Theim Kommunikation GmbH General Terms and Conditions

The following General Terms and Conditions (“GTC”) apply to all legal transactions of Theim Kommunikation GmbH (hereinafter the “Agency”) with its contractual partners (hereinafter the “Client”), in particular to services and/or work in the fields of advertising, software development, multimedia and programming.

The type and precise scope of the services and work in each individual case result from the concept developed by the Agency, the offer, the specifications (Pflichtenheft), the campaign proposals as well as the individual contract. The contract shall define the content of the agreement, specifying at a minimum the type and scope of the contractual performance, any ancillary services, the remuneration and, in the case of fixed-date transactions, the completion dates.

In the field of advertising, the subject matter is the conception, creation, realisation and production of communication measures as well as related services such as consulting, project management, etc.

In the fields of software development, multimedia and programming, the subject matter is the consulting, planning, development and installation of customer-specific bespoke software developments as well as related services such as instruction, customer training, development of updates, etc.

These GTC form an integral part of every contract concluded, unless otherwise agreed in writing in individual cases.

Deviating terms and conditions of the Client as well as amendments and supplements to these GTC shall only be valid if they have been acknowledged in writing by the Agency. This shall also apply if the Client’s terms and/or conditions of delivery have not been expressly objected to.

1. Presentations

If no contract is awarded following a presentation, all services rendered, in particular the presentation documents and the drafts, works, ideas etc. contained therein, shall remain the property of the Agency. The Agency shall also retain all copyrights and rights of use. The Client is not entitled to use, edit or exploit this material in any form whatsoever, or to use it as a basis for creating its own material. If no contract is awarded, the Client shall immediately return to the Agency all presentation documents in its possession.

If no contract is awarded, the Agency remains free to use the ideas, works, designs etc. presented for other projects and clients.

The transfer of presentation documents and offers to third parties, as well as their publication, reproduction, distribution or other use by the Client or its authorised representatives, obliges the Client to pay a fee corresponding to the relevant service. The amount of such fee shall be based on the Agency’s offer or, if no such offer has yet been submitted, on market-standard conditions.

2. Software Development, Multimedia, Programming

After installation of the programming, the Agency shall, at the Client’s request, also instruct the Client in the use of the software. Unless expressly agreed otherwise, such instruction is not part of the contractual services and shall therefore be remunerated separately.

Change requests by the Client with regard to the scope of functions, program structure, screen design or other features of the programming shall be taken into account against an appropriate additional fee, provided that they are technically feasible and can be implemented within the agreed timeframe. The basis for calculating the additional fee shall be the necessary additional time expenditure and the remuneration rate calculated by the Agency for the overall production. The Agency is not obliged to disclose its calculation, but must provide a comprehensible justification for the amount of the additional fee.

The Client is obliged to provide reasonable cooperation in supplying content and specifications. If content or specifications are not provided in due time, the schedule will be delayed. This may result in subsequent deadlines not being met.

If the Agency submits drafts, test versions of the program or similar items to the Client, the Client shall carefully examine them. Any defects and/or change requests that are already identifiable at this stage must be notified at this time. If the Client fails to conduct such examination and/or to give notice of defects, the Agency’s warranty obligations shall lapse with regard to such defects.

All documents and materials made available by one contracting party to the other for the execution of the order shall be handled with due care and may only be reproduced within the scope of performing the contract and may not be made accessible to third parties. They shall be returned to the other contracting party, including any copies made, as soon as they are no longer required for the creation of the program.

The Agency shall deliver one copy of the executable program on a data carrier, including the user documentation. Should the Client request delivery of additional copies of the program and/or of the user documentation, these shall be remunerated separately in an appropriate amount. The source code is generally not part of the offer and contract and must be explicitly requested from the Agency and remunerated separately.

Deadlines and delivery periods are, as a rule, non-binding guidelines. This does not apply where deadlines have been expressly fixed as binding in text form (Textform). The Agency shall not be liable for delays in delivery that are due to the Client’s failure to fulfil required duties to cooperate. If the Client is in default of acceptance or culpably breaches other duties to cooperate, the Agency shall be entitled to claim compensation for the damage incurred as a result, including any additional expenses. The right to assert further claims is reserved.

