1 Subject matter of the contract
Quadroguys GmbH, Brühler Landstraße 549, 50997 Cologne, Germany, hereinafter referred to as “Agency”, provides services in the fields 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 annexes and service descriptions of the Agency. Specifications of the Client shall only apply if confirmed by the Agency.
2 Applicability of these Terms and Conditions
2.1 The following general terms and conditions apply to all legal transactions of Quadroguys GmbH, Brühler Landstraße 549, 50997 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 “Client”.
2.2 Terms and conditions of the Client that deviate from these terms and conditions shall only be accepted by the Agency upon separate written acknowledgement.
2.3 These terms and conditions also apply to all extensions of the order that are related in terms of time and subject matter, even if they are not expressly agreed upon again. For Clients who are not consumers within the meaning of § 13 of the German Civil Code (BGB), these terms and conditions also apply to any subsequent orders, even if they are not expressly agreed upon again.
3 Contract components and amendments to the contract / Force majeure
3.1 In addition to these terms and conditions, the project contract and its annexes, the basis for the Agency’s work and a component of the contract is the briefing to be provided by the Client to the Agency. If the briefing is communicated by the Client to the Agency orally or by telephone, Quadroguys GmbH shall prepare a re-briefing of the content of the briefing, which shall be delivered to the Client within 5 working days of the oral or telephone communication. This re-briefing shall become a binding component of the contract if the Client does not object to it within 5 working days.
3.2 Any amendment and/or supplement to the contract and/or its components shall require written form (text form shall suffice). Any additional costs arising therefrom shall be borne by the Client.
3.3 Events of force majeure (e.g. mobilisation, war, civil unrest, weather conditions or similar events beyond the Agency’s control, e.g. strikes, lockouts, travel restrictions or pandemics) shall release the Agency from its obligation to fulfil its contractual obligations and from any liability for damages or any other contractual remedy for breach of contract from the point in time at which the impediment makes it impossible for the Agency to perform its services, provided that this is communicated without delay. If the notification is not made without delay, the release shall take effect from the time at which the notification reaches the other party. If the effect of the claimed impediment or event is temporary, the consequences set out above shall apply only for as long as the claimed impediment prevents performance of the contract by the affected party, plus a reasonable start-up period (usually 1 month). If the duration of the claimed impediment results in the contracting parties being substantially deprived of what they were legitimately entitled to expect under the contract, each party shall have the right to terminate the contract by notifying the other party within a reasonable period.
4 Scope of the granted copyright and usage rights, in particular time limitations, naming of the author / copyright, further remuneration
4.1 Upon full payment of the agreed fee, the Client acquires the exclusive right to use the contractually agreed final deliverables handed over to the Client, unlimited in time and territory. Not included are intermediate steps, drafts, sketches, concepts, or any other preliminary work created in the course of the project that are not part of the agreed deliverables. The right of use applies worldwide and without any time limitation. This does not affect the Agency’s right as author to use the created works at any time and without restriction for its own purposes, in particular for self-promotion, in portfolios, and across all of its own communication channels.
4.2 Any and all rights of use are granted – unless expressly agreed otherwise – exclusively to the Client. Sublicensing is not permitted. In the event of a change of ownership, § 4.5 applies accordingly.
4.3 The granted right of use relates exclusively to the work in the form and media type in which it was delivered. The extraction and independent use of individual images (stills, screenshots, frames) from video productions – in particular their use as photographs, standalone visuals, or in any other form detached from the moving image – is not covered by the right of use. Any such use requires a separate written agreement and appropriate additional compensation.
4.4 The granted rights of use explicitly exclude any use of the works and services created by the Agency for the purpose of training, developing, improving, or otherwise feeding into artificial intelligence (AI) or machine learning systems. In particular, the Client is prohibited from using this content as training or input data for generative AI models, or from authorizing third parties to do so. Equally prohibited is the use of this content as input for AI-driven systems for the automated creation of derivative content. Any such use requires a separate written agreement and appropriate additional compensation in every case.
