General Terms and Conditions and Basis of Contract
Büro Ballmann Weber
Matthias Ballmann and Michael Weber GbR
1.1 The following GTC/AVG apply exclusively to all contracts for communication design services between Büro Ballmann Weber and the client. This shall also apply in particular if the client uses general terms and conditions and these contain terms and conditions that conflict with or deviate from the GTC/AVG listed here.
1.2 The GTC/AVG listed here shall also apply if Büro Ballmann Weber unconditionally executes the order in the knowledge that the customer's terms and conditions conflict with or deviate from those listed here.
1.3 Deviations from the conditions listed here are only valid if Büro Ballmann Weber expressly agrees to them in writing.
2. Subject matter of the contract; copyright and rights of use
2.1 Every order placed with Büro Ballmann Weber is a copyright contract aimed at granting rights of use to the work services. The contract is not intended to review the admissibility of Büro Ballmann Weber's work under competition law. It also does not include an examination of the ability of Büro Ballmann Weber to register trademarks or other intellectual property rights or the usability of the work. The client is responsible for his own research.
2.2 All drafts and final artwork are subject to copyright law. The provisions of this law shall also apply between the parties if the necessary protection requirements, e.g. the so-called level of creation, are not met in individual cases. In such a case, the copyright contract rules of § 31 et seq. apply in particular. UrhG; in addition, the parties in such a case are entitled in particular to the copyright claims from § 97 et seq. of the German Copyright Act. UrhG.
2.3 Without the express consent of Büro Ballmann Weber, the designs and final artwork may not be altered either in the original or in reproduction or passed on to third parties. Any imitation – even of parts – is prohibited. A violation of this Section 2.3 Sentences 1 and 2 entitles Büro Ballmann Weber to demand a contractual penalty in the amount of 100% of the agreed or according to the AGD collective agreement for design services (latest version) usual remuneration in addition to the remuneration to be paid anyway.
2.4 Büro Ballmann Weber grants the client the rights of use required for the respective purpose. Unless otherwise agreed, only the simple right of use shall be granted in each case. A transfer of the rights of use to third parties requires a written agreement.
2.5 The rights of use shall only be transferred to the client after full payment of the remuneration.
2.6 Büro Ballmann Weber shall be named as the author on the copies. A violation of this provision entitles Büro Ballmann Weber to demand a contractual penalty in the amount of 100% of the agreed fee or the usual fee according to the AGD collective agreement for design services (latest version) in addition to this.
2.7 Suggestions by the client or his employees or his or their other cooperation have no influence on the amount of the remuneration. They do not constitute a joint copyright.
2.8 The designs and final artwork may only be used for the agreed scope of use (in terms of time, space and content). Any use in excess of the agreed scope of use (in terms of time, space and content) is not permitted and entitles Büro Ballmann Weber to demand a contractual penalty in the amount of 100% of the agreed remuneration for this extended use or the remuneration customary under the AGD collective agreement for design services (latest version) in addition to the fee to be paid anyway.
3.1 Drafts and final artwork, together with the granting of rights of use, form a uniform service. Payment shall be made on the basis of the AGD collective agreement for design services, unless other agreements have been made. The remuneration shall be net amounts plus statutory value-added tax.
3.2 If no rights of use are granted and only drafts and/or final artwork are supplied, the remuneration for the use shall lapse.
3.3 The preparation of designs and all other activities performed by Büro Ballmann Weber for the customer are subject to a fee, unless expressly agreed otherwise.
4. Due date of payment, acceptance, default
4.1 Payment is due upon delivery of the work. It is payable without deduction. If the ordered work is accepted in parts, a corresponding partial payment shall be due upon such partial acceptance. If an order extends over a longer period of time or if it requires Büro Ballmann Weber to make high financial advance payments, appropriate advance payments shall be made, i.e. 1/3 of the total payment when the order is placed, 1/3 after completion of 50% of the work, 1/3 after delivery.
4.2 The acceptance must not be refused for artistic reasons. Within the scope of the order there is freedom of design.
4.3 In the event of default in payment, Büro Ballmann Weber may demand interest on arrears at a rate of 8% p.a. above the respective European Central Bank base rate. We reserve the right to assert proven higher damages.
5. Special services, incidental and travel expenses
5.1 Special services such as the reworking or modification of final artwork, manuscript study or print monitoring shall be charged separately according to the time required in accordance with the AGD Collective Agreement on Fees for Design Services (latest version).
5.2 Büro Ballmann Weber is entitled, after prior consultation with the client, 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 Büro Balllmann Weber appropriate power of attorney.
