1 Subject of the contract
Quadroguys GmbH, Kurfürstenstraße 15, 50678 Cologne in Germany, hereinafter referred to as the “Agency”, provides services in the areas of film production, photography, responsive web design, graphic design, 3D design and 3D animation, as well as other services as agreed. The detailed descriptions of the services to be provided result from the tender documents, briefings, project contracts, as well as their attachments and service descriptions of the Agency. Specifications of the customer are valid only if they are confirmed by the agency.
2 Validity of these GTC
2.1 The following General Terms and Conditions apply to all legal transactions of Quadroguys GmbH, Kurfürstenstraße 15, 50678 Cologne Germany (“Agency”) with its contractual partners who are not consumers within the meaning of § 13 of the German Civil Code (BGB) – hereinafter referred to as “Customer” for short.
2.2 Terms and conditions of the Customer deviating from these Terms and Conditions shall only be accepted by the Agency after separate and written acknowledgement.
2.3 These Terms and Conditions shall also apply to all temporally and factually related extensions of the order, even if they are not expressly agreed upon again. With respect to customers who are not consumers within the meaning of § 13 of the German Civil Code (BGB), these Terms and Conditions shall also apply to any subsequent orders, even if they are not expressly agreed again.
3 Components of the Contract and Changes to the Contract / Force Majeure
3.1 The basis for the Agency’s work and an integral part of the contract shall be, in addition to these GTC, the project contract and its annexes, the briefing to be provided to the Agency by the Customer. If the briefing is communicated by the customer to the agency orally or by telephone, Quadroguys GmbH will prepare a re-briefing on the contents of the briefing, which will be handed over to the customer within 5 working days after the oral 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.
3.2 Any amendment and/or supplement to the contract and/or its components must be made in writing (text form sufficient). Any additional costs incurred as a result shall be borne by the customer.
3.3 Events of force majeure (e.g. mobilization, war, riot, weather conditions or similar events for which the Agency is not responsible, e.g. strike, lockout, exit/entry restrictions or pandemics) shall release the Agency, as of the time at which the impediment makes it impossible for it to provide the service, from its obligation to fulfill its contractual obligations and from any liability for damages or any other contractual remedy for breach of contract; provided that this is notified without delay. If the notice is not given without undue delay, the relief shall take effect from the time the notice reaches the other party. If the effect of the asserted impediment or event is temporary, the consequences just set forth shall apply only for as long as the asserted impediment prevents performance of the contract by the affected party plus a reasonable start-up period (usually 1 month). If the duration of the asserted impediment has the consequence that the contracting parties are deprived to a considerable extent of what they could reasonably expect by virtue of the contract, each party shall have the right to terminate the contract by notifying the other party within a reasonable period of time.
4 Scope of the copyrights and rights of use granted, in particular time limit, naming of the author / copyright, further remuneration.
4.1 Upon full payment of the agreed fee, the Customer shall acquire the limited exclusive right of use to all work produced by the Agency within the scope of this order for the contractually agreed duration and to the contractually agreed extent.
4.2 Unless otherwise agreed, the right of use for purely digital use (e.g. in online media such as websites and social media apps) shall be granted for a period of 3 years and worldwide, with the first 3-year period commencing on the 1st of the month following the transfer or first use (whichever is earlier).
4.3 A separate license must be acquired for use in the classic print area (e.g. advertising brochures, flyers, company presentations). Such a license shall be granted for 3 years at a time, with the first 3-year period commencing on January 1 of the year following the transfer or first use (whichever is earlier). The fee for use
4.4 Unless otherwise expressly agreed, any right of use shall be granted only to the Client. Sublicensing is not permitted.
4.5 Upon customer request, the right of use may be extended and/or prolonged – at reasonable cost. The same shall apply to the transfer of granted rights of use to third parties.
4.6 The use according to the above regulations is only permitted if the author is named in the imprint or directly on the work.
4.7 The work of the Agency may not be changed by the Customer or by third parties commissioned by the Customer, neither in the original nor in the reproduction. Any imitation, even of parts of the work, is not permitted. In case of infringement, the Agency shall be entitled to an additional fee from the Customer of at least 2.5 times the amount of the originally agreed fee.
