Terms & Conditions
1. Scope of T&Cs
1.1 In the context of § 14 of the German Civil Code (BGB), only the following terms and conditions for business apply to the services and deliveries by the agency as contractors to its clients. The client’s contravening T&Cs shall not form part of the contract.
1.2 The T&Cs take priority over any of the contract partner’s rules in the order or other agreements, which otherwise deviate from these T&Cs.
1.3 The T&Cs also apply to all future orders placed by the client to the agency, following the application of these T&Cs, even if no further specific reference is drawn to the validity of these T&Cs in such subsequent orders.
2. Executing orders
2.1 Offers made by the agency to the client containing prices can be accepted by the client within three weeks of receipt. Following this deadline, the agency is no longer bound by this deadline. If the agency provides a simple estimation of prices, this is only to be regarded as a request to the agency to submit an offer by the client, which requires approval by the agency.
2.2. The scope of services is based on the description of products/services in the relevant concluded contract. Additional and/or post-contractual changes to the description of products/services must be made in writing.
2.3 Records of conversations made by the agency and sent to the client are to be regarded as a written commercial confirmation by the contract partners. If the client does not object to this within three working days in writing, the agreements, instructions, orders and other declarations within will become legally binding.
2.4 Templates, files and other work materials, such as negatives, models, original illustrations etc. created by or via the agency in order to provide the services in the contract remain property of the agency. There is no obligation to provide these. When creating software, this also applies to the source code and corresponding documentation.
3. Commissioning third parties
3.1 The agency is entitled to conduct the work itself or to commission vicarious agents/subcontractors under their own name.
3.2 The agency is entitled to award contracts to produce advertising material in the name and at the cost of the client, for which the agency has contractually cooperated insofar as the agency has informed the client of the names and addresses of the third parties and the client has not objected in writing within a period of one week.
3.3. Orders to advertising media are made by the agency in our own name and at our own expense. If discounts are claimed for quantity or frequency, the client will receive an additional charge, to be paid immediately, if the requirements for obtaining the discount are not met. The client shall release the agency from any claims at first request.
3.4 Offers made by the agency to the client containing prices can be accepted by the client within three weeks of receipt. Following this deadline, the agency is no longer bound by this deadline. If the agency simply provides an estimation of costs, then this is not to be regarded as a binding offer.
4. Compensation for the agency’s services
4.1 Unless otherwise agreed separately in the order, the services provided by the agency will be calculated on an hourly basis according to time spent and the current hourly rates for the agency employees involved. Technical costs will be calculated on the basis of the current agency rates for technical costs. The compensation for user rights is regulated in points 6.6 to 6.8 below.
4.2 Unless otherwise agreed, the agency is entitled to invoice its services at the end of each month.
4.3 For third party services used by the agency to lawfully fulfil the contract/order, the agency will charge a service fee of 15 percent of the net charge of the third party invoice.
4.4 Internal material costs, which the agency incurs in order to conduct contractual services (e.g. communication costs, shipping and copying costs, as well as travel costs), will be invoiced by the agency to the client at cost price.
4.5 If the client enters into arrears in payment, the agency can demand pre-payment for the future services.
5. Payment conditions
5.1 The agreed prices are net and subject to addition of the relevant applicable VAT. Social security contributions for artists, fees for GEMA or other collecting societies, customs and similar, including post-contractual charges will be invoiced to the client.
5.2 Agency invoices are to be paid within 10 days of the invoice date, without deduction.
5.3 Retention of payments or off-set with counterclaims are only permitted using receivables approved by the agency or determined legally. This does not apply if the client is not a company/commercial body in the sense of § 14 of the German Civil Code.
5.4 Until complete payment of all invoices relevant to the order, the agency shall retain ownership of all services and rights, in particular copyrights, user rights and ownership of any files, documents and items provided.
6. User rights; scope and compensation
6.1 All copyright and other user rights are authorised to the client for advertising purposes and the results of the agency work paid for are given to the client in the scope set out in the relevant contract. The agency meets its obligations by granting sole user rights of the intended media and advertising materials in the contract remit for the period of time agreed by the contract parties in the order. The user rights provided include permission to freely edit and/or combine the results of the work with other work. The client is entitled transfer user rights, in full or partially, to subsidiary companies or associated companies within its organisation. Any other use requires prior consent from the agency.
6.2 If the agency makes use of third parties to fulfil the contract, they will give the user rights to their services to the extent of the existing regulations.
6.1 to the client accordingly. If, in individual cases, this right is not obtainable to the same extent or it is only possible at a disproportionate cost, the agency will inform the client of this and follow their instructions. The client is liable for any additional costs resulting from this.
