terms & conditions|
General Conditions of Purchase for the Avantgarde Gesellschaft für Kommunikation mbH (Avantgarde Company for Communication with limited liability)
§1 Definitions, Scope of Application, Awarding of Contract
(1) The terms, “Order, Supplier and Purchaser” are to be understood in a commercial context. The term, “Order” denotes the contractual relationship between “Supplier” and “Purchaser” regardless of the respective type of contract, whereas the term, “Supplier” refers to the party that must bear the responsibilities in regard to the main service, and the term, “Purchaser” refers to the party in whose name the contract is granted, who obtains the main service and is responsible for remuneration. The Avantgarde Gesellschaft für Kommunikation mbH shall hereinafter be briefly referred to as “Purchaser”. “Delivery” likewise pertains to the transfer of goods, delivery of services, as well as the creation of artistic works.
(2) These conditions apply irrespective of whether the Purchaser grants the contract in its own name for its own account, in its own name for a third party account or in a third party name for a third party account.
(3) Terms and conditions of the Supplier which deviate from these terms and conditions are only deemed valid if and insofar as they are recognised by the Purchaser in writing.
§2 Deadlines, Periods of Delivery, Fixed Date Transactions, Place of Fulfilment
(1) The agreed deadlines and periods of delivery are binding.
(2) The Supplier is to immediately inform the Purchaser of any impending delivery delays.
(3) Unless otherwise agreed in writing, the Supplier must send the delivery at its own cost and own risk to the delivery address provided in the order, which simultaneously designates the place of fulfilment.
§3 Order Volume
The qualitative scope of service determined in the written order is binding. Potential excess quantities are also not compensated if they are contingent on technical production factors. Designs, particularly for alternative solutions, are included in the scope of delivery.
§4 Engagement of Third Parties
The Supplier is entitled to avail itself of third parties for the purpose of implementing and fulfilling the order. However, it is not entitled to represent the Purchaser in a relationship with these parties, i.e., to justify a legal relationship between the Supplier and the third party.
§5 Warranty/Advertising Media
(1) The services of the Supplier, particularly those which concern the design or creation of advertising media, are to fulfil the assigned task and, if applicable, correspond to the available documents and instructions issued by the Purchaser as well as to the state-of-the-art technology; they must exhibit the technical, promotional and artistic level of the work samples which the Supplier submitted to the Purchaser prior to or at the time of the order placement.
(2) The Supplier ensures that its contributions in the design of advertising media violate neither the competition law nor any third-party rights (trademark rights, copyrights, personal rights, etc.) The Supplier is only released from the liability for this guarantee if it notifies the Purchaser in writing of any potential legal concerns up to the time of order fulfilment.
§6 Claims for Defects/Liability
(1) All claims for defects against the Supplier are to comply with statutory provisions.
(2) All claims for damages by the Purchaser against the Supplier must likewise comply with statutory provisions.
(3) The Purchaser as well as its legal representatives and vicarious agents are liable only in the case of intent or gross negligence. In the case of a grossly negligent breach against non-significant contractual obligations, the Purchaser is liable only in the amount of the foreseeable, contractually typical, direct average damages. Only if significant contractual obligations are concerned (as a consequence of such obligations, whose compliance for achieving the contractual purpose is of particular importance), does an instance of mild negligence also bear liability. Thus the liability is restricted to the foreseeable, contractually typical, direct average damages. This disclaimer or limitation of liability is not applicable to the liability for damages from injury to life, body, or health. The provisions for product liability legislation also hereby remain unaffected.
§7 Acceptance in the Case of Contracts for Works
Acceptance by the Purchaser shall only be deemed valid insofar as it is not rejected within one week upon delivery.
§8 Notices of Defects
Notices of defects on behalf of the Purchaser are regarded timely if they are made within 10 business days from delivery or from the point of discovery in the instance of unapparent defects. A punctual despatch of the notice of defect shall suffice for the purpose of time limit compliance. Payments do not constitute a waiver of the right to complain.
§9 Limitation Period
The invoice is to be sent by the Supplier immediately upon delivery to the project manager of the Purchaser. Claims by the Supplier are deemed forfeited if they are not made in writing by means of invoice submission within a limitation period from one month upon acceptance as per § 7, or insofar as it does not concern a contract for works, at the time of service delivery.
