GENERAL TERMS AND CONDITIONS / MENORI DESIGN GmbH
1. Area of application
1.1 These General Terms and Conditions (GTCs) apply for the complete business relationship between Menori Design GmbH (hereinafter also referred to as the agency) and the customer (hereinafter also referred to as the client), insofar as the customer is an entrepreneur in the sense of §14 of the German Civil Code (BGB) or is a legal person under public law.
1.2 The agency does not acknowledge any contradictory or deviating GTCs unless it has expressly agreed to the validity of these GTCs. This shall also apply in cases where the customer’s invitation to tender and acceptance of a quote are performed subject to the validity of its own General Terms and Conditions having priority.
1.3 These terms and conditions of business apply in the respectively current edition for all future transactions with the customer, even if this is not expressly agreed upon again. The respectively current edition of the terms and conditions of business can be found on the Internet at http://menori-design.com/en/contact/general-terms-and-conditions abrufbar.
2. Quotes, conclusion of contracts, form
2.1 The contract is concluded when the customer confirms the quote or the agency confirms the job.
2.2 No specific form is required, in particular that this occur in writing.
2.3 Unless otherwise specified, the agency’s quotes are not binding. In the absence of any other provision, the agency shall guarantee fixed-price quotes for two (2) weeks; decisive for this is the time of submission.
3.1 Every even partial use of the work and services provided by the agency with the aim of concluding the contract, whether they be subject to copyright or not, requires the prior authorisation of the agency. This also applies to the use in a modified or edited form and to the use of the concepts and ideas on which the agency’s work and services are based, insofar as these have not already found expression in the customer’s earlier products and advertising materials.
3.2 Acceptance of a fee for a presentation does not constitute authorisation to use the agency’s work and services. The rights of use for the work demonstrated within the scope of the presentation remain with the agency.
4.1 The scope of services is determined by the current product/service specification at the time the respective contract is concluded.
4.2 Additional and/or subsequent changes to the service specification must be submitted in writing to be valid (see Section 5).
4.3 Unless specifically agreed, the agency is not obliged to provide the intermediary results, drafts, layouts, designs, etc., developed in the process of creating the contractual service.
4.4 The agency is entitled to perform partial services insofar as this is reasonable for the customer. The customer must accept these services as partial services (see Section 13.2).
4.5 Unless specifically agreed, no obligation exists for the patent, sample, copyright and trademark protection or the suitability for registration and utilisation of the ideas, proposals, suggestions, concepts, drafts and other services delivered within the scope of the contract.
5. Changes to services
5.1 Changes to the scope of the contract must be submitted in writing. The agency will assess the customer’s requested change and its consequences for the existing agreement.
5.2 The assessment will be remunerated at the hourly rate agreed on individually with the customer or – if none has been agreed – at the agency’s standard hourly rate (see Section 13.3). The contractual parties may conclude a different remuneration agreement, which must be established in writing.
5.3 The agency then notifies the customer of the results of the assessment. When doing so, the agency will either present a detailed proposal for the realisation of the requested change or explain why the requested change cannot be realised.
5.4 If the change proves possible according to the results of the assessment, the contractual parties will discuss the contents of the proposal for the realisation of the requested change. If they come to an agreement, the contract shall be complemented accordingly. If they fail to come to an agreement, the original scope of services shall remain unaffected.
5.5 Deadlines agreed in advance will be postponed if and insofar as the change procedure affects them, taking into account the duration of the assessment, of the discussion of the change proposal and, as applicable, of the requested changes in addition to an appropriate start-up period. The agency will notify the customer of the new deadlines.
5.6 If the agency wishes to amend the contractually defined service specification, it informs the customer of this in writing submitting a proposal for the realisation of the change in accordance with Section 5.3. The procedure then continues as per Sections 5.4 and 5.5.
6. Obligations to cooperate
6.1 The customer supports the agency in the performance of its contractually obligated services. The includes in particular the prompt provision of information, materials, data (“contents”), hardware and software insofar as the customer’s obligations to cooperate require this.
6.2 Should the customer establish that its own information, requests or contents are incorrect, incomplete, ambiguous or cannot be performed, it must inform the agency of this and the foreseeable consequences immediately.
6.3 The customer’s obligations to cooperate as defined by the scope of this contract are not specially remunerated unless this is expressly agreed differently.
7.1 The contractual parties shall nominate contact partners for each other, who will discuss all the queries concerning the performance of the contract bindingly. Secondary contact partners must also be nominated in case the official contact partner is not available due to holiday, sickness, etc. The parties must notify each other immediately of any changes to the people named when the contract is concluded. Until such time as such a notification is received, the previously named contact partners shall be authorised to provide and accept declarations in the scope of their previous power of representation.
7.2 The contact partners shall confer on the progress and obstacles affecting the performance of the contract at regular intervals and when there is a definite requirement.
7.3 As a basic rule, all jobs commissioned from the agency must be awarded in writing. The service specification must be defined in writing when the contract is concluded. Any requested changes are included in a work protocol and will be supplied by the agency to the customer in writing. Unless the customer rejects the contents of this protocol without delay, the contents shall be deemed to be bindingly accepted.
