§ 1 General / Scope of application
(1) These GTC are an integral part of every concluded contract of SpiessConsult GmbH & Co. KG (hereinafter referred to as the Agency), unless otherwise agreed in detail, insofar as the contractual partner is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. The contractual basis is the cost offer signed by the Agency's contractual partner (hereinafter referred to as the Agreement). The following General Terms and Conditions shall apply exclusively to this agreement; conflicting or deviating terms and conditions as well as other regulations not provided for in these General Terms and Conditions shall only apply if the Agency has expressly agreed in writing or a deviating regulation in the form of a framework agreement has been individually agreed.
(2) The object of the agreement is the service specified therein. The Agency undertakes to execute the Agreement with due diligence.
§ 2 Presentations
The development of concept and design drafts by the agency as well as the presentation of concept and design works shall take place against payment of a separate development/presentation fee.
§ 3 Remuneration/costs
(1) The amounts specified in the agreement are authoritative. These are to be understood as experience and guideline values. The agency's services are invoiced on the basis of a project lump sum. Any exceeding of the total amount stated in the agreement by up to 10 % shall be deemed approved and shall not require prior agreement. Any additional changes to the scope of costs require a supplementary offer. A shift within the calculated individual items is permissible provided that the total amount of the agreement is not exceeded.
(2) Alternatively, the agreement may provide for billing at the current hourly rates against proof of the actual expenditure of time.
(3) In the case of major contracts or contracts extending over a longer period, the Agency shall be entitled to draw up interim accounts or to call for advance payments (A account). Advance payments of up to half of the total order value may be demanded for own services and up to the full order value for third-party services.
(4) Expenses incurred in the course of the execution of the agreement or as a necessary consequence of the execution shall be reimbursed independently of this.
(5) The consumption costs incurred for the implementation of this agreement within Germany (postage, telephone, copies, etc.) are included per agreement up to an amount of 100€ in the applicable hourly rates. Travel and accommodation costs in and outside Germany as well as postage and telecommunications costs outside Germany shall be invoiced separately on a time and material basis and are not included in the applicable hourly rates.
(6) The fees and expenses agreed by the Agency within the scope of these General Terms and Conditions are net amounts, which may be subject to the current value added tax and other taxes. Statutory contributions to the artist's social insurance are paid by the contractual partner.
(7) Within the framework of the project/order fulfilment and within the scope of the calculated budget, the Agency is entitled, although not obliged, to purchase services and/or goods from third parties in the name and for the account of the contractual partner. External services are commissioned by the agency in the name and on account of the contractual partner. After appropriate examination, the Agency shall forward the invoice to the contractor for direct compensation. For the selection, commissioning, supervision of external services, etc., the agency calculates the service type production processing on an hourly basis.
§ 4 Terms of payment
(1) The prices, hourly fees, remunerations, costs and expenses stated in the invoice are due for payment without deduction after receipt of the invoice with the following terms of payment:
- Account invoices: immediately
- Invoices to recipients in Germany: within 14 days
- Invoices to recipients in EU countries: within 21 days
- Invoices to recipients in other countries: within 28 days
(2) If the contractual partner is in default, the Agency shall be entitled to charge interest at a rate of 9% above the base interest rate as flat-rate compensation from the relevant point in time. They shall be set lower if the contractual partner proves a lower charge; the Agency may prove a higher damage.
(3) In the event that the contractual partner does not meet its payment obligation in due time, the Agency shall be entitled to assert flat-rate reminder fees as damage caused by default. This does not affect the contractual partner's ability to prove that a lower loss has been incurred. The dunning costs amount to 40€. Further collection fees may apply.
(4) The contractual partner of the Agency shall only be entitled to set-off, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. The contractual partner is only entitled to withhold payment if counterclaims arising from the same contractual relationship have been recognised or legally established.
(5) Payment claims of third parties against the Agency shall be due 30 days after receipt of the invoice.
§ 5 Obligations to cooperate and provide information
(1) The contractual partner undertakes to provide the Agency with the necessary cooperation and support. This obligation to cooperate applies in particular to projects with fixed deadlines for which the cooperation of the contractual partner is essential in order to meet certain deadlines. The contracting party shall ensure that all documents and information necessary for the implementation of the agreement are made available to the Agency in good time and that the Agency is informed, where appropriate, of any circumstances which may be relevant to the implementation of the agreement.
