Terms and Conditions.
hej!ROCKIT GmbH & Co. KG (B2B Contracts), as of July 2018
1. Scope of Application
1.1. The following General Terms and Conditions (GTC) apply to all legal transactions between hej!ROCKIT GmbH & Co. KG (hereinafter referred to as the “Agency”) and its clients.
1.2. Any deviating, conflicting, or supplementary terms and conditions of the client shall not become part of the contract unless the Agency has expressly agreed to their validity in writing.
2. Subject Matter of the Contract and Conclusion of the Contract
2.1. These General Terms and Conditions apply to contracts for work and services provided by a full-service advertising agency. This includes the design of logos, slogans, brands, advertising campaigns, websites, promotional videos, and other advertising-related products. The specific subject matter of the contract is determined by the terms of the individual contract.
2.2. The Agency’s offers are subject to change without notice, unless otherwise agreed.
2.3. The contract between the Agency and the Client is concluded as soon as the Client confirms the offer submitted by the Agency in writing.
3. The Customer’s Obligations Regarding Performance and Cooperation
3.1. The client shall provide the agency, free of charge, with all data, access, information, and documents necessary for the execution of the order. If the client fails to fulfill its obligation to cooperate despite being requested to do so, the agency is released from its obligation to perform. If the agency nevertheless performs the work, it shall invoice the client for the additional expenses incurred as a result.
3.2. The client shall ensure that the material provided by the client is free from third-party rights (e.g., copyrights, trademark rights, or personality rights) and does not violate any laws.
3.3. The client undertakes to notify the agency, without being asked and without delay, of any circumstances that may be relevant to the agency’s provision of services and which the client can recognize as being unknown to the agency. This applies in particular if it should become apparent that individual advertising measures must be discontinued or modified by the agency or commissioned third parties due to legal regulations or the infringement of third-party rights.
3.4. The client is solely responsible for setting up and maintaining its own IT infrastructure. The agency assumes no responsibility for the system.
4. Services Provided by Third Parties
4.1. The Agency is entitled, in accordance with the terms of individual contracts with the Client, to utilize the services of third parties or to arrange for such services to be provided to the Client.
4.2. In the context of cooperation with third parties, their general terms and conditions and agreements concluded in individual contracts may affect the contractual relationship between the client and the agency. The agency will inform the client of any implications for the contractual relationship between the client and the agency as early as possible. The agency and the client will, if necessary, jointly agree to an adjustment of the contractual relationship between them.
4.3. The Agency makes no warranty that the services provided by third parties will always be free of interruptions, malfunctions, or errors and will always comply with the law. The Agency has no obligation to monitor such services.
4.4. Upon engaging vicarious agents, the vicarious agents’ General Terms and Conditions are automatically incorporated into the Agency’s General Terms and Conditions.
5. Dates and Delivery Deadlines
5.1. Deadlines and agreed-upon dates must be set forth in writing in the contract. Any deviations from these terms must be confirmed in writing.
5.2. If the agency is unable to meet an agreed-upon deadline or delivery date, it must notify the client in writing as soon as possible.
6. Copyrights and Rights of Use
6.1. The client acquires the non-exclusive right to use all work produced by the agency within the scope of this assignment for the contractually agreed duration and to the contractually agreed extent. The transfer of usage rights applies to the territory of the Federal Republic of Germany. Any use beyond this territory requires a separate written agreement. All transfers of rights of use are subject to the condition precedent of full payment of the contractually agreed-upon compensation.
6.2. If the contract is terminated prematurely, all documents, files, sketches, and drafts must be returned to the Agency immediately. The Client is not permitted to continue using or further developing the ideas and concepts that have already been reviewed.
6.3. The work produced within the scope of the assignment is protected as personal intellectual creations under copyright law and remains the property of the agency. This provision shall be deemed agreed upon even if the level of creativity required under copyright law is not attained.
6.4. The contribution of the client and/or its employees has no bearing on the amount of the agreed-upon compensation and does not confer any co-authorship rights to the developed and created works and materials. The client also receives no rights of use to drafts that it has rejected or that were not executed.
