GENERAL TERMS AND CONDITIONS OF LOTTMANN COMMUNICATIONS GBR
§ 1 Scope of Application
(1) All deliveries, services and offers of Lottmann Communications GBR (hereinafter referred to as "Agency") shall be made exclusively on the basis of these General Terms and Conditions. These General Terms and Conditions shall form an integral part of all contracts which the Agency concludes with its contractual partners (hereinafter referred to as "Customers") concerning the deliveries or services offered by it. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed upon again.
(2) Terms and conditions of the Customer or third parties shall not apply, even if the Agency does not separately object to their validity in individual cases. Even if the Agency refers to a letter that contains or refers to the terms and conditions of the Customer or a third party, this shall not constitute an agreement to the validity of those terms and conditions.
§ 2 Subject of the contract
(1) The subject of the specific contract and the remuneration of the agency result from the underlying offer of the agency or the framework or consulting contract concluded in writing by the contractual partners. If the agency creates a concept during the course of the project based on the customer's specifications, in which the content and scope of the services to be provided are defined in more detail, or produces a project plan that defines all deadlines, among other things, these will be approved by the customer also contractual.
(2) Unless otherwise agreed, the agency can commission expert subcontractors to fulfill the order.
§ 3 Performance obligations of the agency
With regard to the Agency's main contractual obligations (§ 2 Para. 1 of these Terms and Conditions), ongoing advice to the Customer shall be provided in accordance with the following § 4 and design services in accordance with the following § 5.
§ 4 Advice to the customer
(1) The Agency undertakes to provide the Customer with comprehensive advice. Depending on the specific subject matter of the contract, the same shall apply to measures in communication, marketing and online marketing, including social media marketing, as well as to event tools. In providing advice, the Agency shall take into account which target groups are to be addressed and which purposes the Customer is pursuing overall with the contractual service.
(2) Industry-specific knowledge is not expected from the Agency. In particular, the Agency is not obligated to gain specific knowledge about the habits and user behavior of persons who are among the Customer's target groups through surveys, investigations or other means of market research.
§ 5 Design services
(1) If requested by the Customer, the Agency undertakes to take into account the specifications resulting from the Customer's corporate design in the graphic design of the contractual services.
(2) The Agency shall ensure a high design quality of the contractual services and - within the framework of the Customer's specifications - take into account current knowledge of customs, trends and developments in the respective area.
(3) Artistic and journalistic services of the Agency shall be subject to the Artists' Social Security Act.
§ 6 Cooperation Duties of the Customer
(1) Unless otherwise agreed in an individual contract, the Customer shall provide the Agency with the content required for the contractual services. The Customer shall be solely responsible for the production of this content. The Agency is not obligated to check whether the content provided by the Customer is suitable for the purposes pursued with the contractual service. Only in the case of obvious errors is the Agency obligated to point out to the Customer any deficiencies in the content.
(2) The content to be provided by the Customer includes in particular texts, images, logos, tables and other graphics. The Agency shall agree with the Customer during the course of the project at what time and in what form the Customer shall make the required content available to the Agency. It shall be agreed whether the provision of content by the Customer shall take place in digital, printed or other form. If it is agreed that content will be provided to the customer in digital form, the file format to be used in each case must also be agreed.
(3) The Customer shall also be obligated in all other respects to provide the Agency with the data, product information and templates essential for the performance of services pursuant to§ 2 para. 1 of these Terms and Conditions for strictly confidential treatment Insofar as the Customer provides the Agency with templates for use within the scope of the performance of the contractually agreed services, the Customer assures that it is authorized to hand over and use these templates
(4) To the extent that test runs or acceptance tests, presentations or other meetings become necessary or expedient, Customer shall assign knowledgeable employees to participate in the meetings who are authorized to make all necessary or expedient decisions
(5) The Customer shall notify the Agency within a reasonable time, usually not more than five business days, whether it accepts or rejects a proposal submitted to it by the Agency for the design and implementation of the performance under the contract, with or without changes
§ 7 Completion time, acceptance
(1) Any production times and interim deadlines result from the confirmed offer or the concluded contract (§ 2 para. 1 of these contractual terms). These shall be extended in each case if acts of cooperation by the customer or the approval of concepts or drafts are delayed or refused or if subsequent change requests by the customer result in additional expenditure.
