General Terms and Conditions

1.1 MARKENHERZ Werbeagentur GmbH (hereinafter “Agency”) provides its services exclusively on the basis of the following General Terms and Conditions (“GTC”). These apply to all legal relationships between the Agency and the client, even where not expressly referenced. The GTC apply exclusively to legal relationships with businesses (B2B).

1.2 The version in force at the time the contract is concluded shall apply. Deviations from these GTC, as well as any other supplementary agreements with the client, are only effective if confirmed by the Agency in writing.

1.3 Any terms and conditions of the client are not accepted, even if known to the Agency, unless expressly agreed otherwise in writing in an individual case. The Agency expressly objects to the client's terms and conditions. No further objection by the Agency to the client's terms and conditions is required.

1.4 Changes to these GTC will be communicated to the client and are deemed agreed if the client does not object in writing within 14 days of the changed GTC; the client will be expressly informed, in the notice, of the significance of remaining silent and of the specific clauses being changed. This deemed-consent mechanism does not apply to changes to essential service content or fees.

1.5 Should individual provisions of these GTC be invalid, this shall not affect the validity of the remaining provisions or of contracts concluded on their basis. The invalid provision shall be replaced by a valid provision that comes closest to its intended meaning and purpose.

1.6 The Agency's offers are non-binding and subject to change.

Before the order is placed, the Agency expressly informs the client that providers of “social media channels” (e.g. Facebook, hereinafter “Provider”) reserve the right under their terms of use to reject or remove advertisements and content for any reason. Providers are accordingly not obliged to forward content and information to users. There is therefore a risk, which the Agency cannot calculate or control, that advertisements and content may be removed without cause. In the event of a complaint by another user, Providers generally allow an opportunity to respond, but content is nonetheless removed immediately in such cases. Restoring the original, lawful status may take some time. The Agency works on the basis of these Providers' terms of use, over which it has no influence, and applies them to the client's order as well. By placing the order, the client expressly acknowledges that these terms of use (co-)determine the rights and obligations of any resulting contractual relationship. The Agency intends to carry out the client's order to the best of its knowledge and belief and to comply with the relevant social media guidelines. However, due to the Providers' respective terms of use and the ease with which any user can allege a rights infringement and thereby achieve removal of content, the Agency cannot guarantee that a commissioned campaign will remain accessible at all times.

Where a prospective client has invited the Agency in advance to develop a concept, and the Agency accepts this invitation prior to conclusion of the main contract, the following applies:

3.1 A contractual relationship (“pitch agreement”) arises between the prospective client and the Agency already upon the invitation and its acceptance by the Agency. This agreement is likewise governed by these GTC.

3.2 The prospective client acknowledges that the Agency incurs cost-intensive preliminary work already at the concept stage, even though the client has not yet assumed any performance obligations of its own.

3.3 The concept, in its linguistic and graphic components, is protected under German copyright law (UrhG) to the extent such components reach the required level of creativity. Use or adaptation of these components without the Agency's consent is not permitted to the prospective client, already by operation of copyright law.

3.4 The concept further contains advertising-relevant ideas that do not reach the level of creativity required for copyright protection. Such ideas stand at the beginning of every creative process and may be regarded as the spark from which everything subsequently produced originates — the origin of the marketing strategy. Accordingly, those elements of the concept which are distinctive and which give the marketing strategy its characteristic imprint are protected under this agreement. “Idea” within the meaning of this agreement includes in particular advertising slogans, ad copy, graphics and illustrations, and advertising materials, even where these do not reach the level of creativity required for copyright protection.

3.5 The prospective client undertakes to refrain from commercially exploiting, or having exploited, or using, or having used, the creative advertising ideas presented by the Agency as part of the concept, other than within the framework of a main contract subsequently concluded.

3.6 Should the prospective client believe that ideas presented by the Agency are ideas the client had already conceived prior to the presentation, the client must notify the Agency of this by email within 14 days of the presentation, citing evidence permitting a chronological determination.

3.7 Otherwise, the parties shall assume that the Agency presented the prospective client with an idea that was new to the client. If the client uses the idea, it shall be assumed that the Agency contributed meritoriously to it.

