GENERAL TERMS AND CONDITIONS
1. General Information
1.1 The following conditions apply to all offers, contracts and other services of CHANGE Communication GmbH.
1.2 The customer's conditions of purchase and terms of business shall only become part of the contract if they are accepted in writing by CHANGE Communication GmbH.
1.3 Legally relevant declarations and notifications by the client such as setting deadlines, notifications of defects, declarations of withdrawal or reduction must be made at least in text form.
1.4 By entering into a pre-contractual and contractual obligation with CHANGE Communication GmbH, the client acknowledges the exclusive validity of these General Terms and Conditions.
2. Conclusion of Contract / Contents of Contract
2.1 Offers from CHANGE Communication GmbH are binding for 14 days after delivery. If CHANGE Communication GmbH does not receive an order confirmation within 14 days, the offer will change to a non-binding status.
2.2 A contract between the client and CHANGE Communication GmbH shall come into existence upon confirmation of the order, which must be received by the other party at least in text form, whereby the purely digital communication channel shall be deemed to have been opened. The content of the contract is based on the content of the order confirmation, insofar as this corresponds to the offer. Additional agreements require the written form.
2.3 If the client makes changes to the previously submitted offer in the order confirmation, this constitutes an offer by the client to CHANGE Communication GmbH to conclude a contract with corresponding content, which CHANGE Communication GmbH may accept or reject at its own discretion.
2.4 The acceptance by CHANGE Communication GmbH can be made expressly in writing, in text form or implied by actual service provision.
3. Type of Service Provided
3.1 CHANGE Communication GmbH will perform the tasks and activities incumbent upon it in close professional coordination with the client and other persons involved in the project. However, as an entrepreneur it is independent with regard to the technical provision of the service and works without instructions. In particular, there is no organizational integration into the work organization of the client.
3.2 CHANGE Communication GmbH does not have to provide the service personally. It is permitted to commission further service providers to perform the contractual services. CHANGE Communication GmbH has sole discretion regarding the selection and type of assignment.
4. Copyrights and Rights of Use
4.1 The client shall be responsible for ensuring that the contents, materials and other documents made available by him are not objectionable under competition law, trademark and name law and/or for other reasons. The client further confirms that the exploitation rights for these elements lie with the client and that CHANGE Communication GmbH may use and process them for the execution of the order placed.
4.2 CHANGE Communication GmbH reserves the right of ownership to all offers and cost estimates submitted by CHANGE Communication GmbH as well as drawings, illustrations, brochures, catalogs and other content made available to the client. Without the express consent of CHANGE Communication GmbH, the client may not make these objects accessible to third parties, disclose them, use them himself or through third parties, modify, edit or reproduce them, either as such or in terms of content. At the request of CHANGE Communication GmbH, he must return these items in their entirety and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
4.3 Upon full payment of the agreed fee for the contractually agreed duration and to the contractually agreed extent, the client acquires the rights of use to all work produced by CHANGE Communication GmbH within the scope of this order. This transfer of the rights of use shall apply insofar as a transfer is possible under German law and shall apply to the agreed use within the territory of the Federal Republic of Germany. Use beyond this area requires a written agreement within the scope of the order or a separate written collateral agreement. Unless otherwise agreed, CHANGE Communication GmbH retains the right to use any work that has not yet been paid for at the time of termination of the contract. After termination of the contract, all rights of use shall remain with CHANGE Communication GmbH unless a separate contract expressly defines a different form of rights of use beyond the end of the contract.
4.4 CHANGE Communication GmbH may sign the advertising media developed by it appropriately and in line with the industry standard and publish the order placed for self-advertising. Should such advertising media contain personal data or sensitive content, CHANGE Communication GmbH may only publish such advertising media with the prior express consent of the persons concerned. This signing and promotional use can be excluded by a separate agreement between CHANGE Communication GmbH and the client.
4.5 The work of CHANGE Communication GmbH may not be altered by the client or third parties commissioned by the client either in the original or in reproduction - unless otherwise agreed in writing. Any imitation, even of parts of the work, is not permitted. In the event of non-compliance, CHANGE Communication GmbH is entitled to an additional fee from the client of at least 2.5 times the originally agreed fee.