Unless expressly agreed otherwise in writing, billing shall be based on the Agency’s hourly rates according to the actual time spent. Cost estimates and calculations are non-binding. The scope of the individual services and the remuneration owed shall follow from the Agency’s description of services.

If no remuneration has been specified for a service, the price lists of the Agency valid at the time of commissioning shall apply. Additional work of the Agency, in particular due to change and amendment requests by the Client, shall be invoiced as additional effort in accordance with the agreed hourly rates, or alternatively in accordance with the price lists of the Agency valid at the time of commissioning.

The Client shall bear any damage resulting from the fact that work has to be repeated in whole or in part or is delayed due to incorrect, subsequently corrected or incomplete information provided by the Client, insofar as the Client is responsible for such damage.

The Agency is entitled to have the services incumbent upon it performed by third parties as subcontractors. The Client may only reject such a third party if there is good cause in the person of that third party. If the Client prematurely terminates an order which it has released/approved vis-à-vis the Agency, section 649 of the German Civil Code (BGB) shall apply between the contracting parties with regard to the Agency’s fee.

The review of the legal admissibility of advertising (in particular under competition law, trade mark and sign law, copyright law, food and pharmaceutical law) is only owed by the Agency if it is expressly the subject matter of the order. If the Client commissions the Agency with such services, the Client shall bear the fees and costs incurred by the Agency and by third parties (lawyers, authorities, etc.) at market-standard conditions, unless otherwise agreed in writing.

The Agency is not obliged to verify the accuracy of factual statements contained in the advertising regarding the Client’s products and services, where such statements have been provided or approved by the Client. The Agency’s services shall be deemed to have been duly performed even if they are not registrable or capable of protection (e.g. patents, trade marks, copyright), unless otherwise expressly agreed in writing. The Agency is not obliged, but is entitled, to make its services the subject of applications for industrial property rights. For the purpose of review and approval, the Agency shall submit all drafts to the Client prior to publication. Upon approval of the work, the Client assumes responsibility for the correctness of content, image, sound and text.

Third-party and incidental expenses, such as the costs for engaging photographers, stylists, designers and similar service providers, as well as expenses for telephone, fax, courier services, travel costs and similar, shall be reimbursed separately against evidence, unless expressly agreed otherwise in writing. The Agency is also entitled to commission all third-party services required for the fulfilment of the order in the name and for the account of the Client.

The Agency’s duty of loyalty towards the Client obliges the Agency to provide objective advice oriented towards the Client’s objectives and to select third-party companies accordingly, e.g. for production processes. Unless the Client has expressly reserved a right of co-determination, the selection of third parties shall be made in observance of the principle of an appropriate balance between cost efficiency and the best possible success in the interests of the Client.

The Agency is obliged to maintain confidentiality regarding all trade secrets of the Client that become known to it in the course of the cooperation.

Within the scope of production supervision, the Agency selects suitable manufacturers of advertising materials and places production orders after approval by the Client in text form. Unless expressly agreed otherwise in text form, orders to manufacturers of advertising materials are placed in the name and for the account of the Client. The Agency coordinates the handling of production and checks the performance and invoices of the manufacturers. For production supervision, the Agency receives an agency fee of 15% of the net value of the invoices of the manufacturers of advertising materials, unless expressly agreed otherwise in text form. The agency fee becomes due in each case upon settlement of the manufacturers’ services. Insofar as the Agency, on the basis of an express agreement with the Client, places production orders in its own name and for its own account, all third-party costs incurred are passed on by the Agency to the Client. The Agency is entitled, for production orders with an anticipated value of EUR 10,000.00 or more, to demand advance payments, due immediately, up to the amount of the gross order value.

For services, the Agency shall be liable to the Client in accordance with the statutory provisions for proper performance. For work performances, the Agency shall be liable to the Client in accordance with the statutory provisions that the contractual performance is not affected by defects which significantly impair its use.