3.8 The prospective client may discharge its obligations under this clause by paying reasonable compensation, calculated on a case-by-case basis, plus statutory VAT. The discharge only takes effect once payment of the compensation has been received in full by the Agency.

4.1 The scope of the services to be rendered arises from the service description in the agency agreement or any order confirmation issued by the Agency, as well as any briefing record (“offer documents”). Subsequent changes to the scope of services require written confirmation by the Agency. Within the framework set by the client, the Agency has creative discretion in fulfilling the order.

4.2 All of the Agency's work product (in particular all drafts, sketches, final artwork, copies and electronic files) must be reviewed by the client and approved by the client within three business days of receipt. If this period elapses without a response from the client, the work product is deemed approved by the client.

4.3 The client shall provide the Agency, in a timely and complete manner, with all information and documents required to render the services. The client shall inform the Agency of all circumstances relevant to carrying out the order, even if these only become known during the course of performance. The client bears the cost arising where work must be repeated or is delayed by the Agency as a result of the client's incorrect, incomplete, or subsequently amended information.

4.4 The client is further obliged to check the materials provided for the performance of the order (photos, logos, etc.) for any third-party copyright, trademark, or other rights (rights clearance) and warrants that the materials are free of third-party rights and may accordingly be used for the intended purpose. In cases of mere slight negligence, or once it has fulfilled its duty to warn, the Agency shall not be liable — at least internally, as between the Agency and the client — for infringement of such third-party rights through materials provided by the client. Should the Agency be held liable by a third party for such an infringement, the client shall indemnify and hold the Agency harmless and shall reimburse it for all disadvantages arising from such third-party claims, in particular the costs of reasonable legal representation. The client undertakes to support the Agency in defending against any such third-party claims and shall provide the Agency, without being requested, with all relevant documents for this purpose.

5.1 The Agency is entitled, at its own discretion, to perform the services itself, to engage qualified third parties as vicarious agents in rendering the contractual services, and/or to substitute such services with third-party services (“Third-Party Service”).

5.2 Third parties are engaged within the framework of a Third-Party Service either in the Agency's own name or in the client's name, the latter only after prior notice to the client. The Agency will select such third parties carefully and ensure they possess the required professional qualifications.

5.3 The client shall assume any obligations towards third parties that were disclosed to the client by name and that extend beyond the term of the contract. This applies expressly also in the event of termination of the agency agreement for good cause.

6.1 Stated service targets, delivery, or performance deadlines are, unless expressly agreed as binding, approximate and non-binding only. Actual performance may be affected by technical circumstances, the availability of internal and external resources including personnel capacity, and the client's timely cooperation. Furthermore, unforeseen organisational, infrastructural, or market-related developments may cause delays over which the Agency has little or no influence. Such circumstances do not constitute a breach of duty by the Agency. Binding deadlines must be recorded in writing or confirmed by the Agency in writing.

6.2 If delivery/performance by the Agency is delayed for reasons beyond its control, such as events of force majeure and other unforeseeable events that cannot be averted by reasonable means, the performance obligations are suspended for the duration and to the extent of the impediment, and the deadlines are extended accordingly. Where such delays persist for more than two months, both the client and the Agency are entitled to withdraw from the contract.

6.3 Where the Agency is in default, the client may only withdraw from the contract after having set the Agency a reasonable grace period in writing of at least 14 days, which has expired without result. Claims for damages by the client for non-performance or default are excluded, except where intent or gross negligence is proven.

7.1 The Agency is entitled to terminate the contract for good cause with immediate effect. Good cause exists in particular where

a) performance becomes impossible for reasons attributable to the client, or continues to be delayed despite a grace period of 14 days having been set;

b) the client persistently breaches material obligations under this contract, such as payment of a due amount or duties to cooperate, despite a written warning with a 14-day grace period;

c) there are justified doubts as to the client's creditworthiness and the client, upon the Agency's request, neither makes advance payments nor provides adequate security prior to performance by the Agency.

7.2 The client is entitled to terminate the contract for good cause without setting a grace period. Good cause exists in particular where the Agency persistently breaches material provisions of this contract despite a written warning with a reasonable grace period of at least 14 days to remedy the breach.

8.1 Unless otherwise agreed, the Agency's claim to a fee arises for each individual service upon placement of the order.

8.2 The fee is understood as a net fee plus VAT at the statutory rate. In the absence of an individual agreement, the Agency is entitled to a fee at customary market rates for the services rendered and for the grant of copyright- and trademark-related usage rights.