§10 Invoice, Price, Payment, Packaging
(1) The price stipulated is not to be exceeded. If the Purchaser demands a service after awarding the contract – e.g. in the form of changes or additions – which requires additional expenses by the Supplier, the Supplier only has a claim for special compensation when it has notified the Purchaser of this claim upon demand of the auxiliary service in writing.
(2) Insofar as no other payment conditions are stipulated, the Purchaser is to pay the compensation within 60 days upon invoice receipt by the Purchaser without deduction to the Supplier.
(3) Insofar as it is not otherwise stipulated, the Supplier shall bear all potential packaging costs as well as their costs for disposal.
(4) Stipulated prices shall be set as net prices, i.e. the legal Value Added Tax is to be added.
§11 Special Conditions for Photographers and Filmmakers
(1) Insofar as it is not otherwise stipulated in writing, the Supplier shall acquire models and props in its own name and for its own account under contract. To the greatest extent possible, the acquisition of props is to be made on a rental basis. If props originate from the Purchaser or are made available by the Purchaser, they must be treated with the utmost care by the Supplier. The Supplier is liable for damages to the provided props if they are caused by it or by third parties.
(2) If a photography session cannot be implemented due to the model not showing up for the appointment, the Supplier is to bear the subsequent additional costs for the model fee, props, ancillary costs, etc.
(3) By virtue of the stipulated fees, all services by the Supplier are compensated, that is, costs for models, props, materials, laboratory, travel as well as similar costs. Even in the instance it was agreed in writing that the Purchaser is to categorically reimburse third party costs to the Supplier, it is hereby a prerequisite that the Purchaser has approved the type as well as amount according to the Supplier’s complete pre-calculation in writing.
(4) The Supplier shall forgo any authorship designation or signing of photographs. However, the Purchaser is authorised to name the Supplier.
(5) As early as at the point of delivery and no later than at the time of remuneration, the Purchaser shall acquire ownership of the photographic material (negatives, transparencies, intermediate negatives, prints, etc.). Insofar as the photographic material has not already been transferred, it is to be handed over to the Purchaser at its discretion either with the invoice, or is otherwise to be stored for a minimum of 6 months free of charge from the point of invoicing. The Purchaser is to be notified in a timely fashion of the materials’ subsequent intended destruction.
(6) The Supplier is obliged to allow the models to sign a declaration regarding the transfer of unrestricted rights of use to the Purchaser as per § 12.3 and to submit this explanation to the Purchaser no later than at the point of delivery.
§12 Transfer of Rights
(1) At the point of delivery but no later than the point of remuneration, all transferrable proprietary rights and other rights for publication, reproduction, usage, exploitation, dissemination, editing, revision and modification including the whole or partial connection with other Supplier’s works in its service including all transferrable legal positions and the drafts and designs in any medium of any form are to be handed over to the Purchaser. This transfer is unrestricted with respect to location and time, and also unrestricted according to intended purpose as well as in any other manner. If and insofar as the rights are not transferrable, the Purchaser shall be granted an exclusive right of use that is unrestricted with respect to location, time, and intended purpose. The Purchaser is entitled to transfer these rights either in whole or in part to third parties or relinquish usage as well as declare and/or record these rights in its own name. On the grounds of these provisos for the purposes of comprehensive interpretation, the Purchaser is entitled to the following rights:
a) the right to reproduce, disseminate, lease and loan the works or parts thereof by means of data, image and sound media of all types (e.g. CD, CD-ROM, CD-I, CD +, cartridges, chips, hard drives, etc.) as well as similar or comparable media;
b) the right to public reproduction via image, data and sound media, including interactive usage;
c) performance rights, that is, the right to publicly show the work by means of technical facilities, and in all currently known and future procedures and systems, irrespective of whether it is for commercial or non-commercial performances;
d) the right to make the work or parts or excerpts thereof, accessible and present them to the public – including by radio – regardless of which technical systems and procedures are employed, and including by means of cable television, satellite radio and regardless of which legal form the respective broadcasting company is operated; including the right to allow public reception of such programming; furthermore the right to use the programming or parts thereof which facilitate recording via audiovisual, mechanical, electronic, digital or other procedures and to perform publicly and privately, commercially or non-commercially, including the right of usage/input in information storage facilities and data networks (e.g. online services etc.), which are requested via terrestrial, non-terrestrial or by cable from respective users, and can be stored as well as interactively modified;
e) the right to promote the work in all media and advertising purposes in any form to use for any product.
