unit III consulting Gesellschaft für Marketingkommunikation mbH
Tel +49 30 24 08 81 50
Fax +49 30 24 08 81 510
Management: Yves Senger, Silke Stratmann
District Court of Berlin-Charlottenburg, HRB 132058
Sales Tax ID: DE 275 459 323
Legally responsible for content: Silke Stratmann
GENERAL TERMS AND CONDITIONS
I. DEFINITIONS, SCOPE OF APPLICATION
1. These General Terms and Conditions apply to unit III consulting Gesellschaft für Marketingkommunikation mbH. The terms “order”, “company” and “customer” are to be understood in a commercial sense. “Order” refers to the contractual relationship, irrespective of the type of contract; “Company" is the party who has been commissioned to perform the principal service; “Customer” is the party who is to receive and pay for the principal service.
2. Should the Customer have deviating terms and conditions, these shall only apply if the Company has accepted them in writing.
II. DEADLINES, PERFORMANCE PERIODS
1. Deadlines and performance periods are generally understood as non-binding guidelines. This does not apply if dates have been expressly agreed in writing as fixed.
2. The Company shall not be liable for any delays in performance which are due to the Customer's failure to fulfil his/her duties to cooperate.
3. If the Customer is in default of acceptance, or culpably violates other duties to cooperate, the Company shall be entitled to demand compensation for damages incurred in this respect, including any additional expenses. We reserve the right to assert further claims.
III. SCOPE OF SERVICES, PAYMENT
1. The scope of individual services and the payment due for these services shall be determined by the Company’s schedule of services. If no payment is specified for a service, the version of the Company’s price list valid at the time of the Order shall apply. Additional expenses, in particular due to changes and additions requested by the Customer, shall be charged as additional expenses in accordance with the agreed hourly rates, alternatively according to the version of the price list valid at the time of the Order.
2. The Customer shall bear the costs of work having to be repeated or delayed, in whole or in part, by the Company as a result of incorrect, subsequently corrected or incomplete information, insofar as the Customer is liable for the resulting damages.
3. The Company reserves the right to commission third-party subcontractors to perform the services incumbent upon it. The Customer may only reject such a third party if there is an important reason in respect of the third party.
4. The Company shall only be obliged to verify the legal admissibility of the advertising if this is expressly specified in the Order. If the Customer commissions the Company to perform these services, the Customer shall bear the fees and costs incurred by the Company and third parties (e.g. lawyers, public authorities, etc.) at normal market conditions, unless otherwise agreed.
5. The Company shall not be obliged to verify the correctness of any statements of fact contained in the advertising concerning the products and services of the Customer which have been specified or approved by the Customer.
6. The Company’s services shall be performed in accordance with the contract and shall be deemed to have been performed even if they are not registered or protected (e.g. patents, trademarks, copyright protection), unless otherwise expressly agreed. The Company is not obliged, but is entitled, to make its services the subject of applications for industrial property rights.
7. For the purpose of checking and approval, the Company shall submit all drafts to the Customer prior to publication. By approving the work, the Customer assumes responsibility for the correctness of content, images, sound and text.
IV. PRODUCTION MONITORING (COMMISSIONING, COORDINATING AND MONITORING THE PRODUCTION OF ADVERTISING AND MARKETING MATERIALS)
1. Within the scope of production monitoring, the Company shall select suitable advertising material manufacturers and place production orders in text form after approval by the Customer. Orders shall be placed with advertising material manufacturers in the name and on the account of the Customer, unless otherwise expressly agreed in writing.
2. The Company shall coordinate these production processes and audit the services and invoices of the respective manufacturers.
3. The company shall receive a fee of 15 % of the net value of the advertising material manufacturers’ invoices for production monitoring in accordance with items IV.1 and 2. The fee is due as soon as the services are invoiced by the respective manufacturer.
4. Insofar as the Company places production orders on the basis of an express agreement with the Customer, in exceptional cases in its own name and on its own account, all external costs incurred shall be borne by the Customer. The Company is entitled to demand advance payments due immediately up to the gross order value for production orders with an expected value of EUR 5,000 or more.