8.3 All Agency services not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the client.

8.4 The Agency's cost estimates are non-binding. Where it becomes apparent that actual costs will exceed the Agency's written estimate by more than 15%, the Agency will inform the client of the higher costs. The cost overrun is deemed approved by the client unless the client objects in writing within three business days of such notice, while simultaneously naming more cost-effective alternatives. For cost overruns of up to 15%, no separate notice is required; such an overrun is deemed approved by the client from the outset.

8.5 Where the client unilaterally amends or terminates commissioned work without involving the Agency — without prejudice to the Agency's ongoing management of the matter — the client shall remunerate the Agency for services rendered up to that point in accordance with the fee agreement and shall reimburse all costs incurred. Unless the termination is caused by a grossly negligent or intentional breach of duty by the Agency, the client shall furthermore reimburse the Agency the entire fee (commission) agreed for that order, whereby the offsetting of saved expenses pursuant to § 648 sentence 2 of the German Civil Code (BGB) is excluded. Furthermore, the client shall indemnify and hold the Agency harmless with respect to any claims by third parties, in particular the Agency's own contractors. Payment of the fee does not grant the client any usage rights to work already rendered; concepts, drafts, and other materials not carried through to completion must instead be returned to the Agency without delay.

9.1 The fee is due for payment immediately upon receipt of invoice and without deduction, unless special payment terms are agreed in writing in an individual case. This also applies to the onward billing of all cash expenses and other outlays. Goods delivered by the Agency remain the Agency's property until the fee, including all ancillary obligations, has been paid in full.

9.2 In the event of the client's default in payment, the statutory default interest rate applicable to commercial transactions applies. The client further undertakes, in the event of default, to reimburse the Agency for reminder and collection costs incurred insofar as necessary for appropriate legal enforcement. This includes in any case the cost of two reminder letters at the customary rate of currently at least €20.00 per reminder, as well as one reminder letter from a debt-collection lawyer. This does not affect the assertion of further-reaching rights and claims.

9.3 In the event of the client's default in payment, the Agency may immediately call due all services and partial services rendered under any other contracts concluded with the client.

9.4 The Agency is furthermore not obliged to render further services until the outstanding amount has been settled (right of retention). The obligation to pay the fee remains unaffected.

9.5 Where payment by instalments has been agreed, the Agency reserves the right, in the event of late payment of instalments or ancillary claims, to demand immediate payment of the entire outstanding debt (acceleration).

9.6 The client is not entitled to set off its own claims against claims of the Agency, unless the client's claim has been acknowledged in writing by the Agency or established by a court.

10.1 All work product of the Agency, including that arising from presentations (e.g. suggestions, ideas, sketches, drafts, final artwork, concepts), including individual parts thereof, remain, as do the individual work pieces and original designs, the property of the Agency and may be reclaimed by the Agency at any time — in particular upon termination of the contractual relationship. Upon payment of the fee, the client acquires the right to use the work for the agreed purpose. The acquisition of usage and exploitation rights to the Agency's work product in every case requires full payment of the fees invoiced by the Agency for that purpose. Where the client uses the Agency's work product before that point, such use is based on a loan relationship revocable at any time.

10.2 Changes or adaptations to the Agency's work product, in particular further development by the client or by third parties engaged by the client, are only permitted with the express consent of the Agency and — insofar as the work is protected by copyright — of the author. The handover of so-called “open files” is accordingly expressly not part of the contract. The Agency is not obliged to hand these over. That is, absent a contractual assignment of usage rights covering “electronic work product” as well, the client has no legal claim to it.

10.3 Use of the Agency's work product beyond the originally agreed purpose and scope of use requires the Agency's consent, regardless of whether the work is protected by copyright. The Agency and the author are entitled to separate, reasonable compensation for this.

10.4 Use of the Agency's work product, or of advertising materials for which the Agency developed conceptual or design templates, after expiry of the agency agreement likewise requires the Agency's consent, regardless of whether the work is protected by copyright.

