GENERAL TERMS AND CONDITIONS (GTC / T&C)
Marcus Kleinfeld | image.affairs, as of 2024 (German legal terms and conditions)
These General Terms and Conditions apply to all contracts concluded between Marcus Kleinfeld – hereinafter referred to as the Designer – and his client, whether written or oral. The terms and conditions are agreed upon if the client does not object to them immediately upon receipt in writing.
1. Copyright and Usage Rights 1.1. Every assignment given to the Designer constitutes a copyright contract aimed at granting usage rights to the intellectual property. 1.2. All drafts and final artwork are subject to copyright law and may only be used within the agreed scope of use (temporally, spatially, and in terms of content). The provisions of copyright law also apply if the required level of originality according to §2 UrhG (German Copyright Act) is not met. Any use beyond the agreed scope (temporally, spatially, and in terms of content) must be separately remunerated by a usage fee. Unauthorized use of legally protected works entitles the Communication Designer to claim both an additional usage fee and pursue injunctive and damages claims. Any imitation, even partial, of legally protected drafts or final artwork is prohibited. All drafts, final artwork, concepts, and other services provided by the Communication Designer are entrusted to the client within the meaning of § 18 para. 1 UWG (German Act Against Unfair Competition). 1.3. Violation of these usage terms entitles the Designer to demand a contractual penalty in the amount of double the agreed fee. 1.4. The Designer transfers the necessary usage rights for the respective purpose to the client according to the individual order agreement. Unless otherwise agreed, only simple usage rights are transferred. Unauthorized exploitation or disclosure to third parties outside the contractual agreement is not permitted. Usage rights are transferred only after complete payment of the fee. 1.5. The Designer has the right to be credited as the author on the reproductions if requested. Violation of the right to attribution entitles the Designer to damages. Without proof of higher damages, the compensation is 50% of the agreed fee. The right to claim higher damages upon proof remains unaffected. 1.6 The Designer is entitled to use created work samples and all work arising from the fulfillment of the contract for self-promotion in all media, mentioning the client, unless the Communication Designer has been informed in writing of any opposing confidentiality interests of the client. The Communication Designer must obtain any third-party rights for his advertising purposes. 1.7. Client suggestions or other cooperation have no influence on the amount of the fee. They do not establish joint authorship.
2. Remuneration 2.1. Drafts and final artwork, together with the grant of usage rights, constitute a single service. If the small business regulation §19 UStG (German VAT Act) is contractually applicable, no additional taxes (value-added taxes) will be charged. Outside the small business regulation §19 UStG, fees are payable plus the statutory value-added tax. 2.2. If no usage rights are granted and only drafts and final artwork are provided, the fee for usage is waived. 2.3. If the drafts are later used more extensively than originally intended, the Designer is entitled to retroactively invoice the fee for usage or demand the difference between the higher fee for usage and the originally paid fee. 2.4. The creation of drafts and all other activities carried out by the Designer for the client, even if not used by the client, are subject to charges unless expressly agreed otherwise.
3. Due Date of Payment 3.1. Payment by the client is made in two installments of 50% of the total gross amount upon order placement and 50% upon delivery of the work by the Designer. It is payable without deduction. If the ordered work is accepted in several parts, a corresponding partial payment may become due upon acceptance of each part by agreement. If an order extends over a longer period or requires high financial advance payments from the Designer, further reasonable advance payments may be agreed upon by mutual agreement. 3.2. In case of default in payment, the Communication Designer can demand default interest at the rate of 8% above the respective base rate of the European Central Bank per annum for transactions in which a consumer is not involved, and 5% above the respective base rate for transactions in which a consumer is involved. The assertion of proven higher damages remains reserved.
4. Special Services, Incidental, and Travel Expenses 4.1. Special services such as revision or modification of final artwork, manuscript study, or print monitoring are separately billed based on the time spent. 4.2. The Designer is authorized to order third-party services necessary for the fulfillment of the order on behalf and for the account of the client. The client undertakes to grant the Designer the corresponding authorization. 4.3. If contracts for third-party services are concluded in the name and for the account of the Designer in individual cases, the client undertakes to indemnify the Designer internally from all liabilities arising from the conclusion of the contract. This includes in particular the assumption of costs. 4.4. Expenses for technical ancillary costs, especially for special materials, the production of models, photos, intermediate shots, reproductions, typesetting, and printing, etc., are to be paid by the client either in advance or upon delivery of the work, as agreed. 4.5. Travel expenses and allowances for trips related to the order and agreed with the client are to be paid by the client either in advance or upon delivery of the work, as agreed.
