General Terms and Conditions of g31 – Kloubert, Kubiak, Schoemaker GbR, Germaniastraße 31, 40223 Düsseldorf, Germany. Phone: +49 (0) 211 46887826 | email@example.com,
(hereinafter referred to as “we”, “our”, or “us”)
§ 1 General Terms and Conditions
1. The following General Terms and Conditions (GTC) apply for all contracts with our customers. Regarding companies/entrepreneurs as defined by § 14 BGB (German Civil Code), the GTC shall also apply regardless of separate indication in the individual case, and in all future legal transactions.
2. Changes, deviations or supplements of these terms and conditions by customers seeking particular assurances must be communicated in written form and need our confirmation. The same applies to cancelation
of terms of contracts. Terms and conditions of the
customer’s GTC are not part of the agreement.
3. In case of doubt, our contractual offers have priority over the general terms and conditions. Thus, the general terms and conditions complement our contractual offers.
§ 2 Offers & Conclusion of Contract
1. The approval of the cost estimate by the customer constitutes an offer of conclusion of contract.
2. A contract takes place through an order confirmation in written form (E-mails are sufficient). The offer is deemed to have been accepted once we begin providing services.
3. Individual orders, as well as services in the framework/context of ongoing cooperation agreements require a € 500 cost before being submitted to cost estimates and prior approval by the customer – work under this sum require approval by the customer, but may be confirmed verbally.
§ 3 Contractual Agreement
1. The contractual agreement is measured according to the contract, in addition to these general terms and conditions.
2. The service provision takes place in a dynamic context through a creative consultation process, or according to the specifications of our cost estimate/offer. Offers or cost estimates include specifications from the customer in terms of design, in relation to specifications or on the corporate identity, as long as the customer has made these specifications. In addition to the requirements, the dynamic and creative development process is considered mandated.
3. Throughout the creative development process, we continuously communicate with our customer concerning the progress and the goal of the project. Additionally, we develop up to two designs in accordance with our offer, or in accordance to an individual agreement. The customer can choose one design which will then be further developed. As soon as a partial delivery of the essential elements is achieved, these will be improved (depending on the number of agreed correction loops in the cost estimate/offer).
4. In case of a dynamic development process, the agreement of the allocation of hours does not mean that the work/action is completed in the respective number of hours, unless it was explicitly agreed upon.
5. The service provision is subdivided into several phases, which are named in the offer (e.g. idea development, draft, concept, design and/or realization). After the completion of each phase, we can demand intermediate approval before proceeding to further phases.
6. In case of services made accessible through the use of third parties (e.g. third party webhosting, external CMS, graphic services, or printing), the customer is responsible for choosing the contractual partner. We can only make recommendations. The customer becomes contractual partner of the third party. In case, we provide service for the customer, § 8 of these general terms and conditions apply.
7. Digital deliverables are delivered in customary format. Format requests must be clearly identified by the customer before the service is provided.
8. If the customer wishes for an adaptation of third-party products (e.g. incorporation of a design into existing CMS), we will only provide services and not its integration, unless otherwise agreed upon.
9. Particular wishes or ideas of the customer with regard to the service provided can only be implemented to the extent that it is technically possible, within the scope of the financial agreements and within our capacities.
§ 4 Duty of Cooperation
1. If a contracting party recognizes that information or requirements are incorrect, incomplete, equivocal or not feasible, it has to inform the other partiy and communicate the resulting consequences. This applies no matter if it concerns our information and requirements, that of the customer, or that of a third party.
2. The customer shall assist us in the fulfillment of the contractually owed duties, especially with the timely supply of materials, information, expert employees, means of communications, and approvals. The customer has to submit – unless otherwise agreed upon – all texts, images, graphics, logos, tables, HTML-Code, Cascading Style Sheets etc. relevant to the project in a digital form. This shall happen without special request; however, within a reasonable period of time. If the requested information is not provided in time, or is incomplete, the contractual deadlines of completion are prolonged in accordance to the length of the delay. The customer bears any additional costs resulting from delayed or refused/denied approval.
