General Terms and Conditions
of the Health Angels GmbH

I. Subject matter and scope of application

      1. Unless otherwise agreed, these General Terms and Conditions (hereinafter referred to as “GTC”) apply to all deliveries and services provided by the Health Angels GmbH, hereinafter referred to as “Agency”) to entrepreneurs within the meaning of  Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law (hereinafter referred to as “Commissioning Company”; Agency and Commissioning Company hereinafter jointly referred to as “Parties”), in particular for services or works in the fields of advertising, communication, digital, social media, influencer mediation, content marketing, editing, production, PR and strategic and political consulting.
      2. These GTC shall also apply to all future business relationships between the agency and the commissioning company without the need for renewed express inclusion.
      3. Terms and conditions of the commissioning company are hereby rejected. They shall only apply if the agency expressly agrees to their validity in writing.

II. Presentations and pitches

      1. Insofar as the Agency presents drafts, concepts or designs to the commissioning company on its own initiative or within the framework of pitches, presentations or comparable formats (hereinafter referred to as “presentations”) prior to a corresponding commission, this serves solely to initiate business.
      2. Any reproduction and forwarding of such presentations shall require the Agency’s consent. The agency shall not transfer ownership of documents, samples etc. handed out in the context of presentations to the commissioning company and shall not grant it any rights of use to the protectable content contained or embodied in the presentation (such as works, brands, designs). In particular, the commissioning company shall not use the drafts, concepts and designs presented in presentations as a basis for the production of its own material without the agency’s consent and shall not pass them on to third parties. If the commissioning company decides not to commission the agency accordingly or does not commission the agency after three months at the latest, it shall delete all copies of the presentations in its possession at the agency’s request.

III. Offers and commissioning

      1. At the request of the commissioning company, the agency shall submit a cost estimate or an offer to the commissioning company, from which the services to be provided by the agency, the remuneration and the other conditions of the commission (hereinafter referred to as “cost estimate”) are derived. Insofar as the remuneration of the agency stated in the cost estimate is calculated on a time basis and not otherwise stated, this is a non-binding estimate of the expected expenditure.
      2. The commissioning company commissions the agency by approving the cost estimate within the period specified therein, or in the absence of such a period within one week of receipt.

IV. Services of the agency

      1. The agency shall provide its services during its normal business hours (Monday to Friday between 9.00 a.m. and 6.00 p.m.). For services that the agency provides outside normal business hours in consultation with the commissioning company, it shall receive a surcharge of 25 % of the remuneration agreed for the corresponding services.
      2. The agency shall provide the contractual services in compliance with the generally recognized principles of the agency business with the usual care in this respect.
      3. The examination of legal issues, in particular the performance of trademark searches, their evaluation, an examination of possible collisions with pre-existing industrial property rights (e.g. trademarks, designs or utility models) as well as an examination under competition law (e.g. advertising comparisons, top position advertising, special statutory advertising restrictions), copyright law or data protection law is not part of the agency’s services. The commissioning company decides independently whether to carry out the relevant legal checks and does so at its own expense. However, the agency shall inform the commissioning company of any recognisable legal risks associated with the content or design of planned advertising measures. In this case, the commissioning company shall decide (if necessary after examination) whether the advertising measure should nevertheless be carried out or changed.
      4. If the object of the Agency’s service is the development of trademarks (brands, logos, company logos, slogans, etc.), the Agency warrants that at the time of presentation of the first draft it is not aware of any third-party rights with effect for the territory of the Federal Republic of Germany that would be recognizably infringed by the use of the developed trademarks in the course of business for the Agency. The Agency shall not be responsible for the protectability and/or registrability of the developed trademarks. It is the responsibility of the commissioning company to carry out a trademark search in the area affected by the use at the latest before the start of use, so that possible collisions and infringements of rights can be recognized and, if necessary, avoided before the start of use.
      5. If agency services include correction loops, the following shall apply: Correction loops enable changes to be made to agency services provided in accordance with the contract, which are transmitted to the commissioning company by the agency as final work or interim results. The subject of correction loops are generally change requests that represent an optimization or fine-tuning of agency services that have not already been approved. Changes to the commissioned services in the sense of an order change or extension are not possible within the scope of correction loops. If no specification is made in the respective individual order, included correction loops shall only be covered by the agreed remuneration up to the equivalent of a total of 5% of the agency fee estimated for the overall service. Any additional work shall be remunerated in accordance with the agency’s hourly rates applicable at the time of commissioning.

