general terms and conditions
1. validity of the general terms and conditions
Orders are accepted and performed exclusively on the basis of the following terms and conditions. We do not recognize conditions that contradict or deviate from our general terms and conditions unless we have expressly agreed to their validity in writing. Our general terms and conditions also apply if we provide the service to the customer without reservation in the awareness of conditions that deviate from our general terms and conditions.
The development of conceptual or design proposals by the agency with the purpose of the conclusion of the contract takes place against payment of a presentation fee previously agreed with the customer.
Any use of work and services (presentations) in whole or in part presented or submitted by us, whether copyrighted or not, with the purpose of conclusion of the contract requires our prior consent. This also applies to use in a modified or edited form as well as to use of ideas underlying our work and services, unless they have already been used in the customer's previous advertising material. The acceptance of a presentation fee does not constitute consent to use of our work and services.
2. confidentiality agreement
The agency agrees to maintain with the diligence of a prudent businessman any trade secrets that become known to it within the framework of the cooperation with the customer and to treat all relevant information and documents as confidential. The duty of care and non-disclosure requirement endure beyond the end of the contract and also apply if a cooperation is not established.
3. fulfilment of orders
The minutes of meetings submitted by us are binding if they are not challenged by the customer within three days of receipt.
Presentations, files and other working materials (particularly negatives, models, original illustrations, etc.) that we produce or have produced in order to provide the contracted services shall remain our property. There is no obligation to surrender. There is no obligation to retain records.
The agency is entitled to label its designs with its logo in the usual places.
5. fee agreements
Oral quotations are fundamentally non-binding. Written quotations to the customer are binding and are valid for four weeks from the date of the quotation. All prices exclude transportation, packaging and VAT as well as any travel costs or expenses incurred by agency employees.
Invoicing shall take place upon the completion of the project on the basis of advance orders / written quotes. In addition, the following shall apply:
Corrections: The first correction of a layout design - in order to achieve optimization - is free of charge. Any further required or desired corrections are, insofar as they are not attributable to the fault of the agency, the author's corrections and shall be calculated separately according to expenditure without any prior quotation. Lithography corrections are free of charge for the first submission of the binding color proof providing that the issue is color correction. Any other corrections are the author's corrections and shall be calculated separately according to expenditure without any prior quotation.
Special orders: Any requests for changes and special orders on the part of the customer that are not included in the initial order shall be quoted for and charged separately. If no written fee agreement has been concluded in this regard (e.g. due to lack of time) the agency shall charge the additional services provided according to expenditure.
Order cancellation: If an order issued to the agency is not fulfilled for reasons for which the agency is not responsible the agency is entitled to invoice for any services already rendered.
The customer has the right to set-off only if its claims have been legally established, are undisputed or have been acknowledged by us.
6. award of orders to third parties
We are authorized to perform the work assigned to us or to commission third parties to perform such work.
We are authorized to issue orders for the production of advertising materials towards whose creation we contribute in accordance with the contract, on behalf of the customer. The customer hereby expressly issues us corresponding power of attorney.
If the agency obtains quotations from third parties during the course of its production work but the customer awards the order to another party, the agency shall invoice the customer for the services involved in obtaining such quotations according to expenditure.
Any order we award to advertisers shall be in our own name and for our own account. If quantity or frequency discounts are claimed the customer shall receive backpayment in the event of non-compliance with the conditions of discount. This backpayment shall be due immediately. We are not liable for unsatisfactory performance on the part of the advertiser.
7. delivery and delivery deadlines
Any excess or short delivery of less than 10% of the ordered quantity/amount cannot be claimed. The delivered quantity shall be invoiced.
Any dispatch of goods shall be using the cheapest method according to our calculations or according to instructions of the customer. Insurance against damage and loss shall be completed only at the express request of the contractor and its cost.
Our delivery obligations are fulfilled as soon as our work and services up until dispatch have been completed. The customer shall bear the risk of conveyance (e.g. damage, loss, delay) no matter what media is used for conveyance.
Delivery deadlines are only binding if the customer has duly fulfilled any obligations to cooperate (e.g. provision of documents, approvals).
Masters and drafts provided by us are only binding once we confirm in writing that it is possible to realize the color, image or sound quality.
8. terms of payment
Any agreed prices are net prices excluding statutory value added tax.
Any social security contributions for artists shall be charged to the customer.
In the case of advertising services, the applicable listed price of the advertiser on the day of publication is binding.
Our invoices are due in full 14 days after the invoice date. There is no discount for prompt payment.
We shall retain ownership of any documents or items delivered until the full payment of all invoices relating to the order. Only after full payment of all invoices relating to the order do any rights to our services, in particular proprietary rights of use, insofar as such have been awarded in writing, transfer to the customer.
The customer shall immediately inform us of any levy of execution by third parties with regard to goods subject to retention of title and must supply the necessary documents for an intervention; this shall also apply to interference of any kind. Independent of this, the customer shall inform third parties in advance of existing rights to the goods. The customer shall bear the costs of any intervention of the user if the third party is not in a position to reimburse such costs.
9. rights of use
Upon settlement of all invoices related to the order we shall transfer to the customer all necessary rights of use for our work and services, as agreed for the order or as arises from any circumstances of the order that we are able to identify. In the event of doubt, we shall fulfil our commitment by granting in writing non-exclusive rights of use within the territory of the Federal Republic of Germany for the period of use of the advertising materials. Any further use, in particular editing, requires our written consent.
If we involve third parties to fulfil the contract, we shall acquire their rights of use within the scope of Item 9.1 and accordingly transfer them to the customer.
The customer shall examine immediately upon receipt and before any further processing any work or services we deliver and contest in writing any defects upon discovery within 14 days of receipt of the goods. Failure to examine or contest defects immediately shall exclude any claims by the customer.
If defects are present we have the right to make improvements twice within a reasonable period of time.
Any claims for damages are excluded if we, our legal representatives or our vicarious agents have acted slightly negligently. This does apply in the event of breaches of fundamental contractual obligations. In this case, liability is limited to typical and foreseeable damages.
We are also not liable for any claims for damages against companies in the event of breaches of non-fundamental contractual obligations due to gross negligence by ordinary vicarious agents. Claims for damages of any kind against companies are limited to typical and foreseeable damages.
11. liability under competition law
Liability for the compliance of any advertisement with competition law does not exist unless it is due to an intentional act or gross negligence.
In particular, the agency is not obliged to subject its drafts to legal assessment. This responsibility lies solely with the customer. Assessment with regard to competition law is not our responsibility unless this is expressly agreed.
12. place of jurisdiction and applicable law
Unless anything in the contract otherwise applies, the place of performance and payment is the place of business of mangler+noller gmbh. The exclusive place of jurisdiction for contracts with registered traders, legal persons under public law or special funds under public law is the competent court for the place of business of mangler+noller gmbh.
German law is valid.