General Terms and Conditions for Advertising Customers (Advertising Customer GTC)
General Terms and Conditions for Advertising Customers of QUIN Technologies GmbH in the version of 08.08.2022
§ 1 Subject matter of the contract
1.1 QUIN Technologies GmbH (hereinafter referred to as "QUIN") and the signing contractual partner ("Customer") agree to perform the services under the concluded contract on the basis of these Advertising Customer T&C as well as our price list (see offer), provided that the Customer is an entrepreneur in the sense of § 14 of the German Civil Code (BGB) or a legal entity in the sense of public law. Our advertising customer GTC and our price list shall apply exclusively. We do not recognize any terms and conditions of the customer that conflict with or deviate from our advertising customer GTC unless we expressly agree to their validity in writing.
1.2 Our advertising customer GTC shall also apply to all future transactions with the customer in the version valid at the time of the last conclusion of the contract, unless otherwise expressly agreed in writing.
§ 2 Conclusion of contract
2.1 The contract is concluded when QUIN receives from the Customer a dated and signed declaration of acceptance of a QUIN contract offer in original, as fax or copy, as PDF or in other electronic form (e.g. email or DocuSign).
2.2 QUIN contract offers modified by the Customer are considered as a new contract offer by the Customer. A contract is then only concluded by explicit declaration of acceptance by QUIN, a service provision is not considered as implied acceptance.
§ 3 Description of Services
3.1 QUIN is obligated to publish the listed products agreed upon in the contract offer and to provide the services listed therein (both referred to as "Service Elements") according to these terms and conditions.
3.2 QUIN is entitled to use the Customer Data for trend analyses and overviews, provided that this does not involve personal data of the Customer's employees. The respective results will be used for internal purposes only and will be published at most after consultation with the Customer, unless the data is anonymous, aggregated data.
3.3 QUIN is not obligated to grant the Customer competitive exclusion.
§ 4 Remuneration of Services
The remuneration of QUIN's services is determined by the prices stated in the contract offer. Prices for services not included in the price list are subject to individual agreement between QUIN and the Customer.
§ 5 Cost regulation and payment agreements
5.1 Invoices are generally issued on a monthly basis from the start of the campaign, but no later than the end of the campaign, unless otherwise agreed. The invoice amount is based on the actual expenditure in the advertising month. The payment claim is due 20 days after the invoice date without deduction. In case of late or deferred payment, interest will be charged at a rate of 9% above the prime rate. In case of delayed payment, QUIN is entitled to postpone the publication of individual service elements until full payment has been made, provided that the Customer is in default with the payment of a not only insignificant part of the owed remuneration. This does not apply if the customer has a right of retention. If, in the case of payment by installments, an installment is not paid within 30 days of the due date, the entire remaining amount shall become due immediately.
5.2 All price quotations are exclusive of the statutory value added tax applicable at the time of invoicing.
5.3 Payments of the Customer are always first offset against the oldest existing claim. QUIN may refuse to perform its services until all due payments have been made by the Customer.
5.4 QUIN reserves the right to send invoices and all related correspondence (e.g. payment reminders) only by e-mail. The Customer agrees to provide a current e-mail address for this purpose and to inform QUIN promptly about changes of the e-mail address.
5.5 Service periods and contingents for agreed services stated on offers or order forms represent preliminary estimates and are therefore not legally binding with regard to their scope or duration as orientation values, unless otherwise expressly agreed between the parties. In this context, QUIN reserves the right to provide agreed services within a reasonable period of time even after the specified campaign period, if the services could not be provided during the original campaign period for reasons beyond QUIN's control. In this case, QUIN will inform the Customer about the shortfall of the estimated contingent or the exceeding of the provisionally specified campaign period and inform the Customer about the new campaign period.
§ 6 Basis of Cooperation
6.1 The Customer's rights under the Agreement are not transferable or assignable, unless QUIN gives its express written consent.
6.2 QUIN is entitled to send the Customer information, questionnaires and other commercial communication regarding the ordered and similar services of QUIN to the Customer's email address even after the expiration of the contract. The Customer may object to this at any time informally and free of charge by email to QUIN with effect for the future. QUIN will inform about this right of objection in every email.
6.3 The Customer is obligated to provide QUIN with all information and documents in a timely manner that are necessary and expedient to achieve the goals described in the contract. This includes in particular advertisement texts and layouts in digital form. The Customer shall inform QUIN immediately as soon as one of the service elements ordered by him is no longer up-to-date. Furthermore, the Customer is responsible for the duties of cooperation described for individual service elements, if any. If the Customer does not fulfill the obligations according to this clause 6.3 in time, any deadlines for the performance of services for QUIN will be extended accordingly.