10.5 For uses under paragraph 4, the Agency is entitled, in the first year after termination of the contract, to a claim for the full agency fee agreed under the expired contract. In the second or third year after expiry of the contract, only to half or one quarter, respectively, of the fee agreed in the contract. From the fourth year after termination of the contract onward, no further agency fee is payable.

10.6 The client is liable to the Agency for any unlawful use in an amount equal to twice the fee reasonable for such use.

11.1 The Agency is entitled to reference the Agency, and where applicable the author, on all advertising materials and in all advertising measures, without the client being entitled to any fee for this.

11.2 Subject to the client's right to object in writing at any time, the Agency is entitled to reference, on its own advertising media and in particular on its website, its name and company logo together with the work performed, and to reference the existing or former business relationship with the client (reference notice).

12.1 The client must notify the Agency in writing, describing the defect, of any defects without delay — in any case within eight days of delivery/performance by the Agency, and of hidden defects within eight days of discovering them; otherwise, any deviation in performance is deemed approved. In that case, the assertion of warranty and damages claims, as well as the right to rescind for mistake based on defects, is excluded.

12.2 In the case of a justified and timely notice of defects, the client is entitled to have the Agency remedy or replace the delivery/performance. The Agency will remedy the defects within a reasonable period, whereby the client shall enable the Agency to take all measures necessary for investigation and remedy. The Agency is entitled to refuse remedy where this is impossible or would involve disproportionately high effort for the Agency. In that case, the client has the statutory rights to withdraw from the contract or to a reduction in price. Where remedy is undertaken, it is the client's responsibility to arrange, at its own cost, for the transmission of the defective (physical) item.

12.3 It is likewise the client's responsibility to review the legal admissibility of the service, in particular under competition, trademark, copyright, and administrative law. The Agency is only obliged to conduct a cursory review of legal admissibility. In cases of slight negligence, or once it has fulfilled any duty to warn the client, the Agency is not liable for the legal admissibility of content that was specified or approved by the client.

12.4 The warranty period is six months from delivery/performance. The client is not entitled to withhold payment on account of complaints. Any statutory presumption that a defect appearing within a certain period after delivery of goods already existed at the time of delivery is excluded, to the extent legally permissible.

13.1 In cases of slight negligence, liability of the Agency and its employees, contractors, or other vicarious agents (“Personnel”) for property or financial damage suffered by the client is excluded, regardless of whether the damage is direct or indirect, lost profit, consequential damage from a defect, damage due to default, impossibility, breach of an ancillary duty, fault in contract negotiations, or defective or incomplete performance. This does not affect liability for damage arising from injury to life, body, or health, or for damage arising from breach of material contractual obligations (cardinal obligations) — obligations whose fulfilment makes proper performance of the contract possible in the first place and on whose observance the client may regularly rely; in such cases liability in amount is limited to the foreseeable damage typical for this type of contract at the time of conclusion. The injured party bears the burden of proving gross negligence. To the extent the Agency's liability is excluded or limited, this also applies to the personal liability of its Personnel.

13.2 Any liability of the Agency for claims raised against the client on the basis of a service rendered by the Agency (e.g. an advertising measure) is expressly excluded where the Agency has fulfilled its duty to advise, or where such a duty was not recognisable to it, whereby slight negligence is not detrimental. In particular, the Agency is not liable for litigation costs, the client's own legal fees, or the cost of publishing judgments, nor for any damages claims or other third-party claims; the client shall indemnify and hold the Agency harmless in this respect.

13.3 The client's damages claims lapse six months after becoming aware of the damage, and in any event three years after the act giving rise to the claim. Damages claims are capped, in amount, at the net order value.

This contract, and all mutual rights, obligations, and claims arising from it between the Agency and the client, are governed by German law, excluding its conflict-of-laws rules and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

15.1 Place of performance is the Agency's registered seat. Where goods are shipped, risk passes to the client as soon as the Agency has handed the goods to the carrier of its choice.

15.2 To the extent legally permissible, the court with jurisdiction over the Agency's registered seat is agreed as the venue for all disputes arising between the Agency and the client in connection with this contractual relationship. Notwithstanding this, the Agency is entitled to sue the client at the client's general place of jurisdiction.

15.3 Where terms referring to natural persons are used in this contract in the masculine form only, they refer equally to all genders. When applying such a term to a specific natural person, the form appropriate to that person shall be used.