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1.1 All services and deliveries of the agency to its clients as entrepreneurs within the meaning of § 14 BGB [German Civil Code] are exclusively subject to the following General Terms and Conditions. Conflicting terms and conditions of the client shall not become part of the contract.
1.2 The terms and conditions are superseded by those regulations of the contractual partners that regulate these in the order or in other agreements or arrangements deviating from these terms and conditions.
1.3 The terms and conditions also apply to all future orders of the client to the agency following the first inclusion of these terms and conditions, even if the validity of the terms and conditions is not expressly pointed out again in these follow-up orders.
2.1 Offers from the agency to the customer that contain prices can be accepted by the client within three weeks of receipt. After this period, the agency is no longer bound by this offer. If the agency creates a mere cost estimate, this is only to be seen as a request for the client to submit an offer to the agency, which requires acceptance by the agency.
2.2 The scope of the services results from the product/service description made in each case when the order is placed. Additional and/or subsequent changes to the product/service description must be made in writing.
2.3 Meeting minutes that the agency prepares and sends to the client are regarded by the contractual partners as commercial confirmation letters. If the client does not object in writing within three working days, the agreements, instructions, order placements and other declarations with legal transaction character contained therein become binding.
2.4 Templates, files and other working 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, remain the property of the agency. There is no obligation to surrender them. In the creation of software, this also applies to the source code and the corresponding documentation.
3.1 The agency is entitled to carry out the work assigned to it itself or to commission vicarious agents/subcontractors to do so in its own name.
3.2 The agency is entitled to place orders for the production of advertising material in which the agency has contractually participated, in the name and for the account of the client, provided that the agency has given the client the name and address of the third party and the client has not objected in writing within a period of one week.
3.3 The agency places orders with advertising media in its own name and for its own account. If quantity discounts or quantity scales are used, the client will receive a subsequent charge if the discount and scale requirements are not met, which is due for payment immediately. In this respect, the client shall indemnify the agency against the medium upon first request.
3.4 Offers from the agency to the customer that contain prices can be accepted by the client within three weeks of receipt. After this period, the agency is no longer bound by this offer. If the agency creates a mere cost estimate, this is not yet to be seen as a binding offer.
4.1 Unless otherwise agreed in the individual order, the services provided by the agency are charged on an hourly basis according to the time spent and the current hourly rates of the agency’s employees involved. Technical costs are charged according to the agency’s current cost rates for technical costs. The remuneration for rights of use is in the following section 6.6. to 6.8. regulated.
4.2 Unless otherwise agreed, the agency is entitled to invoice its services monthly at the end of the month.
4.3 For services of third parties, which the agency legitimately uses to fulfill the contract/order, the agency charges a service fee of 15 percent of the net amount of the third party’s invoice.
4.4 Internal material costs incurred by the agency for the performance of the contractual service (e.g. communication costs, shipping and duplication costs as well as travel expenses) shall be charged to the client by the agency at cost price.
4.5 If the client is in default of payment, the agency may demand advance payments for future services.
5.1 Agreed prices are net prices, to which the applicable value added tax is added. Social security contributions for artists, fees of GEMA or other collecting societies, customs duties and other levies, including those arising subsequently, will be charged on to the client.
5.2 Invoices of the agency are due for payment within 10 days of the invoice date without any deduction.
5.3 Retention of payments or offsetting with counterclaims are only permissible with claims recognized by the agency or legally established. This does not apply if the client is not a company/entrepreneur within the meaning of § 14 BGB.
5.4 Until full payment of all invoices relating to the order, the agency retains ownership of all services and rights, in particular copyright rights of use, as well as ownership of provided files, documents and objects.
6.1 All copyrights and other rights of use to the work results of the agency released and paid for by the client for advertising use shall pass to the client to the extent required for the purpose of the respective order. The agency fulfills its obligations by granting exclusive rights of use in the contract area for the media and duration of use of the advertising measure provided for in each case by the contracting parties in the order. The transferred rights of use include the right to edit the work result as desired and/or to combine it with other works. The client is entitled to transfer the rights of use in whole or in part to subsidiaries or affiliated companies within a group. Any use beyond the above regulation requires the separate consent of the agency.
6.2 If the agency uses third parties to fulfill the contract, it will acquire the rights of use to their services to the extent of the aforementioned provision 6.1 and transfer them to the client accordingly. Should these rights not be available to this extent in individual cases or their acquisition only be possible with disproportionately high costs, the agency will inform the client of this and proceed according to his instructions. The client shall bear any additional costs incurred as a result.
