General Terms and Conditions of Business of klardenker GmbH


1. Object of the contract

1.1.

The following General Terms and Conditions apply to all legal transactions of klardenker GmbH, hereinafter referred to as the "Agency", with its contractual partners, hereinafter referred to as the "Customer". Terms and conditions of the customer deviating from these terms and conditions shall only be accepted by the agency after separate and written acceptance.

1.2.

All agreements made between the agency and the customer for the purpose of executing an order are to be agreed in writing. Amendments, supplements and subsidiary agreements must be made in writing in order to be effective.

1.3.

These terms and conditions shall also apply to all future business relations with the customer, even if they are not expressly agreed again.

1.4.

The Agency shall provide services in the field of live marketing and the implementation of all services remotely known to it.  The detailed description of the services to be provided can be found in the tender documents, briefings, project contracts, their annexes and service descriptions of the Agency.


2. Contract components and amendments to the contract

2.1.

In addition to the project contract and its annexes, the basis for the agency's work and an integral part of the contract shall be the briefing to be handed over by the client to the agency. If the client communicates the briefing to the Agency verbally or by telephone, the Agency shall prepare a re-briefing on the content of the briefing, which shall be handed over to the client within 5 working days of the verbal or telephone communication.  This re-briefing becomes a binding part of the contract if the customer does not object to this re-briefing within 5 working days.

2.2.

Any amendment and/or addition to the contract and/or its components must be made in writing. Any additional costs incurred as a result shall be borne by the customer.

2.3.

Events of force majeure entitle the Agency to postpone the project commissioned by the customer for the duration of the hindrance and a reasonable start-up period. A claim for damages by the customer against the agency does not result from this. This shall also apply if important deadlines and/or events for the customer cannot be met and/or do not occur as a result.


3. Copyrights and rights of use

3.1.

Upon full payment of the agreed fee for the contractually agreed duration and to the contractually agreed extent, the client acquires the rights of use to all work produced by the agency within the scope of this order. This transfer of the rights of use shall apply insofar as a transfer is possible under German law and shall apply to the agreed use within the territory of the Federal Republic of Germany. Uses beyond this area require a written agreement within the scope of the order or a separate written collateral agreement. Rights of use to work which has not yet been paid for upon termination of the contract shall remain with the Agency unless otherwise agreed.

3.2.

The services provided within the scope of the order are protected as personal intellectual creations by copyright law. This provision shall also be deemed to have been agreed if the level of creation required under the Copyright Act has not been reached.

3.3.

The Agency may sign the advertising material developed by it appropriately and in accordance with the customary practice in the industry and publish the order placed for self-advertising. This signing and promotional use can be excluded by a separate agreement between the agency and the customer.

3.4.

The Agency's work may not be altered by the Client or by third parties commissioned by the Client either in the original or in reproduction. Any imitation, even of parts of the work, is not permitted. In the event of non-compliance, the Agency shall be entitled to an additional fee from the Client of at least 2.5 times the originally agreed fee.

3.5.

The transfer of granted rights of use to third parties and/or multiple uses are subject to a fee, unless regulated in the initial order, and require the consent of the Agency.

3.6.

The Agency is entitled to information on the scope of use.


4. Remuneration

4.1.

The remuneration agreed in the contract shall apply. Unless otherwise stipulated in the contract, payments are due within 14 days of invoicing without any deduction. If the payment dates are exceeded, the Agency shall be entitled to interest on arrears at a rate of 10% above the base rate according to § 1 of the Discount Rate Transition Act without further reminder. The right to claim further damages remains unaffected by this provision.

4.2.

If the agreed services are to be provided over a longer period of time, the Agency shall be entitled to invoice the Client for partial payments for the partial services already provided. These partial services do not have to be available in a form that can be used by the customer and may also be available as a pure work basis on the part of the Agency.

4.3.

In the event of changes or termination of orders, work and the like by the Client and/or if the conditions for the provision of services change, the Agency shall be reimbursed for all costs incurred thereby and the Agency shall be released from any obligations towards third parties.

4.4.

If the customer withdraws from an order before the start of the project, the Agency shall charge the customer the following percentages of the originally contractually agreed fee as a cancellation fee: up to six months before the start of the order 10%, from six months to three months before the start of the order 25%, from three months to four weeks before the start of the order 50%, from four weeks to two weeks before the start of the order 80%, from two weeks before the start of the order 100%.

4.5.

All prices quoted in offers and orders and the resulting amounts to be paid shall be exclusive of the statutory value added tax at the applicable rate.


5. additional services

5.1.

Unpredictable additional expenses require mutual agreement and, if necessary, subsequent payment.


6. confidentiality obligation of the agency

6.1. 

The Agency shall be obliged to treat all knowledge it receives from the Client on the basis of an order as strictly confidential for an unlimited period of time and to likewise obligate both its employees and third parties engaged by it to maintain absolute secrecy in the same manner.


