- Our GTC shall be deemed to have been accepted when the order is placed. Should one of the clauses of the GTC be or become invalid, this shall not affect the remaining clauses. Subsidiary agreements must be made in writing. The GTC shall apply from 01.01.2007. The following terms and conditions shall apply to all contracts for services exclusively between p2 media GmbH & Co. KG, Oliver Parrizas, Simeonscarre 2, 32423 Minden (p2 media GmbH & Co. KG) and the client. This shall also apply in particular if the client uses general terms and conditions (GTC) and these contain terms and conditions that are contrary to or deviate from the terms and conditions listed here.
- Orders agreed in writing or verbally shall be valid. Our offers are subject to change with regard to prices, quantities, delivery period, delivery possibility and ancillary performance. We expressly reserve the right to make technical changes.
- p2 media GmbH & Co. KG shall be obliged to treat all knowledge which it receives from the customer on the basis of an order as strictly confidential for an unlimited period of time and to oblige both its employees and third parties called in by it to maintain absolute silence in the same way.
- The GTC shall form the basis of all agreements, offers and deliveries; they shall be deemed to have been accepted by placing the order or accepting the delivery and shall not be cancelled by any commercial practice, tacit agreement or acquiescence. Deviating conditions of the customer shall not be binding, even if p2 media GmbH & Co. KG does not expressly contradict them. Any ambiguities in the placing of the order shall be at the expense of the buyer. These terms and conditions shall also apply to all future business relations with the client, even if they are not expressly agreed again.
- In addition to the project contract and its appendices, the basis for the agency work and part of the contract shall be the briefing to be handed over by the client to p2 media GmbH & Co. KG shall be handed over by the client. If the briefing is communicated by the client verbally or by telephone, p2 media GmbH & Co. KG 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.
- In connection with a commissioned project, the client shall only award contracts to other agencies or service providers after consultation and in agreement with p2 media GmbH & Co. KG.
- Freelancers or third parties engaged by the agency shall be vicarious agents of p2 media GmbH & Co. KG. The client undertakes to inform these employees, who are employed by p2 media GmbH & Co. KG in the course of the 12 months following the conclusion of the order without the cooperation of p2 media GmbH & Co. KG, neither directly nor indirectly.
- In the case of contracts with a fixed term, for example for maintenance and support, the contract is automatically extended by the term specified in the contract unless it is terminated in writing at least one month before the end of the contract. It cannot be terminated prematurely by either party. An extraordinary termination for good cause after prior warning and granting of a reasonable period of time to remedy the situation in breach of contract shall remain unaffected. Good cause shall be deemed to be, in particular, the breach of a primary performance obligation under this contract.
- Our company regularly checks your creditworthiness when concluding contracts and in certain cases where there is a justified interest. For this purpose, we work together with Creditreform Herford & Minden, Krellstraße 68, 32584 Löhne, from whom we receive the data required for this purpose. For this purpose, we transmit your name and contact details to Creditreform. Further information on data processing at Creditreform can be found in the detailed information sheet "Creditreform information pursuant to Art. 14 EU-DSGVO (see Annex 1) or at https://www.creditreform.de/herford/datenschutz
3. Copyright and right of use
- All copyrights to the service remain with p2 media GmbH & Co. KG.
- Every order placed with p2 media GmbH & Co. KG is a copyright contract, which is directed towards the granting of rights of use to its work performances. The provisions of §§ 2 and 31 UrhG shall apply in conjunction with the work contract provisions of the BGB. For the drafts and work drawings of p2 media GmbH & Co. KG as personal intellectual creations shall be governed by the Copyright Act. The provisions of the Copyright Act shall also apply if the level of creation required in accordance with § 2 UrhG has not been reached or if the necessary requirements for protection should not be met in an individual case. Thus p2 media GmbH & Co. KG shall in particular be entitled to the copyright claims from §§97ff. UrhG (German Copyright Act).
- Only for the selected design shall p2 media GmbH & Co. KG shall transfer the agreed rights of use to the client. The other drafts may neither be used nor passed on by the buyer and shall remain the property of p2 media GmbH & Co. KG. The following shall apply to these drafts: Any imitation, even of parts or details, shall be inadmissible. A violation of this provision shall entitle p2 media GmbH & Co. KG to demand a contractual penalty amounting to twice the agreed remuneration. If such remuneration has not been agreed, the usual remuneration according to the collective agreement for design services SDSt/AGD (latest version) shall be deemed to have been agreed. The consequential damages for p2 media GmbH & Co. KG are not yet regulated by this, however. The rights of use shall only be transferred to the client after full payment of the remuneration by the client. The agency shall be entitled to information about the scope of use.