5.3 Insofar as, in individual cases, contracts for external services are concluded in the name and for the account of Büro Ballmann Weber, the customer undertakes to indemnify Büro Ballmann Weber internally against all liabilities arising from the conclusion of the contract.
5.4 Expenses for technical ancillary costs, in particular for special materials, for the production of models, photos, intermediate photographs, reproductions, typesetting and printing, etc. shall be reimbursed by the customer.
5.5 Travel costs and expenses for travel undertaken in connection with the order and agreed with the client shall be reimbursed by the client.
6. Ownership of drafts and data
6.1 Only rights of use shall be granted to designs and final artwork, but ownership shall not be transferred.
6.2 The originals shall be returned to Büro Ballmann Weber undamaged after a reasonable period of time, unless otherwise agreed in writing. In the event of damage or loss, the client must reimburse the costs necessary to restore the originals. The assertion of further damages remains unaffected.
6.3 The data and files (colloquially referred to as "open files") arising from the performance of the contract shall also remain the property of Büro Ballmann Weber. The latter is not obliged to hand over data and files to the customer. If the customer wishes them to be surrendered, this must be agreed separately and remunerated.
6.4 If Büro Ballmann Weber has made data and files available to the client, these may only be changed with the prior consent of the designer.
6.5 The dispatch of all items mentioned in sections 6.1 to 6.4 shall be at the risk and for the account of the client.
7. Correction, production monitoring, specimen copies and self-promotion
7.1 Correction samples must be submitted to Büro Ballmann Weber before duplication is carried out.
7.2 Production monitoring by Büro Ballmann Weber is only carried out by special agreement. If Büro Ballmann Weber assumes responsibility for production monitoring, Büro Ballmann Weber shall be entitled to make the necessary decisions at its own discretion and to give appropriate instructions.
7.3 The customer shall provide Büro Ballmann Weber with 10 perfect specimen copies of all reproduced work free of charge. Büro Ballmann Weber shall be entitled to use these samples and all work arising in fulfilment of the contract for the purpose of self-promotion in all media and to point out any other action taken on behalf of the client.
8.1 Büro Ballmann Weber shall only be liable for damage incurred, e.g. to templates, films, displays, layouts etc. provided to it, in the case of intent and gross negligence, unless for damage resulting from injury to life, body or health; Büro Ballmann Weber shall also be liable for such damage in the case of slight negligence. Otherwise, he shall only be liable for slight negligence if an obligation is breached the observance of which is of particular importance for achieving the purpose of the contract (cardinal obligation).7
8.2 Büro Ballmann Weber accepts no liability whatsoever towards the customer for orders placed with third parties in the name of and for the account of the customer, unless Büro Ballmann Weber is to blame for the selection. In these cases, Büro Ballmann Weber only acts as an intermediary.
8.3 With the release of drafts or final artwork by the client, the latter assumes responsibility for the technical and functional correctness of the product, text and image.
8.4 Büro Ballmann Weber shall not be liable for any designs or final artwork approved in this way by the client.
8.5 Complaints about obvious defects must be made in writing to Büro Ballmann Weber within 14 days of delivery of the work. To meet the deadline it is sufficient to send the notice of defect in due time.
9. Design freedom, execution of the order and templates
9.1 Within the scope of the order there is freedom of design. Complaints regarding the artistic design are excluded. If the client wishes to make changes during or after production, he must bear the additional costs incurred as a result.
9.2 If the execution of the order is delayed for reasons for which the customer is responsible, Büro Ballmann Weber may demand an appropriate increase in remuneration. In the event of intent or gross negligence, the customer may also assert claims for damages. The assertion of further damage caused by delay remains unaffected by this.
9.3 The customer affirms that he is entitled to use all templates handed over to Büro Ballmann Weber. If, contrary to this insurance, he is not entitled to use them, the customer shall indemnify Büro Ballmann Weber against all claims for compensation by third parties.
10. Termination of contract
If the customer terminates the contract prematurely, Büro Ballmann Weber will receive the agreed remuneration, but must allow saved expenses or executed or maliciously omitted replacement orders to be credited (§ 649 BGB). However, the parties agree on a lump sum for the services and expenses provided up to the termination as follows: In the event of termination prior to commencement of work: 10% of the agreed remuneration or, if no such remuneration has been agreed, 10% of the usual remuneration according to the AGD collective agreement for design services (latest version). In addition, deviating individual agreements are of course possible. The client reserves the right to provide proof of actually lower performance or higher expenses.
11. Final provisions
11.1 If the client is a merchant, the place of performance and jurisdiction is the registered office of Matthias Ballmann und Michael Weber GbR.
11.2 The law of the Federal Republic of Germany shall apply.