1. validity of the General Terms and Conditions
1.1 The following General Terms and Conditions shall apply exclusively to all services and deliveries of Eberle GmbH Werbeagentur GWA, Goethestraße 115, D – 73525 Schwäbisch Gmünd (hereinafter referred to as the “Agency” ) to its clients as entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB). Conflicting General Terms and Conditions of the Client shall not become part of the contract unless the Agency has agreed to their validity in writing. 1.2 The GTC shall take precedence over those provisions of the contractual partners which they regulate individually in the order or in other agreements or arrangements deviating from these GTC. 1.3 The GTC shall also apply to all future orders placed with the Agency by the Client following the first inclusion of these GTC, even if the validity of the GTC is not expressly referred to again in these subsequent orders.
2. processing of orders
2.1 The client may accept offers made by the agency to the client which contain prices within three weeks of receipt, unless a shorter period is specified. After expiry of this period, the Agency shall no longer be bound by this offer. Any mere cost estimate prepared by the Agency shall only constitute an invitation to submit an offer by the Client, which must still be accepted by the Agency. 2.2 The scope of the services shall be determined by the product/service description provided when the order is placed. Additional and/or subsequent changes to the product/service description must be made in writing. 2.3 The agency and the client shall communicate at regular intervals about progress and obstacles in the execution of the commissioned services. In the event of deviations from the agreed procedure or doubts about the correctness of the other party’s procedure, they shall inform each other immediately. 2.4 Minutes of meetings prepared by the agency and sent to the client shall be regarded as commercial letters of confirmation by the contracting parties. If the client does not object in writing within three working days, the agreements, instructions, orders and other declarations of a legal nature contained therein shall become binding. 2.5 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. In the case of the creation of software, this also applies to the source code and the corresponding documentation.
3. commissioning of third parties
3.1 The agency is basically free to choose the type of work to be carried out in terms of time and place, unless otherwise stated in the order. 3.2 The Agency shall be entitled to carry out the work assigned to it itself or to commission vicarious agents/subcontractors to do so in its own name. 3.3 The Agency shall be entitled to place orders for the production of advertising media in which the Agency has participated in accordance with the contract in the name and for the account of the Client, provided that the Agency has provided the Client with the name and address of the third party and the Client has not objected in writing within a period of one week. 3.4 The Agency shall place orders with advertising media in its own name and for its own account. If quantity discounts or painting scales are claimed, the client shall receive a subsequent charge if the discount and scale requirements are not met, which shall be due for payment immediately. In this respect, the client shall indemnify the agency against the medium on first demand. 3.5 Offers made by the agency to the client which contain prices may be accepted by the client within three weeks of receipt. After expiry of this period, the Agency shall no longer be bound by this offer. If the Agency prepares a mere cost estimate, this shall not yet be considered a binding offer.
4. remuneration of agency services
4.1 Unless otherwise agreed in the individual order, the services provided by the agency shall be invoiced on an hourly fee basis according to time spent and the current hourly rates of the agency employees involved. Technical costs shall be invoiced in accordance with the Agency’s current rates for technical costs. The remuneration for rights of use is regulated in the following Sections 6.6. to 6.8. 4.2 Unless otherwise agreed, the Agency shall be entitled to invoice its services monthly at the end of each month. 4.3 The Agency shall charge a service fee of 15 percent of the net amount of the third party’s invoice for services provided by third parties which the Agency permissibly uses to fulfill the contract/order. 4.4 Internal material costs incurred by the Agency for the performance of the contractual service (e.g. communication costs, shipping and duplication costs and travel expenses) shall be charged by the Agency to the Client at cost price. 4.5 If the Client is in default of payment, the Agency may demand advance payments for services to be rendered in the future.
5 Terms of payment
5.1 Agreed prices are net prices to which the applicable statutory value added tax (VAT) is added. Artists’ social security contributions, fees of GEMA or other collecting societies, customs duties and other charges, including those incurred subsequently, shall be passed on to the client. 5.2 The Agency’s invoices shall be due for payment within 10 days of the invoice date without any deductions, unless otherwise agreed or stated on the invoice itself. 5.3 Withholding of payments or offsetting with counterclaims shall only be permitted with claims recognized by the Agency or legally established. This shall not apply if the client is not a company/entrepreneur within the meaning of § 14 BGB. 5.4 Until all invoices relating to the order have been paid in full, the Agency shall retain ownership of all services and rights, in particular copyrighted rights of use, as well as ownership of files, documents and objects provided.
6 Rights of use; scope and remuneration
6.1 All copyrights and other rights of use to the Agency’s work results approved and paid for by the Client for advertising use shall be transferred to the Client to the extent required for the purpose of the respective order. The client acknowledges any restrictions arising from 7. below. The Agency shall fulfill its obligations by granting exclusive rights of use in the contractual territory for the media and duration of use of the advertising measure specified by the contracting parties in the order. The transferred rights of use include the authorization 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 provision shall require the Agency’s separate consent. 6.2 If the Agency uses third parties to fulfill the contract, it shall acquire the rights of use to their services to the extent of the above provision 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 at disproportionately high cost, the Agency shall inform the Client of this and proceed in accordance with the Client’s instructions. Any additional costs incurred as a result shall be borne by the client. 6.3 The Agency shall be entitled – even if exclusive rights of use are transferred to the Client – to use the work results and the Client’s name free of charge as part of its own advertising, even after the end of the contract, in all media including the Internet and as part of competitions and presentations. 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 shall not be subject to the granting of rights to the Client. 6.5 Services of the Agency (concepts, ideas, drafts, etc.) that are rejected or aborted by the Client or not used within six months of delivery shall not be subject to the transfer of rights to the Client. These rights of use shall remain with the Agency, as shall the existing property rights thereto. 6.6 The rights of use referred to in 6.1. and 6.2. above shall be settled with the payment of the remuneration agreed in the order. For the extension of use beyond the end of the use of the advertising media specified in the order and/or beyond the contractual territory and/or for use in media/advertising media other than those specified in the order, the agency shall receive a usage fee for a maximum period of three years, namely
– for the first year at a rate of 5 percent
– for the second year at a rate of 3 percent
– for the third year at a rate of 2 percent
of the respective customer net insertion volume. Upon payment of this remuneration, the Agency’s consent pursuant to the last sentence of 6.1 above shall be deemed to have been granted.
