General Terms and Conditions
(1) The following General Terms and Conditions are valid for all contracts concluded, orders conducted, offers, deliveries, services and any other services between the Principal and Krampitz Communications, Dillenburger Str. 85, 51105 Cologne (hereinafter referred to as “Agency”). These General Terms and Conditions regulate the contractual relations between the Principal and the Agency and are considered to have been recognized upon an order being placed.
(2) The General Terms and Conditions of the Principal are not an integral part of the contract, even if no written objection is made. They are recognized as valid only when the Agency has agreed to them in writing.
(3) The General Terms and Conditions shall also then apply when the Agency carries out the order while being aware of conflicting terms and conditions.
(4) Even when not included, the General Terms and Conditions shall apply within the scope of an ongoing business relationship also for all future orders, services as well as other services of the Agency.
II. Subject Matter of the Contract and Entering into Contract
(1) General offers are without engagement and not binding.
An order for the Agency is considered to be placed when the Agency is given an order for the offer in written form, and/or the offer is confirmed in writing and/or the work was begun in mutual agreement. Throughout the entire contractual relationship a declaration made via e-mail shall always be deemed equally valid to the written form. Agreements made by telephone must be confirmed in writing. Insofar as the Agency sends the minutes of a meeting to the Principal, this document’s content is considered binding if the Principal does not reject it immediately.
(3) Quotations are only binding with reference to the definite scope of services at the time the offer has been accepted.
(4) A contract has been brought about if the order placed is accepted as referred to in Paragraph 2.
(5) The subject matter of the contract is subject to the relevant individual contractual agreements as well as to these General Terms and Conditions. There is no obligation to provide services going beyond this.
III. Services of the Agency
The Agency has the obligation to implement the contracted services according to the description of services of the Agency as well as within the scope of services specified in individual contracts. When implementing the contracted services, the Agency has complete creative freedom, insofar as the parties have not agreed to anything else in the framework of their written specifications. The Principal has to bear any additional costs that are incurred due to requested alterations and changes.
(2) There is expressly no obligation to hand over or return storage media, data or so-called “open files.” Insofar as such media are delivered to the Principal or, at its behest, to third parties by agreement, separate remuneration is due.
(3) The total services shall only be performed subject to the express reservation that the Agency’s proprietary rights and copyrights as well as the existing rights in these General Terms and Conditions are retained for the works, designs and concepts.
(4) Insofar as, on the basis of a separate agreement with reference to Paragraph 2, storage media, data or files are sent to the Principal, the Principal shall pay for such costs. The Principal covers the risks of transport. If originals and/or data with reference to this agreement are given to the Principal, these may not be changed unless otherwise agreed to by the parties or used beyond the purposes specifically agreed to.
(5) Production monitoring by the Agency shall not take place. Insofar as this is agreed to, the Agency is to be remunerated appropriately and can conduct production monitoring as it wishes.
IV. The Principal’s Duties of Cooperation
(1) The Principal is obliged to provide the Agency with all the information, materials and content in the appropriate form the Agency needs to carry out the agreement they have made.
The Principal is obliged to provide approvals, operating procedures and releases in due time such that the working processes of the Agency are not impeded. If the work flow of the Agency changes on the basis of the Principal not meeting its obligations to assist in due time, especially short-term requests for change or late information delivery, the Principal is obliged to cover the additional costs incurred for the Agency, e.g. work on Sundays, bank holidays or at night (after 9:00 p.m.).
(2) If the Principal recognises that its own information and requirements are incorrect, incomplete or not clear or cannot be implemented, it must communicate this and the recognizable consequences to the Agency immediately.
(3) The parties to the contract shall name contact persons for each other and their proxies, who are responsible for implementing the contractual content and/or are authorized to make decisions. The language of communication between the contact persons will be German. Additional costs incurred because contact persons are not available must be borne by the Principal. Insofar as communication with third parties becomes necessary in another language and subsidiaries and/or foreign branches of the Principal, the additional costs of this must be remunerated separately, subject to individual contractual regulation.
(4) The parties or their contact persons shall communicate at regular intervals on progress made and obstacles hindering performance of the contract.