3. If the customer does not comply with their duty to cooperate, we can demand reasonable compensation according to § 642 BGB (German Civil Code), and claim the further rights of § 643 BGB (German Civil Code). The amount of the indemnity shall correspond with the duration of the delay and the amount of the compensation.
4. The customer undertakes any of its duties at their own expense.
§ 5 Change of Service
1. If the customer wants to change the scope of the contractually agreed services provided in the framework of the cost estimate, they have to request the change in written form. We will then communicate the impacts of the desired changes will have with regard to remuneration, particularly regarding additional expenses and deadlines.
2. If an agreement is not reached or the amendment procedure ends due to another reason, the original contracts scope of services provided stays the same.
3. The dates affected by the amendment procedure shall be postponed as necessary, taking into account the duration of the customers examination of the proposal, the duration of agreement about the alteration of the proposal, and, where appropriate, the duration of the requested changes to be carried out – plus a reasonable start up period. Changes of dates will be communicated to the customer.
4. The customer shall bear the expenses arising from the amendment/change request. These include, in particular, the examination of the change request, the creation of the proposed change, and any associated downtime. We notify the customer of any changes to cost liabilities prior to implementing change requests.
§ 6 Intermediate and Final Acceptance Procedures
1. The submission of drafts, as well as the notification of the completion of parts of our service, constitute an invitation to accept the service or to announce corrections by the customer.
2. The customer is obliged to accept delivery of services which have been provided in accordance with the contract. The delivered services shall be deemed accepted if the customer does not make a declaration within a reasonable period set by us for acceptance, or if the customer pays the contractually agreed remuneration, if it has not already been paid before the request for acceptance.
3. The acceptance of services provided may not be refused for creative or artistic reasons. Within the scope of the contract, we have creative freedom.
4. We are entitled to demand intermediate acceptance of identifiable parts of the services to be provided (preliminary acceptance) by the customer (one or more times).
5. Requests and declarations of acceptance shall be presented in written form.
6. If the customer does not consider the services provided to be sufficient and / or in accordance to the contract, the customer is obliged to communicate any complaints in written form, without culpable hesitation.
7. If the customer issues a complaint about the services provided in due time, we will issue a one-time re-work. The remediation of this re-work depends on the customer’s specifications, if the customer’s complaint was specific enough for us to remedy the service without further request at the customer. If the complaint is not made in a concrete manner, we carry out the one-time re-work using our own discretion. If the customer then desires further improvements, they are carried out at the expense of the customer, and after further consultation.
8. Failure to reach an agreement on a draft, and the subsequent execution of the contract, requires the customer to pay for all activities incurred up to this point in time.
§ 7 Intellectual Property and Copyright
1. Content and services provided by us, including, but not limited to sketches, templates, and other works are protected by copyright and other related statutory rights.
2. All services rendered, as well as all rights to created or licensed services, remain our property until full payment of the entire stated contractual remuneration occurs. The customer shall only receive content prior to full payment as a draft – further use of content is only authorized after full remuneration has occurred.
3. Any items used for the production products – such as records, data carriers, films, clichés, lithographs, printing plates, standing sets etc. – shall remain our property and shall not be delivered.
4. Insofar as the fulfillment of the contract requires the granting of rights of use to the customer, the granting is only made at an appropriate amount necessary for the execution of the contract for a reasonable fee. Within the framework of a PITCH situation – (presentation / preparation of drafts before final contracting), the use of the content created by us is not to be used if no contract is awarded.
5. Unless otherwise agreed upon, the customer shall only be granted a simple, non-transferable right of use to the works produced. For uses which go beyond the agreed purpose, a special agreement is required in each case on the spatial and temporal extent of the right of use, as well as the remuneration.