f) in the case of software – in particular, the right to store and load – and allow to run, to reproduce, disseminate, demonstrate, render publicly accessible and reproduce, edit, redesign and commercialise. This right of use applies to software, including the appropriate data and data protection structures in all developmental and output stages as well as the appropriate documentation and other necessary materials for exercising the rights of use, for example, analyses, product requirements and functional specifications, drafts and descriptions, source code and passwords as well as access data.
(2) Ownership of all work pieces, texts and designs, photographs, film templates, retouching, printed documents, copies, drafts, development, samples, patterns, models etc., which are created by the Supplier in fulfilment of its contract, are handed over to the Purchaser at the time of their completion. Insofar as the photographic material has not already been transferred, it is to be handed over to the Purchaser at its discretion either with the invoice, or is to otherwise be stored for a minimum of 6 months free of charge from the point of invoicing. The Purchaser is to be notified in a timely fashion of the materials’ subsequent intended destruction.
(3) If and to the extent of and in connection with the transfer of rights, rights from engaged third parties are affected, the Supplier shall acquire and transfer these rights to the Purchaser in accordance with the foregoing stipulation.
(4) The Supplier shall ensure that in its contractual service to third-party rights there exists nothing that could potentially impair the transfer of rights and/or the utilisation of the service (Nos. 1 and 2).
(5) Compensation for the transfer of rights of use is included in the stipulated price.
§13 Purchaser’s Materials
Designs, drawings, printing plates, instructions, patterns, prop materials or other materials which the Supplier has received from the Purchaser, as well as passwords and access data obtained or created for its clients, remain the property of the Purchaser, may only be used for implementing the order, are to be carefully stored by the Supplier and returned to the Purchaser upon first demand. The Supplier bears no right of retention for these materials.
§14 Designs, Reproduction Material, Photographic Material
The Supplier must store designed not delivered and the created or acquired reproduction materials for the purpose of implementing the contract (e.g. printing materials such as printing plates, photographs, cutting dies, lithographs, films, tools, etc.) a minimum of 6 months from acceptance and the Purchaser is to be notified in a timely fashion of the materials’ subsequent intended destruction.
§15 Non-disclosure/Data Protection
(1) All accessible information and materials or those that have become known to the Supplier in connection with the order and its implementation – even upon the conclusion of the order – are to be treated with the strictest confidence. This also applies in the event the order is not completed. This is also applicable for processes, data or other facts within the scope of business of the Purchaser’s clients. The Supplier may only use copies of contractual services for its own or external advertising purposes with the Purchaser’s prior written consent. The Supplier is prohibited from rendering illustrations of logos, images or project descriptions accessible to third parties or from publishing them.
(2) The Supplier is to impose this secrecy obligation on its employees enlisted for the implementation of the order and other engaged third parties.
(3) The Supplier will adhere to all conditions of the Federal Data Protection Act as well as oblige engaged third parties accordingly.
(4) In any instance of contravention represented by the Supplier against the existing obligations as per § 15 para. 1 and 2, the Supplier shall pay a contractual penalty to the Purchaser, wherein the Purchaser shall determine the amount in individual cases, and can be verified by the competent court for its appropriateness in the event of dispute. For an ongoing breach, a case is made upon warning by the Purchaser for each commenced week of the contravention. The contractual penalty paid is to be deducted from any claims for damages by the Purchaser on the grounds of breach of obligations as per § 15.
§16 Non-assignment Clause
The Supplier may not transfer the rights from the order, in particular the claim for remuneration.
§17 Orders in the Name of the Advertiser
The order is to be completed by the Purchaser even when it is awarded by the Purchaser in a third party name and is granted for a third party invoice as per § 1 para. 2.
