General Terms and Conditions
1. subject matter of the contract
1.1. The following general terms and conditions apply to all legal transactions of Vitesso GmbH, hereinafter referred to as “Agency.” with its contractual partners, hereinafter referred to as “Customer” for short. Any terms and conditions of the Customer deviating from these General Terms and Conditions shall only be accepted by the Agency after separate and written acknowledgement.
1.2 All agreements made between the agency and the customer for the purpose of executing an order must be agreed in writing. Amendments, supplements and ancillary agreements must be made in writing to be effective.
1.3. These terms and conditions shall also apply to all future business relations with the customer, even if they are not expressly agreed again.
1.4. The agency provides full service in the areas of B to B; B to C communication. The detailed description of the services to be provided can be found in the tender documents, briefings, project contracts, their annexes and service descriptions and, above all, in the agency’s offers.
2. parts of the contract and amendments to the contract
2.1. In addition to the contract/offer and its annexes, the basis for the agency’s work and an integral part of the contract is the client’s confirmatory email in response to the offer. If the client communicates the briefing to the agency verbally or by telephone, the agency shall prepare a re-briefing on the content of the briefing, which shall be handed over to the client within 5 working days of the verbal or telephone communication. This re-briefing shall become a binding part of the contract if the client does not object to this re-briefing within 5 working days.
2.2. Any amendment and/or addition to the contract/offer and/or its components must be made in writing. Any resulting additional costs shall be borne by the customer.
2.3 Events of force majeure shall entitle the Agency to postpone the project commissioned by the Client for the duration of the hindrance and a reasonable start-up period. This shall not give rise to a claim for damages by the client against the agency. This shall also apply if important deadlines and/or events for the client cannot be met and/or do not occur as a result.
3. copyrights and rights of use
3.1. Upon settlement of all invoices relating to the order, the customer shall acquire all rights of use required for the use of their work and services to the extent agreed for the order.
Rights of use to work that has not yet been paid for in full at the end of the contract or, in the case of invoicing on a commission basis, has not yet been published, shall remain with the agency, unless otherwise agreed.
This transfer of rights of use applies insofar as a transfer is possible under German law and applies to the agreed use in the territory of the Federal Republic of Germany. Uses beyond this territory require a written agreement as part of the order or a separate written subsidiary agreement. Rights of use to work that has not yet been paid for at the end of the contract shall remain with the Agency, unless otherwise agreed.
In the case of any documents and data to be procured by the client, the client alone shall be liable if the rights, in particular copyrights, of third parties are infringed by their use. The client shall indemnify the agency against all third-party claims arising from such an infringement of rights
3.2. The services developed within the scope of the order are protected as personal intellectual creations by copyright law. This provision shall be deemed to have been agreed even if the level of creation required under copyright law has not been reached.
The scope of the services is set out in the product/service description current at the time the contract is concluded. Additional and/or subsequent changes to the product/service descriptions must be made in writing. Minutes of meetings provided by the Agency shall be binding if the Client does not object immediately upon receipt.
Templates, files and other work materials (in particular shooting data, models, illustrations, etc.) which the agency creates or has created in order to provide the service owed under the contract/offer shall remain the property of the agency. There is no obligation to surrender them. The Agency shall not be obliged to store them.
Any modification of our works, in particular by third parties, must be authorized by the author.
3.3 The agency may sign the advertising material developed by it appropriately and in accordance with industry standards and publish the order placed for its own advertising. This signing and advertising use may be excluded by a separate agreement between the agency and the client.
3.4 The work of the Agency may not be altered by the Client or third parties commissioned by the Client, neither in the original nor in the reproduction. Any imitation, even of parts of the work, is not permitted. In the event of infringement, the Agency shall be entitled to an additional fee from the Client of at least 2.5 times the originally agreed fee.
3.5 The transfer of granted rights of use to third parties and/or multiple uses shall be subject to a fee, unless regulated in the initial order, and shall require the Agency’s consent.
3.6 The Agency shall be entitled to information on the scope of use.
4. remuneration
4.1 The remuneration agreed in the contract/offer shall apply. Unless otherwise contractually agreed, payments shall be due within 14 days of invoicing without any deductions. If the payment deadlines are exceeded, the Agency shall be entitled to default interest of 10% above the base interest rate in accordance with § 1 of the Discount Rate Transition Act (Diskontsatz-Überleitungsgesetz) without further reminder. The right to claim further damages remains unaffected by this provision.
