compete brand communication GmbH, Goerdelerstrasse 133, 63071 Offenbach am Main, Tel: +49.69 61 99 57 50
Fax. + 49 (0) 69 68 97 49 12
Commercial Register No. at Frankfurt am Main Local Court: HRB 85778, Tax ID: 43626710593
1. Validity, Conclusion of Contract
- COMPETE Markenkommunikation GmbH
(hereinafter “Agency”) provides its services exclusively on the basis of the following General Terms and Conditions. These apply to all legal relations between the Agency and the Client, even if no express reference is made to them. The GTC are exclusively applicable for legal relations with entrepreneurs or for commercial transactions, i.e. B2B (Business-to-Business).
1.2 The version valid at the time of the conclusion of the contract is authoritative. Deviations from these as well as other supplementary agreements with the Client are only effective if they are confirmed in writing by the agency.
1.3 Any terms and conditions of the Client shall not be accepted, even if known, unless expressly agreed otherwise in writing in individual cases. GTC of the Client contradicts the agency expressly. A further objection against GTC of the Client by the agency is not necessary.
1.4 The Client shall be notified of any changes to the General Terms and Conditions and shall be deemed to have been agreed if the Client does not object to the changed General Terms and Conditions in writing within 14 days; the Client shall be expressly informed of the significance of silence in the notification.
1.5 Should individual provisions of these General Terms and Conditions of Business be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to the meaning and purpose.
1.6 The offers of the Agency are subject to confirmation and non-binding.
2. Social media channels
3. Concept and idea protection
If the potential client has already invited the Agency in advance to prepare a concept and the Agency complies with this invitation before the main contract is concluded, the following provision shall apply:
3.1 By the invitation and acceptance of the invitation by the Agency, the potential Client and the Agency enter into a contractual relationship (“pitching contract”). This contract is also based on the GTC.
3.2 The potential client acknowledges that the agency already provides cost-intensive advance services with the concept development, although he himself has not yet assumed any performance obligations.
3.3 The concept is subject to the protection of copyright law in its linguistic and graphic parts when the threshold of originality is met. The potential Client is not permitted to use and process these parts without the Agency’s consent under copyright law alone.
3.4 The concept also contains advertising-relevant ideas that do not meet the threshold of originality and needed for copyright protection. These ideas are at the beginning of every creative process and can be defined as the spark that ignites everything that emerges later and thus as the origin of marketing strategy. Therefore, those elements of the concept are protected which are unique and give the marketing strategy its characteristic character. Advertising keywords, slogans, key words, advertising texts, graphics and illustrations, advertising media (audiovisual, virtual, printed, file-based) etc. are regarded as ideas within the meaning of this agreement, even if they do not meet the threshold of originality.
3.5 The potential client undertakes to refrain from commercially exploiting or having these creative advertising ideas presented by the agency as part of the concept outside the corrective of a main contract to be concluded at a later date, or to have them exploited or used, or to have them used.
3.6 If the potential client is of the opinion that ideas were presented to him by the Agency which he had already come across before the presentation, he must inform the Agency by e-mail within 14 days of the day of the presentation, citing evidence which permits a time allocation.
3.7 In the contrary case, the contracting parties assume that the Agency has presented a new idea to the potential client. If the idea is used by the client, it is to be assumed that the agency was of merit.
3.8 The potential Client can release himself from his obligations from this point by paying an appropriate compensation plus 19 % value added tax. The exemption shall not take effect until full payment of the compensation has been received by the Agency.
4. Scope of Services, Order Processing and Client’s Obligations to Cooperate
4.1 The scope of the services to be provided results from the service description in the agency contract or any order confirmation by the agency (by letter post or e-mail), as well as any briefing protocol (“offer documents”). Subsequent changes of the service content require the written confirmation by the agency. Within the framework specified by the Client, the agency has the freedom to design the work to be carried out.
4.2 All services of the Agency (in particular all layouts (online and print) preliminary drafts, offline versions of online media, sketches, final artwork, brush prints, blueprints, copies, colour prints and electronic files) are to be checked by the Client and released by him within three working days from receipt by the Client. After this period has elapsed without feedback from the Client, they shall be deemed to have been approved by the Client.
4.3 The client shall make available to the Agency in a timely and complete manner all information and documents which are necessary for the provision of the service. He will inform them of all circumstances which are of importance for the execution of the order, even if these only become known during the execution of the order. The client shall bear the costs incurred as a result of work having to be repeated or delayed by the Agency as a result of incorrect, incomplete or subsequently changed information.
4.4 Furthermore, the Client is obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. The Agency shall not be liable in the event of slight negligence or after fulfilment of its duty to warn – at least in its internal relationship with the Client – for a violation of such rights of third parties by documents made available. If a claim is made against the Agency by a third party due to such an infringement of rights, the Client shall indemnify and hold the Agency harmless; the Client shall compensate the Agency for all disadvantages incurred by it as a result of a claim by a third party, in particular the costs of appropriate legal representation. The client undertakes to support the agency in defending against any third-party claims. The client shall provide the agency with all documents for this purpose without being asked to do so.
