Status: June 18, 2018
1. General, conclusion of contract
The following General Terms and Conditions (GTC) are an integral part of all contracts in the fields of public relations, communications and marketing consulting, events, training, coaching, advertising design, advertising planning and advertising materials, between Frieg und Hummel GbR, die kommunikatöre, Barfüßertor 25, 35037 Marburg, Germany, owners Sabine Frieg and Tobias Hummel and the client. These contractual terms and conditions are intended to form the basis for good cooperation in the artistic, creative and productive areas for the communications agency and the client.
1.1 Our General Terms and Conditions apply exclusively; we do not recognize any terms and conditions of the Client that conflict with or deviate from our General Terms and Conditions unless we have expressly agreed to their validity in writing. Our General Terms and Conditions shall also apply if we provide the service to the client without reservation in the knowledge that the client's terms and conditions conflict with or deviate from our General Terms and Conditions. All agreements made between us and the client for the purpose of executing this contract are set out in writing in this contract. Deviating agreements must be made in writing. Misprints and errors excepted.
1.2 These terms and conditions shall also apply to all future business relationships with the client, even if they are not expressly agreed again.
1.3 Should individual provisions of the contract be amended in writing, this shall not affect the validity of the remaining provisions.
1.4 Our offers are subject to change.
1.5 Unless otherwise stated, offers are valid for six weeks.
2. Copyright and rights of use
2.1 Copyright is not transferable. The copyright of a work remains with the person who created it. Only the rights of use can be transferred. For this purpose, the Agency, as the holder of the rights of use, shall grant the Client exclusive rights of exploitation or use.
2.2 The work, including that from presentations and attachments to offers (e.g. suggestions, sketches, ideas, scribbles, final artwork, concepts, texts, collages, slides, negatives), including individual parts thereof, shall remain the property of the Agency, as shall the individual workpieces and design originals. These works may be reclaimed by the agency at any time, in particular upon termination of the agency contract. The passing on of presentation documents to third parties and their publication, duplication, distribution or other utilization is not permitted without the express consent of the Agency. This shall apply even if the agency service provided is not eligible for copyright protection or is not the subject of other special property rights. If the client culpably violates the above provisions, it shall pay the agency a reasonable license fee of at least 15 % of the media placement volume which the client places or has placed with advertising media based on the agency service provided. This is already the case if an unbiased third party can recognize the characteristics of the agency service provided in the advertising material placed.
2.3 In particular, presentation documents may not be passed on if they contain a corresponding note stating that they are to be treated confidentially and may not be passed on to third parties. A violation of this provision may even be punishable as piracy in accordance with 18 UWG.
2.4 The work, including the copyright designation, may not be altered either in the original or in reproduction without the consent of the Communications Agency. Any imitation, even of parts of the work, is not permitted.
2.5 The work of the Communications Agency may only be used for the agreed type of use and the agreed purpose in the agreed scope and area. In the absence of an express agreement, the purpose of the contract is deemed to be only the purpose stated by the client when the order was placed. The client/user shall acquire the right to use the work within the agreed scope upon payment of the fee.
2.6 Repeat use (subsequent edition) or multiple use (e.g. for another product) is subject to a fee; this requires the consent of the communications agency.
2.7 The transfer of granted rights of use to third parties requires the consent of the Communications Agency. The Communications Agency is entitled to information about the scope of use. Rights of use to work that has not yet been paid for at the end of the contract or, in the case of billing on a commission basis, has not yet been published, remain with the Communications Agency unless otherwise agreed.
2.8 The Communications Agency may sign the advertising material it has developed in small print or in another appropriate manner and use it for its own advertising.
2.9 Any printing materials required directly for duplication (e.g. printing plates, printing blocks, die-cutters) remain the property of the duplicator, even if they are invoiced separately. Printing materials that are required indirectly for reproduction (e.g. litho work such as working films and data, illustrations, negatives or positives from photography and film orders, embossing plates) remain the property of the communications agency. There is no obligation to surrender or store them. Property rights shall only be transferred on the basis of a special agreement, for which separate remuneration shall be agreed.
3. Commissioning of third parties
3.1 If, in individual cases, we do not commission a third party (e.g. lithographic company, printing company, advertising material supplier) in the name and on behalf of the client, we shall do so as commission agent in our own name, but for the account of the client.
3.2 If we procure the right to use a photograph for an order, we shall ensure that the photographer and the models photographed grant the client a right of use customary in the industry, unless otherwise agreed. Customary in the industry is one year, geographically limited to Germany and factually limited for the type and purpose of use specified in sections 2.4-5.