§18 Closing Provisions
(1) The ineffectiveness of individual provisions shall not otherwise impinge upon the effectiveness of the order.
(2) Insofar as the Supplier is a registered trader, the place of jurisdiction for all disputes between the Purchaser and Supplier is Munich.
(3) Solely the laws of the Federal Republic of Germany shall apply. The CISG [(UN Convention on Contracts for the International Sale of Goods]) is not applicable.
General Conditions of Sale for the Avantgarde Gesellschaft für Kommunikation mbH (Avantgarde Company for Communication with limited liability)
§1 Validity, Conclusion of Contract
(1) All services and offers provided by Avantgarde Gesellschaft für Kommunikation mbH (=Avantgarde) occur exclusively on the basis of these General Terms and Conditions. These are a component of all contracts, which the Customer concludes with Avantgarde. They are applicable for all future services and offers, even if they are not subsequently agreed on a separate basis.
(2) The Customer’s General terms and conditions shall not apply, even if Avantgarde does not separately contradict their validity. Even in the instance Avantgarde receives correspondence containing the general terms and conditions for the Customer or that refers to them accordingly, this correspondence does not constitute consent of the validity of such general terms and conditions.
(3) All offers from Avantgarde are non-obligatory and unbinding, insofar as they are not expressly designated as binding or contain a certain time period for acceptance.
§2 Ownership, Copyright
(1) Drafts and designs are deemed the intellectual property of Avantgarde. Avantgarde reserves the ownership and/or copyright for all offers it hands over, including cost estimates as well as drawings, images, calculations, drafts, brochures, models as well as other materials and other resources made available to the Customer. The Customer is not permitted to make these objects and/or drafts accessible either per se or contents thereof to third parties, nor is it permitted to disclose or reproduce them in any form without the express permission of Avantgarde. The Customer must return these objects and/or materials in their entirety upon request by Avantgarde and destroy potential copies if they are no longer necessary in the proper course of business or if negotiations do not lead to the conclusion of a contract.
(2) Goods delivered by Avantgarde to the Customer remain the property of Avantgarde until they are paid in full.
§3 Prices and Payments
(1) Prices apply for the specified scope of services and delivery in the order acknowledgement. Additional or special services are to be separately calculated. Prices are calculated in Euro plus costs for packaging, transport and insurance, statutory value-added tax, and in the case of export shipments, plus customs as well as all fees due and other public levies.
(2) Invoice amounts are to be paid within 30 days without any deduction, insofar it is not otherwise stipulated in writing. The decisive factor for the date of payment is receipt by Avantgarde.
(3) If a Customer is in arrears with payment, Avantgarde is entitled to
demand a flat rate dunning cost of EUR 10.00 for each dunning reminder. The Customer has the right to prove that Avantgarde has not incurred either any or only minor damage.
(4) Offsetting with counterclaims by the Customer or withholding of payments on the grounds of such claims is only permissible if the counterclaims are undisputed, legally established, or due for a decision.
(5) Avantgarde is entitled to implement or provide services or deliveries that are still pending only against advance payment of the surety, if Avantgarde becomes aware of the conditions after the conclusion of the contract, which are commensurate to considerably reducing the Customer’s creditworthiness and by which the payment of outstanding receivables to Avantgarde by the Customer from the respective contractual relationship is at risk.
(6) All third party costs that are incurred in association with events requested by the Customer (GEMA [Gesellschaft für musikalische Aufführungs- und mechanische Vielfältigungsrechte (Performing Rights Society]) fees, deliveries, rent, etc.) are to be borne by the Customer.
(1) Avantgarde is not liable for the impossibility of service or delivery or their delay, insofar as these conditions are prompted by force majeure or other unforeseeable events at the time of contract conclusion (e.g. operational disruptions of all types, difficulties with material or energy procurement, transportation delays, strikes, legal lockouts, difficulties in obtaining necessary official permits, official measures or the pending, incorrect or untimely delivery by suppliers), for which Avantgarde is not at fault. Insofar as such events significantly impair or render the ability to provide service or delivery impossible and the impediment is not only of a temporary duration (particularly if permits were not granted by authorities), Avantgarde is entitled to withdraw from the contract. In the case of impediments with a temporary duration the delivery and service deadlines are to be extended or the delivery and service dates postponed in order for the time period of the impediment and an appropriate lead time.
