General Terms and Conditions of Cronbach GmbH | As of 26.11.2019
1. Subject Matter and Scope
(a) The following General Terms and Conditions (GTC) apply to all legal transactions of Cronbach GmbH, hereinafter referred to in short as „Cronbach,“ with its contracting partners, hereinafter referred to in short as „Customer,“ particularly for services in the field of psychographic marketing. The specific nature of the services is derived from the concept developed by Cronbach, the offer, or the project orders.
(b) These GTC are part of every concluded contract unless otherwise agreed in individual cases
(c) These GTC also apply to all future business relationships with the Customer without requiring express inclusion again.
(d) Deviating business conditions of the Customer as well as changes and additions to these GTC are only valid if recognized in writing by Cronbach. This also applies if the business and/or delivery conditions of the Customer are not explicitly contradicted.
(e) If necessary, Cronbach is entitled to amend these GTC with future effect. In such a case, Cronbach will inform the Customer of the changes in an appropriate form. The changes are considered accepted if the Customer does not object in writing or by email to hello@cronbach.co within 14 days from notification. Cronbach will inform the Customer in the notification about the right to object and the legal consequences of missing the deadline. In case of objection, Cronbach is entitled to terminate the contract with the Customer.
2. Presentations Before Order Placement
(a) The development of conceptual proposals by Cronbach and their presentation takes place, unless otherwise agreed, against payment of a separate presentation fee.
(b) If no order is placed after a presentation, all services, especially the presentation materials and the concepts, works, ideas, etc., contained therein remain the property of Cronbach. The Customer is not entitled to use, modify, or use this material as a basis for producing their own materials, regardless of whether it is protected by copyright or not. If no order is placed, the Customer must immediately return all presentation materials in their possession to Cronbach.
(c) If no order is placed, Cronbach remains free to use the presented ideas, works, designs, etc., for other projects and clients.
(d) The passing on of presentation materials and offers to third parties as well as their publication, duplication, distribution, or any other use by the Customer or its authorized representatives obligates the Customer to pay a fee equivalent to the respective service. This fee is based on the offer from Cronbach or, if no such offer exists, on customary market conditions.
(e) All copyrights to the works presented by Cronbach within the framework of the presentation remain with Cronbach unless otherwise agreed in writing by the parties.
3. Scope of the Order & Customer’s Obligations to Cooperate
(a) The specific scope of an order to be carried out by Cronbach for the Customer is determined by individual orders (e.g., via a confirmed cost estimate).
(b) Instructions to Cronbach must be given in writing.
(c) The Customer provides Cronbach with all information necessary for Cronbach’s performance. Cronbach may rely on the accuracy of this information.
(d) The Customer must provide approvals and authorizations in a timely manner to ensure that Cronbach’s workflows are not disrupted and that follow-up work can be carried out on time without additional costs or quality loss. Additional costs and delays caused by late approvals and authorizations are the responsibility of the Customer.
4. Third-Party Services
(a) If third-party services (e.g., market research, programmers, social media specialists, designers, etc.) are required to fulfill an order, Cronbach will detail these and submit them to the Customer for cost approval.
(b) After the Customer has approved the costs, Cronbach is entitled to commission all necessary third-party services in the name and on behalf of the Customer. In this case, Cronbach acts solely as an agent and forwards invoices to the Customer for payment after reviewing them for accuracy.
(c) If, in exceptional cases, the commissioning is carried out in Cronbach’s name, Cronbach is entitled to demand a reasonable advance or prepayment. Internally, Cronbach acts in the name and on behalf of the Customer, even if it externally appears as the client.
(d) For coordinating third-party services as per section 4(a), Cronbach is entitled to charge a 15% commission on all third-party services unless otherwise agreed.
(e) Courier, travel, and accommodation costs incurred by Cronbach in fulfilling the order shall be reimbursed separately upon proof unless otherwise explicitly agreed.