4.6 The transfer of granted rights of use to third parties and/or multiple uses are subject to a fee and require the consent of CHANGE Communication GmbH, unless regulated in the initial order.
4.7 CHANGE Communication GmbH is entitled to information on the scope of use.
4.8 CHANGE Communication GmbH does not acquire any rights to trademarks, logos or similar formats of the clients through the use within the contractual framework.
5. Prices / Payment Terms
5.1 The prices result from the order confirmation on which the contract is based. Agreed prices are net prices and do not include the respective statutory value added tax.
5.2 Additional or special services will be charged separately in text form after they have been commissioned by persons authorized by the client. The same applies to expenses incurred by CHANGE Communication GmbH as a result of incorrect information provided by the client. Change Communication GmbH will inform the client about this in text form immediately after becoming aware of it.
5.3 CHANGE Communication GmbH is entitled to advance payments up to the amount of the expected total invoice amount.
5.4 If the agreed services are to be rendered over a longer period of time, CHANGE Communication GmbH may invoice the client for partial payments for the partial services already rendered. These partial services do not need to be available in a form that can be used by the client and can also be available as a pure working basis on the part of CHANGE Communication GmbH.
5.5 In the event of changes or termination of orders, work and the like by the client and/or if the conditions for the provision of services change, CHANGE Communication GmbH shall be reimbursed for all costs incurred as a result and CHANGE Communication GmbH shall be released from any obligations towards third parties.
5.6 The client may only offset claims of CHANGE Communication GmbH against undisputed or legally established claims.
5.7 In principle, payment is due after invoicing. If payment is not made within 14 days of invoicing, the client shall be in default, subject to deviating individual agreements.
5.8 If the client is in default with a payment, CHANGE Communication GmbH is entitled to charge interest at the rate of 8 percentage points above the respective base interest rate.
6. Withdrawal from the Contract
6.1 The client can withdraw from the contract in text form. In the event of rescission, the statutory provisions for service contracts pursuant to § 621 BGB shall apply.
6.2 CHANGE Communication GmbH is entitled to withdraw from the contract at any time if the client violates his obligations according to section 8of these General Terms and Conditions in a significant way or is in default of payment.Furthermore, CHANGE Communication GmbH may withdraw from the contract if the financial circumstances of the client deteriorate significantly.
7. Obligation of Confidentiality of CHANGE Communication GmbH
CHANGE Communication GmbH is obliged to treat all knowledge it receives from the client on the basis of an order as strictly confidential for an indefinite period of time and to likewise obligate its employees as well as third parties engaged by it to maintain absolute secrecy in the same manner.
8. Collection and Processing of Personal Data
8.1 The data protection provisions of CHANGE Communication GmbH apply to data protection regulations, processes and measures relating to personal data.
8.2 If the service provided by CHANGE Communication GmbH for the client includes the indirect collection or processing of personal data, e.g. in the context of the creation or processing of an event documentation, it is the responsibility of the client to ensure any necessary consent by the persons concerned. Client shall indemnify CHANGE Communication GmbH against any claims by third parties in this respect upon first request.
8.3 If personal data is processed on behalf of the client in the sense of § 28 GDPR, e.g. when performing participant management for an event, CHANGE Communication GmbH shall conclude a separate contract with the client.
9. Client's Duties
9.1 The client shall provide CHANGE Communication GmbH with all data and documents required for the implementation of the project free of charge. CHANGE Communication GmbH treats all working documents with care, protects them from access by third parties and uses them only for the preparation of the respective order. CHANGE Communication GmbH will check the documents sent to it for the execution of its work upon receipt and has the right to refuse to provide services if they are not complete.
9.2 If the client or one of his vicarious agents does not fulfill an obligation to cooperate or to provide services, CHANGE Communication GmbH cannot be in default with the provision of services and is released from any deadline commitments.
9.3 Unless expressly agreed as part of the service, it is the responsibility of the client to ensure that the coordination of occupational health and safety measures pursuant to § 8 ArbSchG (German Occupational Safety and Health Act) and the mutual information obligations pursuant to § 13 BetrSichV (German Ordinance on Industrial Safety and Health) are implemented when several companies work together and that the relevant accident prevention regulations are observed.
