GENERAL TERMS AND CONDITIONS
of Gündisch & Friends GmbH for Providing Agency Services

 

1. Definitions and Scope

1.1 The following general terms and conditions apply to all legal transactions between Gündisch & Friends GmbH – hereinafter referred to as the “Agency” – and its contracting partner – hereinafter referred to as the “Client” or “Customer”. If a framework agreement with a client exists, the provisions of these terms and conditions apply only as a supplement.

1.2 The terms “Contract”, “Agency”, and “Client” are to be understood in the commercial sense. “Contract” refers to the contractual relationship regardless of the specific contract type. More specifically, whether it is a purchase, service, work, or other type of contract, “Agency” refers to the contracting party who is responsible for delivering the main service, while “Client” refers to Gündisch & Friends GmbH, who is entitled to receive the main service and is obligated to pay the compensation in return.

1.3 If the Client’s terms and conditions differ, they will only be valid if the Agency has explicitly acknowledged them in writing.

1.4 Only orders or changes to orders given in writing or text form are binding.

2. Deadlines, Delivery Times, and Fixed Deals

2.1 Deadlines and delivery times are, unless otherwise agreed in writing, essentially non-binding and serve as guidelines. However, if deadlines are explicitly agreed upon in writing as fixed, this regulation does not apply. The Agency is not liable for delays arising from the Client’s failure to fulfill required duties of cooperation.

2.2 In case of anticipated delivery delays, the Agency shall immediately inform the Client of the reasons and the expected duration.

2.3 If the Client delays acceptance or fails to fulfill other cooperation obligations, the Agency is entitled to claim compensation for the resulting damage, including any additional expenses. Further claims remain reserved.

3. Scope of Services and Compensation

3.1 The scope of each service and the compensation due to the Agency are outlined in the Agency’s offer. If no compensation is specified for a service, the prices valid at the time of the contract will apply. Any additional work requested by the Client, particularly due to changes and/or additional requests, will be charged as additional work based on the agreed hourly rates or, alternatively, the prices valid at the time of the contract.

3.2 The Client is responsible for damages resulting from incorrect, subsequently corrected, or incomplete information, which causes the Agency to repeat work entirely or partially or causes delays, provided the Client is at fault.

3.3 The Agency is allowed to have its services provided by third parties as subcontractors. The Client can only reject such third parties if there is a valid reason concerning the third party.

3.4 If the Client terminates an order prematurely that has been approved by the Agency, the Agency’s compensation will be governed by Section 649 of the German Civil Code (BGB) between the contracting parties.

3.5 The legal review of the permissibility of advertisements is only owed by the Agency if this is explicitly part of the contract. If the Client commissions the Agency with these services, the Client shall bear any resulting fees and costs for the Agency and third parties at market-standard conditions unless otherwise agreed.

3.6 The Agency is not obliged to verify the accuracy of factual statements made by the Client regarding products and services in advertisements once they have been approved by the Client.

3.7 The Agency’s services are deemed contractually fulfilled even if they are not registerable or protectable, unless explicitly agreed otherwise.

3.8 For review and approval, the Agency will submit all drafts to the Client before publication. The Client assumes responsibility for the accuracy of content, images, sound, and text upon approval of the work.

3.9 If the Agency points out legal requirements or provides legally relevant texts and content, these are drafts and not legal advice. Unless explicitly agreed otherwise, the Client is responsible for ensuring the legal conformity of these services, either personally or through legally knowledgeable third parties.

4. Acceptance

4.1 Acceptance is deemed granted if not declared or refused within 7 days after delivery, provided the work result is in line with the agreements. In case of significant deviations, the Agency will correct these within a reasonable period and resubmit the work for acceptance.

4.2 Acceptance is also deemed granted upon final payment or use of the work.

5. Work Contract Services

5.1 If the Agency’s services are subject to a work contract, and no other agreement or provision is made in these terms and conditions, Section 5 applies.

5.2 The Client is obliged to examine all services immediately upon provision, unless otherwise agreed, and report any defects in writing with a detailed description of the defect. Acceptance is considered granted if not declared or refused within 10 days after delivery. This condition applies if the result substantially conforms to the agreements. The same applies if the service is paid without reservation or used for more than four weeks.

5.3 A significant defect exists when the agreed service is not usable according to the contract. A minor defect does not justify refusal of acceptance.

5.4 In the case of a defect, the Client is entitled to choose the remedy. The remedy must be carried out within a reasonable period regardless of the number of attempts. The Client is not entitled to self-performance.

5.5 If the Client sets a deadline for performance or remedy, the Client can only use the expiration of the deadline to withdraw from the contract or claim damages instead of performance if the Client has informed the Agency that they no longer wish to receive performance after the deadline expires, unless further contract fulfillment is impossible, unreasonable, or definitively rejected by the Agency.

5.6 The Client can only withdraw from the contract due to a failure to fulfill a duty related to a separable service if the Agency is responsible for the breach.

5.7 If the Client withdraws due to a breach of a duty related to a separable service, other services that can be performed independently of the contract, considering the legitimate interests of the Client, are not affected by the withdrawal.