6.4 If the offer specifies a fixed start date for the respective campaign, such a date is binding for both parties as a fixed date for the performance of services by QUIN, in contrast to the campaign duration. If this fixed date cannot be met due to the Customer's lack of cooperation (e.g. due to Advertising Materials not delivered to QUIN), the Customer's claim for the contractual services will be forfeited if the Customer does not fully provide his cooperation until more than 7 days after the fixed date.
6.5 QUIN is not obligated to execute orders of the Customer, if the content to be published violates legal regulations, official prohibitions, rights of third parties, morality or the terms and conditions of QUIN ("Inadmissible Content"). This also applies if the Customer's order contains links that directly or indirectly lead to pages with inadmissible content. The Customer's obligation to pay remains unaffected. QUIN is only obligated to remove such inadmissible content within the scope of legal regulations and upon request of the Customer. As far as claims are made against QUIN because of illegal content or other violations of the law for which the Customer is responsible, the Customer indemnifies QUIN from these claims on first demand. The indemnification includes the necessary legal costs.
6.6 QUIN does not assume any responsibility for data, documents, advertisement texts and storage media provided by the Customer and is in particular not obliged to keep them or to return them to the Customer.
6.7 QUIN is entitled to engage vicarious agents.
6.8 The Customer has to configure his own infrastructure according to the respective state of the art in such a way that it is neither the target nor the starting point of disturbances that are likely to affect the Internet service offered by QUIN or in general a smooth and error-free network operation.
6.9 The Customer warrants that all content published by him on the Internet or handed over to QUIN for publication is completely free of third party rights. The Customer will compensate QUIN for any damages resulting from a violation of this provision upon first request.
6.10 The Customer agrees to the use of the Customer's logo by QUIN for advertising purposes on the QUIN homepage or on other advertising formats used by QUIN. QUIN is also entitled to use advertisements created for the Customer as reference towards other customers or interested parties, provided that the advertisements in question have been previously published by QUIN on behalf of the Customer. The Customer is entitled to revoke this consent with reasonable notice.
§ 7 Copyrights
7.1 This Agreement does not include any transfer of ownership or rights of use, licenses or other rights to the Software from QUIN to the Customer. All rights to the used Software, to marks, titles, trademarks and copyrights and other commercial rights of QUIN remain with QUIN without restriction.
7.2 All work results and information published by QUIN are subject to QUIN's copyright. Excluded from this are only those work results and information published by QUIN that have been created by the Customer or a third party and have been taken over by QUIN unchanged for publication on the Internet.
7.3 By placing an order for the publication of advertisements, QUIN receives the sole database rights to the Customer's advertisements published by QUIN.
7.4 The Customer bears the sole responsibility under press, competition and other laws for the content provided by him for publication.7.5 By placing the order, the Customer confirms that he has all necessary rights of use, copyright, ancillary copyright and other rights) to the documents and data provided by him for publication on the Internet.
§ 8 Warranty, Defects
8.1 QUIN warrants that the agreed services to be published on the Internet will be implemented in accordance with the usual technical standards.
8.2 The Customer's warranty rights require that the Customer notifies QUIN in writing of any defects immediately, at the latest seven days after QUIN has published the affected service elements on the Internet, and that the Customer gives notice of at least one defect.
8.3 In case of a defect, QUIN is initially entitled, at QUIN's option, either to remedy the defect or to grant the Customer a new work in the sense of a lengthening of the published performance (supplementary performance). For this purpose, the Customer has to give QUIN the time and opportunity necessary for the supplementary performance. QUIN is obliged to bear all expenses necessary for the purpose of supplementary performance. If the Customer's request to remedy the defect turns out to be unjustified, QUIN can demand compensation from the Customer for the resulting costs.
8.4 Only if the supplementary performance fails, the Customer may demand a reduction of the price or assert a right of rescission for individual elements of performance. In the case of an insignificant defect, however, there shall be no right of withdrawal. Upon QUIN's request, the Customer is obliged to declare within a reasonable period of time whether he still insists on the performance due to the delay and/or which of the claims and rights he is entitled to. In repeated cases the Customer has the right to terminate the entire contract for the future; already published service elements remain unaffected by a termination.
8.5 Clause 9 shall apply to the limitation periods. Claims of the customer for damages or reimbursement of futile expenses shall only exist in accordance with clause 10.
