Terms and Conditions

General Terms and Conditions of Cross4Channel Gesellschaft für digitales Healthcare Marketing mbH

1. Scope

Cross4Channel — Gesellschaft für digitales Healthcare Marketing mbH (hereinafter referred to as Cross4Channel, Contractor, or Agent) provides its services on the basis of these General Terms and Conditions (GTC). These GTC apply exclusively to all our business relationships with our customers (hereinafter also referred to as contractual partners or clients); they also apply to all future business relationships with the contractual partner as framework conditions in their respective current version, even if they are not expressly agreed upon again and without us having to refer to them again in each individual case, in particular if we are aware of deviating or conflicting terms and conditions. The customer's general terms and conditions will only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent also applies if we are aware of the customer's GTC, i.e., in any case.

The general terms and conditions apply only to entrepreneurs (§ 14 BGB) and legal entities under public law.

If individual agreements are made with the customer in individual cases, these always take precedence over these General Terms and Conditions. The content of this agreement is determined by a written confirmation or a written contract.

All other legally relevant declarations and notifications made by the Customer to the Contractor after the conclusion of the contract must be in writing to be effective.

Cross4Channel reserves the right to amend or supplement these Terms and Conditions with reasonable notice. In this case, the Client has the opportunity to object to the amended Terms and Conditions within two weeks of receiving notification of the amendment. If the Client does not object, the amendments or supplements will become effective in accordance with the notice. In the event of a timely objection, Cross4Channel is entitled to terminate the contract with the Client at the time the amended terms and conditions are to take effect.

2. Conclusion of the contract

Cross4channel's offers are non-binding and subject to change. This also applies if we have provided the customer with additional product descriptions, calculations, or other documentation.

The customer's order constitutes a binding contractual offer. Unless otherwise stated in the order, the contractor is entitled to accept this contractual offer within a period of five (5) business days after its receipt by Cross4Channel.

Acceptance is made in writing by means of an order confirmation.

3. Payment terms and prices

Invoicing will be carried out according to the attached payment plan.

All prices stated in offers and contracts are exclusive of statutory VAT at the applicable rate (19%, as of January 2019).

The invoice is due immediately upon invoicing, unless otherwise agreed upon individually.

The customer is only entitled to offset payments to the extent that his counterclaims are undisputed or legally established. The client is only entitled to assert rights of retention based on counterclaims arising from the same contractual relationship.

Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract plus statutory VAT shall apply.

4. Rights of use

Ownership of delivered files, documents, software, or other work results or partial results remains with the Contractor until full payment has been made. The Contracting Party is only entitled to use the delivered files, documents, software, or other work results or partial results with the Contractor's prior written or electronic consent.

5. Services provided by third parties

The Contractor shall have the discretion to commission third parties deemed suitable to carry out its services for the proper execution of the Client's projects. It is at the Contractor's discretion to review the suitability of the third party and to award the contract for the project.

6. Obligation to cooperate

The contractual partner is obligated to provide the contractor with all information necessary to provide the contractual service and to inform the contractor, without being asked, of any relevant circumstances that are or may be unknown to the contractor (obligation to provide information). The contractor is entitled to terminate the contract without notice if the contractual partner fails to comply with its cooperation obligations after setting a reasonable deadline with a threat of rejection. In the event of termination, the contractual partner is obligated to pay or reimburse the contractor for all work and costs incurred up to that point, based on the time and costs incurred.

In the event of a culpable breach of the client's duty to cooperate, we are entitled to compensation for any resulting damages, including any additional expenses. Further claims remain reserved.

7. Delay

Project delays due to force majeure or unforeseeable circumstances beyond the control of the Contractor or due to non-fulfillment of the contractual partner's obligations to cooperate, such as providing required content, declaring acceptance or approval, or commissioning third parties, shall not result in the Contractor being in default.

8. Adjustment of performance in the ongoing project

The project offer is a contractual component that defines the services to be provided by Cross4Channel. Further necessary changes/extensions to the offer can be made part of the contract electronically by mutual agreement between the client and the contractor in order to accommodate the dynamic project process. After approval of the offer, only minor corrections and change requests can be accepted at no cost, unless they are necessary to achieve the contractually agreed service or to correct defects. Further changes beyond the scope of the offer are subject to additional payment. Unless otherwise agreed, Cross4Channel's current daily and hourly rates apply.