9.4 CHANGE Communication GmbH will carry out its work in such a way that other entrepreneurs involved in production and their employees are not obstructed or endangered. The client must ensure that the same applies to CHANGE Communication GmbH by other persons involved in the production, do not obstruct the work of CHANGE Communication GmbH or endanger the persons. He must ensure in good time that all necessary coordination and information regarding the technical and temporal work flow is carried out. CHANGE Communication GmbH cannot be held responsible for delays that can only be attributed indirectly to outside influences.
10. Warranty and Liability
10.1 Unless otherwise stated in these General Terms and Conditions, CHANGE Communication GmbH shall be liable for any breach of obligations in accordance with the statutory provisions.
10.2 The risk of the legal admissibility of the measures developed and implemented by CHANGE Communication GmbH is borne by the client. This applies in particular in the event that the actions and measures contravene provisions of competition law, copyright law and specific advertising laws. However, CHANGE Communication GmbH is obliged to draw attention to legal risks if they become known to it in the course of its activities. The client shall indemnify CHANGE Communication GmbH against claims by third parties if CHANGE Communication GmbH has acted at the express request of the client, although it has notified the client ofconcerns regarding the admissibility of the measures. CHANGE Communication GmbH must notify the client of such concerns in writing immediately after they become known. If CHANGE Communication GmbH considers that a competition law examination by a particularly knowledgeable person or institution is necessary for a measure to be carried out, the costs for this shall be borne by the client after consultation with CHANGE Communication GmbH.
10.3 CHANGE Communication GmbH shall in no case be liable for the factual statements contained in the advertising measures regarding products and services of the client. CHANGE Communication GmbH is also not liable for the patent, copyright and trademark protection or registrability of the ideas, proposals, suggestions, concepts and drafts supplied within the scope of the order.
10.4 CHANGE Communication GmbH is only liable for damages caused intentionally or by gross negligence on the part of CHANGE Communication GmbH or its vicarious agents. The liability of CHANGE Communication GmbH shall be limited to the amount of the one-time income of CHANGE Communication GmbH resulting from the respective order. The liability of CHANGE Communication GmbH for consequential harm caused by a defect on the legal grounds of a positive breach of contract is excluded if and to the extent that the liability of CHANGE Communication GmbH does not result from a breach of the duties essential for the fulfillment of the purpose of the contract.
10.5 Liability in case of delay in delivery: CHANGE Communication GmbH shall be liable in accordance with the statutory provisions insofar as the underlying contract is a firm deal. CHANGE Communication GmbH is also liable in accordance with the statutory provisions,
a) if, as a result of a delay in delivery for which CHANGE Communication GmbH is responsible, the client is entitled to assert that his interest in the further fulfillment of the contract has ceased to exist, or
b) if the delay in delivery is due to an intentional or grossly negligent breach of contract for which CHANGE Communication GmbH is responsible; a fault on the part of representatives or vicarious agents of CHANGE Communication GmbH shall be attributed to CHANGE Communication GmbH. In addition, CHANGE Communication GmbH's liability for damages in the event of a delay in delivery is limited to the foreseeable, typically occurring damage, unless the delay in delivery is due to an intentional breach of contract for which CHANGE Communication GmbH is responsible. This limitation shall also apply if the delay in delivery is based on the culpable breach of a material contractual obligation.
10.6 CHANGE Communication GmbH's liability in the event of simple negligent data loss, in particular in the event of loss of audio or video data, shall be limited in amount to the typical expense for restoration work that would have been incurred if the client had regularly made state-of-the-art data backups.
10.7 The client must inspect the work and services provided by CHANGE Communication GmbH immediately upon receipt, but in any case before use, and report defects immediately after discovery. If the immediate inspection or notification of defects fails to take place within fourteen days, the customer shall have no warranty claims with regard to obvious defects, known defects or consequential defects.
10.8 If the delivery of a service is not performed in accordance with the contract, the client must set a grace period for CHANGE Communication GmbH to perform the service. Otherwise the client is not entitled to withdraw from the contract. If there is a defect for which CHANGE Communication GmbH is responsible, CHANGE Communication GmbH may, at its own discretion, remedy the defect (repair) or supply a replacement.