(5) If it is necessary to convert materials provided as stated in Paragraph 1 or other technical measures in order to conduct the services of the Agency, the costs incurred must be borne by the Principal.
(6) Any content provided by the Principal shall observe any third-party industrial property rights as well as statutory regulations. The Principal releases the Agency from all third-party claims which can be asserted against the Agency due to violation of the rights of third parties, or arising from illegal behaviour or behaviour in breach of the contract by the Principal. Insofar as the Principal provides content that the owner has allowed it to use and disseminate, the Principal also grants the Agency the right to use this content in the same manner as the Principal.
(7) The Principal is required to check the content of the drafts, texts, conceptual work or other services delivered after they are completed and communicated by the Agency, and to subsequently approve them in writing (final acceptance). If such a final acceptance fails to occur, even at the Agency’s request and if the Principal does not respond to the request within 7 days, final acceptance will be considered as tacitly approved. If delivery deadlines are to be met, acceptance must take place without delay. If the work delivered or the data, files and other services made available by the Agency are used by the Principal, the actual use is also considered a tacit final approval. In addition, the Agency is entitled to submit individual parts of the services for partial acceptance at every stage of the work. The Principal must accept delivery if the components submitted correspond to the contractual services due.
V. Fees and Due Dates
(1) All services of the Agency are subject to charges, except if otherwise agreed to in express written form. The amount of the fee is determined according to the individual agreements reached. If no fee has been determined for a service, the price lists of the Agency currently in force at the time the order is placed shall be applied.
(2) Additional services must be remunerated separately.
(3) All prices quoted are net prices and subject to VAT.
(4) Expenses of the Agency, in particular for shipping and copying, are to be borne by the Principal upon submission of the receipts.
(5) Unless a separate agreement has been made, the remuneration to be paid consists of two steps. In a first step, the template is prepared and submitted for approval. A fee for the draft is charged. Use of the draft is still not allowed after the remuneration for work on the draft. In a second step, the rights of use are provided by the Agency within the specific stipulated scope. The utilisation fee shall be determined in accordance with the agreed scope. As a rule, an agreement on this is made beforehand. Uses going beyond the agreed scope have to be additionally remunerated regardless of any possible contractual penalty and/or claims for damages. Should a separate agreement on the provision of rights to use or on the draft fee fail to be made, normal remuneration shall apply.
(6) If the Principal wants to change the contractually determined scope of the services to be provided by the Agency while the Agency performs the work, the Principal must notify the Agency of this change request in written form. Insofar as a change is agreed upon, the time required to do the work must be remunerated in this case. In particular, time for examining the change request, creating a change proposal and any possible downtime periods shall be included in this. In the event that the parties have agreed on per diem rates, the work time shall be calculated accordingly and otherwise calculated according to the normal remuneration. The Agency must make special reference to this. The Principal can refrain from carrying out the requested changes. In this case, the original scope of services remains in force.
(7) The deadlines affected by the request for change will be postponed taking into account the time needed to check the request, the time needed for agreeing to the proposed change and, if necessary, the time needed for the requested changes which must be made.
(8) Third-party Services. To the extent third-party companies have to be commissioned within the scope of the implementation, the Agency is allowed to place orders in the name of, and for the account of the Principal. Insofar as the Agency itself enters into contracts for services performed by third parties in its own name within the context of conducting the order, the Principal is obliged to release the Agency from all claims made by third parties.
VI. Due Dates
(1) The entire remuneration is due when the drafts are delivered. Any additional costs incurred for payment transactions/instruction such as transfer fees must be borne by the Principal.
(2) The Agency is entitled to demand payments in advance. Thirty percent of the order volume is invoiced and due immediately after the order is made as a partial payment.
(3) Furthermore, the Agency is entitled to submit intermediate invoices after a partial service is performed and can be approved.
(4) After final approval, the remaining value of the contract (the fee for the draft and for use), the possible remuneration for additional services as well as other services are billed in the final invoice as in Section VII of these General Terms and Conditions.
(5) If the payment is late, the Agency can demand 8 percentage points’ interest above the relevant base interest rate of the German Bundesbank.
