General Terms and Conditions
1 Scope of application
1.1 The following General Terms and Conditions apply to all contracts between Shary Reeves, Severinstrasse 214, 50676 Cologne (agency reeves.selects) and its customers. In the case of any follow-up orders, it is not necessary to expressly refer to the agency’s General Terms and Conditions again.
1.2 The Agency’s General Terms and Conditions shall apply exclusively. The customer’s general terms and conditions shall only apply insofar as the agency has expressly agreed to them in writing.
2 Conclusion of contract
2.1 Angebote der Agentur sind 14 Tage, ab Angebotsdatum, gültig.
2.2 The contract becomes binding when the customer places the order. The order can be placed in writing, verbally, by telephone, fax or e-mail.
2.3 Otherwise, all agreements made between the agency and the customer for the purpose of executing an order must be agreed in writing. Amendments, supplements and ancillary agreements must be made in writing to be effective.
3 Subject matter of the contract; concept
3.1 The Agency’s contractual obligations arise primarily from the service specifications or offers sent and orders signed between the Agency and the Client.
3.2 At the Customer’s request, the Agency shall develop a concept before the order is placed, the costs of which shall be reimbursed by the Customer as agreed. The concept shall be treated confidentially; the customer shall not be authorised to use the concept outside the agency’s order, in particular itself or by using other providers, or to pass it on to third parties.
3.3 At the client’s request, the agency shall present the concept. The customer shall bear the costs of the presentation as agreed.
3.4 The relevant deadlines and milestones for a project are set out in the order or a corresponding annex and form a binding contractual basis between the parties. If it becomes apparent during the progress of the project that compliance with deadlines is jeopardised, the Agency shall inform the Client of this immediately in writing.
3.5 The Client may agree changes or extensions to the contractually agreed scope of services with the Agency during a project. The prerequisite is that this does not jeopardise the success or the intended results of the project and that the agency’s capacities are not overloaded. Without a corresponding agreement, the originally agreed deadlines, remuneration rates and service content remain unchanged. However, the client shall also have the right to compensate for the additional expenditure incurred as a result of changes by waiving other parts of the service, insofar as this is reasonable for the agency. If the additional order affects the timing of the other services, this must also be regulated in the relevant additional order.
4 Services of the agency
4.1 The scope of the Agency’s services shall be determined by the Agency’s offer, the Client’s order, the Agency’s order confirmation and the Client’s briefing.
4.2 The Agency shall be entitled to commission third parties to fulfil its obligations arising from the contractual relationship. Insofar as the agency commissions third parties named by the customer at the customer’s request, the agency’s liability is excluded.
4.3 The Agency is authorised to provide partial services.
4.4 Events of force majeure shall entitle the Agency to postpone the project commissioned by the customer for the duration of the hindrance and a reasonable start-up period. This shall not give rise to a claim for damages by the customer against the agency. Dies gilt auch dann, wenn dadurch für den Kunden wichtige Termine und/oder Ereignisse nicht eingehalten werden können und/oder nicht eintreten.
4.5 When commissioning internet services and web design, the Agency shall provide the Client with comprehensive advice on both the design options and the possible functionalities of a website. During the consultation, the agency will take into account which target groups are to be addressed by the website and which overall purposes the client is pursuing with the website. The agency will inform the client about the advantages and disadvantages of individual design and functional features as well as about general knowledge that the agency has of the habits and needs of Internet users – e.g. with regard to loading times and the weighting of texts and graphic elements. However, industry-specific knowledge is not to be expected from the agency. In particular, the agency is not obliged to gain specific knowledge about the habits and user behaviour of persons who are part of the website’s target groups through surveys, studies or other means of market research.
4.6 As part of cost management, the client shall be provided with corresponding cost estimates from third-party providers in text form (Section 126 b BGB) before the start of each cost-generating third-party service (e.g. photo shoot, print orders, programming work, etc.) that is not covered by the agreed remuneration or is provided by third parties. The external costs must be approved by the agency with binding effect. The agency will only begin with the implementation of cost-incurring external services if the client has given its approval for this. The agency is not responsible for delays caused by late cost approval.
5 Services of the customer
5.1 The Client shall support the Agency to the best of its ability in the implementation of the contractually agreed services and, in particular, promptly review and approve concept drafts, proposals, design or print templates, logo designs, screen designs and programming proposals. Such approvals are then a binding starting point for the further provision of services by the agency. To the extent that test runs or acceptance tests, presentations or other meetings become necessary or expedient, the customer shall assign knowledgeable employees to participate in the meetings who are authorized to make all necessary or expedient decisions for the customer.
- 2 The customer shall provide the agency with the content required to create the website and to provide further services. The agency is not obliged to check the content provided by the customer, in particular with regard to whether it is suitable for achieving the purpose pursued with the creation of the website.
5.3 The content to be provided by the customer includes in particular all texts, photographs, graphics and tables to be used at the customer’s request.
5.4 The rights described in para. 2 and 3 shall be made available to the Agency in digital form.
5.5 Should delays occur in this work process for reasons for which the client is responsible and which lead to a postponement of the schedule, the agency reserves the right to recalculate certain services offered and to demand an increase in remuneration in accordance with Section 8.6 of the GTC.