(2) Avantgarde as well as its legal representatives and vicarious agents are liable only for intent or gross negligence. In the case of a grossly negligent breach against non-significant contractual obligations, Avantgarde is liable only in the amount of the foreseeable, contractually typical, direct average damages. Only if significant contractual obligations are concerned (as a consequence of such obligations, whose compliance for achieving the contractual purpose is of particular importance), does an instance of mild negligence also bear liability. Thus the liability is restricted to the foreseeable, contractually typical, direct average damages. This disclaimer or limitation of liability is not applicable to the liability for damages from injury to life, body, or health. The provisions for product liability legislation also hereby remain unaffected.
§5 Place of Fulfilment, Transfer of Risk, Acceptance
(1) The Place of Fulfilment for all obligations from the contractual relationship is Munich, insofar as it is not otherwise specified in the contract.
(2) Packaging and transportation is subject to dutiful discretion by Avantgarde. It is only with express contractual agreement that Avantgarde will conclude the corresponding insurances against theft, breakage, transportation, fire and water damages as well as other insurable risks, at the Customer’s cost.
(3) The risk is transferred no later than at the point of handover of the delivery object to the carrier, shipper or other means for the implementation of despatch by the determined third party to the Customer. This is also applicable if partial deliveries take place or if Avantgarde assumed more services (e.g. installations/construction).
(4) Storage costs after the transfer of risk are borne by the Customer.
(5) If an acceptance needs to occur, the performance object is deemed accepted if
– the delivery and construction is concluded,
– Avantgarde has communicated this contingency to the Customer with reference to the notional acceptance according to this regulation and requested it upon acceptance,
– twelve business days have elapsed since the delivery/construction or the Customer has begun using the delivery objects.
(1) The Warranty is valid for one year after delivery or, insofar as an acceptance is required, upon acceptance.
(2) The performance object is to be carefully inspected immediately upon delivery. In the case of defects, Avantgarde is obligated and entitled to make a subsequent improvement or replacement, at its discretion. In the instance of failure, the Customer can cancel the contract or reduce the stipulated price appropriately.
Claims for damages shall conform to No. 4.2 of these conditions.
§7 Non-disclosure/Data Protection
All accessible information and materials or those that have become known to the Customer in connection with the order and its implementation – even upon conclusion of the order – are to be treated with the strictest confidence. This also applies in the event the order is not completed. This is also applicable for processes, data or other facts within Avantgarde’s scope of business. The Customer may only use copies of contractual services for its own or external advertising purposes with Avantgarde’s prior written consent. The Customer is prohibited from rendering illustrations of logos, images or project descriptions accessible to third parties or from publishing them.
(2) The Customer is to impose this secrecy obligation on its employees enlisted for the implementation of the order and other engaged third parties.
(3) Both parties will adhere to all conditions of the Federal Data Protection Act as well as oblige engaged third parties accordingly.
(1) Insofar as it is not otherwise stipulated, the Customer authorises Avantgarde to delegate all external services necessary for the implementation of all requested and commissioned functions/drafts in the name and at the expense of the Customer upon previous agreement with the Customer.
Commissioned third parties by Avantgarde are not deemed as vicarious agents of Avantgarde, since Avantgarde only refers these parties.
(2) Insofar as the Customer commissions Avantgarde with the planning and arrangement of events, the Customer remains the sole organiser. The Customer is to conclude all required insurances for these purposes in its own name and at its own expense.
§9 Closing Provisions
(1) Insofar as the Agent is a registered trader or a legal entity under public law, the place of jurisdiction for all disputes between Avantgarde and the Customer is Munich. Solely the laws of the Federal Republic of Germany shall apply. The CISG [UN Convention on Contracts for the International Sale of Goods] is not applicable.
(2) Avantgarde stores data from the contractual relationship according to § 28 of the Federal Data Protection Law for the purpose of data processing and retains the right to transmit the data to third parties, insofar as it is necessary for the contract fulfilment (e.g. insurance purposes).