6. A right of use is granted to the customer only on finished products. Usual design elements, as well as individual components of the contractual service may be used without restriction by us for other projects, and further licenses. The customer shall not be entitled to any use of services not received by the customer, including proposals, drafts, sketches, and modifications of the final product.
7. For logos and Designs, registration is possible as a trademark by the customer, if this has not been explicitly tasked to us. The registration of further protective rights for other content (patents), is only possible after prior agreement with and approval by us.
8. In the case of programming work, the customer is granted, subject to a separate agreement, only a simple, non-transferable right of use to the results of the programming work provided – particularly in relation to the source code.
9. If third party products (eg. CMS) are used for programming purposes, the license is determined according to the specifications of the third party provider.
10. The transfer of raw data of a created service (eg. InDesign document or similar) is only possible subject to a separate agreement. 11. If the customer wishes to acquire exclusive or extended rights of use, we will make an offer on request.
12. The assignment, licensing, or other transfer of rights of use from the customer to third parties requires our consent, unless they are carried out within the scope of the sale of a company, or in other cases as defined by § 34 (3) UrhG. (German copyright Act).
§ 8 Commissioning of Third parties
1. We are authorized to transfer the contractual services, or parts thereof, to subcontractors and/or third parties. We will oblige third parties and subcontractors to comply with all agreed upon contractual provisions.
2. We are entitled to issue orders for the production of advertising material and promotional activities, the preparation of which we have contributed to, in the name of and with the consent of the client. If we act as an intermediary, orders will only be issued after approval by the customer.
3. Additionally, § 15 (9.) applies.
§ 9 Service and Delivery Periods
1. Service and delivery periods are not binding as long as they are not agreed upon in a written offer, or in writing.
2. Delivery time is interrupted during the examination of drafts, demos, test versions etc. by the customer. The request for feedback and confirmation of preliminary versions by the customer are required during the duration of the project. The interruption in delivery time shall be counted from the date of notification of a preliminary version to the customer, to the date we receive the feedback and confirmation to proceed. Dates for the provision of services may be promised to us only through contact persons or the management, as determined by the contract.
3. Any deadline for which a contractual party falls in default, pursuant to Section 286 (2) of the German Civil code, must always be specified in writing and designated as binding.
4. Execution and delivery deadlines for orders which contain external work, such as the production of advertising media or film, photographic, or reproduction work, are subject to the supplier’s own supply of goods or services by the carefully selected supplier.
5. We are entitled to partial deliveries and to make advanced deliveries.
6. We shall not be responsible for disruptions or delays in service due to force majeure (such as strike, power outages, lock-outs, official orders, disruption in telecommunications, etc.) and circumstances within the customer’s area of responsibility (e.g. non-timely provision of services, delays by third parties attributable to the customer). We shall be entitled to delay the provision of services by the duration of the delay, plus a reasonable start-up time. We will notify the customer of any delay due to force majeure.
§ 10 Secrecy, Discretion, Data Protection
1. We, as well as our employees and third parties, will honor the privacy of the customer by staying discrete about all matters which are known only in connection with activities and work of the customer. This obligation to maintain confidentiality refers both to the customer and to the customers’ business relations. Only the customer themselves can release us from the confidentiality obligation. A duty to disclose information required by law or law enforcement has priority over this obligation of secrecy.
2. We will always use and process personal data entrusted to us in compliance with legal regulations.
3. We are entitled to refer to us and / or the copyright holder for information resources and for all measures without the customer being entitled to remuneration. If third parties are entrusted with the provision of services, we are obliged to comply with the right to copyright. We will only make the authorship known if and as required, but not highlighted in a marked degree.
4. We are entitled to refer to services/goods created for the customer on our website, or on our print material unless otherwise agreed with the customer.
§ 11 Prices and Payment Conditions
1. The remuneration is due for any quarter hour if no other agreement has been specifically indicated and agreed upon in the contract, or by a respective offer. Remuneration is subject to statutory value added tax.
