Theim Kommunikation GmbH
General Terms and Conditions (GTC)
These General Terms and Conditions apply to all agreements entered into between Theim Kommunikation GmbH (hereinafter the Designer) and its Clients. The General Terms and Conditions are consented to unless the Client rejects them immediately after they come to the Client’s knowledge.
1. Copyright and rights of use
1.1. Layouts and final artwork cannot be altered, either in the original or in reproductions, without the Designer’s express consent. No imitation is permitted, in whole or in part. 1.2. In the event of a breach of Item 1.1., the Client must pay the Designer a contractual penalty of twice the agreed compensation. If no compensation has been agreed, a contractual penalty of twice the customary compensation will be payable. The customary compensation is the compensation under the current version of the collective bargaining agreement on compensation between the Alliance of German Designers (the AGD) and the Association of Independent Design Studios (the SDSt). 1.3. The Designer will transfer to the Client the rights of use needed for the applicable intended use. Unless agreed otherwise, a only a simple right of use is transferred. 1.4. Any transmittal of rights of use to third parties is subject to written agreement between the Designer and the Client. The rights of use are not transferred to the Client until the compensation has been paid in full. 1.5. The Designer shall have the right to be named as the author upon every use of the work. 1.5.1. If the Client infringes the Designer’s right to be named, the Client shall be obligated to pay the Designer damages of twice the agreed or customary compensation, as the case may be. 1.5.2. Such damages shall not affect the Designer’s right to assert greater damages where specific losses can be computed. 1.6. Suggestions or other collaboration by the Client shall not reduce the amount of the compensation or establish a joint copyright.
2.1. Compensation is net, payable in addition to the value-added tax prescribed by law, and without deductions. 2.2. If the layouts are used later, or in greater scope, than was originally planned, the Client must pay compensation for the additional use. The amount of the compensation shall be based on the AGD/SDSt compensation agreement.
3. Due date of payment
3.1. Compensation is due for payment upon delivery of the layouts. 3.2. If the layouts are accepted in sub-lots, partial compensation equivalent to at least half the total compensation is payable upon acceptance of delivery of the first sub-lot.
4. Third-party services
4.1. The Designer shall be entitled to order the third-party services required to fulfill the order in the name and for account of the Client. The Client shall be obligated to grant a written power of attorney to the Designer for this purpose. 4.2. In exceptional cases, if contracts for third-party services are to be signed in the name and for the account of the Designer, the Client agrees to hold the Designer harmless inter partes from all liabilities that may arise from the signing of the contract, and in particular for payment of the price for the third-party service.
5. Ownership, release of data
5.1. Only rights of use in layouts and final artwork will be conferred; no ownership rights will be transferred. 5.2. The originals must be returned to the Designer undamaged within no more than three months after delivery, unless agreed otherwise in writing. 5.3. In the event of damage or loss, the Client must reimburse the costs needed for restoration or re-creation. This provision shall not affect the entitlement to assert additional losses. 5.4. Work and masters will be shipped at the Client’s risk and for the Client’s account. 5.5. The Designer is not obligated to surrender data storage media, files or data. 5.5.1. If the Client wishes to have the Designer make data storage media, files or data available, this must be agreed in writing and compensated separately. 5.5.2. If the Designer has provided data storage media, files and data to the Client, these may be altered only with the Designer’s consent. 5.5.3. The Client assumes all risk and expense for transporting data storage media, files and data, online and offline. 5.5.4. Except in cases of willful misconduct or gross negligence, the Designer shall not be liable for defects in data storage media, files or data. 5.5.5. The Designer shall not be liable for defects in data storage media, files or data caused during the importation of data onto the Client’s system.
6. Proofreading, production oversight and documentary copies
6.1. The Client must submit proofs to the Designer before carrying out reproduction. 6.2. If the Designer is to conduct production oversight, the Designer and the Client shall enter into a written agreement for this purpose. 6.3. If the Designer conducts production oversight, the Designer shall make decisions at its own discretion and issue instructions accordingly. 6.4. The Designer shall be liable only for willful misconduct and gross negligence. 6.5. The Client must provide to the Designer, at no charge, ten perfect specimens of all reproduced work. 6.6. The Designer shall be entitled to use and replicate these samples for his own promotional purposes. He shall also be entitled to use the works in the Internet for his own promotional purposes.
7.1. The Designer shall be liable for loss or damage only in cases of willful misconduct or gross negligence. 7.2. The Designer must carefully select and instruct its agents for performing the work. It will not be liable for its agents in any further regard. 7.3. If the Designer engages third-party services, the contractors are not agents of the Designer. The Designer shall be liable only for its own faults, and only for willful misconduct or gross negligence. 7.4. The Client assumes responsibility for the correctness of text and graphics upon acceptance of the work. 7.5. When the Client issues the written release of drafts and final artworks, the responsibility for the correctness of text and images shall pass to the Client, with the consequence that the Designer shall bear no further liability to that extent. 7.6. The legal review of the legal admissibility of the works, and particularly the admissibility under competition law and trademark law, shall be incumbent on the Client. The Designer shall not be liable for the admissibility of the works under competition law and trademark law, nor for the registration eligibility of the works. 7.7. Complaints and objections regarding apparent defects must be asserted to the Designer in writing within 14 (in words: fourteen) days after delivery. 7.8. Unless the Client is a consumer, the warranty period shall be one year after acceptance of the work.
8. Freedom of design and masters
8.1. Within the bounds of the order, the Designer shall have freedom of design. If the Client desires changes during or after production, the Client must assume the additional cost. The Designer reserves the right to be compensated for work already begun. 8.2. If the performance of the order is delayed for reasons for which the Client is at fault, the Designer may demand a reasonable and appropriate increase in the compensation. In the event of willful misconduct or negligence, the Designer may also claim damages. This provision shall not affect the right to assert claims for further loss or damages incurred through delay or default. 8.3. The Client represents that it is entitled to use all masters provided to the Designer. If, contrary to this representation, the Client is not entitled to such use, the Client shall hold the Designer harmless from all third-party claims for damages.
9. Concluding provisions
9.1. The place of performance and the jurisdiction and venue for all disputes arising from the Agreement and from the application of the General Terms and Conditions shall be the place of business of the Designer, if both parties to the agreement are businesses [Kaufleute] within the meaning of German law. 9.2. If any of the above terms or conditions is invalid, the validity of the remaining terms and conditions shall be unaffected thereby.