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brot & salz

GTC

General Terms and Conditions for Agency Services of brot & salz GmbH

  1. Scope and Definitions
    1. These terms and conditions apply to all agency services provided by brot & salz GmbH ("Agency") to its advertising clients ("Client"). The Agency and the Client are each referred to as a "Party" and collectively as the "Parties„.
    2. Before the initiation of the contractual relationships, the Agency sends the Client a proposal ("Offer") detailing the agency services to be provided. The contractual relationship (Offer, General Terms and Conditions, and all ancillary agreements) is hereinafter referred to, regardless of the specific type of contract, in a commercial manner as the "Order„.
  2. Agency Services
    1. The Agency is obligated to perform the services in the manner described in the Offer to the Client. Offers from the Agency are non-binding and subject to confirmation, becoming effective only after written confirmation by the Client (email suffices). Offers may be accepted within 30 days from the offer date according to § 148 BGB.
    2. The Agency strives to adhere as closely as possible to the agreed completion dates of the Order. Failure to meet these dates entitles the Client to exercise their statutory rights only if they have granted the Agency a grace period of at least 14 days via a reminder letter. This period begins upon the Agency receiving such a reminder.
    3. Subsequent changes to the performance obligations require a written agreement by the contracting parties (email suffices). If no compensation is agreed upon for the subsequent change, the customary compensation according to the agency's pricing key, or in the absence of such, the customary market compensation shall be deemed agreed.
    4. The Client is entitled to request a single free revision ("correction loop") for creative services from the Agency. For additional correction loops, the Agency is entitled to demand customary contractual compensation or, if not agreed upon, customary market compensation or reasonable compensation. Otherwise, within the scope of the Order, there is artistic freedom, and further complaints besides the correction loop regarding the artistic design are excluded.
    5. If the Client cancels the Order before acceptance of the service, or if this is impractical, before the provision of the service, the Agency is entitled to demand compensation for services already provided and expenses incurred in connection with the Order. Furthermore, the Agency is entitled to demand a flat-rate compensation for the agreed services according to the following scale:
      - For cancellation six months before the agreed acceptance or provision of service, 25% of the agreed compensation;
      - For cancellation three months before the agreed acceptance or provision of service, 50% of the agreed compensation;
      - For cancellation one month before the agreed acceptance or provision of service, 75% of the agreed compensation.

      The flat-rate compensation cannot be demanded if the Client proves that no damage has occurred or that the damage is significantly lower than the flat rate.
    6. If the Agency owes a specific work result, i.e., a customizable work, the Client is obligated to accept it. Acceptance is deemed to have occurred if it is not declared or refused within seven days after delivery, provided the work result essentially complies with the agreements. If there are significant deviations, the Agency will rectify these deviations upon the Client's request within a reasonable period and resubmit the work result for acceptance. Acceptance is deemed to have occurred at the latest upon payment or use of the work.
    7. Subject to the provisions in paragraph 4 of this Order, rights of defects must be asserted in writing to the Agency within seven days after acceptance of the work or the completion of a service. Thereafter, the work/service is considered free of defects.
    8. The Client bears the damage and additional costs resulting from the need to repeat or delay work due to incorrect, subsequently corrected, or incomplete information from the Client. If the execution of the Order is delayed for reasons attributable to the Client, the Agency may demand a reasonable increase in compensation. For each month of delay, the Agency is entitled to demand a flat-rate increased compensation of 10% of the originally agreed compensation. The flat-rate compensation cannot be demanded if the Client proves that no damage has occurred or that the damage is significantly lower than the flat rate. The assertion of further damages caused by delay remains unaffected.
    9. The Agency is allowed to have the services owed by it performed by third parties as subcontractors. The Client may only reject such a third party if there is an important reason related to the person of the third party. The Agency is obliged to impose the protective and due diligence duties owed to the Client on the third party. The Agency is authorized to order the services necessary for fulfilling the Order in the name and on behalf of the Client, for which the Client grants the Agency the appropriate powers of attorney. To the extent that contracts for external services are concluded in the name and on behalf of the Agency, the Client agrees to indemnify the Agency internally from all liabilities arising from the contract conclusion, except for liabilities caused by the Agency's fault. Travel expenses and allowances for trips made in connection with the Order and agreed upon with the Client or deemed necessary are to be reimbursed by the Client.