2. If individual services are provided, we shall be entitled to a portion of the total remuneration for each individual service provided.
3. The remuneration includes a fee for the creative service and a fee for the right to use. The fees may be listed separately or together in the invoice. Any use which exceeds the contractually stipulated use of the services must be paid for additionally.
4. We are entitled to change or supplement price lists or hourly rates at our discretion according to § 315 BGB (German Civil Code).
5. We are entitled to exceed cost estimates by up to 10% without the need for a separate remuneration agreement. Cost estimates exceeding more that 10% of the cost estimate or budget planning are to be announced as early as possible and discussed along with a further course of action.
6. If an agreement is not made with regard to the remuneration of a service where, given the circumstances, the customer could only expect the rendering of that service in exchange for remuneration, the customer shall be obliged to pay the standard amount for the service provided. In the case of doubt, the standard remuneration rates demanded by us for services in another projects will be used to determine the rate.
7. Prices are calculated in net cost plus value added tax, and are calculated “ex-factory”. They do not include packing, freight, postage, and other shipping charges.
8. The customer is responsible for statutory fees to collecting societies, artist social insurance contributions,
and customs charges, where applicable.
9. The customer is liable for all costs related to changes on orders already placed – in particular print orders, including loss of revenue due to machinery downtime. This liability also applies to sample products if they are changed due to minor deviations from the model at request of the customer.
10. Sketches, drafts, proofs, models, samples, proof samples, and similar preparatory work, carried out at the request of the customer shall be charged to the customer, even if the order is not placed.
11. In case and for the time of default of the customer we are entitled to:
a) Charge customers an interest of at least 5% over the base interest rate per year, and companies/entrepreneurs at least 8% over the base interest rate per year.
b) Assert all claims against the customer arising from the respective, or any other transactions immediately, even those which are not yet due.
c) Withhold goods or services related to this or other transactions until all claims to which we are entitled are satisfied in full.
d) Demand a reasonable security deposit. This does not exclude damages arising from delayed payments.
§ 12 Contractual Default
1. If the customer withdraws the contract for reasons beyond our control, the parties agree to a lump sum compensation for damage, in the amount of the expenses occurred (hours), totaling to at least 30% of the agreed net order value – unless the sum exceeds the expected loss, or that the customer provides evidence that damages or depreciation incurred was significantly lower than the lump sum. The customer is obliged to pay the services rendered, which have been rendered properly until the rescission. Only upon remuneration, the customer shall be entitled to the right of use to the (partial) services accepted and paid for.
§ 13 Duty to inspection and objection
The customer is required to examine the services provided immediately after delivery and inform us of defects or deficiencies without delay. If the customer omits notification, the good/service provided will be deemed accepted, unless the deficiency/defect was not apparent during the initial examination. If such a defect/deficiency appears later, the notification must be made immediately after discovery, otherwise the good/service shall be deemed to have been accepted in respect of the defect/deficiency. The provisions of the complaint shall not apply if the deficiency/defect has been concealed in a malicious manner. The rules and regulations for the accepting of services stay in effect.
§ 14 Legal and Material Liability
1. The purpose of the contract is exclusively related to the service rendered in an order confirmation. If a service provision is dynamic, the conditions shall not apply, insofar as it does not refer to an end product. After approval of preliminary and intermediate delivered services, such services are deemed to be free from faults.
2. When using products from third-party providers (e.g. CMS), we only have the obligation to provide such services for integration by the customer. Warranty claims with regard to the third-party product only exist against such third party.
3. Warranty claims are temporally limited to twelve months after the services were rendered, unless defect or deficiency were maliciously concealed by us. The limitation period begins with the provision of the service rendered to the customer.
4. In case of a defect or deficiency, we offer supplementary services. The customer is not entitled to self-remedying of defects or deficiencies.
