1 General
1.1 The following General Terms and Conditions shall apply exclusively to all offers and services for the advertising agency KRAFTJUNGS GmbH (hereinafter referred to as “Agency”).
Conflicting general terms and conditions or deviating terms and conditions of the customer shall not be recognised unless the Agency has agreed to their validity in writing.
1.2 These terms and conditions shall also apply to all future business with the Client, even if they are not expressly agreed repeatedly.
2 Use, copyright and proprietary rights
2.1 Any use, including partial use, of documents and materials produced by the Agency, works and services (presentations) presented or handed over with the aim of concluding a contract – whether or not they are protected by copyright – shall require the prior consent of the Agency.
This shall also apply to the use in modified or edited form as well as to the use of the ideas and concepts underlying the Agency’s work and services, insofar as these have not been used in the Client’s previous documents, papers and materials. The payment of a fee for presentations or consultations shall not constitute consent by the Agency to the use of the work and services.
2.2 Copyright and ownership rights to the work, concepts, templates, files, documents, materials and other working materials (in particular negatives, models, original illustrations, etc.) submitted by the Agency in the context of a presentation shall be the intellectual property of the Agency. The copyright and ownership rights in accordance with Item 9 shall only pass to the Client if the Client has acquired the rights from the Agency by means of express written consent.
3 Offer, scope of services, processing of orders
3.1 Unless expressly stated otherwise, the Agency’s offers shall be subject to change and non-binding.
3.2 A contract with the Client shall not be concluded until the Agency accepts the order in writing by issuing an order confirmation or by executing the delivery or service. The Agency’s acceptance period shall be 4 (four) weeks from receipt of the order.
3.3 The scope of the services shall be determined by the current product/service description at the time the contract is concluded. Additional and / or subsequent changes to the product / service descriptions shall require written form.
3.4 Reviews under competition law shall only be the responsibility of the Agency if this has been expressly agreed (in writing).
3.5 Templates and drafts provided by the Agency shall only be binding in terms of colour, image, line or sound design if their corresponding possibility of realisation has been confirmed in writing by the Agency.
4 Placing of orders with third parties, discounts
4.1 The Agency shall be entitled to carry out the work assigned to it itself or to commission third parties to do so.
4.2 Orders for the production of advertising material in the creation of which the Agency has participated in accordance with the contract shall be made in the name and for the account of the Client. The Agency shall be free to place the orders with third parties in its own name and for its own account. In such cases, the costs shall be passed on to the Client.
4.3 The Agency shall not be liable for defective performance of the advertising media. However, in the event of defective performance, the Agency undertakes to assign its warranty claims against the advertising medium to the Client as compensation for the exclusion of warranty.
5 Delivery, delivery periods, transfer of risk (*For changes, see clause 19)
5.1 Unless otherwise agreed, the delivery times stated by the Agency shall be approximate only – the Agency shall comply with them as far as possible. Delivery periods shall commence on the date of the order confirmation, but not before all performance prerequisites to be created by the Client have been met, in particular not before the Client has duly fulfilled any obligations to cooperate (e.g. procurement of documents and materials, approvals, provision of information, preparation of service catalogues / specifications) and before receipt of a payment which is due as agreed either before delivery or defined with a payment term of 14 days and the dates have been confirmed in writing by the Agency.
5.2 The Agency’s delivery obligations shall be deemed to have been fulfilled as soon as the Agency has notified the Client that the work and services are ready for dispatch or collection.
5.3 If the Agency exceeds the delivery deadline for reasons for which the Agency is responsible, the Agency shall be in default of delivery if, after the expiry of the delivery deadline, the Agency receives a written request from the Client to deliver within a period of at least three weeks and the Agency allows this period to elapse. In this case, the Client shall be entitled to demand a lump-sum compensation for delay amounting to 0.2% of the delivery value for each full week of delay, up to a maximum of 5% of the delivery value in total. Further claims of the principal are excluded, unless one of the exceptional circumstances according to section 14 paragraphs (2) and (3) applies or a specific delivery period has been bindingly agreed as the main obligation in the individual case.
