General Terms and Conditions
I. Subject matter and scope
The following General Terms and Conditions (GTC) apply to all transactions of the agency "brandLOVERS GmbH und Co. KG", hereinafter referred to in shorthand as the "Agency", with their contractual partners, hereinafter referred to in shorthand as the "Customer" or “Customers”, in particular relating to services and/or works in the fields of advertising, design and communications. The exact nature and details of the services and works shall be established as part of the concept, offer, and proposed measures or individual tasks developed by the Agency.
These terms and conditions are an integral part of each contract concluded between these parties, unless explicitly agreed otherwise. They also apply to all future business relationships with the Customer, without requiring their inclusion to be explicitly renewed.
Differing terms and conditions of the Customer, as well as any amendments or additions to these Terms and Conditions, are only valid if they are accepted in writing by the Agency. This also applies even if the Customer's terms and conditions of business and/or of delivery are not explicitly rejected.
If no order is placed as the result of a presentation, then all services, especially the presentation materials and the designs, works, ideas, etc. contained therein, remain the property of the Agency. The Customer is not entitled to utilise, edit, or use this material as a basis for producing their own material, in any form. If the Customer does not place an order, the Customer must immediately return all documents relating to the presentation that are still in his possession to the Agency.
If no order is placed, the Agency is entitled to use the presented ideas, works, designs, etc. in the context of other projects and in service of other customers.
The disclosure of presentation materials and services to third parties, including their publication, duplication, distribution or other utilization by the Customer or his authorized representative, shall incur an obligation for the Customer to pay a fee of an amount equal to the value of the service in question. This value shall be determined based on the offer made by the Agency, or if such an offer does not yet exist, shall be chosen to reflect typical market conditions.
III. Estimates, remuneration
Unless expressly agreed otherwise, the remuneration of the Agency shall be determined on the basis of hourly rates according to actual expenses. Estimates and calculations are not binding; the Customer shall be notified in the event that preliminary cost estimates are exceeded by more than 10%.
The Agency has the right to claim remuneration for services even if these services were not previously included in a cost estimate provided by the Agency. Any other agreements regarding payment settlements that differ from these terms must be made in writing (email is not sufficient). If the Customer concludes a written agreement with the Agency stating that a cost estimate must be approved prior to the execution of any services, any such cost estimate shall be considered to have been approved after 7 business days unless the Customer explicitly expresses written objections to the content of the estimate.
IV. Third-party costs
Third-party and incidental expenses such as the hiring of photographers, stylists, designers, etc., and also telephone, fax, courier, travel expenses, etc. shall be billed separately with proof, unless other arrangements are explicitly made. The Agency shall also be authorised to hire all third-party services necessary for the fulfilment of the order in the Customer's name and billable to the Customer's account.
V. Loyalty commitment
The Agency shall commit to providing objective consultancy to the Customer in service of the Customer's goals, and the selection of third-party companies, e.g. for production processes, shall be performed correspondingly. If the Customer does not expressly reserve the right to a say in the selection of third parties, this selection shall proceed according to the principle of a balance between economic efficiency and the best possible results in line with the Customer's wishes.
The Agency shall be obliged to maintain the confidentiality of any and all business secrets of which it receives knowledge during cooperation with the customer.
VI. Copyright and rights of use, ownership, contractual penalties
All drafts, drawings, artwork, concepts, ideas, etc. produced by the Agency shall be considered as copyrighted works in the sense of § 2 of the Copyright Act (UrhG), even if they are not listed in § 2 of the Copyright Act. Therefore, all services of the Agency may not be used, edited or altered without the consent of the Agency. Any imitation, even partial, of drafts, drawings, artworks, concepts, ideas, etc. is not authorized. If the Customer violates these provisions, the Customer shall be liable for the immediate payment of a penalty to the Agency in an amount equal to the originally agreed fee.
In the event of a transfer of rights, the spatial, temporal and substantive scope of these rights shall depend solely on contractual agreements concluded between the parties and/or the purpose of any such contractual agreements; § 31 paragraph 5 of the Copyright Act shall apply accordingly. The transfer of rights to the Customer shall only occur once full payment of the total order has been made. The transfer of previously granted rights of use to third parties and/or for multiple uses shall, unless otherwise agreed in the original contract, be subject to copyright fees and shall require the consent of the Agency.