4. Fee and terms of payment
4.1 Unless otherwise agreed, the Agency's fee claim for each individual service shall commence as soon as it has been rendered. The Agency shall be entitled to demand advance payments to cover its expenses: One third of the order amount when the order is placed, one third of the order amount at the start of production, one third of the order amount at the end of the project.
4.2 The offer prices are only valid for an undivided order. All prices are exclusive of any delivery costs. Work resulting from changes to the specifications shall be charged additionally in accordance with the work involved and as agreed with the client.
4.3 If the Agency is commissioned to carry out work, including a presentation, the Client hereby acknowledges that the work is to be remunerated appropriately. If no fee has been agreed, the hourly rates customary in the industry for communications agencies shall apply. Under no circumstances can the agency work without obligation and free of charge; this also applies to travel expenses, which, unless otherwise agreed, will be invoiced separately and at the rates recognized for tax purposes. Even the non-utilization of the work submitted or advice provided does not release the client from the obligation to pay the standard industry fee.
4.4 All invoices from us must be paid within 14 days of receipt. Deductions of any kind are excluded. Advance payments do not bear interest. Fees are net amounts which are to be paid plus VAT.
4.5 In the event of late payment, the Agency shall be entitled to charge interest on arrears at the statutory rate, without prejudice to further claims.
4.6 In the case of scheduled services such as seminars, coaching, workshops, 50% of the fee and 100% of the non-cancellable third-party services, e.g. hotel accommodation, shall be due for payment in the event of cancellation or postponement up to four weeks before the booked date. Cancellations or postponements less than four weeks before the booked date shall be subject to payment of 100% of the fee and 100% of the non-cancellable third-party services, e.g. hotel accommodation.
5. Obligation to maintain confidentiality
5.1 The communicators, their employees and any vicarious agents engaged undertake to maintain confidentiality about all matters of which they become aware in connection with their work for the client. This confidentiality obligation applies both to the client and to the client's business relationships and must be in writing if requested.
5.2 Only the Client itself, but not its vicarious agents, may be released from this duty of confidentiality.
5.3 The Contractor may only provide third parties with any written statement about the results of its activities with the consent of the Client.
5.4 The duty of confidentiality of the Contractor, its employees and vicarious agents shall also apply for the period after completion of the order. Exceptions to this are cases in which there is a legal obligation to provide information.
5.5 The contractor is authorized to process personal data entrusted to it or to have it processed by third parties within the scope of the purpose of the consulting contract. In accordance with the provisions of the Data Protection Act, kommunikatöre shall guarantee the obligation to maintain data secrecy.
5.6 Unless otherwise agreed, any material provided to the contractor by the client shall be returned to the client.
6. Approval and warranty
6.1 All services provided by the Agency must be checked by the Client and defects must be reported immediately. If, despite careful inspection, defects only become apparent later, they must be reported immediately. In any case, notices of defects must be received by the Agency in writing no later than seven days after discovery of the defect or the end of the event. In principle, the customer can only demand an appropriate rectification of defects or a corresponding reduction in payment as a warranty.
7. Production and order placement
7.1 For technical production reasons, there may be an over- or under-delivery of 10%.
7.2 The over/under-delivery referred to in 6.1 shall be deemed to have been approved unless a written objection is made when the order is placed.
7.3 In the case of color reproductions in all printing processes, deviations from the original or a submitted proof, color printout or press proof cannot be objected to.
7.4 Orders will only be accepted in writing. No responsibility is accepted for the correctness of orders not placed in writing.
7.5 If there are several versions or editions to choose from, the corresponding alternative must be clearly marked when the order is placed in writing.
8. Deadlines
8.1 The Agency shall endeavor to meet the agreed deadlines. However, failure to meet the deadlines shall only entitle the customer to assert the rights to which he is legally entitled if he has granted the agency a grace period of at least 14 days. This period shall commence upon receipt of a reminder letter to the Agency. An obligation to pay compensation for damages due to delay shall only exist in the event of intent or gross negligence on the part of the Agency, its legal representatives or its vicarious agents.
9. Liability
9.1 The Agency shall provide the services to be rendered by it with the diligence of a prudent businessman in the advertising and communications industry.
9.2 After approval by the Client, the Agency shall be released from any responsibility for the correctness, admissibility under competition and trademark law and harmlessness of the documents submitted. The client shall be solely responsible for the content of websites, multimedia presentations and artwork, for example. The legal examination of all work is the responsibility of the client. The communications agency accepts no liability whatsoever for any errors or misrepresentations made by the client. The Agency is not liable for the copyright, patent, utility model, trademark, design or other legal protectability of the services it provides.
