§ 1 Offers
Offers are subject to change and non-binding and only become valid after written or verbal order confirmation by the customer. Offers are valid for 30 days from the date of the offer. Subsidiary agreements are only effective if they are confirmed in writing.
§ 2 Subject of Performance
The contractual obligations of the agency primarily result from the specification of services or sent offers between the agency and the client. The agency is fundamentally responsible for the conception of orders, projects, and agreed services as well as their commercial and organizational implementation. The agency does not guarantee the legal admissibility of the developed and implemented projects or actions but strives to obtain and comply with all legal guidelines.
§ 3 Prices
Drafts, final drawings, final layouts, concepts, texts, and electronic media together with the granting of usage rights form a unified service. The prices listed in the confirmed offer or order plus the statutory value-added tax are authoritative. The prices are without discount and other reductions. If the client does not claim any usage rights after delivery of the drafts (Phase I.), which are part of every design order, or decides on another provider, the remuneration for the drafts must be paid in any case. The preparation of drafts, products, and services that the agency provides for the client are subject to a fee unless expressly agreed otherwise in writing. If no remuneration has been agreed for a service or partial service, the agency’s usual remuneration according to the agency price key applies. Agreed ancillary services and costs advanced by the agency as agreed are borne by the client unless otherwise regulated. Price increases after conclusion of the contract, which are based on fluctuations in exchange rates, wage or material price increases, can be passed on to the customer.
§ 4 Payment Terms
The remuneration is due upon acceptance of the service, product, or work. It is to be paid without deduction within 14 days after receipt of service/product. An invoice will be sent to the customer after delivery/from service provision. If the ordered work, products, or services are accepted in parts, a corresponding partial remuneration is due upon acceptance of the product/service. If an order extends over a longer period (from 31 calendar days) or requires high financial advance payments from the agency, the remuneration for the services is paid on account at the end of each month. In case of payment default of the specified payment term and subsequent double reminder at intervals of 14 calendar days each, the agency is entitled to immediate withdrawal from the contract without special, prior notice. In these cases, all claims of the agency including all claims from the ultimately discontinued and current contract (100%) become due immediately in one amount towards the customer without special request. In case of payment default of the payment term (14 days) according to the initial invoice, the agency can impose a delivery, service, and/or production stop. Becoming aware of insolvency entitles the agency to withdraw from the contract with the client without notice. For service or leasing contracts of projects, the customer is only granted the rights of use for the respective leasing or service period. If the customer is more than 60 days in arrears with the full monthly leasing installments, the agency can, after the last (third) reminder, discontinue all services derived from the contract and invoice the project in full according to the order value minus 20% saved expenses as a lump sum. The performance table results from the underlying offer/order confirmation and the positions contained therein.
§ 5 Retention of Title
Services, usage rights, and delivered goods remain the property of the agency until full payment is made. In case of third-party access to the reserved goods, the customer must indicate the agency’s ownership and notify the agency immediately. In case of a current account, the reserved property is considered as security for the balance claims. The resale of our goods and services with unpaid invoices is permitted. The customer’s income from the resale of our unpaid goods or services must be assigned to the agency up to the amount of the invoice. For leased projects, the retention of title remains with the agency. The customer is only granted the right of use for the intended purpose during the leasing period.
Principle of Cooperative Collaboration
The agency will represent the customer’s interests to the best of its ability. The customer, in turn, will provide the agency with all data necessary for the proper execution of the order for strictly confidential treatment in the spirit of a trusting collaboration.
§ 6 Special Services and Incidental Costs
Special services, such as the revision or modification of final layouts, manuscripts, concepts, service processes, etc., which are requested by the customer due to changes in the order/contract content, will be charged according to the time spent and in accordance with the price scale of the present order. The agency is entitled to order third-party services necessary for the fulfillment of the order in the name and for the account of the client. The client grants the agency appropriate powers of attorney for this purpose. Insofar as contracts for third-party services are concluded in individual cases in the name and for the account of the agency, the client undertakes to indemnify the agency internally against all liabilities arising from the conclusion of the contract. This includes, in particular, the assumption of costs.
