General Terms and Conditions of Business (GTC) of BECC Agency GmbH
(Version: 05.12.2018 BECC)
1.1 BECC Agency GmbH, Leopoldstr. 250, 80807 Munich, Germany, (hereinafter referred to as ‘Agency’) will provide all deliveries and services for the Customer (hereinafter referred to as ‘Customer’) solely on the basis of these General Terms and Conditions of Business, unless agreed otherwise. The Agency will not recognise GTC that are contrary to or different from these General Terms and Conditions of Business unless it has expressly agreed to their validity in writing. If the Agency provides deliveries or services without explicit objection, it cannot be inferred from this under any circumstances that third party GTC would be recognised.
1.2 These GTC will only apply to companies in accordance with Section 310 (1) of the German Civil Code (BGB).
1.3 These Terms and Conditions of Business will also apply to all future business transactions with the Customer.
2. Quotation, conclusion of contract, form, content
2.1 Quotations provided by the Agency will be subject to change.
2.2. Any, also partial use of deliveries and services (presentation), which have been put forward or submitted, including illustrations, drawings, calculations and other documentation belonging to the Agency, whether these are copyright protected or not, will require the prior approval of the Agency. This will also apply to use in modified or amended form and to use of the ideas underlying these deliveries and services insofar as these have not found expression in the Customer's previous advertising material. Acceptance of the presentation fee by the Agency will not constitute approval for the use of these deliveries and services by the Customer.
2.3 Contracts will be concluded through confirmation of quotes by the Customer or confirmation of orders by the Agency, also in written or electronic form. A specific form, in particular written form, is not required.
2.4 The contents of a contract will include solely what has been agreed between the Agency and the Customer. The quality of a service that is the subject of a contract will be based on the service description.
2.5 The Agency will not be obliged to issue interim results, layouts, source files etc. leading to contractual services.
3.1 The Parties will work together on a trust basis and will inform the other Party immediately in the event of deviations from an agreed procedure or doubt that a course of action is correct.
3.2 The Parties will each appoint a contact person and their substitute, who will be responsible for the contractual relationship and competently manage its implementation on behalf of the Contracting Party which has appointed them. Changes to the people appointed must be notified to the respective other Party immediately. Until receipt of such notification, the aforementioned contact persons will be entitled to make and receive declarations within the scope of their power to represent up to that point.
3.3 The contact persons will agree at regular intervals on progress with and obstacles to the execution of a contract in order to intervene and take prompt action in the execution of a contract where necessary.
4. Obligations to cooperate on the part of the Customer
4.1 The Customer will support the Agency with the performance of services due under the terms of contract. These will include the prompt provision of information, materials, data ('content') as well as hardware and software, insofar as the obligations to cooperate on the part of the Customer require this. The Customer will be responsible for the content it provides and guarantees that all content is free of third party rights, i.e. that it is the sole owner of all content presented. The Agency will receive the rights required for use under the terms of contract.
4.2 Content to be provided by the Customer must be made available in a common, directly usable, preferably digital format. If content provided by the Customer needs to be converted to another format, the Customer will accept the costs incurred in this respect.
4.3 If the Customer realises that individual information, requirements or content are incorrect, incomplete, unclear or unworkable, it must inform the Agency of this and any consequences of which it is aware.
4.4 Obligations to cooperate on the part of by the Customer, which are due under the terms of contract, will be provided without special remuneration unless expressly agreed otherwise.
5. Changes to services
5.1 If the Customer wishes to change the scope of services to be provided by the Agency under the terms of contract, it will express this wish to the Agency in written or electronic form. The Agency will check the Customer's change request insofar as this is possible in consideration of the Agency's interests.
5.2 After checking a change request, the Agency will explain the consequences of the change request for arrangements made in written or electronic form. This explanation will contain either a detailed proposal for implementing the change request or details of why the change request cannot be implemented.
5.3 The Contracting Parties will agree immediately on the content of a proposal for implementing a change request and attach the result of a successful consultation to the text of the agreement to which the change relates as a supplementary agreement. If an agreement cannot be reached, the original scope of service will continue to apply.
5.4 Deadlines promised to the Customer will be postponed insofar as necessary in consideration of the duration of checks, duration of consultations and, where appropriate, the duration of change requests to be implemented plus an appropriate phase-in period. The Agency will notify the Customer of new deadlines.
5.5 If an agreement is not reached or the change procedure ends for other reasons, the original scope of service will continue to apply. The same will apply in cases where the Customer does not agree to a postponement of services for further checking in accordance with (1) and explanation in accordance with (2).