V. LIABILITY, WARRANTY
1. The Company shall be liable for wilful intent and gross negligence in accordance with statutory provisions. However, liability for warranty claims for defects is limited to 12 months from performance and delivery.
2. In the event of minor negligence, the Company and its vicarious agents shall only be liable if an essential contractual obligation (cardinal obligation) has been violated or a case of default or impossibility of performance exists.
3. In the event of liability due to minor negligence, the liability of the Company and its vicarious agents for breach of duty and tort, as well as for claims for reimbursement of futile expenses, shall be limited to such damages as are foreseeable or typical.
4. The above limitation of liability and the reduced warranty obligation shall not apply to the absence of warranted characteristics, to cases of malice, to injuries to life, body or health, to defects of title or to liability under the German Product Liability Act (ProdHaftG).
5. The Customer may not claim damages as a result of errors through no fault of the Company or for printing or transmission errors for which the Company is entitled to lodge a complaint.
If the Company has agreed to the performance of any particular success in respect of the commissioned work, i.e. a customisable work (e.g. draft), the Customer shall be obliged to accept it. Acceptance is deemed to have taken place insofar as it is not declared or refused within seven days of delivery, provided that the result of the work essentially corresponds to the agreements. If there are significant deviations, the Company will eliminate these deviations within a reasonable period of time and submit the work again for acceptance. Acceptance shall be deemed to have been affected at the latest upon payment or use of the work.
VII. INVOICING, PRICES, PAYMENT, PAYMENT CONDITIONS
1. The Company shall invoice for its services immediately after performance.
2. Unless deviating terms of payment have been agreed, payment shall be made within 10 days of invoicing, without deduction.
3. All prices are net prices and do not include statutory sales tax. Customs duties, fees and other charges, including social security contribution for artists, shall be borne by the Customer, even if they are assessed at a later date.
4. The Customer may only offset claims submitted by the Company against undisputed or legally established claims. The Customer may only assert a right of retention in cases of undisputed or legally established claims.
COPYRIGHTED RIGHTS OF USE/ANCILLIARY COPYRIGHTS
1. Unless otherwise stipulated in the service description, the Customer acquires the rights of use to the advertising material designed by the Company for the duration of the cooperation, at least however for 6 months after acceptance, upon complete payment in accordance with the purpose of the contract. The rights of use shall be limited to the territory of the Federal Republic of Germany. The processing or alteration of the content of the advertising material designed by the Company shall only be permitted with the prior consent of the Company. The transfer or licensing of the rights of use by the Customer to third parties shall require the prior written consent of the Company in order to be effective.
2. If rights of use or exploitation (e.g. photo, film, copyright, GEMA rights) or consents of third parties (e.g. personal rights) are required for the creation or implementation of the work performed by the Company, the Company will obtain the rights and consents of third parties in the name and for the account of the Customer. In principle, this shall only take place to the extent necessary in terms of time, space and content for the intended advertising measure, unless otherwise expressly agreed in writing. Additional claims pursuant to Sections 32 and 32 a) German Copyright Act (UrhG) shall be borne by the Customer.
3. The Company accepts no liability for guaranteeing the fact that no rights of third parties exist with regard to the advertising material and work results supplied by it.
4. The Company may use the advertising material conceived by it, without time limit, for its own advertising on its website and in the context of agency publications and presentations.
5. Rights of use for designs rejected or not executed by the Customer shall remain with the Company. This also and especially applies to services performed by the Company which are not subject to special legal rights, in particular copyright.
IX. FINAL PROVISIONS
1. Should a provision of this agreement prove to be invalid, illegal or unenforceable, this shall not affect the validity, legality or enforceability of the other provisions. In such a case, the invalid, illegal or unenforceable provision shall be replaced with a valid, legal and enforceable provision that comes as close as possible to the intention of the original provision.
2. The place of jurisdiction for all disputes arising between the Customer, who is a registered business, and unit III consulting Gesellschaft für Marketingkommunikation mbH is Berlin.
3. This agreement is subject to German law under exclusion of German Private International law.