Terms & Conditions
I. DEFINITIONS OF TERMS, AREA OF APPLICATION, ORDER DEPARTMENT
1. The terms “Order”, “Contractor” and “Client” should be understood in a commercial sense. “Order” refers to the contractual relationship without taking into account the specific type of contract. “Contractor” refers to the person who is responsible for providing the main service. “Client” refers to the person in whose name the main service has been ordered. “Agency” refers to the advertising agency which purchases goods or orders services for itself or for its customers.
2. These terms apply, irrespective of in whose name the Agency concludes the contract (in its own name or on behalf of a third party, in particular of the customer). If the third party has not consented to the contract being concluded in its name, the Client is the Agency with all rights and obligations.
3. Only Orders or modifications of Orders issued in writing are binding.
4. Different and/or supplementary terms and conditions of the Contractor will only apply if the Client has acknowledged them in writing.
5. The Order must be confirmed with the Agency in writing by e-mail or return fax. This must occur within one working day if the terms and conditions had been fully agreed prior to issuing the Order, otherwise without delay.
II. DATES, DELIVERY TIMES, PLACE OF FULFILMENT
1. Agreed dates and delivery times are binding. The Contractor must give notice immediately if it anticipates any delay in delivery. If the Contractor does not meet delivery times or dates, the statutory provisions will apply.
2. The Agency is entitled to withdraw from the contract if it is clear that the delivery/service will not be made on time and that significant production disruptions for the Agency and/or for its customer are anticipated as a result.
3. The delivery must be sent by the Contractor at its own expense and risk to the delivery address provided, which corresponds to the place of fulfilment.
III. DRAFTS, EXCESS QUANTITIES, ORDER MODIFICATIONS
1. Drafts, in particular for alternative solutions, are included in the scope of services. Excess quantities will not be paid for even if they cannot be avoided in the production process.
2. If the Client requires a service after issuing the Order, e. g. a modification and/or additional wishes, which requires the Contractor to produce excess quantities, the Contractor will only have a claim to additional payment if the Contractor notifies the Client of this immediately in writing and the Client has expressly ordered it.
IV. AGREED CONDITION, DEADLINE FOR SUBSEQUENT PERFORMANCE
1. Deliveries which are related to the design or production of advertising material must fulfil the task set and, if applicable, correspond to the models provided and instructions given, as well as meeting the current state of the art; they must meet the technical, advertising and artistic standards of the test pieces provided by the Contractor before issuing the Order.
2. The statutory right to subsequent performance must be measured in terms of time so that in the event that there is a failure in the subsequent performance of the Order, the Client can still give the Order to another party and meet the following deadlines.
3. Otherwise the statutory provisions apply.
V. COMPLAINTS, ACCEPTANCES
1. Complaints must be made within two weeks from delivery if they relate to defects in goods which are identified on examination and unjustifiable issues which can be traced back to material to be sourced by the Contractor. Perishable goods must be examined immediately and complaints about any defects that are identified must be made immediately.
2. A required acceptance of services will be deemed to have taken place when the Agency expressly acknowledges the services as being in accordance with the contract.
3. Payment represents neither acceptance nor a waiver of the right to make a complaint.
VI. VALUE ADDED TAX, INVOICING, PACKAGING COSTS
1. The agreed prices are quoted net, i.e. not including the currently applicable statutory VAT.
2. The invoice must be sent immediately after delivery to the incoming invoices department of the Agency.
3. Payment will be made within 14 days after receipt of the invoice with a 3 % discount or within 30 days without deductions.
4. Packaging costs will not be reimbursed.
VIII. SPECIAL CONDITIONS FOR PHOTOGRAPHERS
1. In order to execute the advertising concept approved by the Client, the Agency can, in the name of the Client, set out requirements for the Contractor with regard to the people involved in the creating the photographic subject (in particular models, make up artists, stylists including their clothes), props, specific technical effects (in particular a specific light) and the location. The Contractor must conclude the contracts for the service, purchase and hire required for this in its own name and on its own behalf. These contracts must come within the cost proposals previously approved by the Client.
2. Otherwise, the Contractor will bear the cost and risk for the necessary staff and the required items which it must book, purchase or hire in its own name for the photo shoots. The Contractor must include payment for these services in its price calculation.
3. If photographing cannot take place because a model booked on time by the Contractor in accordance with paragraph 2 does not appear on time for the photo session, the Contractor is responsible any additional costs arising for the model fee, props and auxiliary costs and the Contractor is entitled to make claims for any compensation against the delayed model.