(6) The Agency is allowed to charge an appropriate fee (§315 BGB [German Civil Code]), as well as charge the Principal for any costs invoiced to the Agency by third parties in this context for special services not specified in this agreement rendered on behalf of the Principal or according to the basic principles of management without being commissioned to do so in the interest of the Principal, or which are based on behaviour or demands of the Principal not specified contractually, and which – as determined by circumstances – would only be expected as fee-based services.
(7) If not stated otherwise, invoices are payable within 10 days of the invoice date without deduction via bank transfer or crossed cheque. Failure to comply with the payment deadlines places the Principal in default even without a payment reminder.
(8) If the Principal does not meet its payment obligations punctually, the Agency can withdraw from the contract after setting a deadline with threat of refusal to provide service and/or the Agency can demand damages on account of non-fulfilment.
VII. Ancillary, Travel and Special Expenses
(1) Upon presentation of proof, the Principal shall bear all expenses necessary to carry out the order such as travel and accommodation expenses, expenses, and claims for payment from third parties incurring within the scope of contractual performance. This also includes expenses for travelling to the Principal’s company headquarters. If the Agency makes advance payments, these costs are to be reimbursed without delay, subject to any diverging agreement and by way of derogation from the other provisions stipulating due dates.
(2) Insofar as external companies are commissioned or their services have to be accompanied and supervised by the Agency within the scope of executing the order, the Agency is entitled to make an additional charge to the amount of 15 per cent. The basis for the extra charge is the net amount invoiced by the third-party company.
(1) If, without authority, the Principal changes, cancels or terminates an order already placed, the Principal has to remunerate the services of the Agency performed up to that point. For that portion of the services not yet provided, the Agency can invoice the fee agreed or anticipated less the expenditures not yet incurred. All costs and expenses incurred are to be reimbursed. Furthermore, the Agency shall be held harmless from claims made by third parties. This does not exclude the assertion of claims for further damages.
(2) For press mailings, cancellation is no longer possible after sending (e.g. mailing of press releases)
(3) Insofar as a contract encompasses the execution of regularly occurring services and an express time limit is not agreed upon, the order is considered to be placed for an unlimited period. In this case, the latest date on which either party may terminate the contract is the third day of a calendar month subject to a notice period ending at the end of the month after the next month.
(1) Deadlines for the performance of services may solely be approved by Ms Iris Krampitz from the Agency.
(2) Binding deadlines must always be fixed in written form and designated as binding. The Agency’s obligations to deliver are fulfilled when the services to be performed are sent, for example, once press releases have been sent. Transmission risks (losses, etc.) are borne by the Principal.
(3) The Agency is not responsible for service delays due to acts of God, and such delays entitle it to extend the deadline for the affected services to be performed by the length of time of the impairment.
(4) Delays that result from the area of responsibility of the Principal (e.g. late provision of collaborative services, delays caused by third parties of the Principal, etc.) shall extend specified deadlines by an appropriate length and can lead to the Agency claiming remuneration insofar as damages arise, or costs are incurred. The Principal’s obligation to pay remains unaffected.
X. Rights of Use
(1) The texts, concepts and works are regularly recurring creative works within the meaning of copyright law. Furthermore, the agreements listed below with respect to using the work performed by the Agency are valid as binding, regardless of existing copyright protection or other existing industrial property rights for all the services performed between the parties (inter partes).
(2) The rights of use pass over to the Principal only after complete payment has been made.
(3) With regard to the services performed, the Agency grants the customer the right to use the works according to the stipulated purpose and in this scope. If an express agreement has not been made, then that number of rights is considered granted as is required for the stipulated purpose. Unless otherwise agreed in writing, a simple right of use will be transferred in each case. This means in particular that, not only regarding the scope, the area of use, the duration of use, and the volume of use but also all other relevant uses, the works which would have, for example, had an influence on the amount of the usage fee may only be used for the agreed purpose. Any more extensive use requires the consent of the Agency and must be remunerated separately.
(4) The Principal is not allowed to transfer the rights of use without the consent of the Agency.