- Proposals by the client or his other cooperation shall have no influence on the amount of the remuneration. They shall not establish any joint copyright unless this has been expressly agreed in writing in advance.
- Any transfer of the rights of use by the client to third parties shall require prior written agreement between the client and p2 media GmbH & Co. KG.
- p2 media GmbH & Co. KG shall have the right to be named as the originator on the reproduction pieces and in publications about the product and shall be entitled to sign the advertising material developed by it appropriately and in accordance with industry practice and to publish the order placed for its own advertising. This signing and promotional use may be excluded by a corresponding separate agreement between the agency and the customer. A violation of the right to name shall entitle p2 media GmbH & Co. KG to compensation for damages.
- The client shall be solely responsible for checking the right of reproduction of all artwork supplied by the agency. Should he not be entitled to use them contrary to his assurance, the client shall indemnify p2 media GmbH & Co. KG from all claims for compensation by third parties. p2 media GmbH & Co. KG shall not assume any liability for external templates which have not been requested by the client within 4 weeks after completion of the order. KG shall not be liable.
- All working documents, electronic data and recordings produced by p2 media GmbH & Co. KG shall remain with p2 media GmbH & Co. KG. The surrender of these documents and data cannot be demanded by the client. p2 media GmbH & Co. KG shall owe the agreed service with the payment of the agreed fee, but not the intermediate steps leading to this result in the form of sketches, drafts, production data, etc.
- The remuneration agreed in the contract shall apply. Unless otherwise agreed, there is a payment period of 14 days after invoicing. In the case of new connections or very high invoice sums, advance or down payment of up to 50% may be requested. Payment of the invoice amount shall be made in euros without deduction to one of the accounts of p2 media GmbH & Co. KG accounts.
- The remunerations are net amounts which are to be paid plus the statutory value added tax.
- Delivery or shipping costs of the finished services are not included and shall be charged separately.
- Additional work not foreseeable at the time of quotation due to incorrect information or due to an above-average number of change requests will be charged according to our agency hourly rate.
- In the event of default in payment or if the creditworthiness of the buyer is in question, p2 media GmbH & Co. KG shall be entitled to demand immediate payment of all invoices outstanding at this point in time, irrespective of the agreed term of payment. In this case, p2 media GmbH & Co. KG shall apply. We shall have the right to choose whether to withdraw from the contract or to claim damages for non-performance. If we demand compensation for damages due to non-fulfilment, this shall amount to 25% of the purchase price. The amount of damages shall be set higher or lower if we prove a higher damage or the buyer proves a lower damage. If the buyer is in default, p2 media GmbH & Co. KG shall charge interest from the relevant point in time in the amount customary in banking, but at least in the amount of the respective discount rate of the Deutsche Bundesbank. Default interest shall be set higher if p2 media GmbH & Co. KG proves a charge with a higher interest rate. Bills of exchange and cheques shall be accepted with the usual reservations and shall only be considered as payment after they have been honoured. Any collection and ancillary costs shall be borne by the buyer.
- The client as well as the person who places the order in the name of another, orally, in writing, by signature or by implied action shall be obliged to pay.
- The remuneration for the drafts, final artwork and granting of the rights of use shall be based on the collective agreement for design services SDSt/AGD (latest version), unless other agreements have been made. The production of drafts is already subject to a charge, unless expressly agreed otherwise.
- If the designs are used to a greater extent than originally intended, p2 media GmbH & Co. KG shall be entitled to subsequently demand the difference between the higher remuneration for the actual use and the remuneration originally received.
- Returns of goods will only be accepted after prior inspection and written agreement by us. Returns without prior agreement will not be accepted.
- p2 media GmbH & Co. KG shall be entitled to order the external services necessary for the fulfilment of the order in the name and for the account of the client. The client undertakes to grant the designer the corresponding power of attorney and to release the designer internally from all liabilities arising from the conclusion of the contract. This includes in particular the assumption of costs.
- Expenses for ancillary technical costs, in particular for special materials, for the production of models, photos, intermediate shots, reproductions, typesetting and printing, etc., shall be reimbursed by the client. Travel costs and expenses shall also be reimbursed.