4.8 The Agency shall be entitled to information and documentation regarding the scope of the actual use.
4.9 The services developed within the scope of the order are protected as personal intellectual creations by the Copyright Act. This provision shall be deemed to have been agreed even if the level of creation required under the Copyright Act has not been reached.
5 Remuneration / Advance payment / Client’s cooperation
5.1 The remuneration agreed in the contract shall apply. Payments shall be due without any deductions within 10 days after invoicing and receipt of the invoice.
5.2 If the payment dates are exceeded, the Agency shall be entitled, without further reminder, to interest on arrears in the amount of 9 percentage points above the applicable prime rate from the following day. The right to claim further damages shall remain unaffected by this provision.
5.3 Reminders shall be charged at a flat rate of € 10.00 per reminder, whereby the Customer shall be free to prove that the actual reminder costs are lower.
5.4 The Agency shall be entitled to demand reasonable advances from an order value of € 1000.00 (in words: one thousand EURO).
5.5 If the development of the agreed services extends over a longer period of time, the Agency may invoice the Customer for reasonable advance payments for the partial services already rendered. These partial services do not have to be available in a form that can be used by the Customer and can also be available as a pure working basis on the part of the Agency.
Likewise, in the case of orders that consist of several individual orders, the Agency may invoice progress payments in accordance with the individual orders that have been processed.
5.6 If an order requires additional work from the Customer (e.g. naming and/or approval of specific objects) and if the Customer does not provide this within a reasonable period of time (whereby a reasonable period of time shall be deemed to exist if a grace period of 2 weeks has been set), the Agency shall be entitled to invoice up to 95% of the full order amount, unless the Customer can prove that the Agency’s saved expenses are higher than the remaining order amount.
6 Change of Order / Cancellation of Order
6.1 In the event of changes to or cancellation of orders, work and the like by the Client and/or if the prerequisites for the provision of services change, the Agency shall be reimbursed for all further costs incurred as a result – irrespective of the agreed fee – and the Agency shall be released from any liabilities to third parties.
6.2 In the event that the Client withdraws from an order before the start of the project, the Agency shall charge the Client the following percentages of the original 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 90%. The customer has the right to prove how high the saved expenses and/or other earnings of the agency were. In this case, the cancellation fee is calculated from the originally agreed fee less the proven saved expenses and/or other earnings. In any case, however, the cancellation fee shall amount to 10% of the original fee.
6.3 All prices quoted in offers and orders and the amounts resulting therefrom are exclusive of the statutory value added tax at the applicable rate. Artists’ social security contributions, customs duties, or other subsequently incurred charges will be passed on to the customer.
6.4 Objections against the Agency’s invoices shall be raised immediately after receipt of the invoice, at the latest 1 month after invoicing, without this affecting the due date. After expiry of this period, the Customer may no longer assert objections, unless the Customer is not responsible for the delayed assertion.
7 Retention of title
7.1 The Agency shall retain title to the delivery items until payment has been made in full.
7.2 Only rights of use shall be granted to drafts and work drawings, but no rights of ownership shall be transferred.
7.3 The originals shall therefore be returned undamaged within a reasonable period of time, unless otherwise agreed.
7.4 The sending and any return of the works shall be at the risk and for the account of the Customer.
7.5 The Agency is not obliged to surrender files, source files or layouts created in the computer to the Customer. If the Customer wishes to have the computer data or source data handed over, this shall be agreed separately and shall be remunerated. If the Agency has provided the Customer with computer files, these may only be changed with the prior consent of the Agency.
8 Special services, ancillary and travel expenses
8.1 Special services such as proofreading of texts, changes to final artwork and other preparatory necessities for order processing shall be charged separately according to the time involved.
8.2 “The number of drafts shall be specified in the offer. If more conceptions or drafts of advertising material and/or advertising concepts are produced at the customer’s request, these shall be invoiced separately.
8.3 Expenses for additional technical costs, in particular special materials, production of models, photos, intermediate shots, reproductions, photo typesetting, printing, third-party licenses, etc. shall be reimbursed by the customer.
9 Additional services / additional costs due to postponement of deadlines by the customer
9.1 Unforeseeable additional expenses shall be subject to mutual agreement and, if necessary, to additional fees, which shall be charged at the customary rate if no agreement has been made in this regard.
