§ 1 General
- The Agency develops and creates web, mobile and e-commerce solutions on behalf of its clients. It accompanies design and development projects in the areas of web, mobile, film, audio and print.
- The following terms and conditions apply exclusively to all deliveries and other work and services, unless the parties have expressly agreed otherwise.
- Deviating terms of the contractual partner (hereinafter referred to as the Customer), which are not expressly acknowledged by the Agency in writing, are non-binding, even if the Agency does not expressly object to them. Changes and additions to the Agency’s General Terms and Conditions and the contracts concluded with the Customer must be made in writing. This also applies to this written form requirement.
§ 2 Products, Fees, Range of Services
- The products and services offered by the Agency are non-binding. The order conformation forms the primary focus for the scope of the contractually agreed service, which is created on the basis of the offer / quote of the Agency. Requests for changes and additions that go beyond the contractually agreed services shall be remunerated separately by the Customer. If the contractually agreed service is provided by the Agency with a more minimal outlay, this does not lead to a reduction in the agreed remuneration.
- Partial services, partial deliveries, the settlement of partial services and partial deliveries as well as the provision of advance invoices are permissible.
- The documents on which the offer or the order confirmation is based, such as calculations of time and external costs, should generally only be considered as approximate values, unless they are expressly designated as binding. A significant exceeding of the agreed cost framework by more than 5% is only possible with the consent of the Customer. The Agency is entitled to adjust the agreed cost framework if this is due to additional expenses not foreseeable at the time of preparation of the offer.
- Unless expressly agreed otherwise, billing shall be based on the hourly rates of the Agency according to actual time spent. The hourly rates or technical services stated in the price lists are valid for a period of one year from the placing of the order. After expiry of this period, the Agency shall be entitled to adjust these prices in an appropriate manner in accordance with the general annual cost trends.
- If a ‘flat rate’ is agreed, this covers in particular the time required by the Agency on the one hand and the provision of processing capacities by the Agency on the other. The fees are generally binding for both parties, regardless of whether the estimated time expense corresponds to the actual one. The Agency shall only be entitled to remuneration exceeding the agreed fee if the Agency has expressly reserved this right when placing the order or if and insofar as this has been expressly agreed between the parties or if a claim for remuneration arises from these General Terms and Conditions of Business and Contract.
- The Agency provides its services within the framework of a specific order based on briefings, which the Customer provides for the Agency and explains. The briefing is the binding working basis for the Agency. If additional work meetings between the Customer and the Agency are recorded, the minutes shall be deemed to be a binding working basis one week after receipt by the other party, unless the other party has objected to the minutes in writing. In individual cases, a shorter period may be agreed.
§ 3 External costs
- External costs such as those incurred when using services by third parties, in particular for graphics, text, typesetting, lithography, printing, photographs, clippings, market research, advertising, etc., are to be remunerated separately, after the Agency has provided verification. An additional handling fee of 10% of the net external costs is payable, unless expressly agreed otherwise (including a flat-rate agreement).
- The Agency is entitled to conclude contracts with third parties within the scope of its service provision, also in the name and for the account of the Customer or on behalf of the Customer in its own name. Their invoices (if agreed as an external service) will be forwarded by the Agency to the Customer for direct compensation after being checked factually and from an accounting standpoint or prepared in advance and charged to the Customer.
§ 4 Additional costs
- Ancillary costs are all costs incurred in connection with the execution of an order, in particular for communication services, e.g. telephone, fax, telex and post services, including courier services. Unless otherwise agreed by these General Terms and Conditions or individually between the contracting parties, ancillary costs shall be charged to the Customer at a flat rate in the form of a percentage of 5% of the agreed net fees in accordance with § 2.
- Taxes, levies on collecting societies (VG Wort, GEMA, etc.), rights of use, customs costs and other comparable taxes, duties and fees shall be borne by the Customer, even if these are levied subsequently.
- If, with the consent of the Customer, artists (e.g. graphic designers, moderators, journalists, copywriters, etc.) are employed as freelancers and these costs are passed on to the Customer as external services, the Agency is entitled to pass on the fees incurred to the Customer in accordance with the Artists’ Social Insurance Act Künstlersozialversicherungsgesetz. The percentages valid on the effective date of the service apply.
- Travel and travel expenses incurred by the Agency in the context of carrying out the assignment shall be settled as follows:
– 1st class rail travel
– Business class air travel
– Use of motor vehicle: € 0,50 / km
– Hotel and expenses as incurred
§ 5 Terms of payment
- The invoices issued by the Agency to the Customer are due immediately upon receipt without deduction. If the payment deadline is culpably exceeded by more than 30 days from the invoice date, the Customer shall be in default without prior warning. Subject to the assertion of further claims, interest in the amount of 8 percentage points above the applicable base interest rate of the European Central Bank shall be demanded.
- All services offered by the Agency are exclusive of the respective statutory value added tax and any other domestic or foreign taxes and charges incurred in connection with the provision of services.