5.8 Compensation for the work performance is due as per Section 3. If a fixed price is agreed, payment is due upon acceptance, minus any agreed and paid advance payments.

6. Price, Payment, Invoice, and Payment Terms

6.1 The Agency invoices its services immediately after performance.

6.2 For projects over €3,000, a 50% deposit of the offer amount is due unless otherwise agreed with the Client.

6.3 Unless otherwise agreed, payment is due within 14 days without deduction.

6.4 The agreed prices are net, i.e., plus the statutory VAT. Deliveries are made free of charge. The Client is responsible for customs duties, fees, and other charges, including the artist’s social insurance, even if they are later imposed.

6.5 The Agency charges reminder fees of €15.00 starting from the first reminder. These must be paid together with the due invoice amount. Ownership remains with the Agency until full payment.

6.6 The Client may only offset payment claims of the Agency with undisputed or legally established claims. The Client can assert a right of retention only in the case of undisputed or legally established claims.

7. Expenses

7.1 Travel expenses will be charged to the Client as follows:

– Third-party costs as documented
– Travel expenses: €0.80/km for distances over 20 km from the Agency

8. Copyright and Usage Rights

8.1 Upon full payment, the Client acquires the necessary usage rights for the works created by the Agency according to the contract’s purpose.

8.2 The use and exploitation of works are only permitted in the original form created by the Agency. Passing them to third parties, modifying them, or changing the content is only allowed with the prior written consent of the Agency.

8.3 The Agency has the right to be named as the author on reproduction copies (e.g., catalogs, brochures, etc.). Violation of the right to attribution entitles the Agency to claim damages.

8.4 If rights or permissions from third parties (e.g., copyright or GEMA rights) are required for the creation or implementation of the Agency’s work, the Agency will obtain these rights and permissions on behalf of and at the expense of the Client.

8.5 Originals/base data (e.g., open file formats, RAW recordings, source codes, etc.) created for the work result, particularly but not exclusively layouts, illustrations, graphics, photos, files, etc., remain the sole property of the Agency. Transfer of these originals is possible only for additional payment, known as a buy-out, which must be agreed separately.

8.6 The Agency may use the created promotional materials, including the Client’s name (e.g., in text or advertisements with the client’s logo) for its own advertising without time restriction.

8.7 Any works, services, concepts, and ideas presented or handed over by the Agency to the Client for contract conclusion may not be used, in whole or in part, without the express consent. Acceptance of a presentation or pitch honorarium does not imply consent for use.

8.8 Drafts rejected or not implemented by the Client remain the Agency’s property in terms of usage rights. This also applies to services provided by the Agency that are not subject to specific legal rights, particularly copyright.

9. Confidentiality

9.1 All non-public information and documents made available to the Agency in connection with the contract will be treated as strictly confidential, even if the contract is not executed.

9.2 The Agency is obliged to impose confidentiality on its employees and subcontractors involved in the execution of the contract to ensure confidentiality.

10. Contact Reports

10.1 The basis of the Agency’s work is the briefing. If the briefing is given orally, the corresponding contact report becomes the legally binding working document.

10.2 The Agency will provide contact reports within 3 business days after each meeting with the Client. These contact reports are legally binding for further project work unless they are contested in writing within an additional 3 business days.

11. Liability and Warranty

11.1 The Agency is liable for intent and gross negligence according to statutory provisions. The liability for warranty claims is limited to 12 months from delivery.

11.2 In case of slight negligence, the Agency and its agents are liable only if an essential contractual obligation (cardinal obligation) is violated or in cases of delay or impossibility.

11.3 In case of liability due to slight negligence, liability for breach of duty and tortious acts, as well as claims for reimbursement of wasted expenses, is limited to damages that are foreseeable or typical.

11.4 The aforementioned limitations of liability and the shortened warranty obligations do not apply to the absence of guaranteed characteristics, cases of fraud, injury to life, body, or health, legal defects, or liability under the Product Liability Act.

11.5 Due to unintentional errors and printing or transmission mistakes, which entitle the Agency to contest, the Client cannot claim damages as a result of the contestation.

12. Arbitration Procedure (ODR-VO) / Dispute Resolution Procedure (VSBG)

The European Commission provides an online dispute resolution platform (OS), which can be found at http://ec.europa.eu/consumers/odr/.

The provider does not participate in an OS dispute resolution procedure or a consumer arbitration procedure according to the Consumer Dispute Resolution Act (VSBG).

13. Final Provisions

13.1 The invalidity of individual terms does not affect the validity of the remaining terms. In the event of invalidity of individual clauses, the parties will try their best to replace the invalid clause with a valid one that most closely aligns with the intent of the invalid clause.

13.2 Unless otherwise individually agreed, communication via email is sufficient to fulfill the requirement for written form under these terms.

13.3 The jurisdiction for all disputes between the Client and the Agency is the city of Crailsheim.

13.4 The law of the Federal Republic of Germany applies, excluding the provisions of international private law.

Crailsheim, July 13, 2017