The Client acknowledges that not every malfunction in the program sequence constitutes a defect, since, according to the state of the art, it is not possible to develop completely error-free programming.

In the context of software development, multimedia and programming, the software and programs are adapted to the hardware and software system named by the Client at the time the contract is concluded, in the version existing at that time. No warranty is assumed that the software or programs will also function on other hardware and software systems or versions.

If a defect exists, it shall be remedied by the Agency within the warranty period of twelve months from acceptance, following corresponding notification by the Client, by way of subsequent performance (remedy of defects). The remedy of defects shall be carried out within a reasonable period, taking into account the interests of both parties. If the subsequent performance fails a total of three times, the Client may, at its option, withdraw from the contract or demand a reduction of the remuneration.

If the Client makes changes of any kind whatsoever to the programming, any warranty of the Agency shall lapse.

The Agency shall be liable only for intent and gross negligence as well as for damages arising from injury to body, life or health and in the event of a breach of primary performance obligations / cardinal obligations. Cardinal obligations are those contractual obligations whose fulfilment is essential for the proper performance of the contract and on whose observance the contractual partner may regularly rely, and whose breach, on the other hand, jeopardises the achievement of the purpose of the contract.

In the event of a breach of a cardinal obligation, liability shall, insofar as the damage is based merely on slight negligence and does not concern injury to life, body or health, be limited to such damages as must typically be expected to occur in the context of the order.

In the event of intentional damage to the Client, liability shall be governed by the statutory provisions; in the event of grossly negligent causation of damage, the Agency’s liability shall be limited to three times the respective remuneration and to such damages as must typically be expected to occur; liability for indirect and consequential damages, in particular loss of profit, is excluded.

Liability for loss of data shall be limited to the typical cost of restoration that would have been incurred if regular and risk-appropriate backup copies had been made.

Otherwise, liability is excluded. This limitation of liability also applies to employees and other agents of the Agency.

The examination of legal issues, in particular in the areas of copyright, competition and trade mark law, is not the responsibility of the Agency and is therefore not part of the contract. The Agency shall therefore not be liable in this respect for the legal reliability of the content and/or design of the work results. The Agency shall also not be liable for factual statements contained in the advertising regarding the Client’s products and services.

If the Agency is held liable by third parties on the basis of the design and/or content of the work result for injunctive relief, damages or similar, the Client shall indemnify the Agency from such liability.

The shipment of documents shall be at the Client’s own risk. This shall also apply if the shipment takes place within the same locality. The Agency is entitled, but not obliged, to insure shipments in the name and for the account of the Client.

If the Agency owes a specific work result, i.e. an individualisable work (e.g. a design), the Client is obliged to accept it. Acceptance shall be deemed to have taken place if it is not declared or refused within seven days after delivery, provided that the work result essentially corresponds to the agreements. If there are material deviations, the Agency shall remedy these deviations within a reasonable period and present the work result again for acceptance. Acceptance shall be deemed to have taken place at the latest upon payment for or use of the work.

The Client is obliged to fulfil any existing claims of collecting societies. If such claims are fulfilled by the Agency, the Client shall reimburse the Agency for the payments disbursed. The Client is informed that, in the event of awarding contracts in the artistic, conceptual and advertising consultancy fields to a natural person (non-legal entity), an artists’ social security levy (Künstlersozialabgabe) must be paid to the Künstlersozialkasse. This levy may not be deducted by the Client from the Agency’s invoice.

All designs, drawings, artwork, layouts, concepts, ideas etc. produced by the Agency in the field of advertising are works protected by copyright within the meaning of section 2 of the German Copyright Act (UrhG), and this applies even if they do not meet the requirements of section 2 UrhG. All services of the Agency may therefore not be used, edited or modified without the Agency’s consent. Any imitation, including that of parts of designs, drawings, artwork, layouts, concepts, ideas etc., is not permitted. In the event of any infringement, the Client is obliged to pay the Agency a contractual penalty, due immediately, in the amount of the originally agreed fee.