5.6 The Client shall only award contracts to other agencies or service providers in connection with a commissioned project after consultation and in agreement with the Agency.
6 Freedom of design and templates; rectification
There is freedom of design within the scope of the order. Complaints regarding the artistic design are excluded. If the client wishes to make changes during or after the design production, he has the option of having up to two change samples produced. Any further changes will be charged to the customer at additional cost. If the customer wishes to make changes to the final draft/layout after having previously declared it to be faultless (verbally or in writing), he shall bear the additional costs. The agency retains the right to remuneration for work already commenced. Instead of conversion/reduction, the Agency reserves the right to initially provide a maximum of two subsequent improvements. The client assures that he is authorized to use all templates provided to the agency. If, contrary to this assurance, the client is not authorized to use the material, the client shall indemnify the agency against all third-party claims for compensation.
7 Rights of use and attribution
7.1 The works created by the Agency or its third-party service providers within the scope of a project are protected as personal intellectual creations by copyright law. This provision shall also be deemed to have been agreed if the level of creativity required under the Copyright Act is not reached in an individual case.
7.2 Upon full payment of the agreed fee for the contractually agreed purposes and to the contractually agreed extent, the Agency shall grant the Client the non-exclusive right to use the works delivered by the Agency for all types of use known at the time of conclusion of the contract. The transfer of rights of use applies to the territory of the Federal Republic of Germany. Uses that go beyond this area require a separate written agreement. All transfers of rights of use are subject to the condition precedent of full payment of the contractually agreed remuneration to the agency.
7.3 In the case of Internet services and multimedia productions, the publication of source codes and open files is not part of the simple right of use. In principle, data in the form of the agreed service shall only be provided to the client or third parties commissioned by the client in closed, non-editable files. If the client wishes open files to be published, this requires an agreement and a separate remuneration arrangement. Changes to open or editable data by the client or third parties commissioned by the client require the written consent of the agency.
7.4 Insofar as works are created by third parties (in particular photographers, illustrators, photo models, web designers and other creative professionals), the Agency shall ensure that the agreed rights of use and exploitation of the third party are obtained and transferred to the client.
7.4. The work of the agency may not be altered by the customer or third parties commissioned by the customer, either in the original or in reproduction. Any imitation, even of parts of the work, is not permitted. In the event of non-compliance, the agency shall be entitled to an additional fee from the client of at least 2.5 times the originally agreed fee.
7.5 The transfer of granted rights of use to third parties and / or multiple uses shall be subject to a fee, unless regulated in the initial order, and shall require the Agency’s consent.
7.6 The Agency shall be entitled to information on the scope of use.
7.7 If the Agency so wishes, the Client shall name the Agency as the author of the website in the website’s legal notice.
8 Remuneration and payment modalities
8.1 The remuneration approved and agreed with the order confirmation shall apply. This is due upon acceptance of the service, product or work. It only covers those items which are the subject of an express written agreement in accordance with clause 4.1. Additional expenses, in particular for the acquisition of third-party rights, for the involvement of subcontractors, for costs incurred by artists and other third parties, for social security contributions for artists and fees for the use of copyright services, shall be invoiced additionally. Any customs, shipping and packaging costs incurred will also be charged additionally. Unless otherwise agreed in writing, the agency shall be reimbursed travel costs and expenses incurred in connection with the execution of the order in addition to the agreed remuneration.
8.2 The Agency shall be entitled to issue partial invoices for the calculated fee and third-party costs as follows: 1/3 after the order has been placed, 1/3 after the concept/layout presentation or after 50% of the agreed services have been provided, 1/3 after the project has been completed. In this respect, partial services do not have to be available in a form that can be used by the client and can also be available as a pure working basis on the part of the agency.
8.3 Unless otherwise contractually agreed, payments are due within 14 days of invoicing without any deductions. If the customer defaults on payment of the remuneration, the agency may claim interest on arrears at a rate of nine percentage points above the prime rate. The right to claim further damages remains unaffected by this provision.
8.4 All services offered by the Agency are subject to value added tax at the statutory rate.
8.5 If the client cancels, terminates or delays an order during a project for reasons for which the client is responsible, the client undertakes to pay for the services provided by the agency to date, but at least 25% of the agreed total remuneration. The client reserves the right to provide evidence of actually lower services or higher expenses. There shall be no fundamental claim to completion of the works and work after the order has been canceled, terminated or delayed by the client. The customer shall bear the third-party costs incurred up to that point and shall otherwise indemnify the agency against any obligations to third parties.
8.6 If the implementation of the project is delayed for reasons for which the Client is responsible, the Agency may demand a reasonable increase in remuneration and postpone the agreed schedule accordingly. In the event of intent or gross negligence on the part of the client, the agency may also assert claims for damages. The assertion of further damages caused by delay remains unaffected.
8.7 In the event of non-payment or late payment of the agreed remuneration, the Agency reserves the right of retention to stop or suspend production orders or to reclaim data (which was handed over on the basis of separate agreements prior to payment of the remuneration) and works already produced from the Client in full and in perfect condition. Any resulting costs shall be borne by the client.
