1. Applicability of the Terms and Conditions:
1.1. For all services and deliveries of the agency to its clients as entrepreneurs within the meaning of § 14 BGB, solely the following General Terms and Conditions apply. Any conflicting GTCs of the client shall not become part of the contract.
1.2. The regulations of the contracting parties that deviate from these GTCs in the order or in other agreements or arrangements shall take precedence over the GTCs.
1.3. The GTCs also apply to all future orders from the client to the agency following the first inclusion of these GTCs, even if there is no express reference to the applicability of the GTCs in these follow-up orders.
2. Processing of Orders
2.1. Offers from the agency to the client that contain prices can be accepted by the client within three weeks of receipt. After the deadline, the agency is no longer bound by this offer. If the agency creates a mere cost estimate, this should be seen solely as a request for the client to submit an offer to the agency, which requires acceptance by the agency.
2.2. The scope of services is determined by the respective product/service description made at the time of order placement. Additional and/or subsequent changes to the product/service description require written form.
2.3. Meeting minutes prepared by the agency and transmitted to the client are considered commercial confirmation letters by the contracting parties. If the client does not object in writing within three business days, the agreements, instructions, orders, and other statements of a legal nature contained therein will be binding.
2.4. Templates, files, and other work materials such as negatives, models, original illustrations, etc., created or commissioned by the agency to provide the service owed under the contract remain the property of the agency. There is no obligation to release them. In the case of software creation, this also applies to the source code and the corresponding documentation.
3. Engagement of Third Parties
3.1. The agency is entitled to perform the work assigned to it itself or to engage subcontractors/agents on its own behalf.
3.2. The agency is entitled to place orders for the production of advertising materials in which the agency has contributed in accordance with the contract, in the name and at the expense of the client, provided that the agency has named the third party's name and address to the client and the client has not objected in writing within a week.
3.3. Orders to media are placed by the agency in its own name and at its own expense. If quantity discounts or tiered pricing are utilized, the client will receive an additional charge if the discount and tier conditions are not met, which is due for payment immediately. In this regard, the client shall indemnify the agency against the media upon first request.
3.4. Offers from the agency to the client that include prices can be accepted by the client within three weeks after receipt. After the deadline, the agency is no longer bound to this offer. If the agency prepares a mere cost estimate, this does not yet represent a binding offer.
4. Compensation for agency services
4.1. Unless otherwise agreed in the individual order, the services provided by the agency will be billed on an hourly basis according to the time spent and the current hourly rates of the agency's involved employees. Technical costs will be billed according to the agency's current cost rates for technical costs. The compensation for usage rights is regulated in the following clauses 6.6. to 6.8.
4.3. For services provided by third parties that the agency is permitted to use to fulfill the contract/order, the agency charges a service fee of a percentage of the net amount of the third party's invoice.
4.4. Internal costs incurred by the agency to perform the contractual service (e.g., communication costs, shipping and duplication costs, as well as travel expenses) are charged to the client at cost price.
4.5. If the client is in default of payment, the agency may require advance payments for future services to be rendered.
5. Payment Terms
5.1. Agreed prices are net prices, to which the applicable value-added tax is added. Artist social security contributions, fees from the GEMA or other collecting societies, customs duties, and any other fees, even those arising subsequently, will be charged to the client.
5.2. Invoices from the agency are due for payment within 14 days of the invoice date without any deductions. From the due date, the agency is entitled to claim default interest of 8 percent above the base interest rate.
5.3. Withholding of payments or set-off against counterclaims is only permitted with claims recognized by the agency or legally established claims. This does not apply if the client is not a business/entrepreneur in the sense of § 14 BGB.
5.4. Until full payment of all invoices related to the order, the agency retains ownership of all services and rights, particularly copyright usage rights, as well as ownership of provided files, documents, and items.
6. Usage rights; Scope and remuneration
6.1. All copyright and other usage rights to the results of the work released and paid for by the client for advertising purposes transfer to the client to the extent required by the purpose of the respective order. The agency fulfills its obligations by granting exclusive usage rights in the contractual territory for the media and duration of the advertising measure specified by the contracting parties in the order.
The transferred usage rights include the authority to modify the work results as desired and/or to combine them with other works. The client is entitled to fully or partially transfer the usage rights to subsidiaries or affiliated companies within a corporate group. Any use beyond the aforementioned regulation requires the separate consent of the agency.
6.2. If the agency involves third parties to fulfill the contract, it will acquire the usage rights to their services to the extent of the above regulation 6.1 and accordingly transfer them to the client. Should these rights not be available in this extent in individual cases, or if their acquisition is only possible at disproportionately high costs, the agency will inform the client and act according to their instructions. The client will bear any additional costs arising from this.