The agency charges a fee of 15% of the order volume of the outsourced services for the handling and coordination of third-party services. Expenses for technical incidental costs as well as material costs, in particular for special materials, for the production of models, photos, proof copies, intermediate shots, reproductions, typesetting and printing are to be reimbursed by the client. Travel costs and expenses for trips that are to be undertaken in connection with the order and are agreed with the client or may be deemed necessary are to be reimbursed by the client.
§ 7 Correction, Production, Production Supervision,
Production Management and Specimen Copies
The production, monitoring, and management by the agency are only carried out based on special agreements and contracts. When taking on production services of any kind, the agency is entitled to make necessary decisions and give corresponding instructions at its own discretion. Additionally, the client has the opportunity to define production processes more closely or in detail within the order and, after consultation with the agency, declare them in writing as part of the production service. The agency is only liable for errors in case of its own fault and only for intent and gross negligence. The agency cannot be held liable for damage, theft, or destruction of equipment of any kind provided by the client, unless gross negligence in handling can be proven against the agency. The burden of proof always lies with the client. The client provides the agency with up to 10 flawless copies free of charge from all reproduced and agency-created works. The agency is entitled to use these samples for self-promotion purposes. The agency is also entitled to use copies of created print and electronic media for reference purposes in its own presentations, as well as to publicly name clients from the time of order execution, unless otherwise agreed in writing. Before executing reproductions of products created by the agency through companies other than the agency, correction samples must be submitted to the agency. After creation of the commissioned graphic services, the client receives a proof from the agency. The client must check this for the correctness of the information contained therein as well as for typographical errors. Improvements and changes must be reported or sent to the agency immediately and within a deadline of max. 7 working days. After changing the template, the client will receive another proof upon request. This must also be checked and returned. For a color proof, the colors are not binding for printing for technical reasons. The client is given a deadline of 7 working days for returning the proof (unless otherwise agreed in writing when sending the proof). If no proof is received by the agency by this time, it is considered error-free. The responsibility for the correctness of the template ultimately lies with the client. If the client does not wish to receive a proof, they are also liable for correctness and typographical errors.
§8 Liability
The agency commits to executing the order with the utmost care, particularly in handling any templates, films, work data, internal company documents, etc. entrusted to it. Disclosure of transmitted information and documents to third parties is only permitted with separate written approval from the client or when necessary for the proper execution of the order. The agency is only liable for damages in cases of intent and gross negligence. Compensation exceeding the material value is excluded. If the agency commissions necessary third-party services, the respective contractors are not vicarious agents of the agency. The agency is only liable for its vicarious agents in cases of gross negligence and for its assistants only according to § 8.1 BGB. The dispatch of works, services, products, and templates is at the risk and expense of the client. The risk transfers to the customer as soon as the shipment has been handed over to the person carrying out the transport. The customer also bears the transport risk for partial deliveries or in the case of returns. Any transport damage can only be claimed from the commissioned transport company (post office, railway, freight forwarder, etc.). With the approval (written or verbal) by the client of proofs, drafts, final versions, final layouts, texts, electronic media, and concepts that the agency provides to the client for review/correction, the client assumes responsibility for the correctness of word and image (including content). The agency is not liable for drafts, texts, final versions, electronic media, concepts, and products approved by the client. Should the agency be held liable judicially or extrajudicially for the use of data provided by the customer from third parties, the client hereby declares legally binding to hold the agency completely harmless and indemnified and to reimburse all costs upon first request by the agency. The client assures the agency that they possess the rights to use all data provided by them (slogans, logos, images, videos, texts, etc.) worldwide, unrestricted, and indefinitely. The agency strives to ensure the admissibility and registrability of the works/services under competition and trademark law to the best of its knowledge and by applying current guidelines and resolutions, but disclaims any liability. Complaints – of any kind – must be made in writing to the agency within 7 working days after delivery of the work or notification/transmission/execution of a service. After this, the work/service is considered accepted as free of defects. The agency may reject complaints after this period, especially in the case of an obvious defect. The use of the defective goods may not occur until clarification. In the case of justified complaints, there is only the right to rectification or replacement at the agency’s discretion, up to the value of the order. Color-binding templates require the use of print run paper and print run machines. The client must immediately check the contractual conformity of the delivered goods as well as the proofs and intermediate products sent for correction in any case. The risk of any errors passes to the client with the declaration of readiness for printing. For color reproductions, minor deviations between proofs and the print run as well as within the print run are agreed up to a tolerance of +/- 15% of the solid tone density value. Proofs, wax prints, Cromaline, color laser prints, and other simulations of the print image are never color-binding. Orders with these templates are processed according to standard printing standards. When publishing print and electronic media (especially advertisements, radio spots, television and cinema spots), after the order is transferred to the executing company, all liability issues of the agency regarding the proper publication also pass to this company. In the event of improper or omitted publication of the media due to technical or organizational errors, negligence, etc. of the publishing company, this company is liable for all resulting claims on the part of the client existing vis-à-vis the agency.