5.6 The Customer must accept the costs arising from a change request. These include in particular those involved in checking a change request, producing a change proposal and any downtime. If an hourly rate has been agreed between the Parties, costs will be calculated according to these rates; in other cases they will be calculated in accordance with the standard Agency fee.
5.7 The Agency will be entitled to change the services to be provided in accordance with a contract or to deviate therefrom if the change or deviation is reasonable for the Customer in consideration of the Agency's interests.
6. Acceptance and approval
6.1 The Agency's services must be checked and accepted by the Customer following delivery. Acceptance will be deemed to have taken place if no communication is received from the Customer within no more than twenty (20) days of delivery, and furthermore if the Customer uses services without reservation.
6.2 Drafts and interim results must also be accepted at the Agency's request. These will be considered binding upon acceptance; subsequent change requests will represent a service change (see Section 5).
7.1 Deadlines will be not binding unless they have been designated or confirmed as binding by the Agency's contact person.
7.2 The Agency will not be responsible for delays to services due to force majeure (for example, strike, lockout, administrative orders, general disruptions to telecommunications etc.) and circumstances within the Customer's sphere of responsibility (for example, failure to comply with cooperation obligations in a timely manner, delays by third parties assigned by the Customer etc.). These will entitle the Agency to postpone provision of the respective services by the duration of the obstacle plus an appropriate phase-in period. The Agency will notify the Customer of service delays that are due to force majeure.
8. Rights of use and attribution of name
8.1 Subject to payment in full of the agreed fee, the Agency will grant the Customer a basic right, which is not limited in terms of geographical area or time, to use the services for the purposes on which a contract is based.
8.2 Passing on rights of use or granting sub-licences will only be permissible if it is explicitly agreed or arises from the contractual purpose.
8.3 The Customer will not be entitled to modify or adapt services provided without the separate consent of the Agency.
8.4 The Customer undertakes to name the Agency as the creator in completed work and any duplicate copies. In the case of a website, the Agency will be named as the creator of the website in the legal notice.
8.5 Suggestions made by the Customer or other contributions to work will have no influence on the fee amount. They will not justify co-creator rights.
9.1 The Agency will send items at the Customer's expense and risk.
9.2 If the delivery route and means of transport are agreed on an individual basis, the Agency may select the delivery route and means of transport option that it considers most cost-effective. The Agency will take the Customer's interests of which it is aware into account by implication.
9.3 If the Customer requests special packaging for a product, it must bear any additional costs incurred in this respect.
10.1 Subject to other arrangements, fees will be based on the number of hours worked and invoiced monthly. The Agency's respective applicable rates will be relevant in terms of payment for hours worked unless an agreement has been made to the contrary. If a fee is not agreed separately, the fee recommendations made by the BDG (Bund Deutscher Grafiker) [Association of German Graphic Designers] will apply.
10.2 Cost estimates made by the Agency will generally be non-binding. If it is expected that actual costs will exceed the costs quoted by the Agency in writing by more than twenty (20) percent, the Agency will inform the Customer of the higher costs.
10.3 All fees agreed under the terms of contract will not include statutory VAT.
10.4 Cash expenditure, expenses and particular costs, which the Agency incurs in the context of a contract, must be borne by the Customer and will be calculated at net cost price. These include telephone, fax, shipping and postage costs etc.
10.5 The Customer will also be charged for costs incurred in respect of the artists' social security fund where applicable.
10.6 Expenses incurred for journeys to the Customer and, for example, for supervising film, radio and TV work, supervision of printing and printing go-ahead journeys commissioned specifically by the Customer etc., will be charged to the Customer at a net rate of € 0.69 per kilometre. Travel time will be working time.
11. Payment terms, right to withhold, offsetting 11.1 Unless expressly agreed otherwise, all services must be paid for in cash and without deduction of interest within fourteen (14) days of the invoice date. The Agency will reserve the right at its discretion to only provide services against payment in advance.
11.1 Unless expressly agreed otherwise, all services must be paid for in cash and without deduction of interest within fourteen (14) days of the invoice date. The Agency will reserve the right at its discretion to only provide services against payment in advance.
11.2 In the case of order volumes exceeding EUR 3,000.00 net, the Agency will be entitled to raise three part invoices, 1/3 on placement of an order, 1/3 following concept approval and 1/3 after production has been completed.
11.3 The Customer may only withhold payment within the scope of one and the same contractual relationship and only where defects have been identified, and then only in an amount equivalent to three times the expenditure required to rectify such defects. However, the Customer may exercise its right to withhold payment based on claims that are undisputed or are held to be final and absolute by a court of law.