5.4 If, after the Agency has already defaulted, the Client sets the Agency a reasonable deadline for performance or subsequent performance, which must be at least 4 (four) weeks, the Client shall be entitled to withdraw from the contract after the fruitless expiry of this deadline if the Agency is responsible for this. The setting of a deadline shall be dispensable under the statutory conditions of Section 323 (2) of the German Civil Code (BGB).
5.5 At the Agency’s request, the Client shall be obliged to declare within a reasonable period of time whether it wishes to withdraw from the contract or demand damages in lieu of performance or insist on performance.
5.6 If disruptions of the kind described in Item 5.8 are not only of a temporary nature, but make the Agency’s performance permanently impossible, the Agency shall be entitled to withdraw from the contract in whole or in part. Claims for damages by the Client due to such withdrawal shall be excluded.
5.7 The delivery period shall be extended in the event of unforeseen hindrances beyond the Agency’s control, insofar as such hindrances can be shown to have a significant influence on the delivery of the delivery item. The delivery period shall be extended in accordance with the duration of such measures and obstacles. The Agency shall notify the Client of the beginning and end of such obstacles as soon as possible.
5.8 Deliveries shall be made free works. They do not include packaging, freight, postage, insurance and other shipping costs. These costs shall be invoiced separately to the Client.
5.9 If the Client is in default with the acceptance of the service or if the Client fails to cooperate or delays cooperation incumbent upon him, the Agency may invoice the loss of service incurred in accordance with the applicable hourly rates / costs incurred by third-party service providers 5.10 The risk of destruction and in particular the risk of transmission (e.g. damage, loss, delay), regardless of the medium used for transmission, shall be borne by the Client.
6. default of acceptance
6.1 If the Client refuses acceptance after expiry of a reasonable period of grace of at least 2 (two) weeks set for it or expressly declares in advance that it does not wish to accept, the Agency may withdraw from the contract and claim damages in lieu of performance.
6.2 In the event of default in acceptance of more than two weeks, the Agency shall be entitled to demand lump-sum compensation for default for each full week of default. The Client shall have the right to prove lower damages, the Agency shall have the right to prove higher damages.
7. terms of payment, default in payment (*for changes see clause 19)
7.1 Agreed prices are net prices, to which the respectively applicable value added tax must be added.
7.2 In the case of advertising media, the list prices of the advertising media valid on the day of publication shall be binding.
7.3 Invoices from the Agency shall be due for payment without any deductions in accordance with the payment deadlines stated on the invoices.
7.4 For each direct debit not honoured or returned, the Client shall reimburse the Agency in full for the costs incurred. If the Client has granted direct debit authorisation, the Client undertakes to inform the Agency immediately of any change in its bank details.
7.5 In the case of projects lasting longer, the Agency reserves the right to issue partial invoices – these shall be used to delimit the services rendered to date.
7.6 In the case of continuing obligations, the Agency reserves the right to change prices, which shall be announced with reasonable notice.
7.7 Objections to invoices for remuneration vis-à-vis the Agency shall be raised immediately upon receipt of the invoice, but no later than 2 (two) weeks after the date of the invoice, without this affecting the due date. Failure to raise objections in due time shall be deemed to constitute approval.
7.8 In the event of default in payment of a not inconsiderable part of the invoice amount or if the payment claim against the Agency is at risk, if it becomes apparent after conclusion of the contract that a claim to counter-performance is at risk due to the other party’s lack of ability to perform within the meaning of §321 of the German Civil Code (BGB), the Agency shall be entitled to declare all claims immediately due and payable.
7.9 In the event of default in payment, interest on arrears shall be payable at a rate of 8 percentage points above the respective base interest rate of the Deutsche Bundesbank. This shall not affect the assertion of further damage caused by default.
