General Terms and Conditions
For advertising agency ONEDOT GmbH, Reinstraße 8, 64720 Michelstadt (as of 16 February 2021)
1. Subject matter of the contract and scope of application
1.1 These General Terms and Conditions (hereinafter referred to as "GTC") of the advertising agency ONEDOT (hereinafter referred to as "Agency") apply to the planning, conception and execution of commissioned work in the fields of graphic design, advertising, marketing, public relations and communication, in particular the development and processing of graphics, logos, layouts, designs, texts, packaging, advertising materials, advertising media, advertising measures and advertising campaigns, as well as for services in the areas of strategy, consulting and conception, usability, web development and online marketing. The services to be provided on the basis of these GTC are listed in detail and conclusively in the respective orders.
1.2 These General Terms and Conditions do not apply to hosting services.
1.3 The scope of these General Terms and Conditions is limited to transactions with entrepreneurs, legal entities under public law and special funds under public law within the meaning of Section 310 (1) of the German Civil Code (hereinafter referred to as "Customer"). The General Terms and Conditions do not apply to consumers.
1.4 Unless expressly agreed otherwise with the customer, all services shall be provided exclusively on the basis of these General Terms and Conditions. The customer's general terms and conditions of business and purchase shall not apply. This shall also apply if the Agency does not expressly object to their validity.
1.5 The Agency's offers are subject to change. Orders and other agreements – in particular those that deviate from these General Terms and Conditions – shall only become binding upon written confirmation by the Agency. Agreements made on behalf of the Agency by employees who are not authorised to represent the Agency shall not be binding on the Agency unless they are confirmed by a person authorised to represent the Agency.
2. Provision of services
2.1 Services shall be provided in accordance with the principles of proper professional practice.
2.2 The Agency is free to design and implement the services as it sees fit, unless specific requirements have been agreed or the Client has exercised its authority to manage and control the project. Accordingly, the Agency is not bound by standards, guidelines and norms (e.g. DIN, ISO, W3C) unless these are state of the art or their validity is expressly agreed in the order. The authority to design services in accordance with sentence 1 also includes the use of content or software under an open or free licence (e.g. Creative Commons, open source or freeware conditions).
2.3 Any necessary name and trademark searches, corresponding registrations and the examination of the work results (see section 7.1 for definition) for legality (e.g. according to trademark, design, patent or utility model law) are not part of the services to be provided by the Agency. In particular, in the case of the reproduction and distribution of advertising material, the Agency is not obliged to advise on or check the legal admissibility of the use of advertising material and its compliance with applicable law. The Agency is only obliged to check the legal admissibility of the commissioned services if this has been expressly agreed. The Agency shall inform the Client of any legal risks if these become known to the Agency during the provision of services.
2.4 The Agency shall use suitably qualified employees or third parties to provide the services. In doing so, the Agency shall decide at its own discretion on the use of employees or third parties (who, when, where, how) and reserves the right to replace employees or third parties at any time.
2.5 The Agency shall appoint a responsible contact person (project manager) for the duration of the service provision. In the event of a change of contact person, the Agency shall ensure that the new contact person is informed about the order and its current status at the start of their work.
2.6 If documentation is agreed, it shall be provided in the content and formats usually produced by the Agency. Electronic delivery of the documentation is sufficient; a paper version is not required.
3. Deadlines, contract term
3.1 The delivery dates specified by the Agency in quotations are always subject to change and are in any case subject to timely delivery by its own suppliers.
3.2 The dates, times and costs specified in schedules and project plans are estimates and therefore non-binding, unless they are expressly designated as binding in writing. Performance dates are agreed subject to the contractual compliance of the respective suppliers and subcontractors (reservation of self-supply).
3.3 If the cooperation of the customer is required for the Agency to provide services or partial services, binding deadlines or dates shall be extended by the time that the customer has failed to fulfil this obligation despite being requested to do so.