8.6 Due to a breach of duty that does not consist of a defect, the Customer may only rescind or terminate the contract if QUIN is responsible for the breach of duty.
§ 9 Statute of Limitations
9.1 All warranty claims of the Customer become statute-barred within one year from the statutory beginning of the limitation period.
9.2 Mandatory statutes of limitation remain unaffected. The relief from the statute of limitations referred to in clause 9.1 shall not apply to claims based on injury to life, limb or health, to claims based on intent and/or gross negligence and to claims based on the breach of cardinal obligations or the assumption of a guarantee.
9.3 The limitation periods arising under Sections 9.1 and 9.2 for claims based on material defects and defects of title shall apply mutatis mutandis to competing contractual and non-contractual claims for damages by the customer based on a defect. However, if in individual cases the application of the statutory limitation rules should lead to an earlier limitation of the competing claims, the statutory limitation period shall apply. The statutory limitation periods under the Product Liability Act shall remain unaffected in any case.
9.4 As far as the limitation of claims against QUIN is shortened according to clauses 9.1 to 9.3, this shortening applies accordingly to any claims of the Customer against QUIN's legal representatives, employees, agents as well as vicarious agents based on the same legal ground.
9.5 As far as the limitation of claims against QUIN is shortened according to clauses 9.1 to 9.3, this shortening applies accordingly to any claims of the Customer against QUIN's legal representatives, employees, agents and vicarious agents based on the same legal ground.
§ 10 Liability
10.1 Subject to the provisions of Clause 10.2, QUIN is liable for damages "on whatever legal grounds" only in case of intent and / or gross negligence, including intent and / or gross negligence of QUIN's representatives or its vicarious agents. Furthermore, QUIN is liable for damages resulting from the violation of an essential contractual obligation, i.e. an obligation the fulfillment of which enables the proper execution of the contract in the first place and the fulfillment of which the Customer may therefore regularly rely on (cardinal obligation), even in case of simple negligence, including simple negligence of QUIN's representatives and vicarious agents. As far as it does not concern a grossly negligent or intentional breach of duty by QUIN, the liability for damages is, however, limited to the foreseeable, typically occurring damage.
10.2 Claims for damages due to injury to life, body and health as well as claims according to the Product Liability Act and other mandatory legal liability regulations remain unaffected by the exclusions and limitations of liability regulated in clause 10.1. Furthermore, the above exclusions and limitations of liability do not apply if QUIN has fraudulently concealed a defect or if QUIN is liable due to the assumption of a guarantee or due to the assumption of a procurement risk.
§ 11 Indemnification Infringement of Property Rights
11.1 If claims ("Property Right Claims") are asserted against the Customer by third parties due to the infringement of patents, copyrights, trademarks, business designations or trade secrets by a service of QUIN ("Property Right Infringement"), QUIN indemnifies the Customer against all costs (including reasonable legal defense costs) and claims incurred by the Customer as a result of final judgments of competent courts or written settlements reached by QUIN, provided that (i) the Customer did not cause the Property Right Infringement, e.g. in case of publication of Inadmissible Content according to clause 6. 6, (ii) Customer notifies QUIN in writing within no more than twenty (20) business days after the third party first asserts the claim, (iii) QUIN retains sole control over the defense of the IPR claim, and (iv) Customer provides reasonable assistance and makes available all necessary and appropriate information.
11.2 The foregoing indemnification obligation does not apply to actions or statements that QUIN has not previously agreed to in writing and does not apply to the extent that the Customer continues infringing actions after having been notified of changes that would have prevented an infringement.
11.3 If an infringement of an Intellectual Property Right is determined by a court of competent jurisdiction or is deemed possible by QUIN, QUIN may, in its sole discretion and at its own expense, either (i) replace or modify the Services in such a way that there is no longer an infringement of the Intellectual Property Right, or (ii) procure for the Customer a right to use the Intellectual Property Right, or (iii) if measures according to (i) or (ii) are not possible or not reasonable, terminate this Agreement extraordinarily with immediate effect.
§ 12 Confidentiality
12.1 QUIN agrees to keep confidential all information marked as "confidential" that QUIN receives from the Customer under this Agreement. QUIN fulfills this obligation even after the expiration of the contract term for five years, unless the parties agree otherwise.
12.2 As far as QUIN processes personal data, QUIN will process all data exclusively in accordance with the respective current data protection declaration and in compliance with the German Data Protection Regulation (DSGVO). For the duration of the contract, QUIN undertakes to maintain a current data protection statement and to make it available to the data subjects on the QUIN homepage as well as on all other online services that QUIN operates as the responsible party.
