1.1 The following General Terms and Conditions (GTC Delivery) apply to all orders placed with AerosolAD e.K („we“) for services and works.
1.2 We provide our services and works exclusively on the basis of these terms and conditions. Customer’s terms and conditions and deviating agreements shall only apply if we
have expressly acknowledged them.
1.3 Our terms and conditions of business shall also apply if we provide our services or works for the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions of business.
2.1 Our services and works, including the agency and copyright identification, may not be changed either in the original or in reproduction without our express consent.
2.2 All our works (drafts and works, software, photographs, logos, layouts, sketches, etc.) are also considered protected by copyright law in relation to the client if the required level of creation is not reached. Any imitation by the client of parts of our work is not permitted.
2.3 Our services and works may only be used for the agreed type of use and the agreed purpose to the agreed extent. In the absence of an express agreement to the contrary, the purpose of the contract shall be deemed to be only the purpose made recognizable by the customer at the time of placing the order. Unless otherwise expressly agreed, only a simple right of use is transferred in each case. Under no circumstances are we obliged to hand over source code, open layout files or other open files, unless this has been expressly agreed.
2.4 We retain all rights of use to ideas presented but not selected for implementation.
2.5 The client acquires the right to use the work to the agreed extent upon payment of the fee.
2.6 The transfer of granted rights of use to third parties as well as multiple uses (e.g. for another product, another campaign, another website, another platform or by another
company) require our express consent and are subject to payment.
2.7 The publication of our works is only permitted with agency and copyright names. A breach of this obligation entitles us to damages. Without proof we are entitled to a surcharge of 100% on the agreed or the usual usage fee.
2.8 Suggestions and instructions of the client or his employees and agents have no influence on the amount of the remuneration, even if they exceptionally establish a co-authorship right.
2.9 We may appropriately label the advertising material/works of art developed by us in small print with our name and/or logo and – even after termination of the contract term – use them free of charge for our own advertising within the framework of presentations and on our website; press releases are agreed with the client.
2.10. We have a right to information against the customer regarding the scope of use.
3.1 Our offers are valid for 30 days from the date of issue.
3.2 Unless expressly agreed otherwise, the remuneration for our services and works is
generally based on time expenditure, which is invoiced monthly or task-related on an hourly basis in accordance with our standard agency hourly rates valid at the time the respective order is placed.
3.3 Expenses and additional costs are to be reimbursed separately. Against proof, the client bears in particular all travel and accommodation costs incurred for the execution of the respective order, as well as additional technical costs, in particular production and
reproduction costs, hosting fees, costs for the production of models and photos as well as GEMA fees, social security contributions for artists, customs costs, insurance costs, etc., as well as all other costs incurred by the client.
3.4 The pure travel time is charged at 50% of the respective standard agency hourly rate.
3.5 External legal examinations or trademark searches are only the subject of our offer if
expressly agreed. In the absence of an express agreement, these are additional services to be ordered and paid for separately.
3.6 Unless otherwise agreed, we are entitled to a commission of 35% of the net costs for the processing of orders with third parties whose costs are passed on directly to the customer. This does not apply if we receive commissions (e.g. agency commissions) from the third party.
3.7 The agreed prices are net prices in euros plus value added tax. They apply subject to the reservation that the underlying order data and the scope of services remain unchanged.
4.1 Payment is due upon delivery of the work; it is payable without deduction. If work is
legitimately delivered in parts, the corresponding partial fee is due upon delivery of the part.For services that are not delivered, but performed, the remuneration is due at the time of their performance. If an acceptance takes place before the delivery of work or the performance of services, the remuneration is due upon acceptance.
4.2 Separately invoiced expenses and ancillary costs are to be paid by the principal
4.3 Upon acceptance of the offer, the customer undertakes to make a down payment of 80 percent of the order amount. The remaining amount of the order is due after acceptance.
4.4 The delivered services and work remain our property until full payment of all claims from the respective contract.
4.5 The customer is only entitled to offset against our claims if and to the extent that his
counterclaims have been legally established, acknowledged by us or are undisputed. The customer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
4.6 The customer is not entitled to assign claims to which he is entitled against us or to have them collected by third parties. The provision of § 354a HGB remains unaffected by this.
4.7 We are fully entitled to the statutory rights of offset and retention. We are entitled to
assign all claims arising from the contract with the customer without the customer’s consent.