3.4 In the event of delays resulting from requirements made by the customer after conclusion of the contract with regard to the services to be provided by the Agency, in the event of insufficient conditions on the part of the customer (e.g. hardware or software deficiencies), in the event of problems with third-party products or services necessary for the performance of the contractual services for which the Agency is not responsible, as well as in the event of other delays for which ONEDOT is not responsible, in particular in the event of force majeure, natural disasters, conflicting sovereign measures, non-granting of official approvals, labour disputes, sabotage and unforeseeable shortages of raw materials, binding deadlines and dates for the provision of services or partial services shall be extended accordingly.
3.5 The contract term and notice periods are based on the individually agreed period in each case. The right to extraordinary termination for good cause remains unaffected. Such a reason shall be deemed to exist for the Agency in particular if the Customer fails to meet its payment obligations despite a reminder, or is in arrears with the payment of monthly remuneration amounting to two months' fees, or in the event of a gross breach of the Customer's contractual obligations to cooperate.
4. Obligations and cooperation of the customer
4.1 The customer shall provide the agency's employees with the information, data and documents necessary for the provision of services. The agency may assume that this information, data and documents are complete, accurate and up to date. In addition, the customer shall provide the necessary infrastructure (e.g. access to rooms and systems, electricity, telephone and internet connection) . If the customer provides the agency with templates/information for use in the design of advertising measures, they shall assure that they are authorised to transfer and use these templates/information.
4.2 The customer shall appoint a responsible contact person (project manager) for the duration of the service provision. In the event of a change of contact person, the customer shall ensure that the successor is fully informed about the order and its current status at the start of their work. The customer shall also appoint a new contact person in the event that the previous contact person is ill for a long period of time or is unavailable for any other reason for a longer period of time.
4.3 Insofar as external services, in particular media (e.g. images, photos, sounds, moving images, films, data feeds, texts) or standard software from third-party providers, are to be included or taken into account in the Agency's services, the Customer shall procure these at its own expense and provide them to the Agency. If it is necessary to convert the material provided by the Customer into another format, the Customer shall bear the costs incurred for this. The customer shall observe all relevant conditions for third-party services (including Creative Commons, open source and freeware conditions) and shall independently carry out any necessary contract or licence extensions.
4.4 The Agency is not obliged to procure third-party services unless this is expressly agreed in the order. In this case, if contracts for third-party services are concluded in the name and on behalf of the Agency in individual cases, the customer is obliged to indemnify the Agency internally from all liabilities arising from the conclusion of the contract.
4.5 The customer shall ensure and is responsible for ensuring that the material provided by them, including third-party services, does not violate any legal or official regulations (e.g. regarding the protection of minors, data protection or competition law) and is free from third-party rights (in particular personal rights, copyrights, trademark rights, design rights or technical property rights) that could restrict the intended use.
4.6 Any necessary name and trademark searches, corresponding registrations and the examination of the work results (for the term, see Section 7.1) as well as the cooperation and provision services for legality (e.g. according to data protection, competition, trademark, design, patent or utility model law) are the responsibility of the customer, unless otherwise agreed in the relevant order.
4.7 The customer shall be responsible for coordinating its own employees and any third parties commissioned by it whose services are directly or indirectly related to the order. It shall also ensure that they cooperate with the agency in the performance of their services in such a way that the agency is not hindered or impaired.
4.8 Within the scope of their responsibilities, the customer shall ensure that the data provided by them and the data provided to them by the agency can be reconstructed with reasonable effort. In this respect, they are responsible for backing up their data regularly, at least once a day. Furthermore, the customer shall ensure that its systems affected by the respective order are adequately protected in accordance with the state of the art (e.g. against computer viruses, Trojans, spyware, other malware and hacker attacks).
4.9 The customer must keep any access data provided to them by the agency (e.g. user names, passwords, etc.) safe from access by third parties so that third parties cannot access the agency's systems and applications.
4.10 All cooperation on the part of the customer must be provided in a timely manner, in full and free of charge to the agency.
4.11 The proper provision of services by the Agency is subject to the timely and qualified provision of the cooperation services incumbent on the Customer upon request by the Agency. A request is not necessary if the due date for the cooperation services can already be determined from the respective order or schedule or project plan and if the cooperation services are to be provided on an ongoing basis (e.g. operation of systems to which the Agency must have access).