6. Delivery, due date of payment, acceptance
- All deliveries shall be made as quickly as possible. If a delivery is not made on the agreed date, the purchaser may set us a period of grace of 4 weeks after the expiry of two months, with the declaration that he will withdraw from the contract after its fruitless expiry. Agreed delivery times can only be adhered to if the buyer has fulfilled the obligations incumbent upon him (e.g. timely payment of an agreed deposit, complete provision of documents to be made available).
- In the event of subsequent requests for changes or additions by the buyer, the delivery period shall be extended accordingly. Further claims, in particular for any damage caused by delay, are excluded, unless we can be charged with at least gross negligence for the delay that has occurred. The choice of delivery route and suitable packaging material shall be at our discretion, unless the customer instructs p2 media GmbH & Co. KG does not prescribe otherwise.
- p2 media GmbH & Co. KG shall be entitled to partial delivery and partial performance at any time. The buyer shall pay the proportional purchase price for this, even if only one total price was specified for the entire scope of the order.
- If an order extends over a longer period of time or requires high financial advance payments from the designer, appropriate down payments shall be made, namely 1/3 of the total remuneration when the order is placed, 1/3 after completion of 50% of the work, 1/3 after delivery.
- The right of ownership to the delivered goods / services shall remain with p2 media GmbH & Co. KG until full payment of the purchase price and all claims arising from the current business relationship. In the event of access by third parties - in particular the bailiff - to goods subject to retention of title, the buyer shall point out the ownership of p2 media GmbH & Co. KG and inform p2 media GmbH & Co. KG without delay. Costs and damages arising from such seizures shall be borne by the buyer. The buyer shall not be entitled to pledge the goods or to assign them as security. We must be notified immediately of any seizure by other creditors. The buyer is only entitled to resell the goods in the ordinary course of business. The resulting purchase money claims of other buyers shall be deemed assigned to us in full with all ancillary rights as security as soon as they arise. The buyer undertakes to inform us on request of the names of the third-party debtors and the amount of his claims.
- The originals (e.g. illustrations) shall be returned undamaged to p2 media GmbH & Co. KG, unless expressly agreed otherwise.
- p2 media GmbH & Co. KG is not obliged to hand over files or layouts created on the computer to the client. If the client wishes the surrender of computer data, this shall be agreed and remunerated separately.
- The client shall provide p2 media GmbH & Co. KG all data and documents required for the execution of the project free of charge. All working documents shall be treated with care by p2 media GmbH & Co. KG shall be treated with care, protected from access by third parties, used only for the preparation of the respective order and returned to the client after completion of the order.
9. Correction, production monitoring and voucher samples
- Production monitoring by p2 media GmbH & Co. KG shall only take place on the basis of a special agreement. When taking over production supervision, p2 media GmbH & Co. KG shall be entitled to make the necessary decisions at its own discretion and to give appropriate instructions. p2 media GmbH & Co. KG shall only be liable for errors in the case of its own fault and only for intent and gross negligence.
- The client shall provide p2 media GmbH & Co. KG 10 to 20 perfect samples free of charge. p2 media GmbH & Co. KG shall be entitled to use these samples for the purpose of self-promotion. Likewise, p2 media GmbH & Co. KG shall be entitled to use the customer's name and project for its own advertising.
- We guarantee the perfect condition and function of the new goods and services delivered by us for the statutory period of six months from delivery. For defects, p2 media GmbH & Co. KG shall only be liable as follows: The buyer shall inspect the received goods immediately upon arrival for quantity, condition and warranted characteristics. Obvious defects of any kind shall be notified within one week in writing to p2 media GmbH & Co. KG within one week. Thereafter the work shall be deemed to have been accepted free of defects. If the delivery item is defective or lacks guaranteed properties or becomes defective within the warranty period due to manufacturing or material defects, p2 media GmbH & Co. KG shall, at its discretion, either deliver a replacement or rectify the defect to the exclusion of any other warranty claims of the buyer - in particular to the exclusion of any consequential damages of the buyer. Multiple rectifications are permissible.
- The warranty begins with the delivery. In the case of the creation of individual orders, the warranty begins with the acceptance. If changes are made to the service by the client or a third party, the warranty shall expire. For defects caused by natural wear and tear, faulty or negligent handling or operation or exceptional operating conditions, p2 media GmbH & Co. KG shall not be liable under the warranty.
- For the performance of warranty work and for the rectification of defects, the buyer shall grant p2 media GmbH & Co. KG the time and opportunity required at its reasonable discretion, in particular to make the object complained of or samples available for this purpose; otherwise the warranty shall lapse.