§ 6 Cooperation services of the Customer
- The Customer shall provide the Agency with all information required for the provision of the contractually owed service – in particular market, production and sales figures as well as product information – and shall cooperate as obliged.
- The Client will inform the Agency in good time about planned measures and the available budgets. The Customer shall issue instructions to the Agency by letter, fax, email, briefing or contact report.
- The Customer shall issue the approvals and releases as necessary in good time so that the Agency’s workflow is not impaired and the Agency can carry out follow-up work punctually and without additional costs and loss of quality. Additional costs incurred due to delayed approval or release shall be borne by the Customer.
§ 7 Delivery time, Place of performance
- The agreed delivery dates and periods of the Agency shall be extended appropriately if the Customer delays or fails to perform the necessary or agreed upon actions or causes changes and additions. The same applies to measures in the context of industrial disputes, in particular strikes and lockouts as well as the occurrence of unforeseen hindrances that are beyond the control of the Agency, e.g. delay in delivery by a sub-supplier, traffic and operational disruptions, material or energy shortages, etc.
- The Agency will inform the Customer of any exceeding of the delivery dates and deadlines, stating the reasons and presumed duration. Damages and withdrawal always presuppose the unsuccessful expiry of a previously set grace period. The deadline shall be suspended if requests for changes by the Customer necessitate a significant rescheduling after the order has been placed. The Agency will inform the Customer of this and agree on a new delivery date with them.
- The place of performance is the registered office of the Agency. Deliveries are carried out by the Agency at the expense and risk of the Customer.
§ 8 Acceptance, Notices of Defects
- The acceptance is based on legal regulations. The public use and/or payment of the corresponding service of the Agency shall constitute acceptance. It is also regarded as acceptance if the Customer does not accept the service within 10 working days after the request for acceptance. This does not apply if a different deadline has been set or agreed in individual cases.
- Only grossly improper or carelessly executed deliveries and services as well as such services which deviate grossly from the task set, the desired design and the instructions given, or which fail to comply with state-of-the-art technology are defective.
§ 9 Rights of Use
- Copyrights and other legal positions that exist in the services provided within the scope of the project are transferred from the Agency to the Customer in accordance with the respective agreement and otherwise in accordance with § 31 para. 5 UrhG German Copyright Law.
- All rights to preparatory work (e.g. to drafts, concepts) as well as the other work results of the Agency, in particular copyrights and rights of use as well as ownership, remain with the Agency even after delivery of the results to the Customer, unless they have been expressly transferred in writing and/or acquired in accordance with the following terms. This also applies to designs rejected by the Customer or not released for execution. They remain with the Agency, which is then free to dispose of the drafts.
- The Customer acquires the industrial property rights to all work produced by the Agency within the scope of the project only on complete fulfillment of all claims of the Agency, including external and ancillary costs, insofar as the transfer is possible under German law or the actual circumstances (in particular for music, film and photo rights) and taking into account any rights of third parties, for an unlimited period of time, limited in content to the purposes of the subject matter of the contract and allowed for use in the territory of the Federal Republic of Germany. Know-how of the Agency is excluded from the above transfer of industrial property rights.
- In all cases which involve the rights of third parties, the Agency shall inform the Customer in good time before using the material concerned and obtain permission or act in accordance with the Customer’s instructions. On the instructions of the Customer, it will acquire the necessary rights of use in the name of the Customer and purchased on their account.
- The further transfer or sublicensing of the rights of use transferred to the Customer by the Customer to third parties requires the prior written consent of the Agency to be effective. Excluded from this is the transfer or licensing to subsidiaries or affiliated companies within the context of § 15 et seq. of the German Stock Corporation Act (AktG) within a group as well as to sales partners.
- If the Customer intends to use the results provided by the Agency outside the agreed project, after expiry of the rights of use, or for purposes other than those agreed, they will agree a separate buyout fee with the Agency for this purpose. If this agreement is not concluded, a buyout fee of x percent on the transferal costs or the stake value of the advertising material shall be deemed as agreed upon. The Customer shall provide the Agency with proof of the extent of use in this regard upon request.
- If the Customer wishes to utilize work designed by the Agency in whole or in part abroad, a separate fee agreement to be made in advance will be required.
§ 10 Withdrawal, Termination, Duration
- The Agency may withdraw from the order or terminate the contractual agreement with the Customer in accordance with the statutory provisions. This applies in particular if the Customer has suspended his payments to the Agency on a non-temporary basis, the Customer has ceased his business operations or substantial parts thereof, enforcement measures to collect payment obligations from the agreement have been unsuccessful or an application for the opening of insolvency proceedings is filed against the assets of the Customer. The right to terminate the agreement for good cause remains unaffected.
- The Customer is entitled to cancel ongoing work of the Agency, or to modify or abandon work in progress until the delivery or service is completed. In such cases, the Agency will immediately take all appropriate steps to comply with the instructions and minimize costs. However, the Client will undertake to indemnify the Agency against all liabilities already incurred, provided that these were previously approved or part of the measures already adopted, and to compensate it for all losses arising from such measures due to the termination or changes. The Agency shall be entitled to remuneration for services already carried out and provided up to that point, in accordance with the agreements made. If the Agency factors in additional requests and changes by the Customer, the resultant additional costs will be invoiced to the Customer on the basis of the generally applicable hourly rates of the Agency.