4.12 If delays or additional expenses arise due to the customer's improper or untimely cooperation, the Agency may – without prejudice to further legal rights – demand changes to the schedule and, if necessary, to the agreed remuneration.
5. Changes to the service (change requests)
5.1 If services or work are the subject of an order, either contracting party may request changes to the agreed services from the other contracting party in writing (e.g. by email or fax). Upon receipt of a change request, the recipient shall review the change to decide whether and under what conditions it can be implemented and shall immediately notify the applicant in writing of its approval or rejection, giving reasons if necessary. The Agency shall only fulfil the Customer's requests for changes and additions if they are technically feasible and technically and economically reasonable for the Agency. It is the Customer's responsibility to bring about the change in the service obligations within the framework of a contract amendment. The Agency shall be compensated for any additional expenses incurred as a result of a change or addition to the services.
5.2 If a change request by the customer requires extensive review, the agency may invoice the necessary expenditure.
5.3 The order adjustments necessary for the implementation of a change request shall be specified in a written addendum to the relevant order. Clause 1.5 shall apply accordingly.
5.4 If the scope of services is changed and a change affects the specifications or another document that has already been approved, the Agency shall make the change therein at the Client's expense.
5.5 As long as the contracting parties do not reach an agreement on the implementation of the changes, the Agency shall continue its work in accordance with the existing order without the corresponding changes.
5.6 The contracting parties intend to enter into a long-term cooperation on the basis of this contract. In view of the rapid pace of technological progress and constant changes in all areas of information technology, such as changes to search engine algorithms, the Agency shall be entitled, during the term of the contract, to change individual measures from the agreed scope of services or to replace them with services more suitable for the Client's objectives if, as a result of technical progress or changes in the information technology environment, the individual service loses its significance for the intended success of the contract or even hinders it. In doing so, the agency is obliged to take the customer's legitimate interests into account and to exercise its right to make changes only at its reasonable discretion.
6. Remuneration, payments, reservation of rights
6.1 The prices for the provision of services shall be agreed in the relevant order. Unless otherwise agreed, remuneration for services provided by the Agency to the Client shall be based on the hourly rate agreed in the relevant order and the terms and conditions agreed therein.
6.2 All prices are subject to the applicable statutory value added tax. If the value added tax is changed within the calculation period, the periods with the applicable value added tax shall be deemed separate calculation periods.
6.3 Unless otherwise agreed, the services rendered shall be invoiced monthly for the past month. Proof of the activities shall be enclosed with the invoice. Travel and accommodation costs shall be charged at cost, expenses in accordance with the statutory maximum rates. Travel times shall be charged at 50% of the hourly rate agreed for the service.
6.4 Payments shall be made to the Agency without deduction no later than thirty (30) calendar days after receipt of the invoice, unless a different payment term is specified on the invoice.
6.5 Offsetting against claims of the Agency is only permissible with undisputed or legally established counterclaims. The same applies to the assertion of a right of retention. Incidentally, the customer may only assert a right of retention in relation to the services of the respective order from which the Agency's claim arises.
6.6 If the customer defaults on payments, the Agency shall be entitled to suspend or postpone further services without prejudice to further rights until payment has been made.
7. Rights of use
7.1 ‘Work results’ are studies, concepts, drafts, designs, logos, layouts, texts, websites, print media, campaigns, advertising materials or other creative proposals, evaluations, planning documents, blueprints, custom software including associated documentation, databases, reports, drawings and similar materials that the Agency provides to the Client in written, machine-readable or other form in accordance with the scope of services agreed in the relevant order.
7.2 Insofar as copyrights, patents, designs, trademarks or other property rights exist or have arisen in relation to the Agency's work results and unless otherwise agreed, the Agency grants the Client a simple, non-exclusive, non-transferable, perpetual right of use. This simple right of use includes the right to reproduce, store, load, run and combine the work results with other materials or programmes to the extent necessary.
7.3 Insofar as work results or parts thereof consist of the development of individual software, the software shall be provided in source and object code, including the development documentation. This does not entail any extension of the rights of use.