4. The Client and the photographer agree that by paying the first instalment (if applicable) of the usage fee the Client acquires ownership of all the photographic material which exists (negatives, slides, intermediate negatives, duplicates etc.) and of electronically digitalised images which come into existence during the contracted photographic work. This ownership applies for the entire duration of the usage right. Section X. sentence 1 applies correspondingly. On request of the Client or the Agency, the Contractor must hand over the photographic material to the Client or to the Agency.
IX. COPYRIGHT USAGE RIGHTS/RELATED RIGHTS/RIGHTS TO ONE'S OWN IMAGE
1. Unless otherwise agreed, copyright usage rights and related rights of the Contractor as well as the right to use the image of the models, both in relation to the subject of the contract, are transferred to the Client for exclusive global use on payment of the fee for an unlimited time. The Contractor will transfer all the necessary data, sources and source codes in order to implement this. Purpose of use: Promotional and non-promotional, first publication and multiple publication; type of use: All printed advertising material (advertisements, posters, supplements, catalogues, brochures, packaging, other printed advertising material), collected works, films (TV commercials, cinema (commercial) films), magnetic tape (film cassettes, audio and video cassettes), online and offline use from electronic storage devices (databases, CD-ROMs, CDI, MO drives, DAT, floppy discs, internet, multimedia) and all conceivable and also future new types of usage; reproduction technology: printing, film copies, magnetic tape copies, machine-readable versions, electronic reproduction; Distribution: sharing with the public, broadcasting, performing, exhibiting, data transmission; Other authorisations: use of all parts of the subject of the contract (including publication of excerpts, photo-composition, film-composition), modification right, full or partial assignment of the exclusive usage right to third parties.
2. The Contractor must inform the Client in its offer whether, and if so which, of its usage rights to be assigned in accordance with paragraph 1 have been assigned to the collecting societies.
3. If different from the paragraph 1. If usage rights are not intended to be assigned, the Client can subsequently demand their assignment in full or in part in return for appropriate payment. The payment should be based as far as possible on the payment already agreed with the Contractor, in addition on the common payment provision in accordance with § 36 UrhG (Urhebergesetz [Copyright Act]); if this does not apply, the payment from the Client should be fixed based on mutual, judicially verifiable discretion.
4. If the Contractor uses employees and/or subcontractors and/or models when executing the Order, it is obliged to acquire their usage rights at its own costs and to assign them to the Client to the extent agreed in paragraph 1 for the services of the Contractor. In addition, these persons must be subject to the same obligations as the Contractor in terms of their contribution to the services to be provided to the Client.
5. The Contractor provides assurance that its contractual services are not subject to any third party rights which would restrict the transfer of rights and/or the agreed usage of its services (e. g. images of individuals with personal rights who have not agreed to their usage), and the Contractor indemnifies the Agency in this respect for all claims of third parties.
6. The Contractor must offer all the usage rights that it must assign fully in accordance with paragraph 1 as well as restricted to the type and purpose of the advertising material for which the subject of the contract was ordered, but in addition as in paragraph 1. Any further restrictions must be declared in an additional optional offer. The fees for the work must be shown separately. If this is not done, they are included in the agreed payment.
7. The Contractor is obliged to require models to sign a suitable declaration for the complete assignment of usage rights and to submit this to the Agency.
8. The Contractor waives the right to sign its work, however the Client is permitted to name the Contractor without being obliged to do so.
X. ACQUISITION OF OWNERSHIP OF ILLUSTRATIONS AND REPRODUCTION MATERIAL; STORAGE, BACKUP, RIGHT OF RETENTION
1. The Client and the Contractor agree that the Client acquires ownership of illustrations, provided that these are included in the agreed work result, and ownership of reproduction material produced to execute the Order or procured by the Contractor (e. g. printing documents such as layout, photographs, lithographs, films, electronic data, etc. including drafts and backup copies not delivered) on payment of the fee. From this point in time, the Contractor will store the objects for the Client with care until they are handed over. After a period of six months from acceptance, the Client must take possession of the above-mentioned objects if the Contractor offers this.
2. The Contractor must make a backup copy of every electronic file on a separate data storage device and keep this in a different place from the primary data storage device during this storage period (cf. paragraph 1).
3. Objects which the Contractor received from the Client or the Agency do not become the property of the Contractor. Such objects must only be used to carry out the Order, must be stored carefully and must be returned on first request.