6.3 The agency is entitled – even if exclusive rights of use are transferred to the client – to use the work results and the client name free of charge within the scope of its own advertising, even after the end of the contract, in all media including the Internet and within the scope of competitions and presentations
6.4 If the agency creates electronic programs or program parts within the scope of its contractual services, the respective source code and the corresponding documentation are not the subject of the granting of rights to the client.
6.5 Not subject to the transfer of rights to the client are services of the agency rejected, discontinued or not used within six months of handover (concepts, ideas, drafts, etc.). These rights of use remain with the agency, as do the property rights existing therein.
6.6 The rights of use mentioned in 6.1. and 6.2. above are settled with the payment of the remuneration agreed in the order. For the extension of the use beyond the end of the advertising material deployment specified in the order and/or beyond the contractual territory and/or for the use in media/advertising media other than those mentioned in the order, the agency receives a usage fee for a maximum period of three years, namely
– for the 1st year in the amount of 5 percent
– for the 2nd year in the amount of 3 percent
– for the 3rd year in the amount of 2 percent
of the respective customer’s net switching volume. With payment of this remuneration, the consent of the agency according to 6.1 last sentence above is considered granted.
If the rights of the third parties used by the agency to fulfill the contract are affected by the extension of the use, the regulation in above 6.2 shall apply accordingly.
6.7 For the negotiation of buy-outs for the use of work results of third parties, 15 percent is to be paid on the net usage fee of the respective third party.
6.8 The agency assumes no liability for legal claims of authors for subsequent remuneration increase according to § 32, 32a UrhG [German Copyright Act]; the client shall indemnify the agency against such claims upon first request.
7.1 The client must inspect the work and services provided by the agency immediately upon receipt, but in any case before use, and report defects immediately after discovery. If the immediate inspection or notification of defects is omitted, there are no warranty claims of the client regarding obvious defects, known defects or consequential defects.
7.2 If there is a defect for which the agency is responsible, it may, at its own discretion, remedy the defect (repair) or provide a replacement. In the case of rectification, it has the right to two attempts at rectification, each within a reasonable time. Otherwise, the statutory provisions of the law on contracts for work and services in the German Civil Code (BGB) apply.
7.3 The warranty obligation of the agency expires with the expiry of one year after receipt of the delivery/service of the agency by the client.
8.1 Claims for damages, for whatever reason, are limited in the event of negligent behavior on the part of the agency, its legal representatives or its vicarious agents to the typical damage foreseeable at the time of conclusion of the contract. In the event of slight negligence, they are excluded, unless they concern the breach of a duty so essential that the achievement of the purpose of the contract is endangered (so-called cardinal duty). This limitation of liability and the above exclusion of liability do not apply in the event of intentional action by the agency, in the case of claims arising from a guarantee, in the event of injury to life, limb and health, and in the case of claims arising from the Product Liability Act.
8.2 In the case of switching orders, the agency is not liable for defective performance of the media (advertising media). 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 statute-barred in one year after the statutory commencement of the limitation period, notwithstanding the provision of § 202 BGB.
The agency and the client hereby mutually undertake to keep secret all information and documents accessible or transmitted to them in connection with the conclusion of the contract, which are marked as confidential or are recognizable as business or trade secrets of the respective contracting party according to the other circumstances, and – unless required to achieve the purpose of the contract – neither to record, store nor pass them on, neither to exploit them nor to make them accessible to unauthorized persons. This also applies to ideas, concepts, drafts in text and/or image presented by the agency as part of a presentation, as long as and to the extent that the client has not commissioned and remunerated such services.
10.1 The client confirms that personal data transmitted by him or by third parties at his instigation to the agency have been collected and processed in accordance with the relevant provisions of data protection, in particular the Federal Data Protection Act, that any necessary consents of data subjects are available and that the use of the data by the agency within the scope of the order placed does not violate any of these provisions or exceed the scope of 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, may be stored by the agency during the term of the contract/order, insofar as this is necessary or useful for the fulfillment of the contract.
10.3 The client will back up data and programs before handing them over to the agency in order to enable recovery in the event of data loss.
If in these terms and conditions or in the order/contract or in other contractual documents of “written” or “written form” is mentioned, then also the text form according to § 126 b BGB can be used (e-mail, SMS, fax).
12.1 Place of performance is the registered office of the agency. The place of jurisdiction for all disputes arising from the contract and in connection with the business relationship is the registered office of the agency.
12.2 The law of the Federal Republic of Germany applies.
Status 04/2016