9.2 Dates (e.g. for photo shoots) which have been communicated to the Customer by the Agency in a binding manner and which the Customer has not immediately objected to, expressed reservations about and/or communicated requests for changes are binding. If these are cancelled and/or postponed for reasons for which the customer is responsible and/or if the customer does not provide the necessary cooperation, any third-party costs that can no longer be cancelled shall be borne in full by the customer and an additional fee of the agency (usually the agreed daily rate) shall be paid at 50%.
10.1 The Agency shall be entitled to refer to the originator on all advertising materials and in all advertising measures, without the Customer being entitled to any remuneration as a result.
10.2 The Agency shall be entitled -until revoked- to refer to the business relationship on its Internet websites with the name and company logo of the Customer. The revocation must be made within a reasonable period of time – usually 2 weeks.
11 Delivery periods
11.1 Agency’s delivery obligations shall be fulfilled as soon as the work and services have been dispatched by Agency. The risk of transmission (e.g. damage, loss or delay), regardless of the medium used for transmission, shall be borne by the Customer.
11.2 Delivery deadlines and delivery dates shall only be binding if the Customer has duly fulfilled any obligations to cooperate (e.g. procurement of documents, releases, provision of information, preparation of service catalogs / compulsory booklets) and the deadlines have been confirmed in writing by the Agency.
11.3 Due to delays on the part of the Customer, it is no longer possible to guarantee that deadlines will be met on time. Dates or deadlines shall then be rescheduled. A mere extension of the original deadlines by the delay period cannot be guaranteed in every case (e.g. due to other projects of the Agency).
11.4 Templates and drafts provided by the Agency shall not be binding in terms of color, image, line and sound design until their corresponding possibility of realization has been confirmed in writing by the Agency.
11.5 If the Agency is in default with its services, it shall first be granted a reasonable period of grace.
12 Secrecy obligation
12.1 The Agency undertakes to keep secret all information and documents to which it has access in connection with the conclusion of the contract and which are designated as confidential or which are clearly recognizable as business or trade secrets of the Customer on the basis of other circumstances, and to neither record nor pass on such information and documents unless this is necessary to achieve the purpose of the contract.
12.2 Corresponding obligations shall apply to the Customer with regard to business and trade secrets of the Agency; this shall also apply in particular to ideas and concepts brought to the attention of the Customer during the development phase / cooperation.
13 Obligations of the Client
13.1 The Client shall provide the Agency with all data and documents required for the implementation of the project free of charge. All working documents shall be handled carefully by the Agency, protected from access by third parties, used only for the development of the respective order and returned to the Customer after completion of the order.
13.2 In connection with a commissioned project, the Customer shall only award contracts to other agencies or service providers after consultation and in agreement with the Agency.
14 Warranty and Liability
14.1 The Customer shall inspect any work and services supplied by the Agency immediately upon receipt and in any case prior to transfer and/or use and shall notify any defects immediately upon discovery. If the immediate inspection or notification of defects is omitted, the Customer shall have no claims.
14.2 In the event of a justified notice of defects, the defects shall be remedied within a reasonable period of time.
14.3 The Agency cannot and may not provide legal advice. The risk of the legal admissibility of the measures developed and implemented by the Agency shall be borne by the Customer. The examination by experts (e.g. lawyers) to be commissioned by the Customer is strongly recommended. This applies in particular in the event that the actions and measures violate the provisions of competition law, copyright law and special advertising laws.
However, the Agency is obligated to point out legal risks if it becomes aware of them during its activities. The Customer shall indemnify the Agency against claims of third parties if the Agency has acted at the express request of the Customer, although it has informed the Customer of concerns with regard to the permissibility of the measures.
14.4 With the approval of drafts, final artwork or work drawings by the Customer, the Customer assumes responsibility for the correctness for image and text.
14.5 Upon approval for printing by the Customer, the risk of any errors and any additional costs that may arise as a result shall pass to the Customer. The Agency shall in no case be liable for defects arising during production.
14.6 In the case of color reproductions in all production processes, minor deviations from the original cannot be objected to.
14.7 The Agency shall not be liable for the admissibility and registrability of the designs under competition or trademark law.