9 Liability
9.1 The Agency shall only be liable for damages, except in the event of a breach of material contractual obligations, if and to the extent that the Agency, its legal representatives, executives or other vicarious agents are guilty of intent or gross negligence. In the event of a breach of material contractual obligations, the Agency shall be liable for any culpable conduct on the part of its legal representatives, executive employees or other vicarious agents. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability for injury to life, limb or health. Liability for compensation for indirect damages, in particular for loss of profit, shall only exist in the event of intent or gross negligence on the part of legal representatives, executives or other vicarious agents of the agency. Otherwise the liability of the agency is excluded.
9.2 The aforementioned exclusions and limitations of liability vis-à-vis entrepreneurs or consumers shall not apply in the event of the assumption of express guarantees by the Agency and for damages resulting from injury to life, limb or health and in the event of mandatory statutory provisions.
9.3 In addition, the Agency shall be liable without limitation for damages that are covered by liability under mandatory statutory provisions, such as the Product Liability Act.
10 Warranty; exemption
10.1 The Agency undertakes to carry out the order with the greatest possible care, in particular to treat with care any templates, films, work data, internal company documents etc. provided to it. The risk of the legal admissibility of the measures developed and implemented by the agency is borne by the client. This applies in particular in the event that the actions and measures violate the provisions of competition law, copyright law and special advertising laws.
10.2 The Agency shall be liable for defects in the services and works delivered in accordance with the statutory provisions. A warranty period of one year shall apply to the warranty, including contractual claims for damages, if the client is an entrepreneur. If the client is a consumer, a warranty period of two years applies. If the customer is a consumer, a warranty period of two years applies.
10.3 In the case of color reproductions in all manufacturing processes, minor deviations from the original cannot be objected to, provided they are within the usual tolerances according to the state of the art. The same applies to the comparison between proofs and print runs as well as the comparison between other templates (e.g. digital proofs, press proofs) and the final product. Excess or short deliveries of print products of up to 10% of the ordered print run cannot be objected to. The quantity delivered is invoiced.
- 4 Should third parties assert claims against the agency due to possible legal infringements resulting from the content of a contractual website, the customer undertakes to indemnify the agency against any liability and to reimburse the agency for the costs it incurs due to the possible legal infringement.
11 Confidentiality
Both parties, including all employees and other third parties involved in the project who have access to information of the other contracting party and/or the contractual services, mutually undertake to maintain absolute confidentiality with regard to such information vis-à-vis non-involved third parties and to protect this confidentiality without reservation. If data and information are subject to strict confidentiality due to their nature, they must be marked as such by the client. Confidentiality shall not apply to information that is generally accessible, published by the other contracting party itself or disclosed by a third party. The burden of proof for such an exception lies with the party invoking the exception.
12 Collecting societies
12.1 The customer undertakes to pay any fees 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. This can also take place after termination of the contractual relationship.
12.2 The client has been informed that an artists’ social security contribution must be paid to the Künstlersozialkasse (Artists’ Social Security Fund) when an artistic, conceptual or advertising consultancy contract is awarded to a non-legal person. This fee may not be deducted by the customer from the agency invoice. Unless otherwise agreed, the customer shall be responsible for complying with the obligation to register and submit data, insofar as the order is placed in the name and on behalf of the customer.
13 Termination; duration of contract
13.1 The contractual relationship is valid for the period for which it is concluded. Termination in accordance with § 627 BGB is excluded. If the contractual relationship is concluded for an indefinite period, it can be terminated by either party with three months’ notice to the end of the month.
13.2 The right to terminate the contract without notice for good cause remains unaffected by this provision. Good cause shall be deemed to exist in particular if insolvency proceedings are opened against one of the contractual partners or rejected for lack of assets or if the agency is in default with a significant part of its performance obligation or the customer is in default with more than 20% of its payment obligation. In any case, the contractual partner must be given the opportunity to correct its breach of contract by setting a written deadline of 14 working days. Any termination must be in writing.
14 Final provisions
14.1 Amendments and supplements to this contract, including the agreement to waive this written form requirement, must be made in writing.
14.2 The Agency may not assign the rights to which it is entitled under this contract to third parties, either in whole or in part, without prior written consent.
14.3 Should any provision of this contract be or become invalid or unenforceable, this shall not affect the validity of the remainder of the contract. The parties shall endeavour to replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the economic intent of the invalid or unenforceable provision. The same applies in the event of a loophole.
14.4 The Agency shall be obliged to inform the Customer of its current address in writing by registered letter whenever it changes. For notification obligations of the customer under this contract and under the Copyright Act, the address of the agency stated in the contract rubric or the last address of the agency notified by registered letter shall apply.
14.5 The exclusive place of jurisdiction for all disputes between the parties arising from or in connection with this contract is Cologne. This contract is subject to German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
14.6 In order to comply with the written form specified in these General Terms and Conditions, transmission by e-mail shall suffice, unless expressly agreed otherwise.