4.2 If the development of the agreed services extends over a longer period of time, the Agency may invoice the Client for partial payments for the partial services already rendered. These partial services do not have to be available in a form that can be used by the client and may also be available as a pure working basis on the part of the agency.
4.3 In the event of mutually agreed changes or justified termination of orders, work and the like by the customer and/or if the conditions for the provision of services change, the agency shall be reimbursed for all costs incurred as a result and the agency shall be indemnified against any liabilities to third parties.
4.4 If the client withdraws from an order before the start of the project, the agency shall charge the client the following percentages of the originally contractually agreed fee as a cancellation fee: up to six months before the start of the order 10%, from six months to three months before the start of the order 25%, from three months to four weeks before the start of the order 50%, from four weeks to two weeks before the start of the order 80%, from two weeks before the start of the order 100%.
4.5 All prices stated in offers and orders and the resulting amounts to be paid are subject to the statutory value added tax at the applicable rate.
5. additional services
5.1 Subsequent changes at the request of the client, including the additional costs incurred as a result, shall be charged to the client. The agency shall inform the client if change or additional requests cannot be implemented.
6. confidentiality obligation of the agency
6.1 The Agency shall be obliged to treat all knowledge it receives from the Client on the basis of an order as strictly confidential for an unlimited period of time and to oblige both its employees and any third parties it engages to maintain absolute confidentiality in the same way.
7 Obligations of the customer
7.1 The client shall provide the agency with all data and documents required for the implementation of the project free of charge. All working documents shall be treated with care by the Agency, protected from access by third parties, used only for the preparation of the respective order and shall be returned to the Client after completion of the order.
7.2 The client shall only award contracts to other agencies or service providers in connection with a commissioned project after consultation and in agreement with the agency.
7.3 The risk of the legal admissibility of the measures developed and implemented by the agency shall be borne by the customer. This applies in particular in the event that the campaigns and measures violate the provisions of competition law, copyright law and special advertising laws. However, the agency is obliged to point out legal risks if it becomes aware of them in the course of its activities. The client shall indemnify the agency against third-party claims if the agency has acted at the client’s express request although it has notified the client of concerns regarding the permissibility of the measures. The agency must notify the client of such concerns in writing immediately after becoming aware of them. If the Agency deems it necessary for a measure to be carried out to be examined under competition law by a particularly competent person or institution, the client shall bear the costs of this after consultation with the Agency.
8. acceptance
8.1 The Agency shall set the Client a deadline of two weeks with the written notification of provision of a (partial) work, within which the Client may refuse acceptance, stating at least one defect. If the client does not refuse acceptance accordingly, the contractual service shall be deemed to have been accepted upon expiry of the deadline. However, refusal of acceptance is excluded if the client actually uses or begins to use the service. In principle, acceptance shall also extend to intermediate creative steps such as, in particular, concepts, sketches, drafts, production data, etc.
8.2 The notification of obvious defects shall be excluded after the expiry of two weeks after receipt of the written notification of provision by the Agency.
8.3 Defects must be reported in writing.
9. warranty
9.1 The warranty for defects is excluded if these defects are based on preliminary work or specifications of the client or are otherwise attributable to the client’s sphere of risk or force majeure. This applies in particular to the following cases, for which the client itself is responsible:
– Specifications of the client that describe the services to be provided by the agency: The agency cannot guarantee that they are complete, correct or up to date, nor that they are free from third-party rights.
– The patent, copyright and trademark protection or registrability of the ideas, suggestions, proposals, concepts and drafts supplied within the scope of the order. The same applies to other legal bases arising from intellectual property or industrial property rights.
– The client is solely responsible for the legality and legal conformity of its content. The client is responsible for checking the legality of the texts, designs and measures created.
– Damage that may also be caused by unlawful actions by the client’s customers or other third parties,
– Subsequent changes by the client to the agency’s services (with the exception of content management systems)
– Failure of network services due to malfunctions and other technical failures that are outside the agency’s area of responsibility,
– Defects in projects that have only been modified or extended by the agency, as the agency can only assume warranty for its services. The same applies to orders in the area of system administration: here the warranty is limited to the specific system error to be rectified, not to the functionality of the entire system.
9.2 Otherwise, the Agency shall initially provide warranty for defects at its discretion by subsequent performance. The notification of a defect shall only be effective if it is made in writing.
