - are part of the contract. Conflicting or deviating purchasing conditions or other restrictions of the customer are not recognized unless Heinrich Marketing has expressly agreed to them in writing in individual cases.

(2) The contractual partners are free to decide whether and under what conditions they conclude individual contracts. An individual contract is regularly formed when an offer is signed by both parties or when the customer signs an offer and the order is confirmed by Heinrich Marketing. The content of the respective individual contract then results from the offer and the General 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 they are submitted, unless their content expressly states otherwise.

§ 2 Services of the Provider

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

(2) Heinrich Marketing is free in how it designs and implements the services, unless specific specifications have been agreed or the customer has made use of the authority for project management and control granted to him.

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

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

(5) Heinrich Marketing examines the change request with regard to technical feasibility and with regard to the additional expenditure in terms of time and costs. If it turns out that the additional effort can be quantified without further ado, this will be communicated to the customer. If, in the opinion of Heinrich Marketing, an in-depth examination that is to be remunerated at cost is necessary first, Heinrich Marketing estimates the associated additional work. The customer then decides immediately whether he wants the fee-based review to be carried out by Heinrich Marketing.

(6) The contracting parties will make a decision about the implementation of the change request and the resulting consequences promptly after the conclusion of the check. Change requests result in a corresponding postponement of dates by the review and coordination period. Until an agreement is reached, the originally agreed service content remains otherwise.

(7) If Heinrich Marketing provides more than insignificant additional services at the request of the customer, these will be remunerated on a time-based 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 irrelevant if it does not take up more than 30 minutes of working time.

§ 3 External 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 identified in the individual contract or otherwise, Heinrich Marketing is authorized by the customer to use these on behalf of the customer or Heinrich Marketing procure or mediate at the expense of the customer (including any consequential 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, carry out any necessary contract or license extensions independently. Heinrich Marketing is not obliged to outsource third-party services. If the customer engages other service providers (hereinafter: third-party service providers), these are considered vicarious agents of the customer.

(2) Heinrich Marketing is entitled to engage subcontractors or freelancers, unless there is an important reason for Heinrich Marketing not to engage.

§ 4 Retention of title, rights of use and exploitation of services by Heinrich Marketing

(1) Heinrich Marketing retains ownership of its services until full payment.

(2) The granting of rights of use and exploitation by Heinrich Marketing is subject to the condition precedent that the services have been paid for in full by the customer. Until payment has been made in full, use is only revocable as part of the contractual actions to be performed by the customer (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) Subject to deviating regulations in the individual contract, the customer receives a simple, non-transferrable right to use the services of Heinrich Marketing for the contractually intended purposes.

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

(5) No rights are transferred to 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 (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) Subject to the provisions in § 2 (request for change), fixed prices expressly stated in the individual contract will not be exceeded or fallen short of. If Heinrich Marketing (e.g. as a cost overview in the offer) indicates expected expenses for services, this represents a cost estimate (KV).

(3) If the KV is exceeded by more than 15% - with Heinrich Marketing pointing this out to the customer - the customer can terminate the corresponding assignment for this reason within two weeks after becoming aware of the excess; Heinrich Marketing will then be reimbursed for the services actually rendered and the costs incurred.

(4) For services which Heinrich Marketing, in agreement with the customer, does not provide at its registered office, separate travel times, costs and expenses in the amount of the applicable maximum rates or against individual proof will be charged. Travel times are to 50% working times.

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

(6) All prices do not include the applicable statutory sales tax. Payments are due upon invoicing. Discount is not granted. From 30 days after the due date and receipt of an invoice, Heinrich Marketing can charge interest of 8 percentage points above the respective ECB base rate. The assertion of further damages remains unaffected.

§ 6 Customer Obligations

(1) The customer supports Heinrich Marketing unrequested in the provision of services, in particular by immediately giving 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 in terms of content and carrier (including checking for viruses or other technical problems).

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

(4) The customer ensures and is responsible for ensuring that the material provided by him does not violate statutory or official regulations (e.g. on the protection of minors, data protection and competition law) and is free of third-party rights (in particular personal rights or copyrights) that could restrict intended use. If the customer has undertaken to procure materials for Heinrich Marketing as part of the execution 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 obtains the necessary rights to use these materials. If claims are made against Heinrich Marketing, for whatever legal reason, by a third party due to an infringement of property rights resulting from materials that the customer has made available to Heinrich Marketing, the customer shall indemnify Heinrich Marketing from all claims.

(5) Any necessary name and label research, corresponding entries and the check 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 fulfillment of an act of cooperation or if he does not fulfill it properly, Heinrich Marketing may demand appropriate compensation. Other rights of Heinrich Marketing remain unaffected.

(7) The customer fulfills his obligations according to § 6 at his own expense.

§ 7 Duration of Contract and Termination

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

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

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

(4) At the end of the contract, Heinrich Marketing will offer 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. Additional services are only provided for a separate fee.