V. Order processing

      1. Delivery dates or deadlines are only binding if they are expressly labelled or confirmed as binding by the parties in writing, otherwise they are deemed to be target dates. After a target date has been reached, the commissioning company may request the agency in writing to provide the outstanding services, setting a reasonable deadline; upon expiry of this deadline, the commissioning company’s claim to the service shall be due and payable.
      2. After commissioning, the initial determination, shortening or bringing forward of delivery deadlines and dates shall require the Agency’s consent. In particular, the Agency may make its consent dependent on the payment of an appropriate surcharge of up to 100% of the agreed remuneration for the service affected by the deadline or shortening.
      3. Unless otherwise agreed in the respective framework agreements: The parties shall cancel appointments (meetings etc.)  with a notice period of at least 3 working days. If  the commissioning company fails to meet this deadline, the agency shall be entitled to  charge 30 % of the estimated remuneration for this appointment.  The commissioning company and  the agency reserve the right to prove that the actual  damage incurred by the agency as a result of the cancellation was lower or higher. In this case, the agency may demand compensation for the lower or higher proven loss.  Claims of the Agency pursuant to Section VII.4 shall remain unaffected by the provisions of this paragraph.
      4. Minutes of meetings prepared by the agency and sent to the commissioning company shall become binding in terms of their content if the commissioning company confirms them in text form (e.g. e‑mail) or does not object to them in the same form within five working days of receipt.
      5. Subsequent requests for changes to commissioned services (hereinafter referred to as “change requests”) must be communicated to the agency by the commissioning company as early as possible and in sufficient detail. They shall only become effective with the express confirmation of the agency. If the originally commissioned service cannot be performed or can only be performed in part due to a change request, the agency shall inform the commissioning company of this and agree with it whether the provision of the service should be suspended until the change request has been clarified or whether the original provision of the service should be continued. Dates and deadlines shall be postponed or extended by the period of suspension. If the change request results in additional costs, the agency shall inform the commissioning company accordingly. The commissioning company shall then decide whether the change request is to be carried out against payment of the additional costs or whether the original service content is to be retained.
      6. Drafts, templates, files and other work materials such as negatives, models, original illustrations etc. which the agency creates or has created in order to provide the service owed under the contract shall remain the property of the agency. There is no obligation to surrender them.
      7. If technical know-how such as programming, structure and functionality of programs and software, as well as the linking of programs, data, databases and systems, in each case including the source code, is developed within the scope of the fulfilment of this contract, there shall only be a claim to the surrender of the source code if this has been expressly agreed or is necessary for the exercise of the rights of use granted to the commissioning company. If the release of the source code is owed and the software contains third-party standard software or other software that is subject to license restrictions, the source code shall be released taking such license restrictions into account.
      8. The agency is authorized to use or integrate open source software or components when creating software. It must inform the commissioning company of this, stating the open source components used. The use of open source components that are subject to a license that would cause a so-called copy-left effect is only permitted with the express consent of the commissioning company.

VI. Involvement of the commissioning company

      1. The commissioning company shall support the agency in the provision of its services to a reasonable extent and, in particular, provide it with information and data material in good time and issue releases or approvals in good time so that the agency’s work processes, and the realization of the order are not impaired. If the agency is unable to provide the services or can only provide them at additional expense due to a lack of or insufficient co-operation or provision, it shall be entitled to claim necessary additional expenses approved by the commissioning company from the commissioning company. Dates and deadlines shall be postponed by the delay caused by the commissioning company plus a reasonable start-up time of at least three working days.
      2. The commissioning company shall inform the agency of any special restrictions applicable to the commissioning company or its industry (e.g. statutory advertising bans or restrictions) or requirements to be observed for advertising measures (e.g. Therapeutic Products Advertising Act, pharmacovigilance according to BVL) without being requested to do so and shall provide the agency with the information and documents required to fulfil such requirements in good time.
      3. The commissioning company shall ensure that the materials or content provided or proposed to the agency (e.g. brand logos, texts, images) are free from third-party rights and that their use does not violate applicable law. Should claims be made against the agency by third parties due to such content, the commissioning company shall indemnify the agency against these claims (including the necessary legal costs) upon first request.
      4. The commissioning company shall back up data and programmes before handing them over to the agency in order to enable recovery in the event of data loss.