7.4 The Agency may also procure the rights required for the use of the work results for the Customer by providing or proving a product with an open or free licence (e.g. Creative Commons, GNU GPL, Apache Software Licence, Freeware). If the Agency provides the Customer with such products, the rights of use granted to the Customer shall be governed exclusively by the licence terms underlying the product in question. Clause 7.2 shall not apply in such cases.
7.5 The Customer shall include any property rights or copyright notices contained in the work results in all reproductions, copies and adaptations.
7.6 The Agency retains ownership of the work results until they have been paid for in full. The granting of rights regulated in this Section 7 is subject to the condition precedent of full payment of the agreed remuneration for the work result in question.
7.7 In the case of pitches, offers or cost estimates provided to the customer free of charge, no rights are transferred to the customer and no rights are granted to the customer. The customer is not entitled to use or exploit the Agency's services contained therein for purposes other than selecting a provider or offer, or to allow them to be used or exploited.
7.8 All rights of use for drafts rejected by the customer remain with the Agency.
7.9 The rights of the Agency or the original rights holder to its own models, methods and concepts, procedures, designs, layouts, texts, drafts, final artwork, frameworks, programmes, preconfigured best practice solutions and other protected works that are contributed to the contractual cooperation for the creation of the work results shall remain unaffected in any case and, in particular, may not be altered, edited or imitated in whole or in part, either in the original or in reproduction, without the consent of the Agency or the original rights holder.
8. Acceptance of work performance
8.1 Services provided within the scope of service contracts are not subject to acceptance (e.g. analyses, participation in tests, training courses, other consulting activities and services). If the Agency provides services within the scope of work contracts or if acceptance has otherwise been agreed in the order, acceptance shall be governed by the provisions of this Section 8.
8.2 After the Agency has declared readiness for acceptance, the Customer shall subject the services to a comprehensive acceptance test. As part of the acceptance test, the functions of the services concerned (including any existing interfaces) that are to be used at the end of the month, quarter or (financial) year and all other functions that are only to be used occasionally shall also be checked in particular. The acceptance criteria are the performance characteristics specified in the order.
8.3 The customer shall carry out the acceptance test without delay, but no later than within fourteen (14) calendar days (from the declaration of readiness for acceptance and handover for acceptance), draw up a written acceptance report and either declare acceptance or refuse acceptance in writing. The customer must notify the agency in writing of any defects found, providing a detailed description, regardless of whether they are significant or insignificant defects. If the customer does not make a declaration within the 14-day acceptance period, the services shall be deemed to have been accepted by the customer, provided that
8.3.1 the services do not have any significant defects,
8.3.2 the Agency has expressly informed the customer of the acceptance period in the declaration of readiness for acceptance, and
8.3.3 has informed the customer that the services shall be deemed accepted if the customer does not assert material defects within the specified period.
8.4 Services shall be deemed accepted as soon as the customer uses them without reservation in productive operation.
8.5 Acceptance is excluded if the service to be provided still has significant defects at the end of the acceptance period and there is no reasonable workaround solution to circumvent the defect. Insignificant defects do not entitle the customer to refuse acceptance; they will be remedied during the further course of the project or within the scope of the claims for defects in accordance with clause 9. Requests by the customer for changes to the content do not constitute defects and are to be treated as change requests in accordance with clause 5.
8.6 If the customer has submitted a written list of defects containing significant defects within the specified period, the agency shall remedy the significant defects within a reasonable period of time and make the affected services available for acceptance again.
8.7 If partial acceptances are provided for in an order, the above provisions shall apply accordingly.
9. Liability for defects
9.1 The Agency guarantees that the services will be provided in accordance with the contract. Only those characteristics that are expressly designated as ‘guaranteed characteristics’ in the relevant order are guaranteed. Other characteristics are not guaranteed, even implicitly.
9.2 The customer shall have no claims arising from liability for material defects and defects of title for services provided by the Agency. However, in the event of justified complaints for which the Agency is responsible, the Agency shall be entitled and obliged to rectify or repeat the service in question free of charge (subsequent performance). The customer shall grant the Agency a reasonable period of time to carry out the subsequent performance. If the customer asserts claims for damages or reimbursement of expenses, the limitations of liability pursuant to Section 11 shall apply.