4.5 The granted rights of use are tied to the corporate structure and economic identity of the Client as it exists at the time of contract conclusion. In the event of a transfer of company shares or the entire business – in particular through an asset deal, share deal, merger, demerger, or comparable transaction – through which effective economic control over the Client’s business changes, the granted rights of use do not automatically pass to the acquirer. The Client is obligated to inform the Agency of any impending change of ownership immediately and prior to completion of the transaction. In such case, the parties shall agree on a reassessment of the rights of use and the remuneration to be paid for them. Until a new written agreement has been concluded, the acquirer’s right of use is suspended.
4.6 At the Client’s request, the rights of use may be extended – at reasonable cost. The same applies to the transfer of granted rights of use to third parties.
4.7 Use in accordance with the above provisions is only permitted with acknowledgment of the author in the imprint or directly on the work.
4.8 The Agency’s works may not be altered by the Client or by third parties commissioned by the Client, either in the original or in reproduction. Any imitation, including of parts of the work, is prohibited. In the event of a violation, the Agency is entitled to an additional fee from the Client of at least 2.5 times the originally agreed fee.
4.9 The Agency has the right to request information and evidence regarding the actual scope of use.
4.10 The works produced in the course of the project are protected as personal intellectual creations under copyright law. This provision shall also apply even if the level of creativity required under copyright law has not been reached.
5 Remuneration / Advance payment / Client cooperation
5.1 The remuneration agreed in the contract shall apply. Payments are due within 10 days of invoicing and receipt without any deduction.
5.2 If payment deadlines are exceeded, the Agency shall be entitled, without further reminder, to default interest at a rate of 9 percentage points above the applicable base interest 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 Client shall be free to demonstrate that the actual reminder costs are lower.
5.4 The Agency is entitled to demand reasonable advance payments for orders with a value of €1,000.00 (in words: one thousand euros) or more.
5.5 If the development of the agreed services extends over a longer period, the Agency may invoice the Client for reasonable progress payments for partial services already rendered. These partial services do not need to be in a form usable by the Client and may also be available solely as a working basis on the Agency’s side. Likewise, for orders consisting of multiple individual orders, the Agency may invoice progress payments corresponding to the completed individual orders.
5.6 If an order requires the Client’s cooperation (e.g. designation and/or approval of specific objects) and the Client does not provide this within a reasonable time (whereby reasonableness is in any case given if a grace period of 2 weeks has been set), the Agency shall be entitled to invoice up to 95% of the total order amount, unless the Client demonstrates that the Agency’s saved expenses exceed the remaining order amount.
6 Order amendments / Order cancellation
6.1 In the event of changes or cancellation of orders, work and the like by the Client and/or if the conditions for service provision change, all additional costs incurred as a result shall be reimbursed to the Agency – regardless of the agreed remuneration – and the Agency shall be indemnified against any liabilities towards third parties.
6.2 If the Client withdraws from an order before the start of the project, the Agency shall charge the Client 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 90%. The Client shall have the right to demonstrate the amount of the Agency’s saved expenses and/or other earnings. In this case, the cancellation fee shall be calculated from the originally agreed fee less the demonstrated saved expenses and/or other earnings. In any case, the cancellation fee shall amount to at least 10% of the original fee.
6.3 All prices stated in offers and orders and the resulting amounts are exclusive of the statutory value added tax at the applicable rate. Artists’ social security contributions, customs duties or other subsequently incurred levies shall be passed on to the Client.
6.4 Objections to the Agency’s invoices must be raised immediately upon receipt of the invoice, and no later than 1 month after invoicing, without affecting the due date. After expiry of this period, the Client shall no longer be able to raise objections, unless the Client is not responsible for the late assertion.
7 Retention of title
7.1 The Agency retains ownership of the delivered items until full payment has been made.
7.2 Only rights of use are granted for drafts and working drawings; ownership rights are not transferred.
7.3 The originals shall therefore be returned undamaged within a reasonable period, unless otherwise agreed.
7.4 The dispatch and any return of works shall be at the Client’s risk and expense.
7.5 The Agency is not obliged to hand over files, source files or layouts created on the computer to the Client. If the Client wishes to receive the computer data or source data, this must be agreed upon separately and remunerated. If the Agency has provided computer files to the Client, these may only be modified with the prior consent of the Agency.
8 Special services, ancillary and travel costs
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 required.
