TERMS & CONDITIONS
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1. Validity of the General Terms and Conditions:
1.1. The following general terms and conditions apply exclusively to all services and deliveries of the agency to its clients as entrepreneurs within the meaning of § 14 BGB. Conflicting general terms and conditions of the client will not become part of the contract.
1.2. The terms and conditions shall be preceded by the provisions of the contracting parties that regulate them in the order or in other agreements or arrangements that deviate from these terms and conditions.
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1.3. The terms and conditions also apply to all future orders from the customer to the agency following the first inclusion of these terms and conditions, even if the validity of the terms and conditions is not expressly referred to again in these follow-up orders.
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2. Fulfillment of Orders
2.1. The client can accept offers from the agency to the customer that contain prices within three weeks of receipt. After the deadline, the agency is no longer bound by this offer. If the agency creates a mere cost estimate, this is merely a request for the client to submit an offer to the agency, which requires acceptance by the agency.
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2.2. The scope of the services results from the product/service description made when the order was placed. Additional and/or subsequent changes to the product/service description must be made in writing.
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2.3. Minutes of meetings, which the agency prepares and transmits to the client, are regarded as commercial confirmation letters by the contractual partners. If the client does not object in writing within three working days, the agreements, instructions, orders placed and other declarations of a legal character contained therein shall become binding.
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2.4. 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, remain the property of the agency. There is no obligation to surrender. When creating software, this also applies to the source code and the corresponding documentation.
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3. Engagement of Third Parties
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 been involved in accordance with the contract, in the name and for the account of the client, provided that the agency gives the client the name and address of the third party and the client does not do so within a period of one week in writing.
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3.3. The agency issues orders to advertising media in its own name and for its own account. If volume discounts or volume scales are used, the customer will receive an additional charge if the discount and scale requirements are not met, which is due for payment immediately. In this respect, the client releases the agency from the medium on first request.
3.4. The client can accept offers from the agency to the customer that contain prices within three weeks of receipt. After the deadline, the agency is no longer bound by this offer.
If the agency creates a mere cost estimate, this does not yet constitute a binding offer.
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4. Remuneration for agency services
4.1. Unless otherwise agreed in the individual order, the services provided by the agency are billed on an hourly basis according to the time spent and the current hourly rates of the agency employees involved. Technical costs are charged according to the agency's current cost rates for technical costs. The remuneration for rights of use is set out in Section 6.6 below. until 6.8. regulated.
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4.2. Unless otherwise agreed, the agency is entitled to invoice its services monthly at the end of the month.
4.3. For the services of third parties, which the agency uses to fulfill the contract/order, the agency charges a service fee of a percentage of the net amount of the third party's invoice.
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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) are charged by the agency to the client at cost price.
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4.5. If the client is in default of payment, the agency can demand advance payments for services to be provided in the future.
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5. Terms of Payment
5.1. Agreed prices are net prices to which the applicable VAT is added. Artists' social security contributions, GEMA or other collecting society fees, customs duties and other taxes, including those that arise subsequently, will be passed on to the client.
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5.2. Invoices from the agency are due for payment within 14 days of the invoice date without any deductions. From the due date, the agency is entitled to charge interest on arrears at a rate of 8 percent above the base interest rate.
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5.3. Retention of payments or offsetting against counterclaims are only permitted with claims recognized by the agency or legally established. This does not apply if the client is not a company/entrepreneur i. s.d. § 14 BGB is.
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5.4. The agency retains ownership of all services and rights, in particular copyright rights of use, as well as ownership of files, documents and objects provided until all invoices relating to the order have been paid in full.
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6. Rights of Use; Scope and Compensation
6.1. All copyright and other rights of use to the work results of the agency released and paid for by the client for advertising use are transferred to the client to the extent required by 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 specified by the contracting parties in the order. The transferred rights of use include the authority 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 that goes beyond the above provision requires the agency's separate consent.