5. Retention of Title 5.1. Only usage rights, not ownership rights, are granted for drafts and final artwork unless otherwise agreed. 5.2. Therefore, the originals must be returned undamaged within a reasonable period unless expressly agreed otherwise. In case of damage or loss, the client is responsible for the costs necessary to restore the originals. The assertion of further damages remains unaffected. 5.3. The shipment of works and templates is at the client’s risk and expense. 5.4. The Designer is not obligated to release files or layouts created on the computer to the client. If the client wishes to receive computer data, this must be separately agreed upon and compensated. If the Designer has provided computer files to the client, these may only be modified with the Designer’s prior consent.
6. Proofreading, Production Monitoring, and Specimen Copies 6.1. Proof samples must be presented to the Designer before reproduction. 6.2. Production monitoring by the Designer is carried out only by special agreement. When taking over production monitoring, the Designer is authorized to make necessary decisions and give corresponding instructions at his discretion. He is liable for errors only in case of willful intent and gross negligence. 6.3. The client provides the Designer with up to 10 flawless specimens free of charge for duplicated works, and for more valuable items such as books, DVDs, merchandise, or similar, up to 5 complete copies, as agreed. The Designer is entitled to use these specimens for self-promotion.
7. Liability 7.1. The Designer undertakes to carry out the order with the utmost care, especially in handling templates, films, displays, layouts, etc. entrusted to him. He is liable for damages only in case of willful intent and gross negligence. Compensation exceeding the material value is excluded. 7.2. The Designer undertakes to carefully select and instruct his agents. Furthermore, he is not liable for his agents. 7.3. If the Designer orders necessary third-party services, the respective contractors are not agents of the Designer. The Designer is liable only for his own fault and only for willful intent and gross negligence. 7.4. With the approval of drafts, final artwork, or clean copies by the client, the client assumes responsibility for the accuracy of text and image. The client is also responsible for acquiring usage rights for text and images from third parties and indemnifies the Designer from any liability. 7.5. The client must review drafts or final artwork for any defects (accuracy of image, text, numbers, etc.) and release them if necessary. For drafts or final artwork released by the client, the Designer is not liable for recognizable defects. The client is obliged to independently and conscientiously examine the legal permissibility of drafts and other work before using them in business transactions. The Designer will advise the client on legal concerns if known. 7.6. The Designer is not liable for the legal permissibility and registrability of works concerning competition and trademark law. 7.7. Any complaints of any kind must be made in writing to the Designer within 14 days after delivery of the work. After that, the work is considered accepted without defects. 7.8. Unless otherwise agreed, computer data is archived for a maximum of 1 year after the billing of the respective project. The Designer is not liable for data loss due to damage, force majeure, fire, theft, etc.
8. Creative Freedom and Templates 8.1. Creative freedom exists within the scope of the order. Complaints regarding artistic design are excluded. If the client wishes to make changes during or after production, he must bear the additional costs due to additional work. The Designer retains the right to the fee for work already started. Acceptance may not be refused for reasons of artistic design. Claims for defects regarding artistic design are excluded. 8.2. If the execution of the order is delayed due to reasons attributable to the client, the Designer can demand a reasonable increase in remuneration. In case of willful intent or gross negligence, he can also assert claims for damages. The assertion of further delay damages remains unaffected. 8.3. The client assures that he is authorized to use all templates handed over to the Designer. If, contrary to this assurance, the client is not authorized to use them, the client indemnifies the Designer from all claims by third parties.
9. Contract Termination If the client terminates the contract prematurely, the Communication Designer will receive the agreed-upon fee but must credit saved expenses or substitute orders carried out or maliciously omitted (§649 BGB).
9. Final Provisions 9.1. Place of performance is the Designer’s place of business. 9.2. The invalidity of any of the above conditions does not affect the validity of the remaining provisions. 9.3. German law applies.
The client is informed that when assigning contracts in the artistic, conceptual, and advertising advisory areas to a non-legal person, an artist social security contribution must be paid to the Künstlersozialkasse. This contribution may not be deducted by the client from the agency invoice. The client is responsible for and self-accountable for compliance with the registration and contribution obligations.
Berlin, May 12, 2024
Website: https://image-affairs.com