6.3. The agency is entitled to use the work results and the client name for its own advertising purposes free of charge, even after the end of the contract, in all media including the Internet and in the context of competitions and presentations – even when exclusive usage rights are transferred to the client.
6.4. If the agency creates electronic programs or program parts as part of its contractual services, the respective source code and the corresponding documentation are not subject to the rights transfer to the client.
6.5. Services of the agency that are rejected, discontinued, or not utilized within six months after handover are not part of the rights transfer to the client (concepts, ideas, drafts, etc.). These usage rights remain with the agency, as do the existing ownership rights.
6.6. The usage rights mentioned in sections 6.1 and 6.2 are settled by the payment of the remuneration agreed in the order. For the extension of use beyond the end of the advertising media usage specified in the order and/or beyond the contractual territory and/or for use in other media/ad carriers not mentioned in the order, the agency will receive a usage fee for a period of up to three years, namely
– for the 1st year in the amount of 5 percent
– for the 2nd year in the amount of 7 percent
– for the 3rd year in the amount of 9 percent
of the respective client’s net advertising volume. By payment of this remuneration, the agency's consent as stated in section 6.1 last sentence is deemed granted. As far as the rights of third parties engaged by the agency for contract fulfillment are affected by the extension of use, the regulation in section 6.2 applies accordingly.
6.7. For the negotiation of buy-outs for the use of work results from third parties, a service fee of 10 percent on the net usage remuneration of the respective third party is to be paid to the agency by the client.
6.8. The agency assumes no liability for statutory claims of authors for subsequent increase in remuneration according to § 32, 32a UrhG; the client shall indemnify the agency from such claims at the first request.
7. Warranty
7.1. The works and services provided by the agency must be immediately checked by the client upon receipt, in any case before use, and defects must be reported immediately upon discovery. If the immediate inspection or defect notification is omitted, the client's warranty claims regarding obvious defects, known defects, or consequential defects shall not exist.
7.2. If there is a defect for which the agency is responsible, it can choose to remedy the defect (make corrections) or provide a replacement. In the event of a remedy, it has the right to two attempts at correction within a reasonable time. Otherwise, the statutory provisions of the contract law in the BGB apply.
7.3. The agency's warranty obligation expires one year after the client receives the delivery/service from the agency.
8. Limitation of Liability
8.1. Claims for damages, regardless of the reason, are limited in the case of negligent behavior by the agency, its legal representatives, or its agents to the typical and foreseeable damage at the time of the conclusion of the contract. In the case of slightly negligent behavior, they are excluded, unless they relate to the violation of such an essential duty that the achievement of the contract's purpose is jeopardized (so-called cardinal obligation). This limitation of liability and the above exclusion of liability do not apply in the case of intentional misconduct by the agency, in claims arising from a guarantee, in cases of injury to life, body, and health, as well as in claims under the Product Liability Act.
8.2. In case of assignment orders, the agency is not liable for defective performance of the media (advertising carriers). However, in these cases, it will assign its claims for damages or warranty to the client.
8.3. Claims for damages against the agency become time-barred one year after the statutory limitation period begins, without prejudice to the provision of § 202 BGB.
9. Confidentiality Obligation
The agency and the client hereby mutually undertake to keep confidential all information and documents accessible to them in connection with the conclusion of the contract that are marked as confidential or recognizable as business or operating secrets of the respective contractual partner under other circumstances, and to not record, store, or disclose them – unless necessary to achieve the purpose of the contract – nor exploit them or make them accessible to unauthorized persons. This also applies to ideas, concepts, and designs presented by the agency in the context of a presentation, as long as and to the extent that the client has not commissioned and compensated such services.
10. Data protection/data backup
10.1. The client confirms that personal data transmitted to the agency by him or on his behalf by third parties has been collected and processed in accordance with the relevant data protection provisions, in particular the Federal Data Protection Act, that any necessary consents from the data subjects are available, and that the use of the data by the agency in the scope of the assigned contract does not violate or exceed the provisions of the consents granted.
10.2. The client agrees that personal data (inventory data) and other information such as time, number and duration of connections, access passwords, uploads and downloads will be stored by the agency during the duration of the contract/order, as far as this is necessary or useful for fulfilling the contract.
10.3. The client will secure data and programs before handing them over to the agency to enable recovery in case of data loss.
11. Written Form
If "written" or "written form" is mentioned in these GTC or in the order/contract or in other contractual documents, the text form according to § 126 b BGB (email, SMS, fax) may also be used.
12. Place of Performance
12.1. The place of performance is the office of the agency. The jurisdiction for all disputes arising from the contract and in connection with the business relationship is the office of the agency.
12.2. The law of the Federal Republic of Germany applies.