7. obligations of the customer

7.1.

The Client shall provide the Agency free of charge with all data and documents required for the implementation of the project. All working documents shall be handled carefully by the Agency, protected from access by third parties, used only for the preparation of the respective order and shall be returned to the Client upon completion of the order.

7.2.

In connection with a commissioned project, the customer shall only award contracts to other agencies or service providers after consultation and agreement with the agency.


8. guarantee and liability of the agency

8.1.

The risk of the legal admissibility of the measures developed and implemented by the Agency shall be borne by the Client. This applies in particular in the event that the actions and measures violate regulations of competition law, copyright law and special advertising laws. However, the Agency is obliged to point out legal risks if they become known to it in the course of its activities. The client indemnifies the agency from claims by third parties if the agency has acted at the express request of the client, although it has informed the client of concerns regarding the admissibility of the measures. The notification of such concerns by the Agency to the Client must be made in writing immediately after becoming known. If the Agency considers a competition law examination by a particularly competent person or institution to be necessary for a measure to be carried out, the costs for this shall be borne by the customer after consultation with the Agency.

8.2.

The agency is in no case liable because of the factual statements contained in the advertising measures about products and services of the customer. The agency is also not liable for the patent, copyright and trademark protection or registrability of the ideas, suggestions, suggestions, concepts and drafts delivered within the scope of the order.

8.3.

The Agency shall only be liable for damages which it or its vicarious agents have caused intentionally or through gross negligence. The Agency's liability shall be limited to the amount of the Agency's one-off income resulting from the respective order. The Agency's liability for consequential harm caused by a defect on the legal grounds of a positive breach of contract shall be excluded if and to the extent that the Agency's liability does not result from a breach of duties essential for the fulfilment of the purpose of the contract.


9. collecting societies

9.1.

The customer undertakes to pay any fees to collecting societies such as Gema. If these fees are paid by the agency, the customer undertakes to reimburse them to the agency against proof. This can also be done after termination of the contractual relationship.

9.2.

The customer is informed that when awarding a contract in the artistic, conceptual and advertising consulting area to a non-legal person, an artist's social security contribution must be paid to the artist's social insurance fund. This contribution may not be deducted by the customer from the agency invoice. The customer is responsible for compliance with the registration and contribution obligations.


10. third party services

10.1.

Freelancers or third parties engaged by the Agency are vicarious agents of the Agency. The customer undertakes not to commission these employees directly or indirectly with projects in the course of the 12 months following the completion of the order without the Agency's involvement.


11. working documents and electronic data

11.1.

All working documents, electronic data and records made by the Agency in the course of the preparation of the order shall remain with the Agency. The client may not demand the surrender of these documents and data. With the payment of the agreed fee, the Agency owes the agreed service, but not the intermediate steps leading to this result in the form of sketches, drafts, production data, etc., to the client.


12. media planning and media implementation

12.1.

The Agency shall procure commissioned projects in the field of media planning to the best of its knowledge and belief on the basis of the media documents and generally accessible market research data available to it. The Agency does not owe the Client any specific advertising success as a result of these services.

12.2.

The Agency undertakes to take into account all privileges, special conditions and discounts in the sense of the Client in the media placement and to pass these on to the Client.

12.3.

In the case of extensive media services, the Agency is entitled, after consultation, to invoice the Customer for a certain proportion of the external costs and to make the booking with the relevant media only after receipt of payment. The Agency shall not be liable for any possible non-compliance with a switching date due to delayed receipt of payment. A claim for damages by the customer against the agency does not arise thereby.


13. contract duration, notice periods

13.1.

The contract enters into force with its signature. It shall be concluded for the term specified in the contract. If the contract is concluded for an indefinite period, it can be terminated by either party at the end of the month with a period of notice of three months.


14. disputes

14.1.

If a dispute regarding the commissioned project arises during or after the completion of an order, an out-of-court mediation procedure shall be conducted prior to the initiation of legal proceedings. In the event of disputes regarding quality assessment or the amount of the fee, external expert opinions shall be prepared in order to reach an out-of-court settlement as far as possible. The costs for this are shared by the client and the agency.


15. final provisions

15.1.

The customer is not entitled to assign claims arising from the contract.    

15.2.

A set-off or the assertion of a right of retention by the customer is only permissible with recognized or legally established counterclaims.

15.3.

The law of the Federal Republic of Germany shall apply. Place of performance and jurisdiction is *register place of jurisdiction*.

15.4.

Should any provision of these General Terms and Conditions be wholly or partially invalid or lose its legal validity at a later date, the validity of the remaining provisions shall not be affected thereby. Instead of the ineffective provision, another appropriate provision shall apply by way of contract adjustment which comes closest in economic terms to what the contracting parties would have wanted if they had been aware of the ineffectiveness of the provision.

 

General Terms and Conditions of Business of klardenker GmbH

25.05.2016, Cologne, Germany