7.10 If the order value exceeds 2,000.00 Euros, the Agency reserves the right to determine an advance payment of up to 33% of the order value or proof of a bank security / guarantee. No interest shall be paid on advance payments.
8. retention of title
8.1 The Agency shall retain ownership of the delivery items until payment has been made in full.
8.2 In the event of conduct in breach of contract on the part of the Client, in particular in the event of default in payment, the Agency shall be entitled to take back the goods after issuing a reminder and the Client shall be obliged to surrender them in full.
9. Cancellation costs
9.1 If the client withdraws from an order placed without justification, the agency can, without prejudice to the possibility of claiming higher actual damages, demand 10% of the sales price for the costs incurred in processing the order and for lost profits. The client reserves the right to provide proof of lesser damage.
10. Rights of Use
10.1 By settling all invoices relating to the order, the agency will transfer to the client all rights of use necessary for the use of its work and services to the extent agreed for the order. In case of doubt, the agency fulfills its obligation by granting non-exclusive rights of use in the territory of the Federal Republic of Germany for a limited period of time during which the advertising material is in use. Any use beyond this, in particular processing and changes, requires the agency’s consent.
10.2 Rights of use for work that has not yet been paid for in full at the end of the contract remain with the agency, unless otherwise agreed.
10.3 The transfer of the rights of use from the client to third parties requires the prior written consent of the agency.
11. Imprint and reference objects
11.1 The agency can generally refer to the agency in an appropriate manner on the client’s contractual products. The client can only object to this in writing if he has a legitimate interest in doing so.
11.2 The client agrees that all of the agency’s work can be used as reference objects in the context of self-promotion and public relations work (in whole or in part).
12. Media planning
12.1 The agency carries out commissioned projects in the area of media planning and placement to the best of its knowledge and belief on the basis of the media documents available to it and the generally accessible market research data. The agency does not owe the customer any particular advertising success through these services.
13. Rights of the client in the event of defects
13.1 The client’s rights in the event of defects are based exclusively on the following provisions. Any further claims of the customer are excluded.
13.2 The client guarantees that samples, models, drawings and other information provided by him are suitable and accurate, correspond to the actual conditions and do not violate third-party property rights. If this is not the case, the customer must reimburse the agency for the additional expenses caused by this. The agency assumes no liability for damages and defects based on incorrect or incomplete information provided by the client.
13.3 The client must inspect work and services delivered by the agency immediately upon receipt, but in any case before further processing, and report or report defects to the agency immediately after they are discovered. If there is no immediate inspection or notification of defects, the client has no claims.
13.4 Only insignificant deviations from the required quality, in particular customary quantity and quality tolerances, do not constitute a material defect. The agency assumes no liability for whether or not the advertising and communication measures have the effect desired by the client on the target audience.
13.5 In the case of justified, properly and timely reported material defects, the cause of which already existed at the time of transfer of risk, the agency will, at its discretion, provide supplementary performance by eliminating the defect or delivering a defect-free item in return for the return of the defective delivery item. The client is expressly reserved the right to demand a reduction in remuneration or cancellation of the contract if the repair fails. A failure in the sense just mentioned occurs in particular if the repair is impossible, if it is seriously and definitively refused by the agency, if it is unreasonably delayed, if it has been attempted in vain or if it cannot be provided to the client due to the accumulation of defects is to be expected.
13.6 The agency does not guarantee that the delivery item is free of third-party industrial property rights and copyrights (hereinafter: property rights) in the country of delivery place – there is no defect if and to the extent that the client is responsible for the property rights infringement or the property rights infringement of the The client is caused by an application that the agency could not foresee or by the fact that the delivery item is modified by the client or used together with products not supplied by the agency. If a third party raises justified claims against the client due to the violation of property rights through deliveries made by the agency and used in accordance with the contract, the client must immediately inform the agency in writing and coordinate its defensive measures with the agency. In the event of a justified defect in the property right, the agency will, at its discretion, either obtain a right of use or change its service so that the property right is not violated or replace it (subsequent performance). The same applies if there are other legal defects.