6.5. The Agency’s services and works may not be altered by the Client or by third parties commissioned by the Client, either in their original form or in any reproduction. Any imitation, including of parts of the work, is prohibited. The transfer of granted rights of use to third parties and/or multiple uses, unless otherwise provided for in the contract, shall be subject to compensation and require the Agency’s consent.
6.6. For each instance of a violation of the foregoing provisions, a contractual penalty shall be due, which the Agency shall determine at its reasonable discretion and which may be reviewed by a court in the event of a dispute. The Agency is entitled to request information regarding the scope of use.
6.7. The Agency is entitled to name the Client as a reference and list the Client on its website, and to use the Client’s logos for this purpose if applicable. Self-promotion may be excluded by contract between the Agency and the Client.
7. Warranty
7.1. The agency is liable for defects in the services and works delivered in accordance with statutory provisions.
7.2. A one-year warranty period applies to the warranty, including contractual claims for damages.
7.3. In all production processes involving color reproductions, minor deviations from the original may occur; these cannot be the subject of a complaint if they fall within the tolerances customary according to the state of the art. The same applies to comparisons between source materials and the final product.
7.4. The Agency is liable for deviations in the quality of the materials used only up to the amount of its own claims against the respective supplier. The Agency is released from liability if it assigns its claims against the supplier to the client.
8. Liability
8.1. The Agency shall be fully liable for willful misconduct and gross negligence; however, in cases of slight negligence, liability shall apply only to the extent that the damage results from a breach of essential contractual obligations. Essential contractual obligations are those whose fulfillment is indispensable for the proper performance of the contract and on whose compliance the contracting party may reasonably rely. If the Agency is liable for a negligent breach of an essential contractual obligation, such liability is limited to the foreseeable damage typical for this type of contract—that is, to the damage that the Agency foresaw as a possible consequence of a breach of contract at the time the contract was concluded, or that it should have foreseen had it exercised the care customary in the industry. In the event of liability for simple negligence, the obligation to pay compensation is limited to the amount of the respective order value, even if the breach involves obligations essential to the contract.
8.2. The client shall indemnify the agency against any claims asserted by third parties against the agency due to the infringement of their rights or due to legal violations arising from the measures developed and/or implemented by the agency and/or from content provided by the client itself. In this regard, the client shall also bear the costs of the Agency’s necessary legal defense, including all court and attorney’s fees. However, the Agency is obligated to address legal concerns regarding
9. Copyright Collecting Societies
The client shall pay any applicable fees directly to collecting societies (such as GEMA) or reimburse the agency for such fees if the agency has advanced them.
10. Compensation and Payment Terms
10.1. The compensation to be paid by the client is based on the terms of the individual contract.
10.2. The compensation is payable plus the applicable statutory value-added tax.
10.3. Unless otherwise agreed, payment is due within 7 days of receipt of the invoice. The date on which payment is received shall determine whether the payment was made on time. The Agency’s invoices may also be sent electronically.
10.4. The Agency is not required to advance costs for third-party services.
10.5. The Agency is entitled to invoice the Client for interim payments at regular intervals. The amount of the interim payment is based on the services rendered at the respective time.
10.6. The Client is only entitled to set off claims against the Agency with undisputed or legally enforceable counterclaims.
11. Contract termination
11.1. The contract terms specified in the individual contracts shall apply. Either party may terminate this contract only for good cause.
11.2. If no contract term has been specified, a continuing obligation shall arise, which either party may terminate with one month’s notice effective at the end of the month.
12. Confidentiality
12.1. All information and documents made available to the parties within the scope of the contractual relationship that are not generally known must be treated as strictly confidential, even after the termination of the contract, even if the contract is not ultimately performed.
12.2. The parties shall impose the confidentiality obligation on their respective employees involved in the performance of the contract.
13. Final Provisions
13.1. The invalidity of individual provisions shall not affect the validity of the remaining provisions. In the event that individual provisions are invalid, the parties shall endeavor to replace the invalid provision with a valid provision that most closely approximates the intent of the invalid provision. The same applies in the event of a gap in the provisions.
13.2. The parties agree to comply with the applicable data protection regulations.
13.3. The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods and international conflict-of-laws rules.
13.4. The exclusive—including international—place of jurisdiction for all disputes between the parties shall be Neu-Ulm, Germany, to the extent permitted by law.