§ 9 Creative Freedom and Templates
Within the scope of the contract, there is creative freedom. Complaints regarding artistic design are excluded. If the client wishes to make changes during or after the design production, they have the option to have up to two revision samples made. Any further changes will be charged as additional costs to the client according to the agency’s existing price list. If the client requests changes to the final draft/layout after previously declaring it satisfactory (verbally or in writing), they must bear the additional costs. The agency retains the right to compensation for work already begun. Instead of cancellation/reduction, the agency reserves the right to initially provide a maximum of two revisions. The client assures that they are authorized to use all templates provided to the agency. Should this assurance prove to be false, the client indemnifies the agency against all third-party claims for compensation.
§ 10 Right of Attribution
The agency is entitled to refer to the agency and, if applicable, to the creator on all advertising materials and in all advertising measures, without the client being entitled to any remuneration for this. If the client removes the reference, the agency is not liable for any corresponding damages resulting from the removal of the copyright notices.
§ 11 Delivery and Submission Deadlines
The agency strives to meet the agreed completion dates of the order as accurately as possible. The agency is not liable for delays and delivery difficulties of third-party services commissioned as part of order processing. The targeted fulfillment dates can only be met if the client provides all necessary work and documents completely by the dates specified by the contractor and fulfills their obligation to cooperate to the required extent. Delivery delays and cost increases resulting from incorrect, incomplete, or subsequently changed information and documents provided cannot lead to the agency being in default. The client bears any resulting additional costs. However, failure to meet deadlines only entitles the client to assert their statutory rights after granting the agency a grace period of at least 14 days. This period begins upon receipt of a reminder to the agency. An obligation to pay compensation for delay exists only in case of intent or gross negligence on the part of the agency. Further claims are excluded.
Force majeure, war, riot, strike, lockout, and significant operational disruptions through no fault of the agency extend the respective deadlines and the duration of the performance disruptions caused by these circumstances plus an additional 2 weeks. Unavoidable or unforeseeable events – especially delays with contractors of the agency – also release the agency from adhering to the agreed delivery date. If the execution of the order is delayed for reasons for which the client is responsible, the agency may demand an appropriate increase in remuneration. In case of intent or gross negligence, it may also claim damages. The assertion of further damages due to delay remains unaffected.
§ 12 Client Withdrawal
Cancellations by the client are only possible with the written consent of the agency. If the agency agrees to a cancellation, it has the right to charge, in addition to the services rendered and costs incurred, a cancellation fee of 50% of the not yet invoiced order value of the entire project; this includes incurred expenses and lost profit.
§ 13 Copyright
Sketches, drafts, logos, layouts, concepts, and all other media that are produced, created, or designed as a result of an order for a client are subject to the agency’s copyright. The further use of the templates (e.g., as an advertisement) requires the written consent of the agency. All copyrights associated with the work delivered by the agency thus remain with the agency. Only the rights of use for the purpose specified in the order/contract are transferred to the client; i.e., depending on the contract purpose, the spatial, temporal, media-specific, and content-related scope of the right of use as well as the type of use granted in each case are determined. Rights of use for work that has not been paid for at the end of the contract or, in the case of commission-based billing, has not yet been published, remain with the agency, subject to other agreements made.
§ 14 Final Provisions
Should individual provisions of these general terms and conditions be rendered ineffective by statutory or judicial rulings, all other provisions shall remain unaffected. The statutory new regulation shall take effect in place of the ineffective business condition(s). The agency’s terms and conditions apply to all its business areas. The place of jurisdiction is Solingen (in case of doubt, the agency’s place of business). The law of the Federal Republic of Germany applies. Subsidiary agreements, amendments, and agreements deviating from these terms and conditions, such as the assurance of characteristics, must be made in writing. This also applies to this provision.