5. External services / commissioning third parties
5.1 The Agency is entitled at its own discretion to perform the service itself, to use the services of competent third parties as vicarious agents in the provision of the contractual services and/or to substitute such services (“external services”).
5.2 The assignment of third parties within the scope of an external service is carried out either in the Client’s own name or in the Client’s name. The Agency will carefully select this third party and ensure that he has the necessary professional qualifications.
5.3 The Client must assume obligations towards third parties that extend beyond the term of the contract. This also applies expressly in the event of termination of the agency contract for good cause.
6. Dates and deadlines
6.1 Unless expressly agreed as binding, stated delivery or service deadlines are only approximate and non-binding. Binding appointments must be recorded in writing or confirmed in writing by the Agency.
6.2 If the delivery/service of the Agency is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events which cannot be averted by reasonable means, the performance obligations shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly. If such delays last more than two months, the client and the agency are entitled to withdraw from the contract.
6.3 If the Agency is in default, the Client may only withdraw from the contract after having granted the Agency a reasonable grace period of at least 14 days in writing and this period has elapsed without result. Claims for damages by the Client for non-performance or delay are excluded, except in the case of proof of intent or gross negligence.
7. Premature dissolution
7.1 The Agency is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if
- a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite setting a grace period of 14 days;
- b) despite a written warning with a grace period of 14 days, the customer continues to violate essential obligations under this contract, e.g. payment of a due amount or duties to cooperate.
- c) there are justified concerns regarding the creditworthiness of the client and, at the request of the Agency, the client neither makes prepayments nor provides suitable security prior to the Agency’s performance;
7.2 The customer is entitled to terminate the contract for important reasons without setting a grace period. An important reason exists in particular if the Agency continues to violate essential provisions of this contract despite a written warning with a reasonable period of grace of at least 14 days to remedy the breach of contract.
8.1 Unless otherwise agreed, the Agency shall be entitled to the fee for each individual service as soon as it has been rendered. The Agency is entitled to demand advances to cover its expenses. From an order volume with an (annual) budget of € 10,000, or such that extend over a longer period, the agency is entitled to prepare interim invoices or advance invoices or to call up payments on account.
8.2 The fee is understood as net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the Agency is entitled to a fee in the usual market amount for the services provided and the transfer of the copyrights and trademark rights of use.
8.3 All services of the Agency that are not expressly compensated by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the Client.
8.4 Cost estimates of the Agency are not binding. If it is foreseeable that the actual costs exceed the costs estimated by the agency in writing by more than 15 %, the agency will inform the client of the higher costs. The cost overrun shall be deemed to have been approved by the customer if the customer does not object in writing within three working days of this notification and at the same time announces cheaper alternatives. If the costs are exceeded by up to 15 %, a separate agreement is not required. This cost estimate overrun shall be deemed to have been approved by the client from the outset.
8.5 If the client unilaterally changes or terminates work commissioned without the involvement of the Agency – without prejudice to other ongoing support by the Agency – he shall reimburse the Agency for the services rendered up to that point in accordance with the fee agreement and reimburse all costs incurred. If the termination is not caused by a grossly negligent or intentional breach of duty by the agency, the customer must also reimburse the agency the entire fee (commission) agreed for this order, whereby the crediting fee of § 1168 AGBG is excluded. Furthermore, the Agency shall be indemnified and held harmless with respect to any claims by third parties, in particular by contractors of the Agency. With the payment of the fee, the customer does not acquire any rights of use for work already performed; concepts, drafts and other documents that have not been executed are to be returned to the Agency without delay.
9. Payment, retention of title
9.1 The fee is due for payment immediately upon receipt of the invoice and without deduction, unless special terms of payment have been agreed in writing in individual cases. This also applies to the recharging of all cash expenses and other expenses. The goods delivered by the Agency shall remain the property of the Agency until full payment of the remuneration including all ancillary liabilities.
9.2 In the event of default in payment on the part of the customer, the statutory default interest shall apply in the amount applicable to business transactions. Furthermore, in the event of default of payment, the customer undertakes to reimburse the Agency for any reminder and collection expenses incurred, insofar as they are necessary for appropriate legal proceedings. This includes in any case the costs of two reminder letters in the usual market amount of currently at least € 20.00 per reminder as well as a reminder letter from a lawyer commissioned to collect the debt. The assertion of further rights and claims remains unaffected by this.
9.3 In the event of default of payment on the part of the customer, the Agency may demand immediate payment of all services and partial services rendered within the framework of other contracts concluded with the customer.
9.4 Furthermore, the Agency is not obliged to provide further services until the outstanding amount has been paid (right of retention). This shall not affect the obligation to pay remuneration.
9.5 If payment has been agreed in instalments, the Agency reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid in due time (delay).
9.6 The customer is not entitled to offset his own claims against claims of the agency, unless the customer’s claim has been acknowledged by the agency in writing or established by court.