(5) The Principal is not allowed to change, imitate or use as templates the drafts, concepts and other works of the Agency – whether as originals or reproductions thereof – in either partial or complete form.
(6) For any reproduction, dissemination, marketing, exhibition, public performance or cases of their being made accessible to the public, the Agency is to be duly named as author in close proximity.
(7) All rights to drafts, templates, documents or other services that are presented during the phase leading up to entering into the contract or which were given to the Principal shall remain with the Agency. If the order is not placed, the drafts, templates and all documents handed over must be returned and any copies made thereof destroyed. Any use and/or passing on to third parties in identical or altered form is strictly forbidden. The Agency is entitled to an appropriate fee, unless otherwise stipulated contractually, which covers the actual expenditure the Agency makes as well as any third-party charges when participating in presentations/pitches or similar meetings. A presentation fee serves the described purpose only. This does not mean permission has been granted to use the services. Insofar as no contract is concluded, ideas and concepts may not be used. All rights belong exclusively to the Agency.
(8) If Clause X of this agreement constitutes a breach of the Agency’s rights, in addition to the fee for the draft and for use a contractual penalty totalling 100% of the remuneration owed is to be paid for each offence to the exclusion of the continuation of the offence.
(1) The Agency assumes liability only for wilful misconduct and gross negligence. For ordinary negligence the Agency is only liable when a basic obligation of this agreement is violated as well as for damages resulting from the loss of life, limb or health.
(2) In the case of ordinary negligence, liability is limited to the extent of the foreseeable loss normally to be expected from such an occurrence.
(3) Once acceptance has taken place (partial and final acceptance), liability for all inaccuracies regarding for instance image, text, punctuation, etc. shall be ruled out. Any right to have subsequent defects rectified is null and void.
(4) The Principal is responsible for the contents placed at its disposal. This responsibility is based on the general laws and provisions, in particular the liability provisions of this agreement. The Principal releases the Agency from all obligations which third parties assert against the Agency on account of a violation of this responsibility of the Principal. Moreover, the Agency is allowed, in case of a violation of the obligations of the Principal, to prevent the use of the content, in accordance with the aforesaid clauses.
(5) No liability shall be accepted for inadequate services of subcontracted third parties. The Agency is obliged to relinquish to the Principal any rights against third parties arising from warranty claims.
XII. Competition and Confidentiality
(1) In the absence of individual contractual agreements to the contrary, the parties are allowed to conclude contracts for services with other agencies or principals at any time, even when they have the same content.
(2) The Agency will treat all company and trade secrets which come to its knowledge as strictly confidential. The Agency is obliged to impose the obligation of secrecy on all its employees and/or third parties who have access to the above-mentioned business processes.
(3) The Agency may name its customers on its website or in other media and connections as reference customers. Furthermore, the Agency may reproduce the services it has performed for purposes of public demonstration or refer to them, unless the Principal can prove a legitimate conflict of interest.
XIII. Sundry Provisions
(1) The right of retention can only be exercised due to counter-claims resulting from the respective contractual relationship.
(2) The contractual parties may only offset claims that have been legally established or are undisputed.
XIV. Final Provisions
(1) Verbal supplementary agreements prior to conclusion of the contract are invalid. Amendments or addenda to this agreement or explanations designated in this agreement which require the written form must be made in writing; this is also the case for any waiver of the requirement that amendments or addenda be in writing. Termination of the contract must always be made in writing. Notifications which are to be made in writing may also be made by email. An email is considered received when it is shown as sent at the sender.
(2) Should individual provisions of these General Terms and Conditions prove to be wholly or partially unenforceable, or lose their validity due to a later circumstance, this shall not affect the validity of the remaining provisions. To replace ineffective provisions or fill in a gap, an appropriate provision shall be used which approximates as closely as possible that which the parties would have desired if they had thought of this point.
The same shall apply for any gaps in the agreement.
(3) Even if orders originate from outside Germany, German law shall apply, to the exclusion of the UN Convention on Sale of Goods. The place of jurisdiction for any disputes arising from this Agreement is the principle place of business of the Agency (Cologne, Germany). Insofar as a consumer is involved, the general place of jurisdiction shall apply.