General Terms and Conditions (GTC)
General Terms and Conditions (hereinafter GTC) of H E Y ! B R A N D (hereinafter H!B)
01.1 H!B provides its services exclusively on the basis of the present GTC, unless otherwise agreed in writing in individual cases. These also apply to all future services and business relationships, even if not expressly referred to.
01.2 Side agreements, reservations, changes and additions to these terms and conditions must be in writing in order to be valid. This also applies to the deviation from the written form requirement.
01.3 Conflicting or deviating conditions of the contracting party shall only become effective even if they are acknowledged by H!B explicitly and in writing. The General Terms and Conditions of H!B are also applicable if H!B carries out the order without reservation in the knowledge of conflicting or deviating terms and conditions of the client.
01.4 Should individual provisions of these terms and conditions be or become ineffective, this shall not affect the validity of the remaining provisions and the contracts concluded on their basis. The ineffective provision shall be replaced by an effective one that comes closest to the purpose.
02 Contract conclusion
02.1 Basis for the conclusion of the contract is the respective offer of H!B or the order of the customer, in which the scope of services and the remuneration are specified. The offers from H!B are non-binding.
02.2 The contract is concluded by the written or oral acceptance of the offer by the client or by implied action.
02.3 The contract may be terminated prematurely by both parties only for cause without observing a notice period. Significant breach of contract despite warnings is considered an important reason. If the client terminates prematurely for good cause, without H!B being responsible for this reason, H!B shall be entitled to the contractually agreed fee without deduction for any benefits and expenses saved. If the client terminates for good cause and H!B is responsible for this reason, then the agreed remuneration is only valid for the part of the service previously provided.
03 Scope of services, order processing and cooperation obligations of the client
03.1 The scope of the services to be provided by H!B results from the order of the customer or the service description and / or the information in the contract. Subsequent changes to the service content must be in writing.
03.2 All services of H!B are to be checked by the customer and accepted without delay – at the latest within 24 hours after receipt. If substantial deviations from the contractually agreed requirements exist, H!B shall eliminate these deviations within a reasonable period of time. If the contracting party subsequently does not declare the acceptance within 3 days without stating any reasons, the result of the work shall be considered as accepted upon expiry of the period.
03.3 The acceptance of a service may not be refused for artistic and artistic reasons. The contract provides for freedom of design.
03.4 The contracting party shall provide H!B with all information and documents necessary for the provision of the service. He will inform H!B of all events which are relevant to the execution of the order, even if these circumstances become known only during the execution of the order. The client shall bear the expenses resulting from the fact that work must be repeated or delayed due to its incorrect, incomplete or subsequently changed information from H!B.
03.5 The client is obliged to check the documents made available for the execution of an order for any existing copyrights, trademarks or other industrial property rights of third parties.
03.6 The contractor warrants that he is entitled to have the information and documents and personal data of third parties supplied by him to H!B stored and processed in order to achieve the result of the work.
03.7 H!B shall be entitled to destroy the documents provided by the Principal for the performance of an order two years after acceptance of the performance results, unless the Client has previously asserted the publication of these documents.
04 External services / commissioning of third parties
04.1 H!B is entitled to have subcontracted services provided by third parties as long as the contractual partner can not prove a legitimate doubt as to its suitability. In the selection of subcontractors, H!B will ensure that they comply with the prohibition of child labor in accordance with the UN Convention on the Rights of the Child and the respective minimum or collective wage.
05 Mutual Information / Confidentiality
05.1. The contracting parties undertake to provide comprehensive mutual information on all matters relating to the subject matter of the contract, the projects to be processed and the project environment. This applies in particular to findings and experiences that can influence the progress of a project work.
05.2 All information received by H!B within the framework of cooperation with the client will be treated strictly confidential and will only be passed on to third parties if this is necessary for project processing. The client also undertakes to treat all information that becomes available to him during the collaboration strictly confidential. If H!B provides documents to the contract partner, they may not be made accessible to third parties without the consent of H!B. This agreement also applies beyond the duration of the cooperation.
06.1 Processing periods and dates according to the jointly created project plan are complied with by H!B as far as possible. In the case of delays caused by the client, force majeure, labor disputes or delays in H!B contractors, processing periods and deadlines will be postponed accordingly.