9.3 If there is a material defect or defect of title, the Agency shall first provide subsequent performance. The customer shall grant the Agency a reasonable period of time to carry out the subsequent performance. If the subsequent performance fails, the Agency shall be liable within the scope of the statutory provisions and in compliance with the limitations of liability agreed in clause 11.
9.4 Insofar as no specific requirements arise from the order in question, the customer agrees that subsequent performance within the Agency's area of responsibility may also be effected by reasonable workarounds.
9.5 In the event of material defects, the customer must also specify how the defect manifests itself and what effects it has, and under what circumstances it occurs. In addition, the customer shall support the Agency in remedying the defect free of charge within reasonable limits, in particular, at the Agency's request, sending data carriers with the relevant programme and data material or providing the necessary system access and providing the Agency with any relevant information at its disposal.
9.6 In the event of defects of title, the customer shall also
9.6.1 immediately inform the Agency in writing of any claims asserted against it due to legal defects (e.g. infringements of property rights),
9.6.2 support the Agency to a reasonable extent in defending against the relevant claims of the third party and authorise it to take over the dispute with the third party out of court and, to the extent permissible, in court, and
9.6.3 refrain from making any statements to third parties without the prior written consent of the Agency that are likely to worsen the Agency's position (e.g. acknowledgement of claims). In the event of unjustified acknowledgement, any claim for damages or reimbursement of expenses by the customer shall be reduced in accordance with the disadvantage incurred by the Agency as a result of the unjustified acknowledgement.
9.7 The customer's claims for defects shall not extend to services which the customer modifies or uses in a manner deviating from the contractual provisions. This exclusion shall not apply if the customer proves that the defect claimed by him is not due to the modification or deviating use. If the analysis or rectification of the defect is made significantly more difficult by the modification or deviating use, the customer shall bear the additional costs incurred as a result.
10. Limitation period for claims
10.1 The limitation period for claims by the customer for material defects or defects of title is one (1) year.
10.2 If the Agency provides services to the customer, the limitation period for resulting breaches of duty is also one (1) year.
10.3 The start of the limitation period is governed by the statutory provisions.
10.4 Notwithstanding clauses 10.1 to 10.2, the statutory limitation period shall apply if the Agency is guilty of malice, intent or gross negligence, or has assumed a guarantee for the relevant quality of the service, or if the Agency is liable for injury to life, limb or health or under the Product Liability Act.
11. Liability
11.1 The Agency shall be liable in accordance with the statutory provisions in cases of intent, malice, under the Product Liability Act and for damages resulting from injury to life, limb or health.
11.2 If the Agency is guilty of gross negligence, liability shall be limited to the foreseeable damage typical for this type of contract.
11.3 In the event of simple negligence, the Agency shall only be liable, regardless of the legal basis, if an essential contractual obligation has been breached, i.e. an obligation whose fulfilment is essential for the proper execution of the order and on whose compliance the Customer regularly relies and may rely (e.g. obligation to provide defect-free services). In this case, liability shall be limited to the foreseeable damage typical for this type of contract.
11.4 The Agency shall not be liable for the legal admissibility of the use of advertising material in the reproduction and distribution of advertising material. Clause 2.3 remains unaffected.
11.5 In the event of liability on the part of the Agency, contributory negligence on the part of the Customer shall be taken into account appropriately.
11.6 Insofar as liability is limited to the foreseeable damage typical for this type of contract in accordance with the above clauses 11.2 and 11.3, the Agency assumes that ten thousand (10,000) euros per claim and a total of twenty-five thousand (25,000) euros for the order in question euros are sufficient to cover the foreseeable damage typical for this type of contract in the event of damage. If this amount is not sufficient to cover the foreseeable damage typical for this type of contract, the customer shall notify the Agency in writing so that the contractual partners can adjust the liability amounts accordingly and the Agency can cover the higher risk with appropriate liability insurance if necessary.
11.7 The limitations of liability agreed in this Section 11 shall also apply in favour of the Agency's legal representatives and vicarious agents.