13.7 The client can assert claims for damages within the framework of the statutory provisions if a defect is fraudulently concealed from him or if the agency has exceptionally provided a quality guarantee. Further claims for damages due to defects in the delivery item are excluded unless one of the exceptions pursuant to Section 14 Paragraphs (2) and (3) applies.
13.8 The warranty period begins with (partial) acceptance, in other cases as regulated by law. Unless the agency is liable due to intent, the client’s claims for defects expire after 12 months, calculated from the transfer of risk. This limitation period applies to all claims, in particular claims for compensation for consequential damages that are related to any defects.
14. Liability, compensation
14.1 Unless otherwise stated in these General Terms and Conditions, the client’s claims for damages and reimbursement of expenses of any kind, regardless of the legal grounds, (hereinafter collectively referred to as “claims for damages”) are excluded. The agency is therefore not liable in particular for lost profits or other financial losses to the client.
14.2 The exemption from liability in accordance with paragraph 1 does not apply to damages – resulting from injury to life, body or health, which are based on at least a negligent breach of duty for which the agency is responsible – for which the agency is necessarily liable under the Product Liability Act or which is due to based on at least grossly negligent breach of duty by the agency or its legal representatives or vicarious agents.
14.3 The exemption from liability also does not apply to damages that are based on at least a negligent violation of a cardinal contractual obligation for which the agency is responsible, provided that the violation jeopardizes the achievement of the purpose of the contract. In the case of defects, such a risk only exists in the case of significant defects and at the earliest if the agency refuses supplementary performance, fails or is unreasonable. In the event of a breach of a cardinal contractual obligation, the agency’s liability is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence.
14.4 To the extent that the agency’s liability is excluded or limited, this also applies to the personal liability of the agency’s employees, employees, employees, representatives and vicarious agents.
14.5 In all cases of the agency’s liability, the amount of the claim for damages is limited by the coverage of the agency’s business liability insurance.
14.6 Unless other provisions in these terms and conditions exclude liability, liability is limited to damage caused by the use of “office services” through the transmission and storage of data, and for damage that arose because of the required storage or transmission of data Data has not been provided by the agency, the amount is limited to 1,000.00 euros, unless there is intent or gross negligence.
14.7 The client is aware that due to maintenance, restructuring or other work on technical equipment, the scope of services may be limited or unavailable at short notice and temporarily. As far as possible, the agency endeavors – but cannot guarantee this – to implement such service restrictions at a time when, based on experience, the service is not regularly used heavily.
14.8 For documents and data that may have to be obtained by the client, the client is solely liable if the use violates the rights, in particular copyrights, of third parties. The client must indemnify the agency from all third-party claims due to such an infringement.
15. Right of offsetting, reduction and retention, reimbursement
15.1 The client can only set off undisputed or legally established claims against the agency’s claims. The client is only entitled to assert a right of retention due to counterclaims arising from this contract.
15.2 If a significant hindrance lasts longer than two weeks, the client is entitled to reduce the monthly fees accordingly from the time the hindrance occurs until the next termination date. A significant hindrance occurs if a) the client can no longer access the office infrastructure and can therefore no longer use the services listed in the order confirmation, b) the use of these services as a whole is significantly more difficult or the use of individual ones in the Services listed in the order confirmation become impossible, or c) comparable restrictions exist.
15.3 In the event of service failures due to a disruption outside the agency’s area of responsibility, fees will not be refunded. Furthermore, downtime will only be reimbursed if the agency or one of its vicarious agents or vicarious agents caused the error at least negligently and the downtime extends over more than a week. The agency will inform the client immediately about the unavailability of the service and will immediately reimburse the relevant consideration.
16. Secrecy, confidentiality, data protection
16.1 The agency undertakes to keep secret all information and documents available to it in connection with the conclusion of the contract that are described as confidential or, based on other circumstances, are clearly recognizable as business or trade secrets of the client, and to use them – unless they are required to achieve the Required for the purpose of the contract – not to be recorded, passed on or used.