9.3 If the Agency seriously and finally refuses performance, refuses to remedy the defect and subsequent performance due to disproportionate costs, the subsequent performance fails or is unreasonable for the Client, the Client may, at its discretion, only demand a reduction of the remuneration (reduction) or rescission of the contract (withdrawal) and damages within the scope of the limitation of liability (see Section 10 of these GTC) instead of performance.
9.4 In the event of only a minor breach of contract, in particular in the case of only minor defects, the client shall not be entitled to withdraw from the contract. The same shall apply if the agency is not responsible for the breach of duty resulting from a defect
9.5 The client’s rights due to defects shall lapse one year after acceptance of the work, unless the agency can be accused of gross negligence.
9.6 An obvious defect can only be notified within two weeks of the start of the statutory limitation period. An obvious defect is a defect that becomes apparent to a non-expert client without closer examination of the services provided, such as data transmission errors.
9.7 The client shall not receive any guarantees in the legal sense. Assurances by the Agency regarding certain properties must be made in writing and expressly designated as such in order to be effective.
10. limitations of liability
10.1 Liability for defects shall be excluded if these defects are attributable to the Client’s sphere of risk or force majeure in accordance with Section 9.1 of these GTC. The same shall apply to damages resulting from other legal relationships of the client that were caused or mediated by the agency’s services.
10.2 The Agency shall only be liable for damages to the Client (a) which the Agency, its legal representatives or vicarious agents have caused intentionally or through gross negligence, (b) which are based on injury to life, limb or health caused by a breach of duty by the Agency, one of its representatives or vicarious agents or (c) which are caused by the breach of an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the Client regularly relies and may rely (cardinal obligation).
10.3 In the cases of Section 10.2 (a) and (b), the Agency’s liability shall be unlimited in terms of amount. Otherwise, the claim for damages shall be limited to the foreseeable damage typical for the contract, which in the case of simple negligence shall not exceed the invoice amount of the respective order. The client can prove that the foreseeable damage typical for the contract is higher than the invoice amount of the respective order.
10.4 In cases other than those specified in Section 10.2, the Agency shall not be liable, irrespective of the legal grounds. In particular, the Agency shall not be liable for damages incurred by the Client due to the conclusion of a contract with a third party, as only the respective contractual partner of the Client shall be liable for this.
10.5 The above limitations of liability shall apply accordingly to all bodies, shareholders, employees and vicarious agents of the Agency (insofar as personal liability exists).
11. collecting societies
11.1 The customer undertakes to pay any fees to collecting societies such as Gema. If these fees are disbursed by the agency, the customer undertakes to reimburse them to the agency against proof. This can also take place after termination of the contractual relationship.
11.2 In cooperation with the agency, contributions to the Artists’ Social Security Fund are waived, as you receive the artistic services from a legal entity.
12. third-party services / loss of production
12.1 Freelancers or third parties engaged by the Agency shall be vicarious agents of the Agency. The client undertakes not to commission these employees, employed by the agency within the framework of the execution of the order, directly or indirectly with projects during the 12 months following the conclusion of the order without the cooperation of the agency.
12.2 Photo production: Additional costs such as model fees, styling, hair/make-up, location rental, travel costs and expenses will be invoiced before the start of production. The agency reserves the right to charge in full or in part for productions that are canceled due to unforeseeable circumstances for which it is not responsible. Weather-dependent productions will be charged at 50% of the daily fee in the event of cancellation.
12.3 The service providers commissioned by the Agency are obliged to produce in accordance with the Agency’s quality guidelines. Acceptance of the projects by the agency is a prerequisite for customer approval.
13. working documents and electronic data
13.1 All working documents, electronic data and records produced by the Agency in the course of processing the order shall remain with the Agency. The client may not demand the surrender of these documents and data. Upon payment of the agreed fee, the Agency shall owe the agreed service, but not the intermediate steps leading to this result in the form of sketches, drafts, production data, etc.
14. media planning and media execution
14.1. The agency shall carry out commissioned projects in the area of media planning to the best of its knowledge and belief on the basis of the media documents available to it and the generally accessible market research data. The agency does not owe the client any specific advertising success as a result of these services.
14.2 The agency undertakes to take into account all benefits, special conditions and discounts in the interests of the client in the media placement and to pass these on to the client.
14.3. In the case of extensive media services, the agency is entitled, by agreement, to invoice the customer for a certain proportion of the third-party costs and to post the corresponding media only after receipt of payment. The agency shall not be liable for any failure to meet a switching deadline due to late receipt of payment. This shall not give rise to a claim for damages by the customer against the agency.