- If p2 media GmbH & Co. KG allows the set reasonable period of grace to elapse without rectifying the defect or supplying a replacement, or if the rectification or replacement delivery is impossible or refused by p2 media GmbH & Co. KG, the buyer shall have the right, at his discretion, to demand cancellation of the contract or reduction of the purchase price. We shall not assume any liability for the delivered goods or services being suitable for the purposes intended by the buyer, unless this property has been assured by us in writing. The sending of samples is not a guarantee of a particular property.
- p2 media GmbH & Co. KG undertakes to execute the order with the greatest possible care, in particular also to treat any templates, documents, samples etc. provided to it with care.
- Upon delivery of the goods to a shipping agent, the risk shall pass to the orderer, irrespective of who bears the shipping costs. Insurance shall only be taken out at the special request and for the account of the ordering party.
- The goods must be inspected immediately upon receipt for transport damage and completeness. Obvious damage to the goods or to the packaging must be confirmed by signature on the consignment note or similar immediately upon delivery. Concealed damage shall be claimed from the deliverer within three days at the latest, unless the deliverer provides for shorter periods. Within these deadlines, p2 media GmbH & Co. KG a copy of the damage list.
- Liability for direct damage, indirect damage, consequential damage and third-party damage is excluded to the extent permitted by law. The liability of gross negligence and intent shall remain unaffected. In any case, however, liability shall be limited to the amount of the agency's one-time earnings resulting from the respective order.
- p2 media GmbH & Co. KG shall only be liable - insofar as the contract does not contain any provisions to the contrary, irrespective of the legal grounds - for intent and gross negligence. This limitation of liability shall also apply to its vicarious agents and assistants. For slight negligence, p2 media GmbH & Co. KG shall only be liable for slight negligence in the event of a breach of essential contractual obligations. In this case, however, liability for indirect damage, consequential damage and loss of profit shall be excluded. Liability for positive breach of contract, culpa in contrahendo and tort is also limited to compensation for typical, foreseeable damage.
- The risk of the legal admissibility of the measures developed and implemented by p2 media GmbH & Co. KG shall be borne by the client. This shall apply in particular in the event that the actions and measures violate regulations of competition law, copyright law and special advertising laws. p2 media GmbH & Co. KG shall, however, be obliged to point out legal risks, insofar as it becomes aware of these in the course of its activities. The client shall indemnify p2 media GmbH & Co. KG from claims of third parties if p2 media GmbH & Co. KG has acted at the express wish of the client, although it has notified the client of concerns with regard to the permissibility of the measures. The notification of such concerns by p2 media GmbH & Co. KG must be made in writing to the client immediately after becoming known. If p2 media GmbH & Co. KG considers an examination under competition law by a particularly competent person or institution to be necessary for a measure to be carried out, the costs for this shall be borne by the client after consultation with p2 media GmbH & Co. KG, the costs for this shall be borne by the client.
- p2 media GmbH & Co. KG shall not be liable under any circumstances due to the factual statements about the client's products and services contained in the advertising measures. p2 media GmbH & Co. KG shall also not be liable for the patent, copyright and trademark protection or registrability of the ideas, suggestions, proposals, concepts and drafts supplied within the scope of the order.
- For orders placed with third parties on behalf of and for the account of the client, p2 media GmbH & Co. KG shall not assume any liability or warranty towards the client, insofar as p2 media GmbH & Co. KG is not at fault for the selection. p2 media GmbH & Co. KG shall only act as an intermediary in these cases.
- Insofar as we ourselves are the client of subcontractors, we hereby assign to the client all warranty claims, claims for damages and other claims to which we are entitled arising from faulty, delayed or non-delivery. The client undertakes, prior to making a claim against p2 media GmbH & Co. KG to first attempt to enforce the assigned claims.
- The client shall indemnify p2 media GmbH & Co. KG from all claims made by third parties against p2 media GmbH & Co. KG due to behaviour for which the client bears responsibility or liability according to the contract. He shall bear the costs of any legal action.
- With the release of drafts and elaborations by the client, the latter shall assume responsibility for the technical and functional correctness of text, image and design; the designer shall not be liable in any way.
- The Designer shall not be liable for the admissibility and registrability of the work under competition and trademark law or for the novelty of the product.
- Events of force majeure shall entitle p2 media GmbH & Co. KG to postpone the project commissioned by the client for the duration of the hindrance and a reasonable start-up time. A claim for damages by the client against p2 media GmbH & Co. KG shall not result from this. This shall also apply if important deadlines and/or events for the client cannot be met and/or do not occur as a result.