9.3 Any liability on the part of the agency for claims made against the client as a result of the advertising measure (the use of a trademark) is expressly excluded if the agency has fulfilled its duty of disclosure; in particular, the agency is not liable for legal costs, the client's own legal fees or the costs of publishing a judgment, or for any claims for damages or similar claims by third parties. In the event that a claim is made against the agency itself due to the implementation of an advertising measure (the use of a trademark), the customer shall indemnify and hold the communications agency harmless: the customer must therefore compensate the agency for all financial and other disadvantages, including immaterial damages, incurred by the agency as a result of a claim by a third party.
9.4 Insofar as damages are not caused intentionally or through gross negligence on the part of the Agency, liability is limited to 10% of the agreed Agency fee.
9.5 If gross negligence on the part of the Agency is proven, liability shall be limited to the amount of the Agency fee.
9.6 The limitation of liability shall apply to the same extent to the Agency's vicarious agents.
9.7 The goods shall be dispatched by the most favorable route according to the agency's judgment and at the client's risk. Transport damage shall not entitle the client to withhold payment. Transport damage must be reported to the Agency immediately.
10. Data protection
10.1 The Agency shall comply with the relevant statutory provisions, in particular the General Data Protection Regulation (GDPR), with regard to the Client's personal data.
10.2 The Agency shall collect, store, process and use the Client's personal data if, to the extent and for as long as this is necessary for the establishment, performance or termination of this contract.
Any further collection, storage, processing and use of the Client's personal data shall only take place if this is required or permitted by law or if the Client has consented to this.
10.3 The client is aware that the collection, processing and use of the client's name, consumer or entrepreneurial status, address, date of birth and bank details, among other things, are necessary for the implementation of pre-contractual measures and the fulfillment of this contract on the basis of Art. 6 para. 1 lit. b) GDPR.
10.4 The Agency shall be entitled - to the extent permitted by law - to examine the risk of payment defaults on the part of the Client for the purpose of deciding on the establishment, execution or termination of the purchase contract.
In this respect, probability values for the future behavior of the client are collected and processed. The client's address data is also used to calculate these probability values.
The agency will use the services of credit agencies, such as SCHUFA Holding AG (Wiesbaden), or other third parties for the check and for this purpose transmit the client's data to them or request it from them.
The collection, processing and use of data for this purpose is based on Art. 6 para. 1 lit. b) GDPR.
10.5 In particular, the Agency is entitled to transmit the Client's data to third parties if and insofar as this is necessary to carry out pre-contractual measures and fulfill this contract (e.g. for shipping, assembly, installation, invoicing or customer service) in accordance with Art. 6 para. 1 lit. b) GDPR or in any other way to fulfill a legal obligation within the meaning of Art. 6 para. 1 lit. c) GDPR. The Agency may also forward this data - to the extent permitted by law - to third parties (e.g. debt collection companies) for the purpose of debt enforcement in accordance with Art. 6 para. 1 lit. b) and/or f) GDPR.
10.6 Upon request, the Agency shall provide the Client with information free of charge about the stored personal data relating to the Client, subject to the statutory requirements. Subject to the statutory requirements, the client has the right to demand the correction, deletion, restriction of processing or transfer of his data to a third party. The client also has the right to lodge a complaint with a supervisory authority.
10.7 The Client may object to any use of its personal data (I) for the necessary performance of a task carried out in the public interest or in the exercise of official authority vested in the Agency or (II) for the necessary protection of the legitimate interests of the Agency or a third party - as may be the case under Section 5 above - in accordance with Art. 21 (1) GDPR at any time by sending an informal notification to the Agency. If the Agency cannot demonstrate any overriding compelling legitimate grounds for the use, the Agency will no longer use the data concerned for these purposes after receiving the objection.
The client may also object to any use of their personal data for direct marketing purposes in accordance with Art. 21 (2) GDPR at any time free of charge by sending an informal notification to the agency. After receiving the objection, the agency will no longer use the data concerned for these purposes.
10.8 The controller for all data protection-related questions and for the exercise of the rights described in sections 10.6 and 10.7 is
RPA Datenschutz+Compliance GmbH, Hauser Gasse 19b, 35578 Wetzlar
Telephone: 06441/67100-0, datenschutz@diekommunikatoere.de
11. Final provisions
11.1 The place of performance and jurisdiction for all disputes shall be the registered office of the Agency. The contractual relationship is subject to German law.
die kommunikatöre
Frieg und Hummel GbR
Barfüßertor 25, 35037 Marburg
Management:
Sabine Frieg, Tobias Hummel
T 06421.304801 0
F 06421.30480 19
kontakt@diekommunikatoere.de
www.diekommunikatoere.de
VAT ID No. DE 81 45 03 723