AGB
Matthias Ballmann and Michael Weber GbR
Ballmann Weber
1. General
1.1 The following T&Cs/GTCs apply exclusively to all contracts for communication design services between Ballmann Weber and the client. This also applies in particular if the customer 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 T&Cs/GTCs listed here also apply if Ballmann Weber fulfils the order without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from the terms and conditions listed here.
1.3 Deviations from the terms and conditions listed here are only valid if 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 Ballmann Weber is a copyright contract aimed at granting rights of use to the work services. The contract does not include a review of the admissibility of Ballmann Weber's work under competition law. It also does not include checking whether Ballmann Weber's work is registrable or usable under trademark or other intellectual property law. The customer is responsible for carrying out their own research, unless there is a separately agreed order with Ballmann Weber that deals with this.
2.2 All drafts and final artwork are subject to copyright law. The provisions of this law shall apply between the parties even if the necessary protection requirements, e.g. the so-called level of creation, are not met in individual cases. In such a case, the rules of copyright contract law of § 31 ff. UrhG apply in such a case; in addition, the parties in such a case are entitled in particular to the copyright claims under § 97 ff. UrhG.
2.3 The drafts and final artwork may not be changed or passed on to third parties, neither in the original nor in reproduction, without the express consent of Ballmann Weber. Any imitation - even of parts - is not permitted. A breach of this section 2.3 sentences 1 and 2 entitles Ballmann Weber to demand a contractual penalty in the amount of 100% of the agreed or usual remuneration according to the AGD collective agreement for design services (latest version) in addition to the remuneration to be paid anyway.
2.4 Ballmann Weber shall grant the customer the rights of use required for the respective purpose. Unless otherwise agreed, only the simple right of use is 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 customer after full payment of the remuneration.
2.6 Ballmann Weber must be named as the author on the reproductions. A breach of this provision shall entitle Ballmann Weber to demand a contractual penalty in the amount of 100% of the agreed remuneration or the usual remuneration according to the AGD collective agreement for design services (latest version) in addition to this.
2.7 Suggestions made by the client or its employees or its or their other co-operation have no influence on the amount of the remuneration. They shall 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 beyond the agreed scope of use (in terms of time, space and content) is not permitted and entitles Ballmann Weber to demand a contractual penalty in the amount of 100% of the agreed remuneration or the usual remuneration according to the AGD collective agreement for design services (latest version) for this extended use in addition to the remuneration to be paid anyway.
3. Compensation
3.1 Drafts and final artwork, together with the granting of rights of use, form a single service. Remuneration shall be based on the AGD collective agreement for design services, unless otherwise agreed. The fees are net amounts which are to be paid plus the 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 use shall not apply.
3.3 The production of drafts and all other activities that Ballmann Weber performs for the customer are subject to a fee, unless expressly agreed otherwise.
4. Payment due date, 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 requires Ballmann Weber to make high financial advance payments, appropriate instalment 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 and 1/3 after delivery.
4.2 Acceptance may not be refused for creative-artistic reasons. There is freedom of design within the scope of the order.
4.3 In the event of late payment, Ballmann Weber may charge interest on arrears in the amount of 8% above the respective base interest rate of the European Central Bank per annum. The assertion of proven higher damages remains reserved.
5. Special services, ancillary and travelling expenses
5.1 Special services such as the reworking or modification of final artwork, manuscript study or print monitoring shall be invoiced separately according to the time required in accordance with the AGD collective agreement for design services (latest version).
5.2 After prior consultation with the customer, Ballmann Weber is entitled to order the external services required to fulfil the order in the name and for the account of the customer. The Customer undertakes to grant Ballmann Weber the corresponding authorisation.
5.3 Insofar as contracts for third-party services are concluded in the name and for the account of Ballmann Weber in individual cases, the Customer undertakes to indemnify Ballmann Weber internally from 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 shots, reproductions, typesetting and printing, etc. are to be reimbursed by the customer.
5.5 Travel costs and expenses for journeys to be 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 are granted to drafts and final artwork, but ownership is not transferred.
6.2 Any originals must be returned to Ballmann Weber undamaged after a reasonable period of time, unless otherwise agreed in writing. In the event of damage or loss, the customer must reimburse the costs necessary to restore the originals. The right to claim further damages remains unaffected.
6.3 The data and files (colloquially referred to as ‘open data’) created in fulfilment of the contract also always remain the property of Ballmann Weber. They are not obliged to hand over data and files to the customer. If the customer wishes them to be released, this must be agreed and paid for separately.
6.4 If Ballmann Weber has provided the customer with data and files, 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 Ballmann Weber before duplication is carried out.
7.2 Production monitoring by Ballmann Weber shall only take place on the basis of a special agreement and remuneration. If Ballmann Weber takes over the production supervision, Ballmann Weber is entitled to make the necessary decisions, give appropriate instructions and make changes at its own discretion.
7.3 The Customer shall provide Ballmann Weber with ten (10) flawless specimen copies of all reproduced work free of charge. Ballmann Weber is entitled to use these samples and all work created in fulfilment of the contract for the purpose of self-promotion in all media and otherwise to draw attention to its work for the customer.
8. Liability
8.1 Ballmann Weber shall only be liable for damages incurred, e.g. to templates, films, displays, layouts, etc. provided to it, in the event of intent and gross negligence, unless for damages resulting from injury to life, limb or health; Ballmann Weber shall also be liable for such damages in the event of slight negligence. Otherwise, they are only liable for slight negligence if an obligation is violated, the fulfilment of which is of particular importance for achieving the purpose of the contract (cardinal obligation).
8.2 Ballmann Weber does not assume any liability towards the Customer for orders that are placed with third parties in the name and for the account of the Customer, unless Ballmann Weber is at fault for the selection against its better judgement. In these cases, Ballmann Weber only acts as an intermediary.
8.3 With the approval of drafts or final artwork by the Customer, the Customer assumes responsibility for the technical and functional accuracy of the product, text and image.
8.4 Ballmann Weber shall not be liable for any drafts or final artwork approved by the customer in this way.
8.5 Complaints about obvious defects must be made in writing to Ballmann Weber within 14 days of delivery of the work. The timely dispatch of the complaint is sufficient to meet the deadline.
9. Freedom of design, execution of the order and templates
9.1 Freedom of design exists within the scope of the order. Complaints regarding the artistic design are excluded. If the client wishes to make changes during or after production, he shall 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, Ballmann Weber may demand a reasonable increase in remuneration. In the event of intent or gross negligence, it may also assert claims for damages. The assertion of further damages caused by delay remains unaffected.
9.3 The Customer assures that it is authorised to use all templates provided to Ballmann Weber. If, contrary to this assurance, the Customer is not authorised to use them, the Customer shall indemnify Ballmann Weber against all third-party claims for compensation.
10. Cancellation of the contract
10.1 Should the customer terminate the contract prematurely, Ballmann Weber shall receive the agreed remuneration, but must take into account any expenses saved or any replacement orders carried out or maliciously omitted (§ 649 BGB). However, the parties agree on a lump sum for the services and expenses incurred up to the cancellation as follows: In the event of cancellation before the start of work: 10% of the agreed remuneration or, if no such remuneration has been agreed, 10% of the usual remuneration in accordance with the AGD collective agreement for design services (latest version). Individual agreements deviating from this are of course possible. The client reserves the right to provide evidence of lower services or higher expenses.
11. Final provisions
11.1 If the client is a merchant, the place of fulfilment and jurisdiction shall be the registered office of Matthias Ballmann und Michael Weber GbR.
11.2 The law of the Federal Republic of Germany shall apply.