(2) The Agency shall be entitled to terminate the agreement after setting a reasonable deadline and threatening to terminate it if the contractual partner is in default with regard to its necessary cooperation or acceptance of the service offered. This does not affect the reimbursement of the additional expenses and damages incurred as a result.
§ 6 Minutes/meeting report
(1) The Agency shall draw up minutes of all briefings and meetings within 3 (three) working days of the meeting and forward them to the contracting party without delay. These protocols are considered commercial letters of confirmation. Agreements, orders, dates and other contents contained therein are binding. These serve the agency as working documents and are also valid for all verbally placed orders as order confirmation if the contractual partner does not object in writing to the agency within 3 (three) working days after receipt of the minutes of the meeting.
(2) The contractual partner guarantees that the contact persons named by him are authorised to sign with regard to the release of cost estimates, budgets, texts, design and other agreements.
§ 7 Liability/Limitation
(1) Warranty claims on the part of the contractual partner against the agency shall become statute-barred within one year; in the case of services under a contract for work and services, this period shall run from acceptance; in the case of services under a service contract, this period shall run from their creation.
(2) Claims for damages are excluded irrespective of the type of breach of duty, including unlawful acts, unless intentional or grossly negligent action is involved. In the event of a breach of essential contractual obligations, the Agency shall be liable for any negligence, however limited to the foreseeable, contract-typical, direct damage according to the type of service. The aforementioned limitations and exclusions of liability shall not apply to claims arising from malicious conduct on the part of the Agency or to damages arising from injury to life, limb or health. Insofar as the liability of the agency is excluded or limited, this shall also apply to employees, representatives and vicarious agents of the agency.
(3) Legal examinations, in particular in the field of copyright, competition and trade mark law, shall not be the Agency's task. In the absence of any written agreement to the contrary, the Agency is therefore not liable for the legal admissibility of the content and/or design of the work results. The same applies to liability for errors based on the documents provided by the customer. Should the contractual partner wish to have a legal audit carried out, the Agency may invoice the contractual partner for the costs incurred in this respect on a voucher basis. If the assumption of liability by the Agency has been agreed separately, the liability of the Agency shall be governed by § 7 paragraph 2.
(4) The limitation period for claims for damages by the contractual partner due to a breach of duty shall be one year from delivery of the work/provision of the service, unless the agency can be accused of fraudulent intent.
(5) If a claim is made against the Agency by third parties due to the design and/or content of the work result for injunctive relief or damages, etc., the contractual partner shall indemnify the Agency internally from liability, insofar as the claim is not based on a breach of duty on the part of the Agency, for which the Agency is liable according to the contents of the contract.
(6) The dispatch of documents takes place at the risk of the contractual partner. This also applies to shipments within the same location or by employees or vehicles of the agency. The Agency is entitled, but not obliged, to insure deliveries in the name and for the account of the contracting party.
§ 8 Copyrights and rights of use, ownership
(1) All rights to the drafts and preliminary work, e.g. scribbles and concepts as well as the other work results of the agency, in particular copyrights and ownership, shall remain with the agency even after the work results have been handed over to the contractual partners, insofar as these have not been expressly transferred in writing. The Agency reserves the right to use services provided such as drafts and objects, even if they are based on templates of the Contractual Partner, for reference representations and for presentation purposes, in particular to include the Contractual Partner's website in a reference list for the presentation of its own fields of activity and to set appropriate links.
(2) In the case of publications, the Agency shall be named as the author in the usual manner.
(3) If a transfer of rights takes place, its scope shall be governed exclusively by the contractual agreements or the purpose of the contract. The rights shall only pass to the contractual partner after complete payment of the entire order.
§ 9 Miscellaneous
(1) Place of performance for all obligations is exclusively Düsseldorf.
(2) Insofar as the contractual partner is a merchant, legal entity under public law or special fund under public law, Düsseldorf shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The place of jurisdiction shall also apply to persons other than the aforementioned persons if the contractual partner does not have a general place of jurisdiction in Germany, moves his place of residence and/or business out of Germany immediately after conclusion of the contract or his place of residence and/or business or habitual residence is not known at the time the action is filed.
(3) Unless otherwise agreed, these terms and conditions and all legal relations between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
(4) Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, the validity of all other provisions or agreements shall not be affected thereby. The parties undertake to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic purpose of the invalid provision or fills this gap.
(5) Amendments and supplements to these terms and conditions must be made in writing. This also applies to changes to this written form clause. Verbal side agreements were not made.