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

§ 8 Time 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 are further developed as part of project management. In the case of target dates, the customer may request in writing one month after the end of the provision of the outstanding services, setting a reasonable deadline; upon expiry of this period, the customer's claim to this service is due.

(2) Performance disruptions in the area of responsibility of the customer (e.g. non-timely provision of cooperation services) or due to force majeure (e.g. strike, lockout, official orders, general telecommunications disruptions, etc.) entitle Heinrich Marketing to use the affected services for the duration of the disruption plus a to postpone a reasonable start-up time.

(3) Dates for the provision of services may only be promised in writing or in text form on the part of Heinrich Marketing. Deadlines which, in accordance with Section 286 Paragraph 2 of the German Civil Code, cause a contractual party to be in default without a reminder (binding deadlines) due to failure to comply with them (binding deadlines) must always be specified in writing or in text form and designated as binding. Heinrich Marketing is not responsible for performance disruptions due to force majeure (e.g. strikes, lockouts, official orders, general telecommunications disruptions, etc.) and circumstances in the customer's area of responsibility (e.g. non-timely provision of cooperation services, delays caused by third parties attributable to the customer, etc.) and entitle Heinrich Marketing to postpone the provision of the affected services for the duration of the hindrance plus a reasonable start-up time. Heinrich Marketing will notify the customer of performance disruptions due to force majeure.

(4) If Heinrich Marketing is responsible for the achievement of a certain success (work contract 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 independently verifiable partial services. A total acceptance only takes place if no partial acceptance has taken place.

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

(6) If the services or partial services of Heinrich Marketing correspond to the agreed requirements or if there are only minor deviations, the customer immediately declares acceptance; acceptance should be in text form. Insignificant are, in particular, those deviations that only marginally affect the functionality. If the customer does not declare acceptance within one month after delivery of a service and if he has not notified Heinrich Marketing of any significant defects during this period, the services or partial services are deemed to have been accepted by Heinrich Marketing.

(7) Acceptance can also take place through conclusive behavior on the part of the customer, in particular through productive use of the service, through unconditional payment or call for further services based on the service or the service result.

§ 9 Warranty and Liability

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

(2) The obligation to examine and give notice of defects applies in accordance with Section 377 HGB, in particular with regard to the approval in accordance with Section 377 Paragraph 2 and Paragraph 3 HGB. Any warranty claims by the customer expire 1 year after delivery or acceptance, insofar as acceptance is required by law.

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

(4) If possible, the customer reports defects in writing and describes 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 result.

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

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

(7) The provisions on the liability of Heinrich Marketing in Section 9 Paragraph 2 and Paragraph 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 a performance impediment, tort, etc .) except for: Customer claims for damages resulting from injury to life, limb and health, customer rights and claims 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 Customer rights based on intentional or grossly negligent behavior by Heinrich Marketing itself or its legal representatives, customer claims under the Product Liability Act and claims covered by § 44 or § 44a TKG. For the above exceptions, the legal 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 properly executed or the purpose of the contract or on the observance of which the contractual partner may regularly rely. In the event of a slightly or simply negligent violation of essential obligations, the liability of Heinrich Marketing is limited to compensation for the typical damage that was foreseeable for Heinrich Marketing at the time the contract was concluded. Apart from that, the liability of Heinrich Marketing for slight or simple negligence is excluded.
(9) Heinrich Marketing is liable for grossly negligent damage caused by its vicarious agents, limited to compensation for the typical damage that was foreseeable for Heinrich Marketing at the time the contract was concluded.

(10) The no-fault liability of Heinrich Marketing in the area of tenancy law and similar usage conditions for errors that already existed at the time the contract was concluded is expressly excluded.

(11) Heinrich Marketing is not responsible for performance 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).

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

Section 10 Confidentiality

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

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

§ 11 Notes on data protection

(1) The contractual partners will observe the legal provisions on data protection, in particular the provisions of the Federal Data Protection Act (BDSG), and oblige their employees accordingly. The contractual partners will inform each other insofar as the use of personal data is necessary for the provision of services. The contractual partner who is transmitting in each case ensures that the necessary permissions are available according to data protection regulations and informs the other contractual partner if there are concerns 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 course of the execution of the contract for the purposes of the contract. The customer obtains the relevant consent from those affected, if necessary. If Heinrich Marketing performs order data processing within the meaning of §11 BDSG, the customer will specify the order-related use of the data in writing if this has not yet been done in the contract.

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

§ 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 there is no conflict with confidentiality or data protection.

(2) Heinrich Marketing is entitled to refer to its participation in the creation of the contractual products in a suitable manner. For example, such a reference can be made in the source code of websites, in the imprint or in the footers of print products. The customer can object to this if his legitimate interests are not significantly affected by the mention and otherwise copyright or other references to Heinrich Marketing are retained unchanged.

(3) The assertion of a right of retention or offsetting is 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. However, Heinrich Marketing may sue the customer at his general place of jurisdiction.