10.9 The warranty obligation expires one year after receipt of the delivery/service by CHANGE Communication GmbH or, if acceptance is required, one year after acceptance by the customer. This does not apply to liability for damages resulting from injury to life, limb or health and does not apply to liability for other damages based on gross negligence.
11. Delivery and Delivery Periods
11.1 If CHANGE Communication GmbH has undertaken to ship the goods, it shall do so for the client with due care. The risk shall pass to the client as soon as the consignment has been handed over to the person carrying out the transport.
11.2 Delivery periods and delivery dates shall only be binding if the customer has duly fulfilled any obligations to cooperate (e.g. procurement of documents, releases, provision of information, preparation of performance catalogs/function specifications) and the dates have been confirmed by CHANGE Communication GmbH.
11.3 The delivery period shall be extended in the event of unforeseen hindrances beyond the control of CHANGE Communication GmbH, insofar as such hindrances can be proven to have a considerable influence on the delivery. The delivery period shall be extended in accordance with the duration of such measures and obstacles. CHANGE Communication GmbH will immediately inform the client of the beginning and end of such obstacles.
12. Collecting Societies
12.1 The client undertakes to pay any fees to management companies such as Gema. If the fees are paid by CHANGE Communication GmbH, the client undertakes to reimburse CHANGE Communication GmbH for these fees against proof. This can also take place after termination of the contractual relationship.
12.2 The client is informed that when awarding a contract to a non-legal person in the artistic, conceptual and advertising consulting field, an artist's social security contribution must be paid to the artist's social insurance fund. This fee may not be deducted by the client from the CHANGE Communication GmbH invoice. The client is responsible for complying with the registration and submission requirements.
13. Third-Party Services
13.1 CHANGE Communication GmbH is entitled to carry out the work assigned to it itself or to have it carried out by third parties.
13.2 Freelancers or third parties engaged by CHANGE Communication GmbH are vicarious agents of CHANGE Communication GmbH. The client undertakes not to commission, directly or indirectly, these employees employed by CHANGE Communication GmbH within the framework of the execution of the order, with projects during the twelve months following the conclusion of the order, without the cooperation of CHANGE Communication GmbH.
14. Working Documents and Electronic Data
All working documents, electronic data and records produced by CHANGE Communication GmbH in the course of order processing shall remain with CHANGE Communication GmbH. The client cannot demand the surrender of these documents and data. CHANGE Communication GmbH owes the agreed service upon payment of the agreed fee, but not the intermediate steps leading to this result in the form of sketches, drafts, production data, etc. Accordingly, the client shall not be granted any rights of use to the goods and services listed in this paragraph.
If a dispute arises in the course of or after completion of an order regarding the commissioned project, an extrajudicial meditation procedure must be carried out prior to the initiation of legal proceedings. In the event of disputes regarding quality assessment or the amount of the fee, external expert opinions are prepared in order to reach an out-of-court settlement as far as possible. The costs for this will be borne equally by the client and CHANGE Communication GmbH.
16. Force Majeur
The contractor shall not be liable for events of force majeure which make it considerably more difficult for the contractor to perform, temporarily hinder the proper execution of the contract or make it impossible. Force majeure shall mean all circumstances independent of the will and influence of the contracting parties such as natural disasters, war and other military conflicts, mobilization, terrorist attacks, confiscation, embargo or other circumstances which are unforeseeable, serious and beyond the control of the parties and occur after the conclusion of this contract.
17. Final Provisions
17.1 There are no verbal side agreements. Amendments and supplements to a contract must be made in writing.
17.2 The client is not entitled to assign claims from the contract.
17.3 A set-off or the assertion of a right of retention by the client is only permissible with recognized or legally established counterclaims.
17.4 Place of performance is Frankfurt am Main, Germany. The place of jurisdiction shall also be Frankfurt am Main, Germany.
17.5 Should any of the above provisions be or become invalid, no invalidity of the entire general terms and conditions shall be derived therefrom. The ineffective clause shall be replaced by one which corresponds to the will of the parties at the time of conclusion of the contract.
17.6 Contractual relationships between the client and CHANGE Communication GmbH are subject exclusively to the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).