06.2 The Client shall reimburse H!B costs incurred as a result of any delay and / or cancellation of agreed deadlines.
07.1 The fee claim of H!B for each individual service arises as soon as it has been provided.
07.2 If a total service is accepted in parts, a corresponding partial fee is due each time the part is accepted. If an order extends for more than 3 months, H!B is entitled to charge down payments. This amounts to 1/3 of the total fee when placing the order.
07.3 All services of H!B, which are not expressly compensated by the agreed fee, will be remunerated separately. All H!B incurred expenses (eg for couriers, samples, digital recordings, layout illustrations, color prints, scans, CD-ROMs, transfer prints, KSK tax, third party costs, etc.) are the contractual partner plus a handling fee of 5%. Furthermore, a material costs flat rate of 7% will be charged on the fee for the internal use of materials as well as for the infrastructure provided.
07.4 The client reimburses H!B travel expenses and expenses incurred in carrying out the order. The choice of transport and accommodation is at the discretion of H!B.
07.5 H!B is entitled to order the third-party services necessary for the fulfillment of the contract in the name and for the account of the customer. The customer undertakes to grant the agency a corresponding power of attorney.
07.6 The agreed fees and reimbursements are net amounts. VAT is charged separately and in addition
07.7 If the contractual service is not provided within 6 months of the conclusion of the contract for reasons for which the client is responsible, H!B reserves the right to recalculate the prices stated in the offer.
08 Terms of payment
08.1 The remuneration of H!B shall be paid immediately after invoicing without deductions. If this payment period of more than 20 days is exceeded, H!B is entitled to demand default interest in the amount of 8 percentage points above the respective base interest rate. We reserve the right to assert further damage. Compensation claims of H!B can only be offset against undisputed or legally established claims or a right of retention can be asserted.
08.3 In the event of late payment by the contracting party, H!B may immediately claim all services and partial services rendered in the context of contracts concluded with the contractual partner. Furthermore, H!B is entitled to terminate all activities with immediate effect if the contracting party is in default.
09.1 For the participation in pitches, H!B is entitled to a reasonable fee which, in the absence of an agreement, covers at least the entire personnel and material expenses of H!B for the presentation as well as the costs of all external services. If H!B does not receive an order after participating in a pitch, all services of H!B, in particular the presentation documents and their contents remain the property of H!B. The customer is not entitled to continue to use these – in whatever form. The documents must be returned to H!B immediately upon request. The forwarding of presentation documents to third parties and their publication, duplication, distribution or other use is not permitted without the express consent of H!B.
09.2 Likewise, the customer may not use the ideas and concepts introduced in the course of the presentation in any way, regardless of whether the ideas and concepts are protected by copyright. By paying the pitch fee, the customer acquires no rights of exploitation and use of the services presented.
09.3 If H!B is the only participant in a pitch, unequal briefings have been sent to several agencies and / or the client is using the ideas and concepts incorporated in the pitch of H!B completely or only parts of it H!B is entitled to compensation in the amount of the contract fee offered.
09.4 If, after a presentation, the project has not been carried out by the customer or has not been decided upon within 15 weeks of the presentation without H!B being responsible for it, H!B will receive the full fee.
10 Copyright and Rights of Use
10.1 Each order granted to H!B is an authorship contract, which is aimed at the granting of rights of use to its work. All designs and artwork are subject to copyright law and are protected as personal intellectual creations. The provisions of the Copyright Act shall apply even if the required amount of creation according to § 2 of the Copyright Act is not reached in detail. In particular, H!B are entitled to the copyright claims from § 97 ff. Urheberrechtsgesetz. The designs and drawings may not be altered in the original or in the reproduction without the express consent of H!B. Any imitation – even of parts – is inadmissible.
10.2 H!B has the right to list designs, designs and layouts created by it even after the acquisition of rights of use by the contracting party without special agreement of the contracting party as a reference, to use in document folders or at presentations or fairs. Proposals of the contracting party, its employees and agents or its other employees have no influence on the amount of the remuneration. They do not constitute a co-copyright.
10.3 All services of H!B including those of presentations / pitches remain the property of H!B as well as the individual workpieces and design originals. This also applies to sketches, designs, etc., which were not accepted and / or realized. H!B is not obligated to return files, source files or layouts, which were created in the context of order processing, to the client.