Insofar as the rights of third parties used by the Agency to fulfill the contract are affected by the extension of use, the provision in 6.2 above shall apply accordingly.
6.7 For the negotiation of buy-outs for the use of work results of third parties, 15 percent of the net usage fee of the respective third party shall be paid. 6.8 The Agency shall assume no liability for statutory claims by authors for subsequent increases in remuneration pursuant to § 32, 32a UrhG; the client shall indemnify the Agency against such claims upon first request.
7. use of AI – consent, objection, rights and liability
7.1 The agency is entitled to use AI applications in the provision of services. By placing the order, the client authorizes the use of AI applications and the associated transfer of information to the respective provider of the AI applications. 7.2 If the Client objects to the use of AI applications before or when placing the order, the Agency shall examine whether and to what extent their use for the provision of services can be waived. A waiver may have an impact on the calculation, timing and feasibility of the services. In this case, the Agency shall be entitled to submit an adjusted offer or reject the order. 7.3 The Agency shall grant intellectual property rights of use to AI-generated content and elements to the extent that these arise and can be granted. The use of the AI applications by the agency shall be in accordance with the respective terms of use of the AI providers. The Agency shall have no further liability when using AI applications. 7.4 The client acknowledges that no rights of use can be transferred, in particular to AI-generated images. However, unless otherwise agreed, the Agency warrants that such images will not be used for another client.
8. warranty
8.1 The client must inspect the work and services provided by the agency immediately upon receipt, but in any case before use, and report any defects immediately upon discovery. Failure to carry out an immediate inspection or report defects shall not give rise to any warranty claims by the client in respect of obvious defects, known defects or consequential defects. 8.2 In the event of a defect for which the Agency is responsible, the Agency may, at its own discretion, either rectify the defect (repair) or supply a replacement. In the event of rectification, it shall have the right to rectify the defect twice within a reasonable period of time. Otherwise, the statutory provisions of the law on contracts for work and services in the German Civil Code (BGB) shall apply. 8.3 The Agency’s warranty obligation shall expire one year after receipt of the Agency’s delivery/service by the Client.
9. limitation of liability
9.1 Claims for damages, for whatever reason, are limited to the typical damage foreseeable at the time of conclusion of the contract in the event of negligent behavior on the part of the agency, its legal representatives or its vicarious agents. In the case of slightly negligent behavior, they are excluded, unless they concern the breach of such an essential obligation that the achievement of the purpose of the contract is jeopardized (so-called cardinal obligation). This limitation of liability and the above exclusion of liability shall not apply in the event of intentional acts by the Agency, claims arising from a guarantee, injury to life, limb and health or claims under the Product Liability Act. 9.2 The Client is expressly advised that the Agency shall at no time undertake its own legal review of the services it provides. If the Agency considers a legal (e.g. trademark, commercial, competition law) review by third parties (in particular by lawyers, other institutions, etc.) to be necessary for the realization and implementation of the commissioned services, the Client shall bear the costs after prior consultation. The Agency shall not be liable if and to the extent that it has informed the Client in writing, stating the reasons, of concerns regarding the compatibility of a service with applicable law and the Client decides against a change to the contractual services in question despite the information provided. In such cases, the client shall indemnify the agency against third-party claims upon first request. This shall also include the necessary legal costs. 9.3 In the case of placement orders, the Agency shall not be liable for defective performance of the media (advertising media). In such cases, however, it shall assign its claims for damages or warranty claims to the client. 9.4 Claims for damages against the Agency shall become time-barred one year after the statutory commencement of the limitation period, notwithstanding the provision of § 202 BGB.
10. confidentiality obligation
The agency and the client hereby mutually undertake to keep confidential all information and documents that are 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 contractual partner according to the other circumstances, and – unless necessary 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 shall also apply to ideas, concepts, drafts in text and/or images presented by the Agency in the context of a presentation, as long as and insofar as the Client has not commissioned and paid for such services.
11. data protection/data backup
11.1 The client confirms that personal data transmitted by him or at his instigation by third parties to the agency has 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 have been obtained 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. 11.2 The client agrees that personal data (inventory data) and other information such as the time, number and duration of connections, access passwords, uploads and downloads shall be stored by the agency for the duration of the contract/order, insofar as this is necessary or useful for the fulfillment of the contract. 11.3 The client shall back up data and programs before handing them over to the agency in order to enable recovery in the event of data loss.
12. written form
If these GTC or the order/contract or other contractual documents refer to “in writing” or “written form”, the text form pursuant to Section 126 b BGB may also be used (e-mail, SMS, fax).
13. place of performance and other
13.1 The place of performance shall be the Agency’s registered office. The place of jurisdiction for all disputes arising from the contract and in connection with the business relationship shall be the registered office of the Agency, insofar as this is legally compatible. 13.2 The client may only transfer or assign claims against the agency based on this contract to third parties with the written consent of the agency. 13.3 The substantive law of the Federal Republic of Germany shall apply, excluding the application of the UN Convention on Contracts for the International Sale of Goods and German private international law.
Status 10/2024