  3. Payment Terms
    1. Unless the parties have agreed otherwise, the agency is entitled to invoice half of the total price mentioned in the offer before performing the respective services. The remaining total price of the respective service becomes due after its acceptance, or, if this is not feasible, after the service has been provided. Prices are understood to be without discount and other reductions. If the service provision period extends over more than 30 days, the agency is entitled to invoice its services at the end of each month on a provisional basis.
    2. If no fee has been agreed for a service or partial service, the customary fee according to the agency's price key applies, or in the absence of such, the customary market fee is deemed agreed. Agreed ancillary services and costs advanced by the agency in accordance with the agreement are, unless otherwise regulated, at the expense of the client. Price increases after the conclusion of the contract, based on fluctuations in exchange rates, wage, or material cost increases, can be passed on to the client.
    3. Unless the parties have agreed otherwise, the client is obliged to pay invoices within 14 days from the invoice date. In case of late payment, statutory consequences of default apply.
    4. The total price is a net price and is subject to the statutory value-added tax. GEMA fees and other licensing rights compensations and customs costs are indicated in the offer and are borne by the client under the conditions stated there.
  4. Liability
    1. No provision in this contract shall limit the liability of a party to the extent that this liability cannot be limited under applicable law. In particular, a party's liability is unlimited for damages resulting from the infringement of (a) the physical integrity or health of persons, regardless of the degree of negligence of the party or its subcontractors in connection with or during the performance of duties under this contract; (b) duties that are essential for this agreement (cardinal obligations); cardinal obligations are those duties whose fulfillment enables the proper execution of the agreement in the first place and on whose compliance the parties regularly rely and may rely.
    2. In the case of slight negligence, liability is excluded, subject to the provision under number 4.1.
    3. In the case of gross negligence, subject to the provision under number 4.1, the total liability is limited to the lower amount of EUR 25,000.00 or the total price mentioned in the offer in connection with which the infringing action occurred.
    4. The agency is not liable for delays in services outsourced to third parties as part of the order processing.
    5. The risk that the services performed under this contract are legally permissible, especially in compliance with the provisions of the UWG (Act against Unfair Competition) and specific advertising legal regulations, is borne by the client. To this extent, the client indemnifies the agency from all third-party claims.
    6. The provisions in this section 4 of the contract also apply to subcontractors used by the agency.
  5. Copyright
    1. Unless the parties have agreed otherwise, the client acquires, with full payment, the usage rights to the services provided by the agency necessary according to the purpose of the contract for a duration of 6 months after acceptance, or, if this is not feasible, after the service has been provided. The usage rights are limited to the territory of the Federal Republic of Germany and to the agreed forms of publication (e.g., print, digital, radio, TV). Modification or content change of the services provided by the agency is only allowed with prior written consent from the agency. The transfer or licensing of usage rights by the client to third parties requires the prior written consent of the agency to be effective.
    2. If the use or exploitation rights (e.g., photo, film, copyright, GEMA rights) or third-party consents (e.g., personality rights) are necessary for the creation or implementation of the agency's work results, the agency will obtain these rights and consents on behalf of and at the expense of the client. This is generally only to the extent necessary for the intended advertising measure in terms of time, space, and content unless expressly agreed otherwise. Additional demands according to §§ 32, 32 a UrhG (German Copyright Act) are at the expense of the client.
    3. The agency assumes no liability that no third-party rights exist concerning the advertising materials and work results supplied by it.
    4. Usage rights for designs rejected or not implemented by the client remain with the agency. This also applies especially to the agency's services that are not subject to special legal rights, in particular copyright.
    5. The agency is authorized to use the client's trademarks and the advertising materials conceived by it for an unlimited time as a reference for advertising and marketing purposes on its website, in presentations, and press releases.
  6. Retention of Title
    1. The agency retains ownership of the delivered goods until full payment of all outstanding balance claims. The client is obliged to carefully handle the delivered item as long as ownership has not yet been transferred to them. As long as ownership has not been transferred, the client must immediately notify the agency in writing if the delivered item is seized or exposed to other third-party interventions. Insofar as the third party is not able to reimburse the agency for the judicial and extrajudicial costs of a lawsuit according to § 771 ZPO (German Code of Civil Procedure), the client is liable for the loss incurred.