8.2 The number of drafts shall be specified in the offer. If more concepts or drafts of advertising materials and/or advertising concepts are produced at the Client’s request, these shall be invoiced separately.
8.3 Expenses for technical ancillary costs, in particular special materials, production of models, photographs, intermediate recordings, reproductions, typesetting, printing, third-party licences etc. shall be reimbursed by the Client.
9 Additional services / Additional costs due to client-side rescheduling
9.1 Unforeseeable additional work requires mutual consultation and, where applicable, additional remuneration, which – unless otherwise agreed – shall be at the locally customary rate.
9.2 Dates (e.g. for photo shoots) that have been bindingly communicated by the Agency to the Client and that the Client has not immediately objected to, raised concerns about and/or communicated change requests regarding, shall be binding. If these are cancelled and/or postponed for reasons attributable to the Client and/or the Client fails to provide the required cooperation, non-cancellable third-party costs shall be borne in full by the Client and an additional fee of the Agency (generally the agreed daily rate) shall be remunerated at 50%.
10 Attribution
10.1 The Agency shall be entitled to indicate the author on all advertising materials and in all advertising measures, without the Client being entitled to any remuneration as a result.
10.2 The Agency shall be entitled – until revoked – to reference the business relationship on its websites using the Client’s name and company logo. Revocation must be made with reasonable notice – generally 2 weeks.
11 Delivery deadlines
11.1 The Agency’s delivery obligations are fulfilled as soon as the works and services have been dispatched by the Agency. The risk of transmission (e.g. damage, loss or delay), regardless of the medium used for transmission, shall be borne by the Client.
11.2 Delivery deadlines and delivery dates are only binding if the Client has duly fulfilled any cooperation obligations (e.g. procurement of documents, approvals, provision of information, preparation of specifications) and the dates have been confirmed in writing by the Agency.
11.3 Delays on the Client’s side mean that timely adherence to deadlines can no longer be guaranteed. Dates and deadlines must then be renegotiated. 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 in terms of colour, image, line and tone design shall only be binding once their corresponding feasibility 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 grace period.
12 Confidentiality obligation
12.1 The Agency undertakes to keep confidential all information and documents accessible to it in connection with the conclusion of the contract that are designated as confidential or are clearly recognisable as trade or business secrets of the Client under other circumstances, and – unless required for the achievement of the contractual purpose – neither to record nor to disclose them.
12.2 Corresponding obligations apply to the Client with regard to trade and business secrets of the Agency; this applies in particular also to ideas and concepts brought to attention during the development phase / collaboration.
13 Obligations of the Client
13.1 The Client shall make all data and documents required for the implementation of the project available to the Agency free of charge. All working documents shall be handled with care by the Agency, protected from access by third parties, used only for the execution of the respective order and returned to the Client after completion of the order.
13.2 In connection with a commissioned project, the Client shall only award contracts to other agencies or service providers after consultation and in agreement with the Agency.
14 Warranty and liability
14.1 Works and services delivered by the Agency must be inspected by the Client immediately upon receipt and in any case before any forwarding and/or use, and defects must be reported immediately upon discovery. If immediate inspection or notification of defects is omitted, the Client shall have no claims.
14.2 In the case of a justified notification of defects, the defects shall be remedied within a reasonable period.
14.3 The Agency cannot and may not provide legal advice. The risk of the legal permissibility of the measures developed and implemented by the Agency shall be borne by the Client. Review by experts to be commissioned by the Client (e.g. lawyers) is strongly recommended. This applies in particular in the event that the actions and measures violate provisions of competition law, copyright law and specific advertising legislation. However, the Agency is obliged to point out legal risks insofar as these become known to it in the course of its activities. The Client shall indemnify the Agency against claims by third parties if the Agency has acted at the express request of the Client, even though it has communicated concerns to the Client regarding the permissibility of the measures.
14.4 With the approval of drafts, final artwork or working drawings by the Client, the Client assumes responsibility for the correctness of images and text.
14.5 With the print approval by the Client, the risk of any errors and any resulting additional costs shall pass to the Client. The Agency shall in no case be liable for defects arising in production.
14.6 In the case of colour reproductions in all manufacturing processes, minor deviations from the original cannot be objected to.