(f) Cronbach is entitled to charge a material flat rate for telecommunications, presentation materials, or color copies proportional to the cost estimate without proof. This flat rate is 3% of the respective order volume unless otherwise agreed by the parties.
5. Loyalty Commitment
(a) Cronbach’s loyalty obligation to the Customer requires Cronbach to provide objective, customer-focused advice and a corresponding selection of third-party companies (e.g., for market research). Unless the Customer explicitly reserves the right to co-determination, third-party selection is made based on an appropriate balance of cost-effectiveness and optimal success for the Customer.
(b) The Customer undertakes not to poach Cronbach’s employees. This obligation applies for the duration of the cooperation and for 12 months after the completion of the last project with Cronbach. If the Customer breaches this provision culpably, they undertake to pay a contractual penalty equivalent to the annual salary of the poached employee. Further claims remain unaffected.
(c) Freelancers or third parties engaged by Cronbach are Cronbach’s agents or vicarious agents. The Customer undertakes not to commission these employees directly or indirectly with projects within 12 months after the project completion without Cronbach’s involvement.
(d) Work documents and works, as well as all information accessible in connection with the order, must be treated strictly confidentially. The confidentiality obligation ends five years after project completion.
(e) The confidentiality obligation does not apply if and to the extent that the relevant information is demonstrably generally known, becomes generally known without fault of the other party, is lawfully obtained from a third party, or is already lawfully in the possession of the other party. The burden of proof for prior knowledge lies with the respective party.
6 Copyright and Usage Rights, Ownership
(a) The psychographic models, calculation algorithms, analysis methods & evaluation frameworks provided by Cronbach are copyrighted works within the meaning of § 2 UrhG, even if they do not meet the requirements of § 2 UrhG. Therefore, all services provided by Cronbach may not be used, edited, or modified without Cronbach’s consent. Any imitation is prohibited. In case of a violation, the customer agrees to pay Cronbach an industry-standard fee. Further claims remain unaffected.
(b) Ownership of the work results is transferred to the customer only upon full payment of the order.
(c) In the event of a transfer of rights, the scope in terms of geography, time, and content is determined exclusively by the contractual agreements or the contractual purpose; § 31 para. 5 UrhG applies accordingly. Unless otherwise agreed by the parties, any transfer of rights for the use of modeled target groups is only for the duration of the respective campaign for which these target groups were modeled.
(c1) The rights are transferred to the customer only upon full payment of the total order.
(c2) Any use outside the contract requires a separate fee agreement.
(c3) The transfer of granted usage rights to third parties is subject to a fee and requires Cronbach’s consent unless otherwise agreed.
(c4) Cronbach has the right to request information on the extent of usage.
(d) In publications, Cronbach will be credited as the author in the usual manner. Cronbach may appropriately and customarily sign the solutions developed by them and publish the assignment for self-promotion.
7 Invoices, Offsetting
(a) Cronbach is entitled to invoice the customer for partial payments for services already provided, even if these partial services are not yet available in a usable form for the customer. As a rule, the fee is due as follows: one-third at the start of the order, one-third after four weeks, and the remaining third upon completion of the work.
(b) If the customer withdraws from an order before the project begins, §§ 615, 649 BGB shall apply accordingly.
(c) The agreed prices are exclusive of the applicable statutory VAT.
(d) Invoices are payable within 14 days from the invoice date without any deductions. For business customers, Cronbach is entitled to charge interest at a rate of 8% above the base interest rate after 14 days from the invoice date. The assertion of further damages due to default remains unaffected.
(e) Objections to invoices from Cronbach must be raised immediately upon receipt, but no later than two weeks after the invoice date, without affecting the due date. Failure to raise timely objections is considered approval.
(f) Offsetting with counterclaims or asserting a right of retention is only permitted if the customer’s claims are undisputed or legally established.
8 Delivery and Delivery Deadlines
(a) Delivery deadlines or dates are only binding if the customer has duly fulfilled any cooperation obligations (e.g., providing information or documents, creating service catalogs, approvals) and the dates have been confirmed in writing by Cronbach.
