General Terms and Conditions of [Sebastian Wolter, Freelancer] – hereinafter referred to as Designer
01.01 These General Terms and Conditions (GTC) shall apply exclusively to all contracts concluded between the Designer and the Client. Any terms and conditions contrary to or deviating from these GTC shall not become part of the contract unless the Designer has expressly agreed to their validity in writing.
01.02 All agreements made between the Designer and the Client for the purpose of executing this contract are set out in writing in this contract.
02.01. The order placed with the Designer is a copyright contract. The subject matter of the contract is the creation of the work commissioned and the granting of rights of use to this work. The provisions of the law on contracts for work and services and the copyright law shall apply.
02.02. All works by the Designer, in particular drafts, final artwork and the commissioned work as a whole, are protected as personal intellectual creations by the Copyright Act, the provisions of which shall be deemed to have been agreed even if the requirements for a work protected by copyright are not met, in particular with regard to the required level of creation (Section 2 (2) UrhG).
02.03. The designer’s work as well as the work including the author’s designation may not be changed, neither in the original nor in the reproduction, without the Designer’s consent. Any imitation of the work or parts of the Work, as well as the preparatory work for it shall be inadmissible.
02.04. Designer’s works may only be used for the agreed type of use and the agreed purpose to the agreed extent. In the absence of an express written agreement, the purpose of the contract shall be deemed to be only the purpose made apparent by the Client when the order was placed.
02.05. The designer shall grant the Client the rights of use required for the respective purpose (Section 2.4). For this purpose, the simple right of use shall be granted unless the Designer and the Client expressly agree otherwise. The rights of use shall not be granted until the fee has been paid in full.
02.06. The transfer of granted rights of use to third parties requires the Designer’s prior written consent.
02.07. In the absence of any agreement to the contrary, the Designer shall be named as the copyright holder in the event of reproduction, distribution, exhibition, in publications about the work and/or public reproduction of the designs and final artwork and the work. If the client violates the right to name the author, the Designer may demand a contractual penalty in addition to the fee owed for the design work in the amount of 100% of the fee agreed for the use, or in the absence of an agreement, of the reasonable and customary fee for such use. This shall not affect the Designer’s right to claim higher damages in the event of a concrete calculation of damages.
02.08. Proposals, instructions and suggestions by the Client for technical, design or other reasons and the Client’s other cooperation shall have no influence on the fee and shall not constitute a joint copyright unless otherwise expressly agreed in writing.
02.09. Without the Designer’s prior written consent, the Client shall not be entitled to apply for registration of formal industrial property rights, e.g. design patents, trademarks, etc., in respect of Designer’s designs, final artwork or other work.
02.10. The designer shall remain entitled to use the works or parts thereof, designs and other work created in fulfillment of the order for its own advertising, regardless of the medium (e.g. in its own Internet presence, sample folder, etc.) and to refer to its work for the Client.
03.01. Unless otherwise expressly agreed between the Client and the Designer, the calculation of the fee shall be based on the fee recommendations of the BDG – Berufsverband der Deutschen Kommunikationsdesigner e.V., Warschauer Straße 59a, 10243 Berlin.
03.02. The preparation of drafts is always subject to a fee, unless expressly agreed otherwise in writing.
03.03. The fees are due upon delivery of the work. If the work is created and delivered in parts, the corresponding partial fee shall be due upon delivery of the respective part. Unless otherwise expressly agreed in writing, a partial fee of at least half of the total fee shall be payable with the first partial delivery. If the execution of an order extends over a longer period of time, Designer may demand partial payments in accordance with the work performed.
03.04. All fees are net amounts, payable plus statutory value-added tax, without deduction within two weeks of the due date.
04.01. Unless otherwise agreed in writing, additional services, such as research, reworking or modification of drafts, creation and submission of further drafts, modification of working drawings as well as other additional services (author’s corrections, production supervision and others) shall be charged separately according to time spent.
04.02. Incidental technical costs incurred in connection with the design work or design execution work (e.g. for models, intermediate reproductions, layout typesetting, etc.) shall be reimbursed by the Client.
04.03. The Client shall reimburse the Designer for the costs and expenses of travel which, after prior consultation, are necessary for the purpose of executing and fulfilling the order or using the work.
04.04. Payment for additional services shall be due after they have been rendered. Disbursed additional costs are to be reimbursed as incurred. Remunerations and additional costs are net amounts which are to be paid plus the statutory value added tax.
05.01. The designer shall perform external services in the name of and for the account of the Client which are necessary for the fulfillment of the order or the use of the work to the extent stipulated in the contract. The Client is obligated to grant the Designer the appropriate written authorization to do so.
05.02. If, at the instigation of the Client, the Designer commissions outside services in individual cases in its own name and for its own account, the Client shall be obliged to pay a reasonable advance for the costs to be expected. The Client shall indemnify Designer internally against all liabilities, in particular all costs, arising from the conclusion of the contract.
