WPWA Team GmbH, hereinafter referred to as the advertising agency, is a commercial enterprise. In contrast to industrial and craft enterprises, the advertising agency takes care of the client's advertising business, provides him with the appropriate advertising media or advertising partners and performs work tailored to the individual needs of the client. As the service is provided for this one purpose only, it cannot be used for other clients and consequently has no resale value. WPWA Team GmbH therefore asks for your understanding that for this reason an advertising agency cannot provide services free of charge - for example in the form of drafts, texts etc.. The work of the advertising agency consists of intellectual work, which is expressed in concepts, drafts, texts, final artwork, etc. The assessment standard for the fee for this activity is the thought process underlying these drafts, in particular the amount of work that preceded the agency's work.
(1) The terms and conditions of the advertising agency apply exclusively; the advertising agency does not recognize any terms and conditions of the client that conflict with or deviate from the terms and conditions of the advertising agency, unless the advertising agency has expressly agreed to their validity in writing. The advertising agency's terms and conditions of contract shall also apply if it carries out the delivery to the client without reservation in the knowledge that the client's terms and conditions conflict with or deviate from its terms and conditions of sale.
(2) All agreements made between the advertising agency and the client for the purpose of executing this contract must be set out in writing in this contract.
The advertising agency undertakes to treat all business secrets of which it becomes aware in the course of its cooperation with the client with due care and to treat all relevant information and documents confidentially. The duty of care and confidentiality shall survive the end of the contract. The advertising agency shall not be liable for damages caused by third parties or targeted industrial espionage.
(1) The advertising agency shall transfer all copyrighted rights of use associated with the work delivered by the advertising agency to the client within the scope of the purpose of the contract, i.e. the spatial, temporal and content-related scope of the right of use and the type of use granted in each case shall be determined according to the purpose of the contract.
(2) Rights of use to work that has not yet been paid for at the end of the contract and has not yet been published in the case of invoicing on a commission basis shall remain with the advertising agency, unless otherwise agreed.
(3) The agency shall be entitled to demand an additional fee in the event of misuse, in particular the passing on of the work to third parties, misappropriation, reprinting, multiple placements or utilization beyond the invoiced purpose.
(4) The advertiser is not entitled to use the proposals submitted by the advertising agency at the offer stage, regardless of whether they are protected by copyright or not. This also applies to use in a modified form or by third parties.
(1) The development of conceptual and creative proposals by the advertising agency with the aim of concluding a contract with the advertiser shall be carried out against payment of the fee agreed with the client (presentation fee), notwithstanding any provisions to the contrary in individual cases.(2) All work submitted by the advertising agency as part of the presentation shall remain with the advertising agency even if a presentation fee is charged.
(1) Unless otherwise stated in the order confirmation, prices are ex advertising agency. Shipping shall be at the expense of the client; the client shall also bear the costs of packaging.
(2) Statutory VAT is not included in the prices; it is shown separately on the invoice at the statutory rate on the day of invoicing.
(3) The deduction of a discount requires a special written agreement.
(4) The agency fee, including any disbursed costs plus VAT, shall be payable without deduction after invoicing. Invoices for advertising material and advertisements are payable net immediately after transmission by the advertising agency to the advertiser. Interest on arrears of 5% above the respective reference interest rate of the European Central Bank will be charged. The right to assert further claims for damages caused by default is expressly reserved.
(5) Unless otherwise stated in the order confirmation, fee invoices are due for payment net (without deduction) immediately. If the client defaults on payment, the advertising agency shall be entitled to demand default interest of 5% above the respective reference interest rate of the European Central Bank. If the advertising agency is able to prove higher damages caused by default, it shall be entitled to claim these. However, the customer is entitled to prove that the advertising agency has suffered no or significantly less damage as a result of the delay in payment. In the case of longer-term work, the advertising agency shall be entitled to invoice the work performed up to that point after every 4 weeks. If the completion of an order is delayed by more than 3 weeks for reasons for which the advertising agency is not responsible, the advertising agency is entitled to demand a fee for the work performed up to that point. In the case of new business relationships, an advance payment of up to 50% of the invoice amount may be requested. This payment must be made immediately, otherwise the advertising agency is entitled to withdraw from the order. In the case of cashless payment, the date of receipt of payment shall be the date on which the bank's credit advice is available. Payment by bill of exchange requires prior agreement.
(6) The client shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by the advertising agency. Furthermore, the client is only authorized to exercise a right of retention to the extent that a counterclaim is based on the same contractual relationship.
(1) The start of the delivery period stated by the advertising agency presupposes that all technical issues have been clarified.
(2) If the advertising agency is in default for reasons for which it is responsible, liability for damages shall be excluded in cases of ordinary negligence.
(3) The advertising agency shall not be held liable for delays in delivery caused by the advertising agency's suppliers, nor for any loss of profit resulting from such delays in delivery. Delays in delivery due to force majeure do not entitle the client to withdraw from the contract or to hold the advertising agency liable for any damages.