(b) The running of delivery deadlines is suspended if the customer’s requests for changes after the order is placed cause a significant alteration of the schedule. Cronbach will inform the customer of this and agree on a new delivery date.
(c) If Cronbach is in default with its services, an appropriate grace period must first be set. Only after this period expires without success may the customer withdraw from the contract. The customer may only claim compensation for delay up to the order value (excluding preliminary work and materials).
(d) If unforeseen obstacles arise outside Cronbach’s control that significantly affect the delivery of services, the delivery period is extended accordingly. Cronbach will inform the customer of the occurrence and expected end of such obstacles without delay. This does not establish a claim for damages against Cronbach.
9 Acceptance, Complaints
(a) Acceptance is subject to statutory regulations. Public use, utilization, and payment of Cronbach’s respective service each constitute acceptance. Acceptance is also deemed to have occurred if the customer does not accept the deliverable within ten business days unless a different deadline is set or agreed upon in an individual case.
(b) Only grossly improper or untidy deliveries and services, or those that grossly deviate from instructions or do not meet the state of the art, are considered defective.
10 Data Protection
(a) Cronbach is authorized to process the data entrusted to them within the scope of the contract in compliance with data protection regulations or have it processed by third parties.
(b) The parties will handle all data protection-related information in accordance with data protection laws. If necessary, they will conclude a separate data processing agreement („AVV“) under § 62 BDSG-new or Art. 28 GDPR.
(c) In particular, the customer undertakes to ensure that the transmitted and provided data has been collected in accordance with existing legal regulations and that disclosure and processing by third parties are permissible. If consent from the data subject is required for the respective data processing, the customer is responsible for obtaining it.
(d) The customer shall, where possible and reasonable, anonymize or at least pseudonymize personal data before sharing it with Cronbach.
(e) Cronbach is entitled to use anonymized parts of surveys (gender, age, responses to Cronbach inventories) for the validation of norm samples.
11 Liability
(a) Cronbach is liable for breaches of contractual and non-contractual obligations, including impossibility, delay, fault in contract initiation, and tort, only in cases of intent and gross negligence, limited to the foreseeable, contract-typical damage. These limitations do not apply in cases of breaches of essential contractual obligations (cardinal obligations), the absence of guaranteed properties, mandatory liability under the Product Liability Act, or injury to life, body, or health.
(b) Reviewing legal questions, particularly in data protection, copyright, competition, and trademark law, is not Cronbach’s responsibility. Cronbach is therefore not liable for the legal admissibility of the use of work results or their content/design. If the customer requests a legal review, Cronbach will arrange it but assumes no liability for the result. The customer bears the costs of the legal review. Cronbach is also not liable for factual statements about the customer’s products and services in marketing measures.
(c) If Cronbach is held liable by third parties due to commissioned but unlawful data processing or the design and/or content of the released work result, the customer shall indemnify Cronbach from liability.
(d) The customer indemnifies Cronbach from claims by third parties if Cronbach acted at the customer’s express request despite having informed the customer of concerns about the legality of marketing measures or potential infringement of third-party rights.
(e) The indemnification includes the necessary and reasonable legal defense costs for each party.
12 Final Provisions
(a) The place of fulfillment for delivery and payment and the jurisdiction for all disputes between the contracting parties is Hamburg, provided the customer is a merchant, a legal entity under public law, or a special public-law fund. The jurisdiction also applies to other persons if the customer has no general jurisdiction in Germany, moves their residence/business abroad after the contract is concluded, or if their residence/business or habitual residence is unknown at the time of filing a lawsuit.
(b) Changes or additions to orders and these GTCs must be in writing. This also applies to the waiver of this written form requirement.
(c) If any provision of these GTCs is wholly or partially invalid or later loses its validity, this does not affect the validity of the remaining provisions. The invalid provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision in a legally effective manner. The same applies to gaps in these provisions.
(d) Unless otherwise agreed, German law applies to contractual relationships with foreign customers as well.