11.4 Offsetting against counterclaims will only be permissible provided these are undisputed or are held to be final and absolute by a court of law. Furthermore, the Customer may offset against counterclaims that superseded a right to withhold payment on the part of the Customer under the same contractual relationship.
12 Guarantee, defect claims
12.1. In the case of purchase agreements
12.1.1 The Customer will be entitled to subsequent performance in the event of service deficiency. The Agency will undertake at its discretion to provide subsequent performance in the form of rectification of a defect or delivery/production of a new defect-free item. Should subsequent performance fail, the Customer may reduce the price or at its discretion withdraw from the contract without observing a period of notice. This will also apply if the Agency refuses subsequent performance or subsequent performance is unacceptable for the Customer.
12.1.2 If the Customer withdraws from a contract, it may also claim compensation instead of performance.
12.2. In the case of contracts for services
12.2.1 The Agency will satisfy a guarantee through subsequent performance or delivery of an error-free program version or error-free documentation. If a reported defect is not eliminated successfully within an appropriate period, the Customer may claim its rights pursuant to Sections 634, 635 BGB, or following the fruitless expiry of an appropriate period stipulated in writing for the Agency to eliminate the defect, arrange for the defect to be eliminated by another contractor or its own employees at the Agency's expense.
12.2.2 Open source
The Agency will use open source software to create websites. The Agency will not be held liable by the Customer for technically unmodifiable program content of such open source software which will not constitute defects due to the fact that it cannot be modified. However, the Agency will provide a guarantee as described in Section 12.2.1 for the program elements developed using open source software.
12.3 The guarantee period for claims arising from a purchase agreement pursuant to Section 12.1 and a contract for services pursuant to Section 12.2 will be 12 months starting from handover or full acceptance.
13. Withdrawal from a contract
13.1. The Customer may only withdraw from contracts concluded with the Agency with the Agency's agreement.
13.2. If the Agency agrees to withdrawal by the Customer, the Agency will have the right to charge a cancellation fee of 25% of the total items in the entire order that are no longer to be provided in addition to the payment of services that have already been provided per item quoted and costs incurred.
14.1 Except in the event of a breach of essential contractual obligations, in the event of injury to life, limb or health, or in the event of claims arising from the German Product Liability Act, the Agency will only be liable for deliberate intention or gross negligence. Essential contractual obligations are obligations whose fulfilment is necessary in order to achieve the purpose of the contract.
14.2 In cases of minor negligence where there is a breach of essential contractual obligations, the Agency will be liable for typical, foreseeable damage. Apart from this, liability for slight negligence will be excluded.
14.3 If liability is excluded or limited, this will also apply to the personal liability of employees, representatives and vicarious agents.
14.4 The Customer will be liable in accordance with statutory regulations.
15. Third party content, domain names
15.1 The legal admissibility of material, designs, advertising campaigns or website functionalities must be checked by the Customer. The latter will accept the risk of use. This will also apply if material etc. is based on a suggestion made by the Agency or has been produced by the latter.
15.2 The Agency will not be liable in particular for objective statements about products and services of the Customer or for the protectability or suitability for registration under patent, design right, copyright and trademark law of ideas, suggestions, proposals, concepts, drafts and other services delivered under the terms of contract.
15.3 The Agency will promptly point out to the Customer any major risks that are easily identifiable from its perspective.
15.4 In the event that an application is made by the Agency to register domain names, the Customer will be responsible for checking a domain name for infringement of third party trademarks.
15.5 In the event that a claim is made against the Agency itself on account of the content or implementation of an advertising campaign or the use of content, the Customer will indemnify the Agency and hold it free and harmless. The Customer will exempt the Agency in particular from any third party claims relating to the content and functionalities of its website.
16. Reservation of ownership
16.1 All products delivered will remain the property (reserved goods) of the Agency until the settlement in full of all monetary claims on the part of the Agency arising from its business relationship with the Customer, even if specifically designated charges have been paid.
16.2 If the realisable value of the securities in place for the Agency exceeds its claims by a total of more than 15%, not just temporarily, the Agency will release securities of a corresponding amount at its discretion at the Customer's request.
17. Ban on headhunting
The Customer undertakes for the duration of the cooperation between the Parties and for a period of one year thereafter not to entice away any of the Agency's employees or employ them without the Agency's agreement. The Customer undertakes to pay a contractual penalty to be determined by the Agency and, in the event of dispute, to be reviewed by a competent court, for each instance of a culpable breach of the above provision.