6.3 The agency is entitled, even after having transferred exclusive user rights to the client, to make use of the results of their work and their client name for self-marketing purposes, free of charge. This also applies following the end of the contract and for all forms of media, including online and as part of competitions and presentations.
6.4 If the agency creates electronic programmes or part-programmes in relation to their contractual services, the relevant source code and corresponding documentation are not subject to a restriction of rights by the client.
6.5 Not subject to the transfer of rights to the client are agency services that were rejected, cancelled or not used within six months after the transfer (concepts, ideas, suggestions etc.). These user rights remain property of the agency, as do the resulting ownership rights.
6.6 The user rights mentioned in 6.1 and 6.2 are compensated upon payment of the amount agreed in the order. To extend use beyond the end of the use for advertising material and/or beyond the contract remit and/or for use in media/advertising other than those specified in the order, the agency shall receive a usage fee for a maximum of three years of
-for the 1st year in the sum of 5 percent
-for the 2nd year in the sum of 3 percent
-for the 3rd year in the sum of 2 percent
of the relevant client net switchover volume. Upon payment of this compensation, the agency’s consent shall be considered given, in accordance with 6.1 above.
Insofar as the rights of third parties used by the agency to fulfil the contract are affected by the extended use, the regulation in 6.2 above shall apply.
6.7 To negotiate buy-outs for the use of third party work results, 15 percent of the net use compensation for the relevant third party is to be paid.
6.8 The agency does not accept liability for legal claims by copyright holders against post-contractual increases in compensation, in accordance with § 32, 32a of the German Copyright Act (UrhG); the client will release the agency from such claims at first request.
7.1 The work and services provided by the agency must be inspected and checked for defects immediately upon receipt by the client. This must always be prior to use and the agency must be informed upon discovery of a defect. If immediate inspection or notification of a defect does not take place, any guarantee claims by the client shall not be valid for visible defects, known defects or subsequent defects.
7.2 If there is a defect, for which the agency is responsible, then the client may, at their own choice, opt to have the defect repaired (rectification) or have a replacement delivered. In the case of a rectification, there is a right to conduct two repairs within a reasonable period of time. Otherwise, the legal provisions of the work and services contract law in the German Civil Code apply.
7.3 The agency’s obligation to provide a guarantee expires after one year from the receipt of the delivery/service by the client.
8. Liability restrictions
8.1 Damage claims through negligent conduct by the agency, its legal representatives or its vicarious agents, regardless of reason, are limited to typical and foreseeable damages at the point of concluding the contract. Claims are excluded for slightly negligent conduct, unless this affects a violation of a significant obligation which endangers fulfilment of the purpose of the contract (a so-called cardinal obligation). This restriction in liability and the abovementioned liability exclusions do not apply to deliberate action by the agency, guarantee claims, damage to life, body and health, as well as claims arising from the German Product Liability Act (Produkthaftungsgesetz).
8.2 For switching orders, the agency is not liable for defective media services (advertising media). In these cases, however, the damage compensation or guarantee claims will be transferred to the client.
8.3 Damage claims against the agency expire one year after the legal start of the expiry period, irrespective of provision § 202 of the German Civil Code.
9. Duty to confidentiality
The agency and the client hereby mutually agree to maintain confidentiality in relation to the accessible or transferred information and documents from the conclusion of the contract, which are marked as confidential or are otherwise recognised as business or commercial secrets of the relevant contract partner. Unless required to fulfil the purpose of the contract, they are not to be recorded, stored, passed on, analysed or made accessible to unauthorised parties. This also applies to ideas, concepts, suggestions in text and/or image presented by the agency as part of a presentation, so long and insofar as the client has not commissioned these services and compensated for them.
10. Data protection/data security
10.1 The client confirms that personal data transmitted by them or at their request by third parties to the agency has been collected and processed in accordance with the relevant provisions in data protection law, in particular the German Federal Data Protection Act, that the parties concerned have obtained the necessary consent and that the data used by the agency does not fail to comply with any of these provisions or exceed the scope of consent granted.
10.2 The client hereby agrees that personal data (inventory data) and other information including the times, numbers and durations of connections, access passwords, uploads and downloads will be stored by the agency for the duration of the contract/order, insofar as these are required or useful for fulfilling the contract.
10.3 The client will secure data and programmes prior to transfer to the agency, so as to enable restoration in the event of data loss.
11. Written form
If reference is made in these T&Cs, in an order/contract or other contractual documents to “written” or “written form”, the text form may also be used (email, SMS, fax), in accordance with § 126 b of the German Civil Code.
12. Place of fulfilment
12.1 The place of fulfilment is the agency’s headquarters. The place of jurisdiction for all disputes arising from the contract and in relation to the business relationship is the agency headquarters.
12.2 The law of the Federal Republic of Germany applies
Version as of 04/2016