14.8 The Agency assumes no liability for images, data and fonts provided by customers.
14.9 The Agency shall not be liable in any case for factual statements about products and services of the Customer contained in the advertising measures. The Agency shall also not be liable for the patent, copyright and trademark protection or registrability of the ideas, suggestions, proposals, concepts and drafts provided as part of the order.
14.9.1 In the event of intent or gross negligence on the part of its authorized agents or its own employees, the Agency shall be liable without limitation for all damage caused by it in connection with the provision of our contractual services.
14.9.2 In the event of slight negligence, the Agency shall be liable without limitation in the event of injury to life, limb or health.
14.9.3 In the case of services provided free of charge, the Agency, its employees and agents shall not be liable beyond the liability set forth in paragraphs 1 and 2.
14.9.4 Furthermore, Agency shall only be liable in connection with the provision of paid services if a material contractual obligation has been breached. Essential contractual obligations are defined in the abstract as obligations whose fulfillment is essential for the proper performance of the contract and on whose fulfillment the Customer may regularly rely. In such cases, liability shall be limited to compensation for the foreseeable damage typically occurring.
14.9.5 Insofar as the Agency’s liability is excluded or limited in accordance with the aforementioned provisions, this shall also apply to the Agency’s vicarious agents.
14.9.6 Liability under the Product Liability Act shall remain unaffected.
15 Collecting Societies / Artists’ Social Security Fund
15.1 The Customer undertakes to pay any fees due to collecting societies such as GEMA. If these fees are disbursed by the Agency, the Customer undertakes to reimburse them to the Agency against proof. Depending on the agreement, this can take place immediately or also after termination of the contractual relationship.
15.2 The Client is informed that in the event of the award of a contract in the artistic, conceptual and advertising consulting area to a non-legal person, an artists’ social security contribution must be paid to the artists’ social security fund. This levy may not be deducted by the client from the agency invoice. The customer is responsible for compliance with the obligation to register and pay the levy.
16 Services of Third Parties / Prohibition of Orders
Freelancers or third parties engaged by the Agency are vicarious agents of the Agency. The Customer undertakes not to commission, either directly or indirectly, the employees and third parties engaged by the Agency in the course of the execution of the order with projects during and for a period of 12 months from the conclusion of the order without the cooperation of the Agency.
17 Working documents and electronic data
All working documents, electronic data and records, which are made in the context of the order processing on the part of the agency, remain with the agency. The surrender of these documents and data can not be demanded by the customer. 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..
18 Media Planning and Media Execution
18.1 The Agency shall carry out commissioned projects in the area of Media Planning to the best of its knowledge and belief on the basis of the media documents available to it and generally accessible market research data. The Agency does not owe the Customer any specific advertising success as a result of these services.
18.2 In the case of extensive media services, the Agency shall be entitled, after consultation, to invoice the Customer for a certain proportion of the third-party costs and to make the booking in the corresponding media only after receipt of payment. A handling fee will be charged for this. The agency is not liable for a possible non-observance of a switching date due to a delayed receipt of payment. A claim for damages of the customer against the agency does not arise from it.
19 Miscellaneous and final provisions
19.1 All agreements made between the Agency and the Customer for the purpose of executing an order shall be agreed in writing (text form sufficient). Amendments, supplements and collateral agreements, including the waiver of this formal requirement, must be in writing to be effective.
19.2 Offsetting or assertion of a right of retention by the Customer shall only be permissible with recognized or legally established counterclaims.
19.3 Customers who are not consumers are not entitled to assign claims arising from the contract.
19.4 The law of the Federal Republic of Germany shall apply.
19.5 The place of jurisdiction for disputes with Customers who are not consumers, legal entities under public law or special funds under public law shall be the registered office of the Provider. For all other purchasers, this shall also apply to disputes arising from or in connection with the order if the purchaser relocates its domicile or habitual residence to a country other than the Federal Republic of Germany after conclusion of the contract or if the domicile or habitual residence of the purchaser is unknown in the event of a lawsuit.
19.6 Should any provision of these General Terms and Conditions of Business be wholly or partially invalid or lose its legal validity at a later date, this shall not affect the validity of the remaining provisions. Instead of the invalid provision, another appropriate provision shall apply by way of contract adjustment, which economically comes closest to what the contracting parties would have wanted if they had been aware of the invalidity of the provision.