4. The Contractor has no right of retention of objects which it should hand over as a result of claims which the Client does not acknowledge or which have not been established by a legal decision.
XI. CONFIDENTIALITY/Customer Protection/Reference
1. All information and documents which are made available to the Contractor in conjunction with the Order, and also the advertising material provided in the Order and the objects in accordance with section IX must also be kept confidential on termination of the Order. This also applies even if the execution of the Order does not come to fruition. The Contractor is only permitted to use examples of the contractual service for its own promotional purposes with prior written approval of the Agency.
2. The Contractor must impose this duty of confidentiality on its employees, subcontractors, models etc. used in the execution of the Order in writing, provided this is necessary to guarantee confidentiality, and the written evidence must be submitted to the Client or the Agency on their request.
3. The Contractor leaves all direct contact with customers to the Agency unless it is done on behalf of the Agency. If the customer contacts the Contractor, the Contractor will always refer the customer to the Agency as the point of contact.
4. The Contractor is not entitled to name the Client as a reference customer.
XII. HUMAN RIGHTS/ENVIRONMENT/MINIMUM WAGE
1. The Agency is aware of its responsibility towards the observance of human rights and the protection of the environment through its entire supply chain and aligns its corporate actions accordingly. Contractors are also selected based on their preventive measures to protect environment and human rights. The Contractor assures to comply with the standards set out in the attached Code of Conduct for Suppliers and Business Partners and to impose these obligations also on its subcontractors.
2. The Contractor is obliged to follow the objectives laid down in the legislation or collective agreements regarding minimum wage (“Mindestlohngesetz”) and to grant to its employees allowances including contributions to social security as well as expenses for employment promotion if applicable by law. The Contractor undertakes to impose these obligations also on its subcontractors.
If a claim is made against the Agency by employees of the Contractor or by employees of its subcontractors for payment of minimum wage, the Contractor undertakes to indemnify the Agency against its liability and to compensate any resulting damage.
3. If the Contractor violates the obligations mentioned in paragraphs 1 and 2 and/or in the Code of Condct, the Agency is entitled to terminate the contract without notice.
XIII. DATA PROTECTION
1. The legal data protection requirements (in particular the GDPR, as well as all other applicable data protection laws) are to be observed. The Contractor processes personal data only inasmuch and insofar as this is necessary to fulfil the purpose of the contract. In doing so, the Contractor shall also take suitable technical and organisational measures to fulfil the requirements of the applicable data protection law, in particular the GDPR and this contract.
2. The Contractor shall oblige their employees, in writing, to hold confidential from everyone the personal data and other information that is caused or occasioned by their activity for the Client to come into their knowledge and from processing this without authorisation.
3. The Contracting parties shall, insofar as personal data are processed by the Contractor on behalf of the Client (contract processing), conclude an independent agreement for order processing. Inasmuch as this should be the case, the conditions in the contract for order processing take precedence over the conditions in this contract.
4. The Contractor shall inform the Client without delay, if personal data are disclosed contrary to the provisions in this paragraph or contrary to other legal data protection provisions. The contractor shall, in such an event, undertake all necessary measures to prevent further disclosure. The Contractor shall make the client aware, without delay, of audits, inspections and/or administrative measures on the part of a supervisory data protection authority, insofar as these concern the object of this contract and it is legally permitted.
5. In the event that the Contractor sends personal data to the Client, he confirms that these have been lawfully processed by him. In particular, this includes the existence of a declaration of consent by the affected person for transmission and processing by the Client.
6. In the event of an infringement, the client may terminate the contractual relationship without notice. The contractor must also compensate the client for any damages suffered as a result of the infringement. These also include any indemnity to be paid to the client’s employees as well as expenses in relation to commissioning another company.
XIV. NON-TRANSFERABILITY OF CONTRACTOR'S RIGHTS
The Contractor's rights from the Order, in particular the right to payment, cannot be assigned.
XV. AGENCY CUSTOMER AS CLIENT
The Order must also be settled via the Agency if the Agency has issued the Order on behalf of a third party, in particular its customer. In this case, the Agency will not be liable either for the Client to fulfil the contract or for its creditworthiness, which it will not check.
XVI. FINAL PROVISIONS
1. The invalidity of individual provisions will not affect the validity of the remaining provisions.
2. The place of jurisdiction for all disputes is Düsseldorf if the Client and the Contractor are merchants or one of them does not have general legal domicile in Germany.
3. The law of the Federal Republic of Germany applies exclusively, with the exclusion of the international law on sale of goods.