8.1 On request from the agency, the customer is required to approve/accept drafts and intermediate results (partial deliveries) too, insofar as this can be seen as practical.
8.2 The acceptance cannot be declined for design/artistic reasons. In the scope of the job, the design freedom rests with the agency.
8.3 Requests for changes after acceptance represent a change to the services (cf. Section 5).
9. Delivery, periods
9.1 The agency’s delivery periods are upheld as soon as the agency’s services are ready for shipping. The transfer risk (e.g., damage, loss, delay) is borne by the client, irrespective of by which medium this occurs.
9.2 Delivery periods and deadlines are only binding if the client has performed any obligations to cooperate (see Section 6.1) correctly and the deadlines have been confirmed by the agency in writing.
9.3 Should the agency fall into default with its services, it must be initially awarded an appropriate extension. Following expiry of this extension without success, the client is entitled to withdraw from the contract. Compensation for the damages caused by the default can only be demanded up to sum of the job value (services on own part including advance performance and materials).
9.4 Insofar as the customer’s rights to enforce claims require the setting of an appropriate extension, this shall be set as two (2) weeks.
9.5 The delivery period is automatically extended if unforeseeable obstacles arise which are outside the agency’s control, insofar as such obstacles can be proven to have a considerable effect on the delivery of the object to be delivered. The delivery period is extended relative to the period of the measures and obstacles. The agency shall inform the client of the onset and resolution of these obstacles immediately.
9.6 Should the client fall into default with the acceptance of the service or fail to perform / delay in performing an obligation to cooperate incumbent on him, the agency is entitled to invoice the arising loss of production taking the usual remuneration into account (especially the usual hourly rate (Section 13.3)).
10. Rights of use
10.1 The agency shall transfer the necessary rights of use for the use of its work and services in the scope agreed in the contract to the customer on settlement of all the invoices issued for the job.
10.2 In the case that no individual discussions are held concerning the scope of the rights of use, the agency upholds its obligation in case of doubt by granting unlimited rights of use in the scope of the contractual purpose.
10.3 Rights of use to work which has still not been paid for in full when the contract is completed remain with the agency unless different agreements have been reached.
10.4 If the customer wishes to utilise the work designed by the agency wholly or partly beyond the originally agreed purpose or scope, a special fee must be negotiated in advance for the payment of the rights of use.
10.5 Passing on of these rights of use or granting of sublicences is only permitted when this is expressly agreed or complies with the contractual purpose.
10.6 The customer is not entitled to modify or edit the performed services without special authorisation. Modifications and changes required to achieve the contractual purpose shall remain unaffected by this provision.
11. Rights of third parties
11.1 For any documents and data to be provided by the client, the client alone is liable if their use infringes on the rights of third parties, especially copyrights (see Section 4.5). The client must release the agency from all claims by third parties resulting from such a legal infringement.
11.2 The agency is only obligated to monitor the competition when this is expressly agreed.
12.1 If the shipping method and transport medium are not individually agreed upon, the agency may select the most cost-efficient version for the shipping and transport. The agency shall take the customer’s evident requirements into account when making this selection.
12.2 Should the customer require special packaging, it must bear the additional costs for this.
13. Outside services
13.1 The agency will generally order any outside services required for the performance of the contract in the customer’s name and at the customer’s expense.
13.2 The customer is obliged to grant the agency the authority required for this on request and provide documents conferring power of attorney.
14.1 All contractually agreed remunerations are understood to exclude packaging and shipping and are subject to the respectively applicable statutory value-added tax.
14.2 The remuneration is due as soon as the service is delivered. If the ordered work is accepted in parts or the customer is obligated to perform partial acceptances (Section 8), a corresponding partial remuneration becomes due with every partial acceptance. Should a job span several months or require high financial advance performances on the part of the agency, an appropriate down payment of at least 1/3 of the agreed remuneration must be paid when the contract is concluded.
14.3 If the remuneration is performed per hour, insofar as no other agreement has been reached, the respective remuneration rates for the agency agreed individually with the customer shall apply. If no individual remuneration rates have been agreed, services to be calculated at hourly rates will be calculated at a remuneration rate of € 180.00 per hour of work.
14.4 Where remuneration is performed based on hourly rates, expenditure, expenses and travel expenses incurred by the agency in the performance of the job must be borne by the customer and are recharged.
14.5 Where these costs are continuous items, which are recharged by third parties, Menori Design is entitled to recharge price increases charged by third parties to the customer.
14.6 Unless otherwise agreed, the agency’s cost estimates are not binding. If it becomes apparent that the actual costs exceed the agency’s estimated costs submitted in writing by more than fifteen (15) percent, the agency shall notify the customer of the higher costs immediately.
14.7 In cases of any objections to the agency’s payment calculations, these must be raised immediately upon receipt of the invoice, at the latest, however, 2 weeks following the invoice date, without this affecting the due date, however. Failure to raise objections in due time shall be deemed as approval.