(2) If a partial acceptance or interim release is stipulated in the individual contract, the Customer shall accept the respective service after completion by means of a declaration in text form (§ 126 b BGB), provided that it complies with the requirements on which the contract is based and no objections are raised that are comprehensible taking into account the interests of both parties.
(3) As soon as the Agency has completed the contractual service, which essentially meets the contractual requirements, the Customer shall accept it by declaration in text form(§ 126 b BGB). Acceptance shall be deemed to have been granted if the Customer does not report significant defects within a period of four weeks after notification of completion by the Agency. In the context of the notification of completion, the Agency shall inform the Customer of the occurrence of the deemed acceptance after the expiry of the deadline.
§ 8 Remuneration and payment
(1) The Customer undertakes to pay the remuneration contractually agreed in accordance with § 2 Para. 1 of these Terms and Conditions.
(2) Additional expenses that exceed the services contractually owed by the Agency shall be remunerated separately, provided that this has been agreed in text form between the contracting parties prior to execution. The amount of the remuneration shall be determined by the respective agreement.
(3) Unless otherwise agreed, invoiced amounts shall be paid within fourteen days without any deductions. The date of receipt by the Agency shall be decisive for the date of payment. If the Customer fails to make payment when due, interest of 8% p.a. shall be charged on the outstanding amounts from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(4) The Agency shall be entitled to invoice the Customer for partial payments at reasonable intervals. The amount of the payments on account shall be based on the value of the services already rendered by the Agency. The partial invoices shall be due for payment within ten working days of their receipt by the Customer.
(5) Media and printing costs are due immediately after invoicing. The Agency reserves the right to claim and invoice 15% AE.
(6) Offsetting against counterclaims of the Agency or the retention of payments due to such claims shall only be permissible insofar as the counterclaims are undisputed or have been legally established.
(7) The Agency shall be entitled to perform or render outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Customer and as a result of which the payment of the Agency's outstanding claims by the Customer arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies) is jeopardized.
§ 9 Change requests
The Agency is not obligated to comply with the Customer's requests for changes and additions that relate to services that have already been accepted. This also applies if the conditions for acceptance in accordance with § 7 of these contractual conditions exist, but no acceptance has yet taken place by the customer.
§ 10 Expenses
(1) The contractually agreed remuneration (§ 2 para. 1 of these Terms and Conditions) shall in principle also include the Agency's out-of-pocket expenses, e.g. for telecommunications, postal dispatch and the reproduction of documents. The Provider shall only be entitled to reimbursement of travel expenses if this has been previously agreed between the contracting parties. The travel expenses will be charged by the Agency to the Customer in the amount of reasonable. In the case of the use of passenger cars, settlement shall be made on the basis of the lump-sum distance allowance under tax law.
(2) Further expenses of the Agency, in particular the costs for the acquisition of license rights as well as the remuneration for the paid use of advertising media (e.g. Google AdWords advertising, Facebook Ads) shall be reimbursed by the Customer after separate agreement and in the proven amount, plus the 15% AE.
§ 11 Rights of Use
(1) Upon settlement of all invoices relating to the order, the Agency shall transfer to the Customer all rights of use required for the use of its work and services to the extent agreed for the order. In case of doubt, the Agency shall fulfill its obligation by granting non-exclusive rights of use in the territory of the Federal Republic of Germany for a limited period of time for the duration of use of the advertising material. Any use beyond this, in particular editing and modification, shall require the prior written consent of the Agency.
(2) Rights of use to work that has not been fully paid for at the end of the contract shall remain with the Agency, subject to any other agreements made.
(3) The transfer of rights of use from the Customer to third parties requires the prior written consent of the Agency.
(4) In all other respects, any use, even partial, of the Agency's work and services presented and/or handed over to the Customer with the aim of concluding a contract, including a contractual amendment/supplement, shall require the prior consent of the Agency, irrespective of whether such work/services are protected separately, This shall also apply to the use of the ideas underlying the work and services of the Agency, insofar as these have not been reflected in the previous or contractual advertising materials of the Customer The acceptance of a presentation fee alone shall not constitute consent by the Agency.
(5) Unless otherwise agreed, references to the Agency's copyright shall be included at appropriate points within the contractual services. The Customer is not entitled to remove these references without the consent of the Agency.