The Agency shall have a right to information regarding the extent of the utilisation of these rights.
In publications, the Agency shall be named as the author, as is conventional.
The Agency shall be entitled to include a reasonable and customary signature in any advertising material developed by the Agency, and shall be entitled to publish the Customer's order for purposes of self-promotion.
The ownership of the results of work performed by the Agency shall only be transferred to the Customer once the payment of the order is settled in full.
VII. Copyright collectives and Artists' Social Security Contributions
The Customer shall be obliged to comply with any pre-existing claims of copyright collectives. If these claims are made on behalf of the Agency, the Customer shall be obliged to reimburse the Agency for any relevant expenditure. The Customer should be aware that when awarding contracts for artistic or conceptual services or services in advertising consultancy to non-legal persons, the Künstlersozialabgabe (Artists' Social Security Contribution) is payable to the Künstlersozialkasse (Artists' Social Welfare Fund). This contribution may not be charged to or deducted from the Agency's account by the Customer.
VIII. Obligation of contact and meeting reports; Releases
The Agency shall commit to creating a written contact report for each meeting with the client within three working days of the meeting. The content of the report is binding for both parties of the contract, unless the Customer expresses an objection within three working days of its receipt.
The principle person of contact designated by the Customer to the Agency must be authorised to sign, in particular for the approval of budgets, cost estimates, texts and other decision procedures. The Customer must be informed in a timely manner of limitations to the person of contact's authority to sign.
The Agency shall commit to informing the Customer about possible conflicts of interest in providing services to other entities in competition with the Customer, and upon request an agreement of non-competition may be reached for individual product and service areas in the interest of the Customer. If the Agency agrees to a non-competition agreement, the Customer shall equally be subject to the obligation not to hire the services of other advertising agencies for purposes of consultancy, planning, design or implementation of the contractual project, so long as the contract in question with the Agency remains valid.
X. Invoices, Offsetting
The Agency shall be entitled to charge the customer for partial payments for previously rendered partial services, even if these partial services are not provided in a form that is exploitable by the Customer.
If the Customer terminates the contractual relationship after placing the order but before project completion, the Customer shall be obliged to pay the agreed remuneration. Any expenses avoided by the Agency due to the non-completion or termination of the project shall be deducted from this remuneration.
All agreed amounts should be interpreted as excluding VAT contributions.
Invoices are payable immediately upon receipt without discount. Invoices addressed to companies shall incur interest at 9 % above the base rate of interest, beginning 14 days after the date of invoice.
Offsetting with counterclaims or the assertion of withholding rights shall only be permitted if the Customer's claims are undisputed or legally established.
XI. Liability and Shipping
The Agency shall only be liable to the Client for damage in the event of intent or gross negligence. This does not apply to damages resulting from bodily injury, or injury to life or health, or from the breach of the primary terms and conditions of the contract.
It shall not be the duty of the Agency to examine legal issues, particularly in the fields of copyright, competition and trademark law. Therefore, the Agency shall not be liable for the legal admissibility of content and/or of the results of services provided. Neither shall the Agency be liable for factual statements contained in the advertisement regarding products or services provided by the Customer.
If the Agency is the object of an injunction, claims for damages, etc. due to the design and/or content of the results of service provided, the Customer shall indemnify the Agency.
The dispatch of documents is performed at the Customer's own risk. This shall also apply even if the documents are dispatched on site, or if the delivery is carried out by employees or vehicles of the Agency. The Agency is entitled, but not obliged, to insure deliveries in the name of the Customer and on the Customer's account.
XII. Final provisions
The place of fulfilment for delivery and payment and the jurisdiction for all disputes between the parties shall be Hamburg if the Customer is a merchant, legal person under public law, or a special fund under public law. The above-cited court of jurisdiction shall also apply for persons other than those listed if the Customer has no general jurisdiction in Germany, if the residence and/or business domicile of the Customer is relocated abroad after the conclusion of the contract, or if the residence and/or business domicile or place of habitual residence of the Customer is unknown at the time of legal action.
If any single provision of this contract is invalid, the validity of the remaining provisions shall not be affected. Any ineffective provision shall if possible be replaced by a provision that reflects the original intent as closely as possible. Unless otherwise agreed, German law shall apply to contractual relationships with foreign Customers.