18. Confidentiality, references
18.1 ‘Confidential information’ is all information and documentation that comes to the attention of the other Contracting Party concerning business processes of the respective other Party, in particular, but not exclusively, printed documents, layouts, storyboards, numerical data, drawings, audio tapes, images, videos, DVDs, CD-ROMs, interactive products and other data containing films and/or radio plays and/or other copyright protected material belonging to the Customer or companies associated with the Customer.
18.2 Both Contracting Parties undertake to maintain silence with regard to confidential information relating to the respective other Party and only to use such information for implementing the respective contract and for the purpose pursued. This will also apply to the content of this Agreement and the knowledge obtained during its execution.
18.3 Both Contracting Parties undertake to impose the obligation to maintain confidentiality on all employees and/or third parties (for example, suppliers, graphic designers, repro agencies, print shops, film producers, sound studios etc.) who have access to the business processes described above.
18.4 The obligation to maintain confidentiality will also apply to the period after the termination of the contractual relationship.
18.5 The obligation to maintain confidentiality according to 18. 1 to 18.3 will not apply to information,
18.5.1 which was already known to the respective other Contracting Party at the time of concluding a contract,
18.5.2 which had already been published by Agency at the time it was passed on without this stemming from a breach of confidentiality by the respective other Contracting Party,
18.5.3 which the respective other Contracting Party has expressly approved for passing on in written or electronic form,
18.5.4 which the respective other Contracting Party has received from other sources legitimately and without the restriction concerning confidentiality, provided the passing on and use of such confidential information is not in breach of contractual arrangements, statutory regulations or official instructions,
18.5.5 which the respective other Contracting Party has developed itself without access to the Customer's confidential information,
18.5.6 which has to be disclosed on account of statutory disclosure, information and/or publication obligations or official instruction. Insofar as permissible, the Contracting Parties obliged in this respect will inform the respective other Party of this as early as possible and support this Party in the best possible way to take action against the disclosure obligation.
18.6 If a Contracting Party makes such a request, documents that it has handed over must be returned to it at the end of the contractual relationship insofar as the other Contracting Party cannot claim a legitimate interest in such documents.
18.7 Press releases, information etc. in which a Contracting Party refers to the other Party, will only be permissible with prior written approval, also by email. Notwithstanding this, the Agency may name the Customer as a reference customer on its website or in other media and make the services provided available to the public for demonstration purposes or refer to these services, unless the Customer can claim a legitimate conflict of interests.
18.8 The Customer should note that email is a public medium. The Agency will accept no liability for the confidentiality of emails. Communication may take place via other mediums at the Customer's request.
19. Data protection
19.1 The Contracting Parties will comply with data protection regulations pursuant to the General Data Protection Regulation (GDPR) 2016/679 and the German Data Protection Act. Each Contracting Party will oblige its employees to maintain data secrecy in writing pursuant to Article 5 (1) GDPR and will provide evidence of this to the other Contracting Party on request.
19.2 The Contracting Parties will assume that the Agency will also process personal data from the Customer's circle in connection with the project. The Agency will act on behalf of the Customer in this respect in accordance with Article 28 GDPR. Personal data will therefore only be used in the context of this Agreement or other written instructions given by the Customer and pursuant to data protection regulations; involving the services of subcontractors will require the Customer's written approval in individual cases. The Contracting Parties will be obliged to conclude an additional agreement in line with the provisions in Article 28 GDPR.
20. Place of performance, place of jurisdiction, applicable law
20.1 The place of performance for deliveries will be the place indicated by the Agency in each case or, in the absence of such indication, the Agency's registered address.
20.2 The sole place of jurisdiction for any legal disputes with registered commercial agents arising directly or indirectly from the contractual relationship or relating to its origin and effectiveness will be Munich (Munich District Court I). This will also apply to disputes arising from the contractual relationship that relate to certificates, bills of exchange and cheques. However, the Agency will have the right to recourse against the Customer at the court in its place of residence or place of business.
20.3 German law, with the exception of the United Nations Convention on the International Sale of Goods, will apply to any legal issues arising from a contract and its execution.
21. Severability clause
21.1 Should one or more individual provisions in these General Terms and Conditions be invalid for any reason, this will not affect the validity of the other provisions.
21.2 The Parties undertake to agree a valid and workable provision to replace an invalid and unworkable one which most closely reflects the economic purpose of the invalid and unworkable provision. The same will apply in the event of a gap in the provisions.