14.7 The Agency shall not be liable for the permissibility and registrability of drafts under competition or trademark law.
14.8 The Agency assumes no liability for images, data and fonts provided by the Client.
14.9 The Agency shall in no case be liable for factual statements about the Client’s products and services contained in advertising measures. The Agency shall also not be liable for the protectability or registrability under patent, copyright and trademark law of the ideas, suggestions, proposals, concepts and drafts delivered within the scope of the order.
14.9.1 The Agency shall be liable without limitation for all damages caused by it in connection with the provision of contractual services in the case of intent or gross negligence on the part of its authorised representatives or its own employees.
14.9.2 In the case of slight negligence, the Agency shall be liable without limitation in the event of injury to life, body or health.
14.9.3 For gratuitous services, no liability beyond that set out in paragraphs 1 and 2 shall exist on the part of the Agency, its employees and authorised representatives.
14.9.4 Otherwise, the Agency shall only be liable in connection with the provision of paid services insofar as a material contractual obligation has been breached. Material contractual obligations are defined in abstract terms as those obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the Client may regularly rely. In such cases, liability shall be limited to compensation for foreseeable, typically occurring damage.
14.9.5 Insofar as the liability of the Agency is excluded or limited under the aforementioned provisions, this shall also apply to the vicarious agents of the Agency.
14.9.6 Liability under the Product Liability Act shall remain unaffected.
15 Collecting societies / Artists’ social security fund
15.1 The Client undertakes to pay any fees due to collecting societies such as GEMA. If these fees are advanced by the Agency, the Client undertakes to reimburse them to the Agency upon proof. This may be done immediately or after termination of the contractual relationship, as agreed.
15.2 The Client is informed that when commissioning work in the artistic, conceptual and advertising consultancy field to a non-legal entity, an artists’ social security contribution must be paid to the Künstlersozialkasse (Artists’ Social Security Fund). This contribution may not be deducted by the Client from the Agency’s invoice. The Client is responsible for compliance with the registration and contribution obligations.
16 Third-party services / Commissioning prohibition
Freelancers or third parties engaged by the Agency are vicarious or performing agents of the Agency. The Client undertakes not to commission the employees deployed and third parties engaged by the Agency in the course of order execution, either directly or indirectly, with projects without the Agency’s involvement during and for a period of 12 months from completion of the order.
17 Working documents and electronic data
All working documents, electronic data and records produced on the Agency’s side in the course of order execution shall remain with the Agency. The Client cannot demand the release of these documents and data. Upon 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 Commissioned projects in the field of media planning shall be carried out by the Agency to the best of its knowledge and belief on the basis of the media documents accessible to it and the generally accessible market research data. The Agency does not owe the Client any specific advertising success through these services.
18.2 For extensive media services, the Agency shall be entitled, by arrangement, to invoice the Client for a certain proportion of the third-party costs and to only make bookings with the corresponding media after receipt of payment. A handling fee shall be charged for this. The Agency shall not be liable for any failure to meet a booking deadline due to late receipt of payment. No claim for damages by the Client against the Agency shall arise as a result.
19 Miscellaneous and final provisions
19.1 All agreements made between the Agency and the Client for the purpose of executing an order must be made in written form (text form shall suffice). Amendments, supplements and collateral agreements, including the waiver of this formal requirement, shall require written form to be effective.
19.2 Set-off or the assertion of a right of retention by the Client shall only be permissible with acknowledged or legally established counterclaims.
19.3 Clients who are not consumers are not entitled to assign claims under 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, not legal entities under public law and not special funds under public law shall be the registered office of the provider. For all other customers, this shall also apply to disputes arising from or in connection with the order if the customer has moved their domicile or habitual residence to a country other than the Federal Republic of Germany after conclusion of the contract or if the customer’s domicile or habitual residence is not known at the time of filing the action.
19.6 Should any provision of these General Terms and Conditions be or become wholly or partially invalid, the validity of the remaining provisions shall not be affected. In place of the invalid provision, an appropriate alternative provision shall apply by way of contract adjustment that comes closest in economic terms to what the contracting parties would have intended had they known of the invalidity of the provision.