15 Duration of contract, notice periods, written form
15.1. The contract enters into force upon signature or upon acceptance of the offer. It is concluded for the contract term stated in the contract/offer.
15.2 If the contract is concluded for an indefinite period, it may be terminated by either party with three months’ notice to the end of the month. The right to terminate without notice for good cause remains unaffected by this provision. Notice of termination must be given in writing in accordance with § 126 BGB.
15.3 Unless expressly stated otherwise in these GTC, a transmission by e-mail shall be deemed to be in writing.
16. disputes
16.1 If a dispute arises in the course of or after completion of an order with regard to the commissioned project, an out-of-court mediation procedure shall be conducted before legal proceedings are initiated. In the event of disputes regarding quality assessment or the amount of the fee, external expert opinions should be prepared in order to reach an out-of-court settlement if possible. The costs of this are shared by the client and the agency.
17. right to refuse performance
17.1 The Agency shall be entitled to refuse to commence or continue its activities if an advance, partial or advance payment (cf. § 9) has been requested until this has been paid in full by the Client. The agency may also refuse to commence or continue its activities as long as and to the extent that an answer to a creative question or a confirmation of reading or receipt of a meeting protocol or similar is outstanding.
17.2 The Agency shall also be entitled to refuse to commence or continue its activities if it considers an order from the Client to be legally inadmissible and has informed the Client of the reasons for this in good time.
18 Liability of the client, contractual penalties
18.1 The client shall be liable to the agency and other third parties in accordance with the statutory provisions for all defects and damage caused within its sphere of risk, such as in particular
– all types of data loss, operational disruptions and transmission errors
– Inadequate safety precautions
– Unauthorized and unauthorized program interventions
– Infringement of copyrights or industrial property rights
18.2 The Client shall also be obliged to pay damages to the Agency in accordance with the statutory provisions if it breaches existing obligations towards the Agency. This applies in particular to
a) the use of copyrighted works of the agency prior to full payment of the remuneration (see sections 3 and 4 of these GTC),
b) the assertion of untrue facts (cf. Section 18.7 of these GTC) for the purpose of reducing or disputing the Agency’s remuneration agreed under this contract. This prohibition also applies to representatives or vicarious agents such as lawyers of the client.
18.3 In the event that the contractual services provided by the Agency are transferred by the Client to third parties, the Client shall be liable for all resulting damages. This shall also apply if he uses the contractual services provided by the Agency for third parties and their purposes. Section 3 of these GTC shall remain unaffected.
18.4 Insofar as the Client uses the contractual services provided or made available by the Agency for the distribution and publication of illegal or immoral content on the Internet and for the offering and provision of illegal or immoral services or goods in the context of e-commerce, the Client shall be liable for all legal consequences arising therefrom, such as damages, injunctive relief or criminal prosecution. The same shall apply if the client makes the contractual services provided by the agency available to third parties for these purposes.
18.5 The Client shall indemnify the Agency against any liability in respect of the advance services of third parties commissioned by it and shall assert any claims for damages and warranty claims exclusively against the third party.
18.6 In the event of a breach of the prohibition stated in Clause 18.2 a), the Client undertakes to pay a contractual penalty of 20% of the net remuneration invoiced for the work for each case of infringement and, in the event of a breach of the prohibition stated in Clause 18.2 b), a contractual penalty of 50% of the reduction or disputed remuneration of the Agency intended by the untrue assertion. The contractual penalties shall apply without prejudice to the Agency’s claim for damages.
18.7 An untrue factual assertion is deemed to exist if the documented communication or other prima facie evidence (see Section 294 ZPO) indicates otherwise. Otherwise, an untrue assertion of fact shall be deemed to exist at the latest when it is legally established in court proceedings that the assertion of the client or its representatives/agents (e.g. its lawyer) is not true. The agency expressly reserves the right to file criminal charges.
19. final provisions
19.1 The customer is not entitled to assign claims arising from the contract/offer.
19.2 Offsetting or the assertion of a right of retention by the customer is only permitted with recognized or legally established counterclaims.
19.3 The law of the Federal Republic of Germany shall apply. The place of fulfillment and jurisdiction is Ulm.
19.4. Should any provision of these General Terms and Conditions be invalid in whole or in part or lose its legal validity at a later date, this shall not affect the validity of the remaining provisions. In place of the invalid provision, another appropriate provision shall apply by way of contract adjustment, which comes closest to what the contracting parties would have wanted economically if they had been aware of the invalidity of the provision.
Ulm, 19.10.2022