15. Payment conditions, right of retention, set-off
15.1 Insofar as not expressly agreed otherwise, all services without must be settled without discount within 14 days of the invoice date. The statutory regulations apply in terms of the prerequisites and consequences of the default.
15.2 The client only has a set-off right if its counterclaims are legally defined and uncontested. It is only entitled to enforce a right of retention insofar as its counterclaim is based on the same contractual relationship.
16. Reservation of title
16.1 The rights to the agency’s service and all the rights of use covered by the job only pass to the customer following full payment of all invoices concerning the job and must only be used after payment.
16.2 The agency reserves the right to enforce an extended reservation of title. In this case, all the rights to the service remain the property of the agency until such time as all of the agency’s claims to remuneration from its business relationship with the customer are settled, even when the payments for the specific service have been performed.
16.3 In the case of execution measures in the matter, the agency must inform the customer immediately.
17.1 The customer must inspect work and services delivered by Menori-Design immediately upon receipt, however certainly prior to any further processing, and report defects immediately upon identification. If the immediate inspection and notification of defects is omitted, the customer will not be entitled to assert any claims.
17.2 The agency accepts liability for the absence of missing guaranteed characteristics within the scope of the statutory provisions. For errors which increase or reduce the value or appropriateness of the usual use or use stipulated in accordance with the contract, the agency accepts liability in accordance with the following points.
17.3 Menori Design’s warranty obligation is fundamentally restricted to rectification of defects. Should the rectification of defects fail, the customer is granted the right to demand a reduction of the remuneration or annulment of the contract. A failure in this sense is constituted if rectification of the defect is not possible, if it is refused seriously and finitely by the agency, if it is unreasonably delayed, if at least two attempts have already been made or if it cannot be expected of the client as a result of the accumulation of defects.
17.4 The warranty period begins with the (partial) acceptance – in other cases in accordance with the legal provisions. The warranty period runs for one year from the transfer of risk, notwithstanding the statutory business obligations to make complaints, unless another written agreement has been concluded. The warranty rights do not apply for second-hand items.
18.1 In the case of intent, the agency accepts full liability. In cases of gross negligence and carelessness where fundamental contractual obligations are breached and in the case where compensation is claimed instead of the service, the agency is liable for the typically arising, foreseeable damages. In all other cases, liability for carelessness is excluded.
18.2 Liability for accepting a guarantee or an exercise risk, for default, for loss of life, personal injury or damage to health, according to the German product liability law and imperative statutory provisions remains unaffected.
18.3 The regulations above also apply to the personal liability of employees, representative and agents.
18.4 The customer accepts liability according to the statutory regulations.
19. Dissolution of the contract, termination, withdrawal
19.1 Should the client terminate the contract early, the agency shall receive the agreed remuneration, must, however, allow saved expenses or performed or maliciously neglected replacement assignments to be credited (§ 649 BGB). Deviating, individual agreements are also possible. The client reserves the right to prove actually lower services or higher expenditure.
19.2 In the case of unilateral dissolution of the contract by the agency, all already finished services must be settled in full.
19.3 The agency is entitled to withdraw from the contract if the client initiates insolvency proceedings for its assets, makes a statutory declaration in accordance with the § 807 ZPO(German Code of Civil Procedure) or the insolvency proceedings for its assets have been initiated or the initiation has been refused for lack of assets.
20. Confidentiality, references
20.1 The contracting parties agree to maintain confidentiality about the conditions of this contract and the information gathered during its development.
20.2 The confidentiality shall also continue to apply after termination of this contractual relationship.
20.3 If a contractual party demands it, the documents it provides must be returned to it following termination of this contractual relationship, insofar as the other contractual party cannot assert any claims to having a legitimate interest in the documents.
20.4 Press releases, information, etc., in which one contractual party refers to the other require the advanced written authority of the latter – including per e-mail – to be permissible. Notwithstanding, the agency may name the customer as a reference customer on its website or in other media and reproduce and distribute the services provided in the scope of its own advertising activities as well as publicly reproducing them for demonstration purposes and making references to them, unless the customer can assert an opposing legitimate interest.
20.5 The customer is informed that e-mail is a public media. The agency does not accept any liability for the confidentiality of e-mails. At the customer’s request, communication can also be effected via other media.
21. Data protection
21.1. The agency is entitled to save data concerning the finite job and to process and apply these data for commercial purposes within the scope of the statutory provisions.
21.2. Forwarding to third parties is permissible if and insofar as – for example, the registering of domains, etc. – this is a subject of the contract.
22. Place of performance, legal venue
22.1. If no other agreement is reached, the place of performance is the location of the agency’s branch.
22.2. The exclusive legal venue for all disputes arising directly and indirectly from this contractual relationship as well as about its creation and validity is Hamburg, Germany. However, the agency has the right to take the customer to court in the place where the customer is resident or has its headquarters.
22.3 All queries concerning the job and its development are subject to German Federal Law. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded.
23. Severability clause
Should for any reason one or more individual provisions of these General Terms and Conditions prove to be invalid, the validity of the remaining provisions shall remain unaffected. Insofar as these General Terms and Conditions include any loopholes, these shall be closed by a provision providing for the economic purpose of the contract.