06.01. The Client is obliged to provide the Designer with all documents required for the fulfillment of the order in good time and to the extent agreed. This applies in particular to texts, photographs, logos, graphics, films, pieces of music, etc. The designer shall not be responsible for any delays in the execution of the order due to the late or incomplete handover of such documents.
06.02. The Client warrants that it is entitled to use all documents that it makes available to the Designer. The client is also solely responsible for the correctness and completeness of the documents provided by him. If the Client is not entitled to use the documents or if the documents are not free of third-party rights, the Client shall indemnify Designer internally against all claims for compensation by third parties.
06.03. The designer shall have freedom of design within the scope of the order. To this extent, complaints regarding the artistic design of the drafts and the work are excluded. Additional costs for changes initiated by the client during or after production shall be borne by the client.
07.01. The designer shall not be obliged to surrender to the Client the design data or other data (e.g. data of content, screen designs, drafts, etc.) or data carriers created in fulfillment of the order. If the Client wishes data or files to be handed over, this shall be agreed separately and shall be remunerated by the Client.
07.02. If the Designer makes files or data available to the Client, these may only be used to the extent agreed. Modifications or changes to the files or data may only be made with the Designer’s consent.
07.03. The risk and costs of transporting data carriers, files and data shall be borne by the Client, irrespective of the means of transmission.
07.04. The designer shall not be liable for defects in data carriers, files and data arising during data transfer to the Client’s system.
08.01. All drafts, final artwork and conceptual work, as well as any data provided, whether or not they are executed, shall be subject only to rights of use and not to rights of ownership. Originals must be returned undamaged to the Designer no later than three months after delivery, unless expressly agreed otherwise.
08.02. Deliveries and returns shall be made at the risk and for the account of the Client. In the event of damage or loss, the Client shall reimburse the costs necessary to restore the originals. The designer reserves the right to claim further damages.
09.01. Proofs must be submitted to the Designer prior to the commencement of reproduction of the work (start of production).
09.02. Production shall only be supervised by the Designer if this has been agreed in a separate written agreement with the Client. In this case Designer shall be entitled to make necessary decisions at its own discretion and to issue instructions to the production companies. The designer shall be liable for errors only in the event of its own fault and in accordance with clause 10.
09.03. Designer shall be provided free of charge with a reasonable number of perfect specimen copies, at least 10 in number, of all reproduced works or parts thereof or other works, which Designer may also use in the context of its own advertising.
10.01. The designer shall be liable for damage only in the event of intent or gross negligence. Excluded from this are damages arising from the breach of a contractual obligation that is essential for the achievement of the purpose of the contract (cardinal obligation), as well as damages arising from injury to life, limb or health, for which the Designer shall also be liable in the event of slight negligence.
10.02. The Client’s claims against the Designer based on a breach of duty shall become statute-barred one year after the statutory commencement of the limitation period. This shall not apply to claims for damages pursuant to Section 10.1; the statutory limitation periods shall apply to these.
10.03. The Client is obliged to inspect the work immediately after delivery and to report any defects without delay. Obvious defects must be notified in writing within two weeks of delivery at the latest. The timely dispatch of the notice of defect shall be sufficient to comply with the time limit. In the event of a breach of the obligation to inspect and give notice of defects, the work shall be deemed to have been accepted free of defects.
10.04. The release of production and publication shall be effected by the client. With the release, the client assumes liability for the technical and functional correctness of text, image, design and product.
10.05. With the exception of possible fault in selection, Designer shall not be liable for orders for third-party services which Designer subcontracts to third parties.
10.06. If Designer subcontracts external services at the instigation of the Client in its own name and for its own account, Designer hereby assigns to the Client all warranty claims, claims for damages and other claims to which it is entitled against the external company arising from defective, delayed or non-performance. The Client undertakes to first enforce the assigned claims against the external company before making a claim against the Designer.
10.07. The designer shall not be liable for the protectability or registrability of the work or parts of the work under copyright, design patent or trademark law or for the drafts or its other design work that it provides to the Client for use. The designer is not obliged to carry out or arrange for research into design patents, trademarks or other industrial property rights. The Client shall arrange for such research and for a review of the property rights situation itself and at its own expense.
10.08. The designer shall not be liable for the legal admissibility of the intended use of the work or parts thereof or of the designs, in particular with regard to copyright, design patent, competition or trademark law. The designer is only obliged to point out legal risks, insofar as these become known to the Designer during the execution of the order.
Place of performance for both parties is Munich, Germany.
12.01. The place of jurisdiction is Munich, Germany, if the Customer is a merchant and the contract belongs to the operation of its commercial business or if the Customer is a legal entity under public law or a special fund under public law or has no general place of jurisdiction in Germany. The designer shall also be entitled to bring an action at the Customer’s place of business.
12.02. The law of the Federal Republic of Germany shall apply with the exception of the UN Convention on Contracts for the International Sale of Goods.
12.03. If one of the provisions of these General Terms and Conditions is invalid in whole or in part, this shall not affect the validity of the remaining provisions.