11.8 The provisions of this clause 11 shall apply mutatis mutandis if the Agency is required to reimburse expenses instead of paying damages.
11.9 Any liability claims of the customer for damages or reimbursement of expenses beyond those expressly mentioned, regardless of the legal basis, are excluded. This applies in particular to liability without fault.
11.10 Claims arising from breaches of duty to which at least one of the conditions specified in clause 10.4 does not apply shall become time-barred within one (1) year. The statutory provisions shall apply to the commencement of the limitation period.
12. Confidentiality and data protection
12.1 The contracting parties shall treat matters of the other contracting party that are material and not generally known or marked as confidential with the care customary in business; this shall also apply beyond the end of the respective order. Any further protection of particularly confidential information and the associated stipulation of requirements and conditions shall require the conclusion of a separate written agreement (confidentiality agreement). Ideas, concepts, know-how and techniques relating to information technology may be freely used by the contracting parties, provided that this does not conflict with any property rights.
12.2 If the customer commissions the agency to process personal data, the agency shall collect, process or use this data in compliance with the applicable statutory data protection provisions exclusively by way of commissioned data processing in accordance with Section 62 BDSG or Art. 28 GDPR in accordance with the instructions and for the purposes of the customer. The agreements required in accordance with Section 62 (5) BDSG or Art. 28 (3) GDPR shall be made in the relevant order or in a separate agreement on commissioned data processing. The customer and the agency shall ensure, in accordance with Section 53 BDSG, that the employees working for them are bound in writing to data secrecy and are instructed accordingly. This applies accordingly to employees of subcontractors.
12.3 The contracting parties shall be released from their confidentiality obligations if data must be disclosed due to legal obligations or by order of a court or authority.
13. Reference customer naming, specimen copies, creator information
13.1 The Agency may name the customer as a reference for customer acquisition and advertising purposes.
13.2 The Agency shall be entitled to use the work results it has designed for its own advertising purposes for an unlimited period of time, unless the relevant order stipulates otherwise (e.g. granting of exclusive rights of use to work results).
13.3 The client shall provide the agency with ten (10) flawless specimen copies of all reproduced work results, such as print media, advertising material or packaging, free of charge.
13.4 The agency is entitled to refer to its involvement in the creation of the work results in an appropriate manner. For example, such a reference may be made in the imprint or footers of print products or websites or in the source code of websites. The customer may object to this if the reference does not significantly impair their legitimate interests and if copyright, trademark or other references to the Agency remain unchanged.
14. Employee protection, non-solicitation clause
14.1 The customer undertakes not to directly or indirectly solicit employees of the agency or third parties employed by it and to establish direct contractual relationships with them. The above non-solicitation clause shall apply upon conclusion of the contract and shall remain in force for a period of one year after termination of the contractual relationship.
14.2 If the customer violates the obligation under clause 14.1, they shall be obliged to pay the agency a contractual penalty of EUR 25,000.00 for each violation. The right to claim damages and/or injunctive relief remains unaffected. The contractual penalty shall be offset against any claim for damages.
15. Other provisions
15.1 Claims against the Agency may not be assigned to third parties, either in whole or in part. Section 354a of the German Commercial Code (HGB) remains unaffected.
15.2 These General Terms and Conditions, together with the respective order, contain all agreements between the contracting parties relating to the services. Previous agreements relating to the same subject matter of the contract, as well as verbal side agreements or commitments, shall not be valid.
15.3 Amendments and additions to these General Terms and Conditions and all orders concluded on their basis must be made in writing. This also applies to the waiver of this written form requirement.
15.4 Should individual provisions of these General Terms and Conditions or of orders concluded on their basis be invalid, ineffective or unenforceable under current or future laws, the remaining provisions shall remain unaffected. The provision in question shall be replaced by a valid, effective or enforceable provision that comes closest to the economic purpose of the invalid, ineffective or unenforceable provision.
15.5 These GTC and all orders concluded on their basis are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and conflict of law provisions of German law.
15.6 The exclusive place of jurisdiction for all disputes arising from and in connection with these GTC and all orders concluded on their basis is Frankfurt am Main.