In the fields of programming, multimedia and software development, the Agency grants the Client, for all types of use known at the time, a simple (non-exclusive), transferable and irrevocable right of use. Adaptations, modifications and alterations within the meaning of sections 23 and 39 UrhG are only permitted with the Agency’s prior written consent. The Client undertakes to impose the same obligation on third parties to whom it transfers its right of use.

In the event of a transfer of rights, the scope of such transfer in territorial, temporal and substantive terms shall be determined exclusively by the contractual agreements and/or the purpose of the contract and these General Terms and Conditions; section 31 (5) UrhG shall apply accordingly. The rights shall pass to the Client only upon full payment of the total order. The transfer of granted rights of use to third parties and/or multiple uses shall, insofar as not expressly regulated in the order, be subject to additional remuneration and require the consent of the Agency. The Agency is entitled to information regarding the extent of use.

In the case of publications, the Agency shall be named as author in the customary form. The Agency may appropriately and in line with industry practice sign the advertising materials it has developed and may publish the commissioned work for self-promotion (without time limitation). Ownership of the Agency’s work results shall pass to the Client only upon full payment of the order.

If rights of use or exploitation rights (e.g. photo, film, copyright, GEMA rights) or consents of third parties (e.g. personality rights) are required for the creation or implementation of the Agency’s work results, the Agency shall obtain such rights and consents from third parties in the name and for the account of the Client. This shall generally be done only to the extent required in terms of time, territory and content for the intended advertising measure, unless expressly agreed otherwise in text form. Subsequent claims pursuant to sections 32 and 32a UrhG shall be borne by the Client.

The Agency assumes no liability that no third-party rights exist in relation to the advertising materials and work results supplied by it.

The Client shall designate to the Agency a contact person who is authorised to give binding approvals, in particular with regard to the release of budgets, cost estimates, texts and other coordination processes. Any limitations of this authority to approve must be communicated to the Agency in writing in due time.

The Agency undertakes to inform the Client of possible conflicts of interest with other clients and shall, upon request, grant non-competition protection (exclusivity) in favour of the Client for individual, specifically defined product and service areas. In return for the granting of such non-competition protection by the Agency, the Client undertakes, for the duration of the contract with the Agency while it remains in force, not to commission any other advertising agencies in the contractual field simultaneously with the consulting, planning, design and implementation of the project which is the subject matter of the contract.

The Agency is entitled to invoice the Client for instalments in respect of partial services already rendered, even if such partial services are not yet available in a form usable by the Client. If the Client terminates the contractual relationship after placing the order and before completion of the project, the Client is obliged to pay the agreed remuneration. The remuneration shall be reduced by the amount corresponding to the expenses saved by the Agency as a result of non-performance or discontinuation of the project. The agreed prices are in each case exclusive of statutory value added tax. Customs duties, fees and other charges such as the artists’ social security levy shall be borne by the Client, including where they are subsequently levied. Invoices are payable without deduction within 14 days of receipt. In the case of business clients, interest at a rate of 8 percentage points above the base interest rate shall be charged after 30 days from the invoice date. Set-off against counterclaims or the assertion of a right of retention is only permissible if the Client’s claims are undisputed or have been finally adjudicated.

Each party shall bear the costs for postage, telephone and fax incurred by it in the course of its business dealings with the other party. Travel expenses shall be charged to the Client as follows:

• Third-party expenses: according to receipts
• Time spent: see current standard price list
• Travel costs by own car: EUR 0.51/km

All other costs, such as lawyers’ fees, courier charges, transport costs for the preparation and supervision of advertising material production, as well as colour copies and printouts ordered by the Client, shall be charged on the basis of receipts.

The invalidity of individual provisions shall not affect the validity of the remaining provisions. Any invalid provision shall be replaced by a provision that comes as close as possible to the economic purpose of the original provision. The place of jurisdiction for all disputes between the Client, where the Client is a merchant (Kaufmann), and the Agency shall be the registered office of the Agency. Unless otherwise agreed, German law shall also apply to contractual relationships with contracting parties based abroad.