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6.2. If the agency uses third parties to fulfill the contract, it will acquire the rights to use their services within the scope of the above regulation 6.1 and accordingly transfer them to the client. If these rights are not available to this extent in individual cases or if their acquisition is only possible with disproportionately high costs, the agency will point this out to the client and proceed according to his instructions. The client bears 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 customer name free of charge as part of its own advertising, even after the end of the contract, in all media including the Internet and in the context 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 are not the subject of the rights granted to the client.
6.5. Not subject to the transfer of rights to the client are services of the agency (concepts, ideas, drafts, etc.) that have been rejected, canceled or not used within six months of delivery. These rights of use remain with the agency, as do the existing property rights.
6.6. The above 6.1. and 6.2. The rights of use mentioned are settled with the payment of the remuneration agreed in the order. The agency shall receive a usage fee for a maximum period of three years and that is
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– for the 1st year in the amount of 5 percent
– for the 2nd year in the amount of 7 percent
– for the 3rd year in the amount of 9 percent
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of the respective customer net viewing volume. With the payment of this fee, the consent of the agency according to the last sentence of 6.1 above is deemed to have been granted.
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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.
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6.7. For the negotiation of buy-outs for the use of third-party work results, the client must pay the agency a service fee of 10 percent of the net usage fee of the respective third party.
6.8. The agency assumes no liability for legal claims by authors for a subsequent increase in remuneration according to § 32, 32a UrhG; The client shall release the agency from such claims upon first request.
7. Warranty
7.1. The client must check the work and services provided by the agency immediately after receipt, but in any case before use, and report defects immediately after discovery. If there is no immediate inspection or notification of defects, the client has no warranty claims with regard to obvious defects, known defects or consequential defects.
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7.2. If there is a defect for which the agency is responsible, it can choose to remedy the defect (repair it) or deliver a replacement. In the case of subsequent improvement, it has the right to two subsequent improvements within a reasonable period of time. Otherwise, the statutory provisions of the law on contracts for work and services in the German Civil Code apply.
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7.3. The agency's warranty obligation expires at the end of one year after receipt of the agency's delivery/service by the client.
8. Limitation of Liability
8.1. Claims for damages, regardless of the reason, are limited to the typical damage that was foreseeable at the time the contract was concluded 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 relate to the violation of such an essential obligation that the achievement of the purpose of the contract is endangered (so-called cardinal obligation). This limitation of liability and the above exclusion of liability do not apply to intentional actions by the agency, to claims arising from a guarantee, to injury to life, limb and health, or to claims arising from the Product Liability Act.
8.2. In the case of placement orders, the agency is not liable for poor performance by the media (advertising media). In these cases, however, it will assign its claims for damages or warranty claims to the customer.
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8.3. Claims for damages against the agency expire one year after the start of the statutory limitation period, notwithstanding the provision of Section 202 of the German Civil Code.
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9. Confidentiality Obligation
The agency and the client hereby mutually undertake to keep secret all information and documents that are accessible or transmitted to them in connection with the conclusion of the contract and that are marked as confidential or are recognizable as business or trade secrets of the respective contractual partner according to the other circumstances and they - unless necessary to achieve the purpose of the contract - neither to record, to save nor to pass on, neither to exploit nor to make 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 paid for such services.
10. Data Protection/Backup
10.1. The client confirms that personal data transmitted to the agency by him or by third parties at his instigation have been collected and processed in accordance with the relevant provisions of data protection, in particular the Federal Data Protection Act, that any necessary consent has been obtained from those affected and that the use of the data by the Agency does not violate any of these provisions within the framework of the order placed or exceed the scope of granted consents.
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 are stored by the agency for the duration of the contract/order, insofar as this is necessary to fulfill the contract is necessary or useful.
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.
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11. Written Form
If these General Terms and Conditions or the order/contract or other contractual documents refer to "in writing" or "written form", the text form can also be used in accordance with Section 126 b of the German Civil Code (e-mail, SMS, fax).
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12. Place of Performance
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12.1. The place of fulfillment 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.
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12.2. The law of the Federal Republic of Germany