- Provided that fixed terms for order processing are agreed between the Agency and the Customer, the mutual rights and obligations end with the termination of the agreed term. Ongoing consulting relationships between the Agency and the Customer, which are established for a term of at least one year, are extended by six months in each case, unless they are terminated by one of the parties with a notice period of three months to the end of the respective term.
- Withdrawal, termination, cancellation, or amendment of the service and all other measures that have a direct effect on the content and continuation of the agreement between the Agency and the Customer must always be declared in writing by the Agency and the Customer.
§ 11 Confidentiality
- During the cooperation and until the cooperation ceases, the Agency and the Customer are obliged to maintain secrecy of all business secrets of the other party that become accessible to them in connection with the project. In the event that third parties on the side of the Customer or on the side of the Agency are involved in the project, the same obligation shall be imposed on them. The Agency will return all documents of the Customer that were made available to the Customer after termination of the cooperation or destroy them by request.
- The obligation of confidentiality does not exist if and to the extent that the information in question is demonstrably generally known or becomes generally known through no fault of the other party or was or will be obtained in good time by a third party or is already known to the other party.
§ 12 Warranty, Liability
- The Customer must notify the Agency of complaints regarding the service rendered or the delivered goods immediately upon receipt, insofar as this is feasible in the ordinary course of business. If the Customer fails to make this notification, the service or goods shall be deemed approved, unless it is a defect that was not recognizable during the inspection. In all other respects, §§ 377 et seq. of the German Commercial Code (HGB) shall apply.
- The liability of the Agency, its representatives and vicarious agents is unlimited in the event of intent and gross negligence. In the case of simple negligence (also in the event of a breach of essential contractual obligations), liability is limited to direct, typical and foreseeable damages. Lost profits will not be replaced.
- The Agency undertakes to carry out the work assigned to it with the professional and commercial diligence of a PR expert to the best of its knowledge and in compliance with the generally accepted principles of advertising. It shall inform the Customer in good time of the risks recognizable to it.
- The obtaining of official approvals or the review of the legal admissibility of factual statements made about products and services of the Customer as well as advertising or other measures developed by the Agency on behalf of the Customer is not part of the scope of services of the Agency. The Agency shall not be liable for the patent, copyright, trademark, design or other protectability of the services it provides. At the request of the Customer, the Agency will assist in having a legal examination of the risks, in particular those of competition and trademark and copyright law, carried out by a particularly competent person or institution at the expense of the Customer for the measures to be carried out.
- In this context, the Customer indemnifies the Agency from its own claims and those of third parties, in particular if the Agency has acted at the express request of the Customer, although it has informed the Customer of its concerns with regard to the admissibility of the measures. In addition, the Customer indemnifies the Agency from all claims of authors and ancillary copyrighted third parties according to §§ 32, 32 a ff. UrhG, providing that these were commissioned by the Agency on the instructions of the Customer.
§ 13 Statute of Limitations, Offsetting, Assignment, Rights of Retention
- Claims of the Customer against the Agency shall become statute-barred within 12 months from the date of provision of the respective service.
- An offsetting of claims by the Agency with the Customer is only permissible if the claims of the Customer are undisputed or legally established.
- The Customer may not assign rights arising from or in connection with the order to third parties without the written consent of the Agency.
- The Customer can only assert rights of retention with regard to undisputed or legally established claims.
§14 Assignments in Representation
- Orders placed by the Agency to third parties within the scope of the agreed service shall be placed in the name and for the account of the Customer. In this case, the Agency shall not be liable for the payment of the ordered goods and/or services or for the fulfilment of the other contractual obligations of the Client or a third party. The payment of the third party is made directly by the Customer.
- If, in exceptional cases, the Agency issues the order to the third party, the Agency is entitled at any time to demand an appropriate payment or advance payment.
§ 15 Final provisions
- The Agency and the Customer have not made any verbal ancillary agreements. Deviating or supplementary agreements must be made in writing in order to be effective. This also applies to the cancellation of this written form requirement.
- If written form has been agreed upon according to these General Terms and Conditions, this is also deemed fulfilled by email or fax. Terminations, changes or additions to these General Terms and Conditions are excluded from this.
- The invalidity of individual provisions of this contract or its components shall not affect the validity of the remaining provisions. Within reason, the contracting parties are obliged in good faith to replace an invalid provision with an effective provision that is legally equivalent to its economic success, provided that this does not bring about a significant change in the content of the contract; the same applies if a situation requiring regulation is not expressly regulated.
- The place of jurisdiction and place of performance is that of the registered office of the Agency. The Agency is also entitled to sue before a court which is responsible for the registered office or a branch of the Customer or a branch of the Agency. All legal relationships between the Customer and the Agency are subject exclusively to the law of the Federal Republic of Germany.