VII. Remuneration and terms of payment

      1. Unless otherwise agreed, the agency shall receive remuneration based on the time spent on the basis of the agency’s hourly rates applicable at the time of commissioning. Individual contracts for agency services in the area of the development of brands, company logos, brand claims or comparable logos for comprehensive use in the commissioning company’s corporate communications shall only be concluded by the agency as a rule against separate remuneration for the use of the work results, the amount of which shall be based on the scope of the rights of use requested by the commissioning company.
      2. Exceeding the expenditure shown in approved cost estimates by up to 10% is covered by the authorisation of the commissioning company.
      3. 30% of the order amount according to the cost estimate shall be due as an advance payment when the order is placed. The Agency shall otherwise be entitled, to invoice (partial) services after the services have been rendered in full rendered on a time basis or according to the progress of the project and before that at the end of each month. If the services require acceptance within the meaning of Section 640 BGB, 20% of the remuneration in accordance with the cost estimate shall only become due for payment upon acceptance.
      4. GEMA fees, artists’ social security contributions, customs costs and similar costs shall be borne by the commissioning company and shall be passed on in the event of payment by the agency, even if they are only charged subsequently.
      5. Expenses and incidental costs, such as travelling expenses, accommodation costs, couriers, etc. shall be reimbursed separately against proof. Travelling time is charged at 50%.
      6. If the commissioning company cancels an order before the service has been provided in full without good cause, the agency shall be entitled to demand the agreed remuneration. However, it must allow credit for the expenses it saves as a result of the termination of the order or acquires or maliciously fails to acquire through other use of its labour. It is assumed that the agency is then entitled to 60% of the agreed remuneration attributable to the part of its services not yet rendered.
      7. All remuneration and expenses of the agency are subject to value added tax at the applicable statutory rate.
      8. Remuneration and expenses are payable 10 days after invoicing, advance invoices are payable immediately.
      9. The assertion of rights of retention and offsetting against counterclaims is only permitted for claims or counterclaims from the same contractual relationship or with claims or counterclaims recognised by the agency or legally established.

VIII. Subcontractors and external services

Subcontractors

      1. The agency is authorised to carry out the work assigned to it itself or to commission subcontractors – in particular other companies affiliated with Hirschen Group GmbH within the meaning of §§ 15 ff. AktG (German Stock Corporation Act).

External services

      1. The agency is also authorised to commission third-party services. Third-party services are services provided by third parties that are recognisably not intended to act as vicarious agents of the agency for the commissioning company (regularly e.g. film productions, photo shoots, delivery of stock photos, testimonials, influencers, actors and models, production of advertising materials, printing, editing, translations, market research, legal advice and trade fair construction).
      2. Third-party services are always recognisable as such for the commissioning company if the agency shows them separately in a cost estimate or if the commissioning company can recognise the third-party nature of the service on the basis of its own expertise.
      3. If, as part of its activities, the agency undertakes the processing of contracts for third-party services (e.g. selection, request for quotations, negotiations, coordination, invoicing or payment processing), it shall receive additional remuneration for this on a time basis in accordance with Section VII.1.
      4. The agency shall obtain the commissioning company’s consent to the commissioning of third-party services. Separate approval is not required if the costs, the main conditions of the commission and the person of the third party are already stated in the cost estimate approved by the commissioning company, in particular if the cost estimate is already accompanied by third-party offers. It is also not required if it concerns follow-up services from suppliers that have already been mutually agreed.
      5. The client for third-party services is the commissioning company. Under the conditions of Section VIII.2.4, the agency is authorised to commission the external services in the name and for the account of the commissioning company.
      6. If the agency commissions third parties in deviation from Section VIII.2.5 in its own name and for its own account, this shall be at the expense and risk of the commissioning company. In this case, the provisions on agency services (§§ 675 ff. BGB including the corresponding reference to the provisions of contract law) shall apply. In particular, the agency shall be entitled to demand advance payment. Claims of the commissioning company due to defects in third-party services shall be limited in terms of content and scope to the rights to which the agency is entitled vis-à-vis the third parties.

IX. Rights of use, retention of rights and title.

Rights of use

      1. Unless otherwise agreed, the Agency shall grant the commissioning company, upon full payment of the remuneration owed for the respective order, all rights of use under copyright law necessary for the use of the work results owed by it (hereinafter referred to as Agency services) to the extent necessary to achieve the purpose of the contract as stipulated by the parties. In case of doubt, the Agency shall fulfil its obligation by granting simple rights of use for the territory of the Federal Republic of Germany and the planned duration of use of the work results. Any further utilisation, in particular editing and modification, shall require the Agency’s prior written consent. The same applies to the transfer of rights of use from the commissioning company to third parties and the granting of sub-licences.
      2. Insofar as the agency calls in subcontractors to fulfil the contract, it shall acquire rights of use from them to the agreed extent and transfer them or have them transferred to the commissioning company.
      3. If third-party services are commissioned (see Section VIII.2), the rights of use shall be governed by the agreement between the commissioning company and the third parties. If the agency commissions third-party services, it shall agree rights of use to the same extent as for its agency services. If this is not possible or only possible at a disproportionately high economic cost, the agency shall inform the commissioning company accordingly and consult with it on possible alternatives (e.g. commissioning other service providers, acquiring limited rights of use, etc.). A corresponding reference to restrictions on the rights of use in the cost estimate of the agency or the third party is sufficient.
      4. If, in deviation from Section VIII.2.5, the Agency commissions third-party services in its own name and for its own account, sentences 2 et seq. of Section IX.1.3 above shall apply mutatis mutandis with the proviso that the Agency shall, at its discretion, acquire the rights of use from the third parties and grant them to the commissioning company to the agreed extent or have the rights granted directly to the commissioning company.
      5. The Agency shall not use the work results delivered to the commissioning company (subject to Section IX.2.2) in the same or only insignificantly modified form for other clients.