    2. The client is authorized to resell the delivered item in the course of normal business operations. The client hereby assigns to the agency all claims arising from the resale of the delivered item to the extent of the outstanding balance claim. This assignment applies regardless of whether the delivered item has been resold without or after processing. The client remains authorized to collect the claim even after the assignment. The agency's authority to collect the claim itself remains unaffected. However, the agency will not collect the claim as long as the client meets their payment obligations from the collected proceeds, is not in default of payment, and in particular no petition for the opening of insolvency proceedings has been filed or there is no cessation of payments.
    3. The processing or transformation of the delivered item by the client is always done in the name and on behalf of the agency. In this case, the client's expectant right to the delivered item continues on the transformed item. If the delivered item is processed with other items not owned by the agency, the agency acquires co-ownership of the new item in proportion to the objective value of the delivered item to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing occurs in such a way that the client's item is to be regarded as the main item, it is agreed that the client transfers proportional co-ownership to the agency, and the thus created sole ownership or co-ownership is kept in custody for the agency. To secure the claims of the agency against the client, the client also assigns to the agency those claims that arise to him through the connection of the delivered goods with a property against a third party; the agency already accepts this assignment now.
    4. The agency commits to release the securities entitled to it upon the client's request, insofar as their value exceeds the claims to be secured by more than 20%.
  7. Production Management and Supervision
    1. The duplication of products created by the agency and their monitoring and management by the agency are carried out only based on a special agreement in the order. When taking on production services of any kind, the agency is entitled to make necessary decisions at its own discretion and to issue corresponding instructions. Furthermore, the client may define production processes in more detail in the order and, after written agreement with the agency, make subsequent changes (email suffices). If no compensation is agreed for the subsequent change, the customary compensation according to the agency's price key applies, or in the absence of such, the customary market compensation is deemed agreed.
    2. Before the execution of duplications of products created by the agency by third parties commissioned by the agency, the client will receive a proof from the agency after the creation of his commissioned graphic services. This proof must be checked by the client for accuracy of the information listed and for typographical errors. Unless the parties have agreed otherwise, desired improvements and changes must be communicated to the agency within a deadline of seven days. After modification of the template, the client will receive a new proof upon request. This must also be reviewed and returned. The client has a deadline of seven days for the return of the proof. If desired improvements and changes to the respective proof are not received by the agency within the above-mentioned deadline, it will be considered as free of errors. For a color proof, the colors are not binding for the print due to technical reasons.
    3. Subject to the provisions in number 4 and beyond the regulation of number 7.2, the agency assumes no liability for the correctness of the proof. This also applies in the event that the client does not wish to receive a proof.
  8. Confidentiality
    1. A party to which confidential information is made accessible by the other party (hereinafter referred to as the "Receiving Party") must (a) use the confidential information of the other party solely for the purposes of this order, (b) prevent its unauthorized exploitation, disclosure, or publication with the same (but at least a reasonable) degree of care that it uses to protect its own information of similar confidentiality, and (c) restrict access to the confidential information exclusively to those bodies, employees, consultants, or other contractual partners who need to know it for the purposes of this agreement, in which case the Receiving Party is liable to ensure that these individuals adhere to the obligations from this section. Information is considered confidential if (a) it relates to the subject matter of this agreement and (b) is communicated to the Receiving Party either in writing or in another form, provided it is designated as confidential at the time of communication and thereafter confirmed in writing as confidential by the disclosing party within five working days. Information is not considered confidential if it was already publicly accessible before being received by the Receiving Party or was available to the Receiving Party without an obligation of confidentiality. Information ceases to be considered confidential if it becomes publicly accessible without violating this agreement, is lawfully received from another source by the Receiving Party without an obligation of confidentiality, is independently developed or discovered by the Receiving Party, or if it is to be disclosed by the Receiving Party pursuant to the order of a competent court or other governmental authority.
    2. The agency is entitled to publicly disclose its collaboration with the client for advertising and marketing purposes.
  9. Final Provisions
    1. Should any provision of the order be or become invalid or contain a gap, this shall not affect the validity of the remaining provisions.
    2. In the event of contradictions between these terms and conditions and the offer, the regulation in the offer prevails.
    3. Modifications or amendments to these terms and conditions require written form. A waiver of the written form also requires formality.
    4. The place of jurisdiction for all disputes between the client, who is a merchant, and the agency is the location of the agency.
    5. Only the law of the Federal Republic of Germany applies, excluding German international private law.