5. We can refuse supplementary services as long as the customer has not yet fully paid the remuneration for the services and the outstanding remuneration is not disproportionate in relation to the value of the defect or deficiency.
6. The customer‘s warranty rights shall not apply to deficiencies which are directly or indirectly attributed to deliveries or services by customer themselves; the same applies if the customer has made changes to the service provided by us, unless those changes have no effect on the origin of the defect or deficiency.
7. Claims for deficiencies due to services for which creative freedom applies are excluded.
§ 15 Liability
1. Deliveries to contract partners are „ex factory”. Transport insurance is only offered at the customer’s request and own expense.
2. We are liable for intentional and gross negligence according to the extent of the law. We are liable for slight negligence only in cases where a breach infundamental contractual obligation occurs whose fulfilment is a prerequisite for the proper implementation of the contract, or in cases of injury to health, life, or limb. In cases of slight negligence, liability is limited to the amount of foreseeable damage which is typically expected to occur. Liability under the German Product Liability Act remains unaffected by the limitation of liability.
3. We shall not be liable for the loss of data in so far as the damage occurs due to the fact that the contract partner has failed to carry out data backups and thus ensure that lost data can be recovered at a reasonable cost.
4. The above provisions also apply in the interest of our vicarious agents. For third parties, who are contacted by us at the instigation of the service provision at the request of customer in connection with the obligation to cooperate, the customer assumes liability.
5. We do not accept liability for any medium that stores data or other material which has not been requested by customer within one month after the service was completed.
6. The customer bears the responsibility for information related to the customers’ organization, content made available about the organization, or other instructions issued by the customer within the scope of the contract and services provided. The customer shall be liable for their provided materials. If this content violates third party rights; the customer indemnifies us in this respect from liability.
7. We are not liable for the legal permissibility of the contents or the design of the content planned and/or realized by us within the scope of this contract on request by customer. If the customer requests a competition or trademark examination by a particularly knowledgeable person or institution, the customer shall bear the costs for this service. Independent of this, it is the sole responsibility of the customer to bear legal admissibility. Thus, customer indemnifies us from all relating possible claims.
8. In case of force majeure which is not represented by any party, no party is liable for a resulting delay or non-fulfillment of the performance.
9. If we are acting towards third parties on behalf of the customer or their accounts, we are not liable. If necessary, we will assign our respective rights against the third parties to the customer.
10. We are not liable for the use of third-party products without a separate agreement (e.g. CMS).
11. In the case of infringements of copyright in which we are culpable, we may, at our own option and atour own expense, make changes to the affected service after prior agreement with the customer, which ensure that a breach of the intellectual property rights no longer exists or acquire the necessary rights of use. The customer is obliged to inform us without delay of third parties claims against the customer in relation to our services provided and are obliged not to communicate with the third party (making the claim) without consulting us first.
§ 16 Duration of the Contract / Projects
(1) Contracts which provide regular delivery of goods or services or services are terminable with a period of three months or at the pre-determined end of the
(2) For project related orders, we bill on a monthly interim basis.
§ 17 Final Provisions
1. The place of contract fulfilment is Düsseldorf, Germany. Exclusive jurisdiction for all legal disputes with companies or individuals resulting from this legal relationship is with the district court in Düsseldorf, Germany. However, we are entitled to take legal action against the contractual partner at their generalcourt of jurisdiction.
2. The contractual relationship, including the terms and conditions of business, shall be assessed exclusively in accordance with German law, with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG), even if the customer is domiciled abroad, or is an export business.
3. Should individual provisions of these GTC or the contractual agreements be or become invalid, in whole or in part, the effectiveness of the remaining conditions shall remain unaffected. In this case, the parties communicate to replace the invalid provision with an effective provision which most resembles the original provision, at a similar cost, within the framework of the applicable law. The same applies to any gaps in the agreements.
Last Revised: 14.12.2016