(6) Unless otherwise agreed, the Agency shall be entitled to use the contractual services at any time for demonstration purposes or as a reference for its work. In doing so, however, the Agency must always take into account, refer to and name the rights of the Customer. The right extends to the contractual services in the version delivered by the Agency as well as to later versions, provided that the original design content has not been completely eclipsed by the changes.
(7) Unless otherwise agreed, all items created or handed over to the Customer during the execution of the contract, in particular data carriers, graphic proposals and other documents, shall remain the property of the Agency.
§ 12 Right of retention
(1) If the obligor has a due claim against the obligee from the same legal relationship on which his obligation is based, he may, unless something else results from the obligatory relationship, refuse the performance owed until the performance due to him has been effected (right of retention).
(2) Anyone who is obliged to hand over an item has the same right if they have a due claim for use of the item or for damage caused to them by it, unless they inflicted the item by an intentionally committed tort has attained.
(3) The creditor can avert the exercise of the right of retention by providing security. The provision of security by guarantors is excluded.
§ 13 Termination of Service
(1) Both parties can terminate the contractual relationship in writing with a notice period of six (6) weeks to the end of the month. This does not affect the right to extraordinary termination.
(2) If the customer terminates the contract, our services will be billed pro rata until the termination takes effect. This also includes the use of third-party services (costs for media monitoring and similar services) that we have commissioned at the customer's request.
§ 14 Warranty and Liability
(1) The Agency shall be liable for defects in the contractual services in accordance with the statutory provisions of the law on sales contracts (§ 434 ff. BGB).
(2) The Agency is not responsible for content provided by the Customer. In particular, the Agency is not obliged to check the content for possible violations of the law. The same shall apply if the Agency is merely commissioned with the reproduction and distribution of advertising material without having been commissioned with the conception and implementation.
(3) The Customer shall inspect the contractual services immediately after delivery by the Agency, insofar as this is feasible in the ordinary course of business. Defects that are visible during the inspection must be notified immediately after the defect is discovered Defects that are not visible during the inspection must be notified immediately after the defect is discovered The notification must be made in text form. The notice of defect shall be deemed to be without undue delay if it is given within 10 days. The timely dispatch of the notification is sufficient for the timeliness. If the customer fails to give notice, claims for defects shall be excluded.
(4) Should third parties make a claim against the Agency due to possible legal violations resulting from the content provided by the Customer, the Customer undertakes to release the Agency from any liability and to reimburse the Agency for the costs it incurs due to the possible legal violation.
(5) The Agency shall be liable for damages of any kind - irrespective of the other statutory requirements for claims - in principle only in the event of intent and gross negligence. For simple negligence, the Provider shall only be liable in the event of a breach of an obligation, the fulfillment of which is a prerequisite for the proper execution of the contract and on the observance of which the Customer may regularly rely. Otherwise, liability for damages of any kind, regardless of the basis for the claim, including liability for culpa in contrahendo is excluded. If the Agency is liable for negligent conduct, the liability is generally limited to the damage, the occurrence of which the Agency could typically expect according to the circumstances known at the time of conclusion of the contract. The above exclusions and limitations of liability shall not apply insofar as the Agency has assumed a guarantee, for damages that are to be compensated under the Product Liability Act, as well as for damages to life, limb or health. The above exclusions and limitations of liability shall also apply in favor of the employees, vicarious agents and other third parties used by the Agency for the fulfillment of the contract.
(6) A warranty period of one year applies to the warranty, including contractual claims for damages. The statutory limitation periods for claims for damages due to damage resulting from injury to life, limb or health apply in deviation from this. The statutory limitation periods also apply to claims for other damages based on an intentional or grossly negligent breach of duty by the provider or their vicarious agents
§ 15 Final Provisions
(1) Only German law is applicable to the contract, excluding the UN Sales Convention.
(2) If the customer is a merchant within the meaning of the Commercial Code, a legal entity under public law or a special fund under public law, Düsseldorf is agreed as the place of jurisdiction for all disputes arising from or in connection with this contract.
(3) All agreements that contain a change, supplement or specification of these contractual conditions, as well as special assurances and agreements require the text form. § 126 b BGB.
(4) Should individual provisions of this contract be ineffective or lose their effectiveness due to a circumstance that occurs later, the validity of the remainder of this contract shall remain unaffected. In place of the invalid contractual provisions, a provision comes closest to what the contracting parties would have wanted if they had considered the point in question. The same applies to gaps in this contract.
Status: July 2023