10. Title and copyright
10.1 All services of the Agency, including those from presentations (e.g. layouts / online and print/ suggestions, ideas, sketches, preliminary drafts, sketches, final artwork, concepts, negatives, slides), also individual parts thereof, as well as the individual workpieces and original designs remain the property of the Agency and can be reclaimed by the Agency at any time – in particular upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. The acquisition of rights of use and exploitation of the Agency’s services shall in any case require full payment of the fees invoiced by the Agency. If the customer already uses the services of the agency before this time, this use is based on a loan relationship that can be revoked at any time.
10.2 Changes or processing of services of the Agency, such as in particular their further development by the customer or by third parties working for the customer, are only permitted with the express consent of the Agency and – insofar as the services are protected by copyright – of the author.
10.3 For the use of services of the Agency which go beyond the originally agreed purpose and scope of use, the approval of the Agency is required – irrespective of whether this service is protected by copyright. The Agency and the author shall be entitled to separate appropriate remuneration for this.
10.4 For the use of services of the Agency or of advertising material for which the Agency has developed conceptual or creative templates, the approval of the Agency is also required after expiry of the Agency contract, irrespective of whether this service is protected by copyright or not.
10.5 In the first year after the end of the contract, the Agency is entitled to the full agency fee agreed in the expired contract for uses pursuant to para. 4. In the 2nd or 3rd year after expiry of the contract, only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no agency fee is payable.
10.6 The customer shall be liable to the Agency for any unlawful use in double the fee appropriate for this use.
11.1 The Agency is entitled to refer to the Agency on all advertising media and in all advertising measures and, if applicable, to the author, without the customer being entitled to a claim for payment.
11.2 The Agency is entitled, subject to the written revocation of the customer possible at any time, to refer to the existing or former business relationship with the customer on its own advertising media and in particular on its Internet website with name and company logo (reference notice).
12.1 The customer must report any defects immediately, at least within eight days after delivery/service by the Agency, hidden defects within eight days after recognition thereof, in writing, describing the defect; otherwise the service is deemed approved. In this case, the assertion of warranty and compensation claims as well as the right to challenge errors due to defects is excluded.
12.2 In the event of a justified and timely notice of defects, the customer shall be entitled to have the delivery/service improved or replaced by the Agency. The Agency shall remedy the defects within a reasonable period of time, whereby the client shall enable the Agency to take all measures necessary to examine and remedy the defects. The Agency is entitled to refuse to improve the service if it is impossible or involves disproportionately high costs for the Agency. In this case, the customer is entitled to the statutory conversion or reduction rights. In the case of improvement, it is the client’s responsibility to transmit the defective (physical) item at his own expense.
12.3 The client is also responsible for checking the legal, in particular competition, trademark, copyright and administrative admissibility of the service. The Agency is only obliged to carry out a rough check of legal admissibility. The Agency is not liable for the legal admissibility of contents in the case of slight negligence or after fulfilment of a possible warning obligation towards the customer, if these have been specified or approved by the customer.
12.4 The warranty period is six months from delivery/service. The right of recourse against the Agency expires one year after delivery/service. The customer is not entitled to withhold payments due to defects.
13. Liability and product liability
13.1 In cases of slight negligence, liability of the Agency and its employees, contractors or other vicarious agents (“people”) for material damage or financial loss of the customer is excluded, regardless of whether it is direct or indirect damage, lost profit or consequential damage caused by a defect, damage due to delay, impossibility, positive violation of claims, culpa in contrahendo, defective or incomplete performance. The injured party must prove the existence of gross negligence. Insofar as the liability of the Agency is excluded or limited, this also applies to the personal liability of its “people”.
13.2 Any liability of the Agency for claims against the customer based on the service provided by the Agency (e.g. advertising measures) is expressly excluded if the Agency has fulfilled its duty to inform the customer or if such a duty was not discernible to it, whereby slight negligence shall not be detrimental. In particular, the Agency shall not be liable for legal costs, the Client’s own legal costs or costs of publications of judgements as well as for any claims for damages or other claims of third parties; the Client shall indemnify and hold the Agency harmless in this respect.
13.3 The customer’s claims for damages expire within six months from the date of knowledge of the damage; in any case, however, after three years from the infringing act of the Agency. Claims for damages are limited to the net order value.
14. Data protection
The contract and all resulting mutual rights and obligations and claims between the Agency and the customer are subject to the law of the Federal Republic of Germany to the exclusion of its reference norms and to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
16. Place of Performance and Jurisdiction
16.1 The place of performance is the registered office of the Agency. In the case of dispatch, the risk shall pass to the customer as soon as the agency has handed over the goods to the carrier chosen by it.
16.2 The place of jurisdiction for all legal disputes arising between the Agency and the Customer in connection with this contractual relationship shall be the court with subject-matter jurisdiction for the registered office of the Agency. Notwithstanding this, the Agency is entitled to sue the customer at his general place of jurisdiction.
16.3 Insofar as designations referring to natural persons in this contract are only given in male form, they refer to women and men in the same way. When the designation is applied to certain natural persons, the gender-specific form must be used.