General Terms and Conditions (GTC)
The following General Terms and Conditions (GTC) are valid unless otherwise agreed in a contract with dietz GmbH & Co. KG (hereafter referred to as “the Agency”) that expressly excludes them. In this case, these General Terms and Conditions shall be replaced by special agreements based on alternative contractual arrangements with the Client.
1. Validity of the general terms and conditions
The following General Terms and Conditions shall apply exclusively to all services and deliveries by the Agency to its Clients as entrepreneurs according to § 14 BGB (German Civil Code). Conflicting general terms and conditions of the Client shall not become part of the contract.
1.2 The General Terms and Conditions shall be preceded by those provisions of the contracting parties, which regulate them on behalf of other agreements or understandings deviating from these General Terms and Conditions.
1.3 The General Terms and Conditions shall also apply to all future orders placed by the Client with the Agency following the first inclusion of these General Terms and Conditions, even if the validity of the General Terms and Conditions is not expressly referred to again in these subsequent orders.
2. Processing of orders
2.1 The Client may accept offers from the Agency to the Client containing prices within three weeks after receipt. After the expiry of this period, the Agency shall no longer be bound by this offer. If the Agency prepares a mere cost estimate, this shall only constitute an invitation by the Client to the Agency to submit an offer, which requires acceptance by the Agency.
2.2 The scope of the services shall be determined by the product/service description provided when the order was placed. Additional and/or subsequent changes to the product/service description must be made in writing.
2.3 Minutes of the meeting which the Agency prepares and sends to the Client shall be sent as commercial letters of confirmation by the Agency in writing.
If the Client does not object in written form within three working days, the agreements, instructions, order placements and other declarations of a legal nature contained therein shall become binding.
2.4 Templates, files and other working materials such as negatives, models, original illustrations etc. which the Agency produces or has produced in order to perform the services owed according to the contract shall remain the property of the Agency. There is no obligation to surrender the work. This also applies to the source code and the corresponding documentation for the creation of software.
3. Commissioning of third parties
3.1 The Agency shall be entitled to carry out the work assigned to it itself or to commission vicarious agents/subcontractors to do so in its own name.
3.2 The Agency shall be entitled to place orders for the production of advertising materials, in which the Agency has participated according to the contract, in the name and for the account of the Client, provided that the Agency has provided the Client with the name and address of the third party and the Client has not objected in writing within a period of one week.
3.3 The Agency places orders with advertising media in its own name and on its own account. If quantity discounts or painting scales are claimed, the Client receives an additional charge in the event of non-fulfillment of the discount and scale requirements, which becomes due for payment immediately. In this respect, the Client shall indemnify the agency regarding the medium at first request.
3.4 The Client may accept offers, which contain prices, from the agency to the Client within three weeks of receipt. After the expiry of this period, the Agency shall no longer be bound by this offer. If the Agency prepares a mere cost estimate, this shall not yet constitute a binding offer.
4. Remuneration of agency services
4.1 Unless otherwise agreed in an individual order, the services rendered by the Agency shall be invoiced on an hourly fee-basis according to time spent and the current hourly rates of the involved employees of the Agency. Technical costs shall be invoiced according to the Agency’s current cost rates for technical costs. The remuneration for rights of use is regulated in the following sections 6.6 to 6.8.
4.2 Unless otherwise agreed, the Agency shall be entitled to invoice its services monthly at the end of each month.
4.3 The Agency shall charge a service fee of 15 percent of the net amount of the third party’s invoice for services provided by third parties which the Agency permissibly uses to fulfill the contract/order.
4.4 Internal material costs incurred by the Agency for the performance of the contractual service (e.g. communication costs, dispatch and reproduction costs as well as travel costs) shall be charged by the Agency to the Client at cost price.
4.5 If the Client is in default of payment, the Agency may demand advance payments for services to be rendered in the future.
5. Terms of payment
5.1 Agreed prices are net prices to which the applicable value added tax is added. Social security contributions for artists, fees of GEMA or other collecting societies, customs duties and other charges, including those incurred subsequently, shall be passed on to the Client.
5.2 Invoices from the agency are due for payment without any deduction within 14 days of the invoice date. From the due date, the Agency shall be entitled to charge default interest at a rate of 8 percent above the base rate.
5.3 Retention of payments or offsetting against counterclaims shall only be permissible with claims recognized by the Agency or legally established. This does not apply if the Client is not a company/entrepreneur within the meaning of § 14 BGB (German Civil Code).
5.4 Until all invoices relating to the order have been paid in full, the Agency reserves title to all services and rights, in particular copyrights of use, as well as title to files, documents and objects provided.
6.Rights of use; scope and remuneration
6.1 All copyrights and other rights of use to the Agency’s work results released and paid for by the Client for use in advertising shall pass to the Client to the extent required for the purpose of the respective order. The Agency shall fulfill its obligations by granting exclusive rights of use in the contract territory for the media and duration of the advertising measure provided for by the contracting parties in the respective order. The transferred rights of use include the right to edit the work result at will and/or to combine it with other works. The Client is entitled to transfer the rights of use in whole or in part to subsidiaries or affiliated companies within a group. Any use going beyond the above provision requires the separate consent of the Agency.