4.8 If our works or services are used by the customer beyond the contractually agreed scope of use without our consent, an appropriate remuneration shall become due. This is calculated for photo use according to the MFM image fees and within the scope of the fee recommendations of the Association of German Graphic Designers according to these.
5.1 The basis of our activities is the briefing by the client. If the briefing is given orally, we will immediately send the client a briefing protocol. This protocol becomes a binding working document and is valid as a commercial letter of confirmation. Agreements and orders contained therein and other content become binding if and insofar as the customer does not object within three working days in writing or in text form.
5.2 Within the scope of the order we have the freedom to design.
5.3 We shall not be liable for the protectability or registrability of the work performed and
5.4 Only one draft and its one-off revision is owed in each case. If the client wishes further modifications or the creation and submission of further drafts beyond the one-off submission and revision of a draft, these shall be additional services which shall be remunerated on a time basis.
6.1 We are entitled to order the external services necessary for the fulfilment of the order in the name and for the account of the customer. The client undertakes to authorise us to do so.
6.2 Insofar as contracts for external services are concluded in individual cases on our behalf and for our account, the customer undertakes to indemnify us internally from all liabilities arising from the conclusion of the contract. This includes in particular the assumption of costs.
6.3 We have the right to engage subcontractors and freelancers to provide our services in our own name and for our own account.
7.1 With the release of the work, the client assumes responsibility for the correctness of the picture and text.
7.2 We shall only monitor production on the basis of a special agreement. If such an
agreement exists, we shall be authorised to take the necessary decisions and issue
7.3 Unavoidable changes in tonal value/changes in colour compared to samples, designs or originals, or enlargements made at an earlier point in time do not entitle the customer to withdraw from the contract or make a complaint.
7.4 Due to artistic freedom there may be deviations in the design, these do not entitle to
withdrawal or complaint.
deliberate or negligent breach of duty on our part. We undertake to carefully select and
instruct vicarious agents. Furthermore, we are not liable for our vicarious agents.
8.2 If we commission necessary external services, the respective contractors are not
vicarious agents. We are only liable for our own fault and for intent and gross negligence.
8.3 Otherwise, any contractual and non-contractual liability on our part is excluded.
8.4 We shall not be liable for any resulting damage, in particular if we have pointed out to the customer the legal and other risks associated therewith before implementing an advertising measure/design or other design measure and the customer insists on an unchanged implementation of the advertising measure/design despite these concerns. In addition, the customer shall indemnify us against all claims of third parties arising from this on first request.
9.1 Delivery dates or periods which have not been expressly agreed as binding are
exclusively non-binding information.
9.2 If we are culpably unable to meet an expressly agreed deadline or are in default for other reasons, the customer shall grant us a reasonable grace period which shall commence upon receipt of the written notice of default by us or, in the case of the period specified in the calendar, from the occurrence of the default.
9.3 In the event of default, we shall be liable in accordance with the statutory provisions if the contract is a firm deal or if the customer is demonstrably entitled to invoke the discontinuation of his interest in the performance of the contract as a result of the performance or delay in delivery or if the default is due to an intentional or grossly negligent breach of duty for which we are responsible. In all other cases our liability is limited to the foreseeable, typically occurring damage.
9.4 Unless it is excluded from the nature of the order or is unreasonable for the customer, we are entitled to partial performance and partial delivery.
10.1 Exclusive place of jurisdiction for all disputes arising from this contract is Munich, Germany; however, we are also entitled to sue the client at another competent court.
10.2 The law of the Federal Republic of Germany shall apply exclusively to the legal
relationships of the parties, in particular to the contracts concluded on the basis of these GTC, excluding the conflict of laws provisions of private international law and the provisions of the UN Convention on Contracts for the International Sale of Goods.
10.3 All agreements made between us and the customer for the execution of the contracts are recorded in writing.
10.4 Should individual provisions of these General Terms and Conditions and/or a contract concluded on the basis of these General Terms and Conditions be or become wholly or partially invalid or impracticable, this shall not affect the validity of the remaining provisions or the contract as a whole. As far as general terms and conditions are concerned, the content of the contract is governed by the statutory provisions. In the case of other contractual provisions, instead of any invalid or unenforceable provision, a valid and enforceable provision shall be deemed agreed that comes as close as possible to the economic purpose of the invalid or unenforceable provision. The same applies to incompleteness. The contract is ineffective if adherence to it would constitute an unreasonable hardship for a contracting party, even taking the amendment into account.