12.3 It is the responsibility of the Customer to use IDs, passwords, usernames or other security devices in connection with the execution of the contract with utmost care and to take any measure that ensures the confidential and secure handling of the data and prevents their disclosure to third parties. The Customer is responsible for the use of his passwords or usernames by third parties, unless he can prove that he did not cause the access to such data and could influence the reasons for it. The Customer is obliged to inform QUIN immediately about any possible or already known unauthorized use of his access data.
12.4 In case of violation of one or more of the obligations mentioned in these GTC on the part of the Customer, especially but not exclusively those listed in section 12.3, QUIN is entitled to terminate the publication of the Customer's service elements without further notice and to remove them from the Website without waiving any payment obligations of the Customer.
§ 13 Warning, Judicial Decision
If the Customer has been warned because of a service element published at QUIN, has already given a cease-and-desist declaration regarding certain advertisements (content) or has been served with a corresponding injunction, judgment or other court decision or official order, the Customer is obliged to inform QUIN immediately in writing. If the Customer fails to do so, QUIN is not liable (section 10 applies accordingly). The Customer is then obligated to indemnify QUIN from any claims of third parties upon first request and to compensate QUIN for any damage.
§ 14 Term
14.1 The term of the contract also starts with the conclusion of the contract (clause 2), unless a different start date is agreed upon. The contract ends automatically upon expiration of the agreed term.
14.2 Agreed service elements can only be called up within the agreed contract term. Upon expiration of the term, the customer's right to call up also expires with respect to service claims not previously asserted.
§ 15 Changes in performance
15.1 If the Customer wants to change the contractually defined scope of a service to be provided by QUIN, he is obligated to express this change request to QUIN in text form. Vice versa, QUIN is obligated to inform the Customer if a change of the contract seems necessary with regard to the feasibility of the project, especially for technical, creative or legal reasons.
15.2 QUIN will inform the Customer what effects the desired change will have, in particular with regard to remuneration, additional work and deadlines. The contracting parties will immediately agree on the proposal for the implementation of the change request and, if necessary, conclude a supplementary agreement. If no agreement is reached or if the amendment procedure ends for any other reason, the original scope of services shall remain unchanged.
15.3 The dates affected by the change procedure will be postponed taking into account the duration of the review, the coordination on the change proposal and, if applicable, the duration of the change requests to be executed plus a reasonable start-up period, if necessary. QUIN will notify the Customer of the new dates.
15.4 QUIN is not liable for delays, legal or technical problems or other adverse effects on the subject matter of a project if the Customer has disregarded QUIN's proposal for a change of performance.
15.5 If the Customer wishes to pause the project, QUIN is entitled to invoice all services already rendered and to communicate any additional expenses due to the postponement of deadlines.
§16 Other Impossibility of Performance, Withdrawal & Cancellation
16.1 If the performance of services becomes impossible for reasons for which the Customer is responsible, QUIN generally retains the right to the full agreed fee. The cancellation fee is based on the agreed fee and QUIN reserves the right to prove higher damages.
16.2 A deadline set by the Customer for performance or supplementary performance only entitles the Customer to withdraw from the contract or to claim damages instead of performance after unsuccessful expiration of the deadline, if the corresponding legal consequence was communicated when setting the deadline and if the legal reasons for withdrawal are also given in all other respects.
16.3 If the customer withdraws due to the breach of an obligation relating to a delimitable service, the other services shall not be affected by this withdrawal.
16.4 If a contractual partner becomes insolvent or if insolvency proceedings are opened against its assets or if the opening of such proceedings is rejected for lack of assets, the other contractual partner shall be entitled to terminate the contractual relationship in accordance with the above provisions.
§ 17 Final Provisions
17.1 The law of the Federal Republic of Germany shall apply to the contract and its interpretation.
17.2 If the customer is a merchant within the meaning of Section 1 (1) of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the courts in Berlin shall have exclusive jurisdiction over all disputes arising from or in connection with the contractual relationship in question. In all other cases, the contracting parties may bring an action before any court having jurisdiction based on statutory provisions.
17.3 If a provision in these General Terms and Conditions for Advertisers is or becomes invalid, this shall not affect the validity of all other provisions or agreements. The invalid provision shall be replaced by the parties by mutual agreement with a provision that comes as close as possible to the economic sense and purpose of the invalid provision in a legally effective manner. Otherwise, the statutory provision shall apply. The above provision shall apply mutatis mutandis in the event of loopholes.