Reservation of rights and title

      1. The granting of rights of use by the agency is subject to the condition precedent that the commissioning company pays the remuneration owed for the order in full. Until payment has been made in full, the use of work results already delivered shall only be permitted, revocably at any time, to the extent specified in Section IX.1.1. The authorisation shall expire if the commissioning company is in default and fails to pay even after the expiry of a reasonable grace period.
      2. Rights of use for agency services (ideas, drafts, etc.) rejected by the commissioning company or not authorised for execution shall remain with the agency and may be freely used by it.
      3. Until full payment of the remuneration owed for the order, the Agency shall retain ownership of all work results from the respective order handed over to the commissioning company.

X. Warrantly and rights of third parties

      1. Insofar as the agency’s services are subject to statutory warranty, the following shall apply:
      2. The commissioning company must inspect the work and services provided by the agency immediately upon receipt, but in any case before utilisation, and report any defects immediately upon discovery. If the immediate notification of defects is omitted, there shall be no warranty claims with regard to obvious defects, known defects or their consequential defects.
      3. In the event of a defect, the Agency may, at its discretion, remedy the defect or supply a replacement (subsequent fulfilment).
      4. Agency’s warranty obligation shall expire one year after receipt or – if such is to take place – acceptance of the Agency’s services by the commissioning company.
      5. If third parties assert rights against the commissioning company in relation to the agency service, it is the responsibility of the commissioning company to notify the agency immediately, not to recognise the alleged infringement without the consent of the agency and to conduct or enter into any dispute, including any out-of-court settlements, only in agreement with the agency. If the commissioning company ceases to use the Agency’s services in order to minimise damages or for other important reasons, it shall also be responsible for pointing out to third parties that the cessation of use does not constitute an acknowledgement of the infringement of property rights.

XI. Liability

      1. The agency shall be liable without limitation in accordance with the statutory provisions for claims for damages by the commissioning company due to a) injury to life, limb or health, b) a grossly negligent or intentional breach of duty by the agency, its legal representatives or vicarious agents, c) breach of an assumed guarantee, d) fraudulently concealed defects, e) under the Product Liability Act or f) under §§ 44, 44a TKG.
      2. In all cases not covered by Section XI.1, the agency shall only be liable for damages based on a slightly or simply negligent breach of duty by the agency, its legal representatives or its vicarious agents insofar as it concerns the breach of essential contractual obligations (cardinal obligations). Cardinal obligations are those whose fulfilment characterises the contract, enables the proper execution of the contract in the first place and on whose compliance the commissioning company may regularly rely. In this case, liability shall be limited to the foreseeable damage typical of the contract. Otherwise, the agency shall not be liable for damages caused by slight or simple negligence.
      3. Insofar as the Agency is liable in accordance with the above Section XI.2, the amount of liability shall be limited to EUR 250,000.00. If there is a threat of higher damages, the commissioning company shall draw the Agency’s attention to this so that the parties can adjust the limitation and the Agency can insure itself against such damages.
      4. Any liability of the Agency shall be excluded if and insofar as the Agency has notified the commissioning company of concerns in accordance to Section IV.3 and the commissioning company decides against a change of the respective contractual services despite the notice. In such cases, the commissioning company shall indemnify the agency against third-party claims upon first request. This shall also include the necessary legal costs.

XII. Confidentiality

      1. The parties hereby mutually undertake to keep secret all information and documents of the respective other party to which they have access or which are transmitted to them in connection with the conclusion of the contract and which are marked as confidential or which are according to other circumstances recognizable as business or trade secrets of the respective contractual party and not to record, store, pass on, exploit or make them accessible to unauthorized persons — unless this is necessary to achieve the purpose of the contract. A disclosure by the Agency to Hirschen Group GmbH or other companies affiliated with it in the sense of § 15 ff. AktG (German Stock Corporation Act) is always permissible, provided that these companies undertake to maintain confidentiality in accordance with this provision.
      2. If the parties have concluded a separate agreement with regard to confidential information, its provisions shall apply exclusively in this respect.

XIII. Data protection

      1. The parties shall comply with the statutory provisions on data protection, in particular the provisions of the GDPR and the BDSG-new, and shall oblige their employees accordingly.
      2. If personal data is transferred or processed in order to fulfil the contractual services, the parties shall conclude a separate data processing agreement (DPA).

XIV. Final provisions

      1. The place of fulfilment for services and payment and the place of jurisdiction for all disputes between the contracting parties is the registered office of the agency. The agency is also entitled to sue the commissioning company at its general place of jurisdiction.
      2. The law of the Federal Republic of Germany shall apply to the exclusion of the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).

        State: June 2024

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