17. Place of performance and jurisdiction
17.1 The place of performance and jurisdiction for all claims and legal disputes arising from the contractual relationship is the agency’s registered office if the client is a registered merchant or a legal entity under public law.
17.2 German law applies exclusively, even if the client has its headquarters abroad. UN Convention on Contracts for the International Sale of Goods is excluded.
18. Miscellaneous
18.1 Changes and additions to orders must be made in writing. This also applies to the amendment of this clause. Verbal side agreements are not valid.
18.2 If a provision is or becomes invalid, the validity of the other provisions remains unaffected. In addition, the parties undertake to replace the invalid provision with a valid provision that comes closest to the economic meaning of the invalid one.
18.3 E-mails are considered delivered when they have been accepted by the addressee mail server. Encryption of messages and data only takes place upon express written agreement – the agency does not provide any guarantees or make any statements about the quality of the encryption or whether it is or has been effective.
18.4 The client is only permitted to transfer rights and obligations under the contract with the written consent of the agency.
19. Changes or additions to the delivery and payment conditions:
Our terms of delivery and payment apply exclusively, with which our customer agrees when placing the order, also for future transactions, even if no express reference is made to them, but they have been received by the customer with an order confirmed by us. If the order is placed in deviation from our terms of delivery and payment, then only our terms of delivery and payment apply, even if we do not object. Deviations therefore only apply if they have been expressly acknowledged by us in writing.
We are entitled to assign the claims arising from our business relationships.
The contractual relationship is subject exclusively to German law, in particular the Civil Code and the Commercial Code. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply.
At our discretion, the place of jurisdiction is the registered office of the company or Frankfurt am Main.
If the buyer is in default with any payment obligations to us, all existing claims become due immediately.
In order to assert the rights arising from retention of title, withdrawal from the contract is not necessary unless the debtor is a consumer.
All payments are to be made with debt-discharging effect exclusively to VR FACTOREM GmbH, Hauptstraße 131 – 137, 65760 Eschborn, to whom we have assigned our current and future claims from our business relationship. We have also transferred our retention of title to VR FACTOREM GmbH.
In order to fulfill our factoring contract (assignment of our receivables and handover of debtor management), we will forward the following data to the financial services institution VR FACTOREM:
Names and addresses of our debtors
Data of our claims against our debtors (in particular gross amount and due date)
If necessary, names of contact persons and contact details of our debtors (telephone number, email address) in their company to coordinate accounts receivable accounting
VR FACTOREM will pass on the debtors’ company data to credit agencies and trade credit insurers as well as to contract processors (IT data processing, printing service providers, etc.).
Further details on data processing can be found in the “Data Protection Information” from VR FACTOREM GmbH, which you can view and download online at http://www.vr-factorem.de/datenschutz-vrf.
Offsetting by the customer with counterclaims is excluded unless the counterclaims are undisputed or legally established. The assertion of a right of retention by the customer is excluded unless it is based on the same contractual relationship or the counterclaims are undisputed or legally established.
The following applies to deliveries of goods:
The delivered goods remain our property until all outstanding claims to which we are entitled against the customer have been paid in full. The customer is entitled to resell in the ordinary course of business as long as he is not in default of payment. However, the customer may not pledge the reserved goods or assign them as security. The customer hereby assigns to us as security the customer’s claims for payment against his customers from a resale of the reserved goods as well as those claims of the customer regarding the reserved goods that arise from any other legal reason (including against third parties).
Any processing or transformation of the reserved goods by the customer is always carried out for us. If the reserved goods are processed with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the value of the reserved goods (invoice amounts including sales tax) to the other connected or mixed items at the time of connection or mixing.
If the customer’s item is to be regarded as the main item, the customer transfers proportionate co-ownership of this item to us. We accept the transfer.
The customer will keep the resulting sole ownership or co-ownership of an item for us.