10.4 Upon full payment of the agreed remuneration, H!B grants the contracting party the exclusive and perpetual right to use the work product in his company for the purposes stated in the offer. A transfer of the rights of use to third parties requires a written agreement. The right of H!B to create comparable tasks for third parties remains unaffected.
10.5 The contracting party is not granted the right to use the name or trademarks of the H!B or a third party.
10.6 All transferred rights of use expire if a grace period set in writing for delay in payment passes without result. In this case, the work result including all existing copies / concepts / drafts must be returned to H!B immediately. If this is – for whatever reason – not / no longer possible or impossible, the contracting party must ensure in punishable form that the work result is not used, not provided to third parties and not used by third parties and all reproductions destroyed / deleted or rendered useless.
11 Retention of title
11.1 Supplied goods, concepts, sketches and documents remain the property of H!B until all claims arising from the business relationship have been fulfilled and may only be resold, pledged, assigned as collateral or made available to third parties with the written consent of H!B be put.
11.2 All claims of the contracting party from a resale of the work results of H!B are already assigned to H!B to secure all claims from the business relationship. If the receivables from a resale into a current account relationship with a third party are included, the respective assignable balance is deemed to have been assigned. The contracting party remains entitled to collect these claims as long as he is not in arrears with H!B. In the event of late payment, H!B is entitled to disclose the assignment of claims and / or – after fruitless expiry of a reasonable period of grace – to take back the goods delivered under retention of title in order to secure its own rights.
11.3 Drafts and artwork are granted use rights only, but not property rights. The originals are therefore, as soon as the contracting party no longer requires them for the exercise of rights of use, undamaged to H!B return, unless expressly otherwise agreed. In the event of damage or loss, the client must reimburse the costs necessary to restore the originals. The assertion of a further damage remains unaffected.
12.1 H!B undertakes to carry out the order with the utmost care, in particular to treat with care its templates, documents, samples etc. provided. The contracting party must examine the delivered work products immediately for any defects. Defects must be specified within 7 days at the latest and must be reported in writing and substantiated. If the contracting party fails to meet the deadline – or correct notification of defects – the result of the work shall be deemed to have been approved with regard to these defects.
12.2 The warranty claims of the contracting party are limited to rectification. If the rectification fails, the contracting party may demand a reduction of the remuneration. The contracting party must support H!B to the best of its ability to rectify the situation.
12.3 H!B is entitled to refuse to improve performance if it is impossible or disproportionately expensive. The burden of proof reversal at the expense of H!B is excluded. The existence of the defect at the time of delivery, the time of discovery of the defect and the timeliness of the complaint are to be proved by the contracting party.
12.4 Claims for damages of the contracting party, in particular due to delay, impossibility of performance, positive breach of contract, culpa in contrahendo, defective or incomplete performance, consequential damage or tort are excluded as soon as they are not based on intent or gross negligence of H!B. Any claim for damages can only be asserted within 6 months from the date of notification of the damage. The claims for damages are limited in amount with the order value exclusive of taxes.
13. Liability, damages
13.1 H!B is not liable for the novelty, feasibility and economic viability of its work and, moreover, does not assume any liability for the fact that the production and distribution do not conflict with the rights of third parties. The liability of H!B with regard to all claims arising from the contractual relationship with the client is limited to grossly negligent or intentionally caused direct damage to the objects provided by the customer. Liability for consequential damages and loss of profit is excluded. The compensation is limited to the replacement cost.
13.2 The limitations of liability apply equally to damages caused by gross negligence or intent of employees or agents or subcontractors.
13.3 Liability is excluded if H!B can not fulfill its obligations because a supplier does not deliver as per contract or force majeure rules out the proper fulfillment of the contract. These limitations of liability apply mutatis mutandis to the employees and agents of H!B. The client assumes the responsibility for the accuracy of image, text and other presentation with the approval of drafts, clean executions, drawings, etc. The risk of legal admissibility of advertising is borne by the client. H!B shall not be liable for the statements contained in the advertisement about products and / or services of the customer, as well as for the admissibility under competition and trademark law. H!B assumes no responsibility for the protection and / or registration of the work results, in particular of ideas, suggestions, proposals, conceptions, designs etc.
14 Place of performance, jurisdiction
14.1 The legal relationship between the contracting party and H!B shall be governed exclusively by German law. The provisions of the UN Sales Convention do not apply.
14.2 If the contracting party is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of performance and place of jurisdiction is Hamburg.