(4) The limitations of liability pursuant to paragraph 2 shall not apply if a commercial transaction for delivery by a fixed date has been agreed; the same shall apply if the client can assert that its interest in the fulfillment of the contract has ceased to exist due to the delay for which the advertising agency is responsible.
(5) Compliance with the delivery obligation by the advertising agency presupposes the timely and proper fulfillment of the client's obligations. If, after conclusion of the contract or during the completion process, the advertising agency becomes aware of circumstances which make it appear doubtful that the client will be able to fulfill its obligations on time, it shall be entitled to withdraw from the contract in whole or in part or to demand cash payment for outstanding services before completion of the work, without the payment deadline. Other outstanding invoices shall become due immediately and in one sum.
(6) If the customer is in default of acceptance or violates other obligations to cooperate, the advertising agency shall be entitled to demand compensation for the damages incurred by it, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the subject matter of the order shall also pass to the customer at the point in time at which the customer is in default of acceptance.
(1) The client's warranty rights presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with §§ 377, 378 HGB.
(2) If there is a defect in the delivered item for which the advertising agency is responsible, it is entitled, at its discretion, to remedy the defect or make a replacement delivery. In the event of rectification of the defect, the advertising agency is obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a location other than the place of performance.
(3) However, the agency shall only be liable for third-party fault on the part of the advertising medium to the extent that reductions in value or compensation can be enforced in accordance with the general terms and conditions of the graphic arts industry, radio and television broadcasters and other media. In the case of mediation orders placed by telephone, the advertising agency accepts no liability for errors and mistakes which, for their part, do not release the client from his obligation to pay. If an advertising medium refuses to accept a placement order for reasons set out in the General Terms and Conditions of the medium, the advertising agency shall not be liable for this.
(4) The advertising agency shall receive an agency fee for agency orders within the scope of media orders. The advertising agency undertakes to invoice intermediary orders at the original price of the media. In cases in which the commissioned medium invoices the advertising agency and the direct client at different rates, a separate agreement shall be made regarding the remuneration of the intermediary activity if the client wishes to be invoiced at the more favorable direct price.
(5) Unless otherwise contractually agreed, invoices for intermediary services rendered shall be paid strictly net within 7 days of the invoice date. In deviation from §5, a discount deduction is only possible in the case of advance payment and in the amount stated in the terms and conditions of the commissioned medium. On request, the advertising agency shall provide its clients with information on the amount of the advance payment discount. If the client defaults on payment, the agency shall be entitled, without prior reminder, 14 weeks from the invoice date to discontinue its intermediary activities for current orders and to cancel advertisements that have been scheduled but not yet published. The advertising agency shall not be liable for any damages incurred as a result.
(1) The advertising agency retains ownership of the subject matter of the order until all payments arising from the contractual relationship with the client have been received. If the client acts in breach of contract, in particular in the event of default in payment, the advertising agency shall be entitled to take back the object of the order. Repossession by the advertising agency does not constitute withdrawal from the contract unless the advertising agency has expressly declared this in writing.
2) The advertising agency undertakes to release the securities to which it is entitled at the request of the client to the extent that the value of its securities exceeds the claims to be secured by more than 20%; the advertising agency shall be responsible for selecting the securities to be released.
(3) The client is entitled to use the object of the order in the ordinary course of business. However, he shall not be entitled to pledge the object, assign it as security or resell it without the consent of the advertising agency.
Unless otherwise stated in the order confirmation, delivery ex advertising agency is agreed.
(1) By accepting the order, the advertising agency does not vouch for the validity under competition law of the statements made in the advertising message. This does not apply in particular to text statements and illustrations that are initiated, influenced or approved by the client. If the advertising agency has doubts as to whether the advertising is unobjectionable under competition law, it shall propose a legal review, the costs of which shall be borne by the client.
(2) The advertising agency shall only assume liability for the registrability and protectability of designs by special agreement.
(3) The advertiser undertakes to inform the advertising agency in good time of the nature, scope and timing of the required services and to provide it with all information and documents required for the proper execution of the order, insofar as these are available to it, in good time and free of charge. The advertiser undertakes to provide the advertising agency only with templates such as photos, models or other working documents that have been approved for publication or reproduction.
(4) In the case of ongoing business relationships, the advertising agency undertakes to store photos and similar documents of the client with care. However, it is entitled to destroy them after 3 years without special request, unless the client requests their return within this period. If the client wishes to insure the documents provided by him or the documents that the advertising agency orders or produces on behalf of and for the account of the client against fire, water, theft or other risks, the client must arrange the insurance himself. The principles of customary care shall apply to items stored at the advertising agency.
(5) The advertising agency is entitled to sign the advertising material it provides with its company text and to refer to the advertiser's support in its own advertising.
(6) The invalidity of individual clauses of these General Terms and Conditions shall not affect the validity of the remaining clauses. The invalid clause shall be replaced by a valid clause that comes as close as possible to the economic effect of the invalid clause.
(1) The place of performance and jurisdiction is Munich; however, the advertising agency is also entitled to sue the client in the court of his place of residence.
(2) Only German law shall apply to the order, its execution and the claims arising from it.