9. Liability

The Contractor shall only be liable to the Contracting Party for damages resulting from breach of contractual or quasi-contractual obligations in the event of intent or gross negligence on the part of the Contractor, its legal representatives, and vicarious agents. Liability is limited to the foreseeable damage. Compensation for consequential damages, such as lost profits, is excluded. Contrary to Section 438 Paragraph 1 No. 3 of the German Civil Code (BGB), all claims of the Contracting Party that are not based on tort or intentional breach of duty shall expire within 12 months of the due date.

Excluded from these limitations of liability are injuries to the life, limb, or health of the contractual partner. Furthermore, the contractor is not liable for copyright, patent, trademark, utility model, and design rights, or for any other legal protectability of the services it provides. It is also not liable for the legal admissibility of the services it provides if the contractual partner has accepted them as properly provided by express or implied declaration. The contractor is not obligated to verify whether and, if so, to what extent the work commissioned from it complies with third-party guidelines, etc., and is not liable in this regard. The contractual partner indemnifies the contractor against any claims asserted against the contractor by third parties due to infringements of the aforementioned intellectual property rights or similar. The client warrants that it holds all rights to the content, data, and templates provided by it that are necessary for the project services and indemnifies Cross4Channel against all possible claims by third parties due to infringement of industrial and/or intellectual property rights therein.

10. Reimbursement of travel and accommodation costs

Should travel or accommodation costs be incurred by the Contractor during the ongoing project that are necessary for the proper execution of the project, these will be invoiced separately and must be reimbursed by the Client within four weeks of the due date.

11. Copyright

All copyrighted usage rights associated with the services provided by the Contractor are transferred to the contractual partner for a limited period of time and only to the extent that the spatial, temporal, and content-related scope of the usage rights corresponds to the purpose of the contract. The license is generally concluded for one year and is extended for additional years unless terminated in writing three months before the expiration of the contract. The transfer of a limited exclusive usage right can also be agreed upon in an individual contract. However, this must always be done in writing. Details regarding the duration and restrictions of the usage rights are set out in the individual offer, which takes precedence over these General Terms and Conditions. The Contractor retains the right to use the services for its own presentation purposes. Furthermore, the usage rights are only transferred when the contractual partner has duly fulfilled its payment obligations. License fees are generally payable monthly, unless otherwise stipulated in the offer. In the event of default in payment, the Contractor shall have a right of retention. The contractual partner is obligated to refrain from any use until the transfer of the rights of use. The processing or modification of the copyrighted works, as well as their publication and exploitation by the contractual partner, is prohibited without the consent of the Contractor. In any case, the contractual partner is obligated to protect the Contractor's rights of use and copyrights. The contractual partners agree that the Contractor's copyrights will be protected.

If images, photos, files, or other content from third parties are used, the third-party provider's rights of use remain valid. Without prior written agreement, it is not permitted to reproduce, distribute, or otherwise use these images, photos, or other files or content. The rights of use remain with the contractor, unless otherwise stipulated in the offer.

12. Confidentiality and retention obligations

The Contractor is obligated to safeguard all trade secrets of the Contracting Party that become known to it within the scope of the contractual relationship with the due care of a prudent businessman. This obligation also applies beyond the end of the contract and expires when they become generally known. Unless a paid archiving agreement is concluded with the Contracting Party, the Contractor is not obligated to retain and release the data it created and stored within the scope of the contractual relationship after its termination. In particular, the Contractor is not liable for the proper existence of the data.

All descriptions, files, software, and other documents provided by the Contractor to the Client may not be made accessible to third parties without our written permission. The Client is also obligated to keep all documents confidential. The Client must oblige its employees and cooperation partners to do so accordingly. This confidentiality obligation shall continue to apply even after the contract has ended.

13. Place of jurisdiction

The general terms and conditions between Cross4Channel and the client are governed by the law of the Federal Republic of Germany, excluding all international and supranational legal systems, in particular excluding the UN Convention on Contracts for the International Sale of Goods.

If the client is a merchant within the meaning of the German Commercial Code (§1 HGB) or a legal entity under public law, the registered office of Cross4Channel in Berlin shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. However, the contractor is also entitled to file suit at the client's general place of jurisdiction.

Status: February 2019