6.2 If the Agency uses third parties for the performance of the contract, it shall acquire the rights of use to their services to the extent of the above provision 6.1 and transfer them to the Client accordingly. Should these rights not be available to this extent in individual cases or should their acquisition only be possible at disproportionately high costs, the Agency shall inform the Client thereof and proceed according to his instructions. Any additional costs incurred as a result shall be borne by the Client.
6.3 The Agency shall be entitled – even if exclusive rights of use are transferred to the Client – to use the work results and the Client’s name free of charge within the framework of its own advertising, even after the end of the contract, in all media including the Internet and within the framework of competitions and presentations.
6.4 If the Agency creates electronic programs or program parts within the scope of its contractual services, the respective source code and the corresponding documentation shall not be the subject of the granting of rights to the Client.
6.5 Services of the Agency (concepts, ideas, drafts, etc.) rejected, aborted or not used within six months after transfer are not subject of the transfer of rights to the Client. These rights of use as well as the property rights shall remain with the Agency.
6.6 The rights of use specified in 6.1. and 6.2. above shall be settled upon payment of the remuneration agreed in the order. For the extension of use beyond the end of the use of the advertising material specified in the order and/or beyond the contract territory and/or for use in media/advertising media other than those specified in the order, the Agency shall receive a usage fee for a maximum period of three years, namely
– for the 1st year 15 percent – for the 2nd year 10 percent – for the 3rd year 10 percent of the respective Client’s net value volume. Upon payment of this remuneration, the Agency’s consent shall be deemed to have been granted in accordance with the last sentence of 6.1 above.
Insofar as the rights of the third parties used by the Agency to fulfil the contract are affected by the extension of use, the provision in 6.2 above shall apply mutatis mutandis.
6.7 For the negotiation of buy-outs for the use of work results of third parties, a service fee of 15 percent of the respective third party’s net usage fee of shall be paid to the Agency by the Client.
6.8 The Agency accepts no liability for legal claims by authors for subsequent increases in remuneration pursuant to § 32, 32a UrhG; the Client shall indemnify the Agency against such claims upon first request.
7.1 The Client shall inspect the work and services provided by the Agency immediately upon receipt, but in any case prior to use, and shall give notice of defects immediately upon discovery. If the immediate inspection or notification of defects is omitted, the Client shall have no warranty claims with regard to obvious defects, known defects or consequential defects.
7.2 If there is a defect for which the Agency is responsible, it may, at its own discretion, remedy the defect (repair) or supply a replacement. In the event of rectification, the Agency shall have the right to rectify the defect twice within a reasonable period of time. Otherwise, the statutory provisions of the law on contracts for work and services in the BGB shall apply.
7.3 The Agency’s warranty obligation expires one year after receipt of the delivery/service of the Agency by the Client.
8. Limitation of liability
8.1 In the event of negligence on the part of the Agency, its legal representatives or its vicarious agents, claims for damages, for whatever reason, shall be limited to the typical damage foreseeable at the time of conclusion of the contract. In the case of slightly negligent conduct, they are excluded unless they concern the violation of such an essential obligation that the achievement of the purpose of the contract is endangered (so-called cardinal obligation). This limitation of liability and the above exclusion of liability shall not apply in the event of willful misconduct on the part of the Agency, claims under a guarantee, injury to life, limb and health or claims under the Product Liability Act.
8.2 In the case of switching orders, the Agency shall not be liable for defective performance of the media (advertising media). In these cases, however, it will assign its claims for damages or warranty to the Client.
8.3 Claims for damages against the Agency shall become statute-barred one year after the statutory commencement of the limitation period, notwithstanding the provisions of § 202 BGB (German Civil Code).
9.Obligation to secrecy
The Agency and the Client hereby mutually contract into keeping secret all information and documents which are accessible or transmitted to them in connection with the conclusion of the contract and which are marked as confidential or which, under other circumstances, are recognizable as business or company secrets of the respective contractual partner, and to neither record, store nor pass them on, nor use them nor make them accessible to unauthorized persons, unless this is necessary to achieve the purpose of the contract. This shall also apply to ideas, concepts, drafts in text and/or images presented by the Agency within the framework of a presentation, as long as and insofar as the Client has not commissioned and paid for such services.
10. Data protection/data backup
10.1 The Client confirms that personal data transmitted to the Agency by him or at his instigation by third parties have been collected and processed in accordance with the relevant provisions of data protection law, in particular the Federal Data Protection Act, that any necessary consent has been obtained from the parties concerned and that the use of the data by the Agency within the framework of the contract awarded does not violate any of these provisions or exceed the scope of the consent granted.
10.2 The Client agrees that personal data (inventory data) and other information such as time, number and duration of connections, access passwords, uploads and downloads may be stored by the Agency for the duration of the contract/order, insofar as this is necessary or useful for the fulfillment of the contract.
10.3 The Client shall back up data and programs before they are handed over to the Agency in order to enable recovery in the event of data loss.
11. Written form
If these General Terms and Conditions or the order/contract or other contractual documents refer to “in writing” or “written form”, the text form according to § 126 b BGB can also be used (email, SMS, fax).
12. Place of performance
12.1 Place of performance shall be the registered office of the Agency. The place of jurisdiction for all disputes arising from the contract and in connection with the business relationship shall be the registered office of the Agency.
12.2 The law of the Federal Republic of Germany shall apply.