T&Cs
T&Cs of BOLD Consulting GmbH
I. DEFINITION OF TERMS, SCOPE
1. These Terms and Conditions govern all operations and divisions of BOLD Consulting GmbH.
2. The terms ‘Order’, ‘Consultancy Firm’ and ‘Client’ shall be understood in a commercial sense. ‘Order’ refers to the contractual relationship irrespective of the type of contract, ‘Consultancy Firm’ refers to the entity that is contractually obliged to perform the main service and ‘Client’ refers to the entity that shall receive the main service and that is contractually obliged to pay the fees.
2. Divergent terms and conditions of the Client shall only be valid insofar as they have been acknowledged in writing by the Consultancy Firm.
II. DEADLINES, DELIVERY PERIODS
1. Deadlines and delivery periods always represent a non-binding guide. This does not apply if deadlines have been expressly agreed as binding in writing.
2. The Consultancy Firm shall not be liable for delivery delays based on the fact that the Client has failed to fulfil required duties to cooperate.
3. If the Client falls into default in acceptance or if it culpably breaches other duties to cooperate, the Consultancy Firm shall be entitled to demand compensation for the losses incurred as a result, including any additional expenses incurred. The right to assert further claims remains reserved.
III. SCOPE OF SERVICES, FEES
1. The scope of the individual services and the fee(s) owed shall be taken from the service description of the Consultancy Firm. If no fee is stated for a specific service, the Consultancy Firm’s price lists valid at the time of order placement shall apply. Additional work on the part of the Consultancy Firm, particularly due to changes and additions requested by the Client, will be charged extra at the agreed hourly rates or, in lieu thereof, as per the Consultancy Firm’s price lists valid at the time of order placement.
2. The Client shall be liable for any losses arising due to the fact that the Consultancy Firm is required to repeat or delay work, whether in whole or in part, due to incorrect, subsequently corrected or incomplete information provided by the Client, insofar as the Client is responsible for the losses incurred.
3. The Consultancy Firm may contract a third party to perform its contractually agreed services in the capacity of subcontractor. The Client may only refuse such a third party if there is good cause to do so in the person of the third party.
4. If the Client prematurely terminates an order that it has approved vis-á-vis the Consultancy Firm, Sect. 648 of the German Civil Code (BGB) shall apply between the contractual parties in respect of the Consultancy Firm’s fee.
5. The Consultancy Firm shall only be required to perform a review of the legality of advertising (particularly in respect of competition, trademark, food, production and pharmaceutical law) if this explicitly forms part of the order. If the Client instructs the Consultancy Firm to perform such services, the Client shall bear the resulting fees and costs of the Consultancy Firm and of third parties (lawyers, official agencies, etc.) at the usual market rates unless otherwise agreed.
6. The Consultancy Firm is not obliged to check the accuracy of factual statements approved or made by the Client about the Client’s products and services within materials
7. Unless expressly agreed otherwise, the services of the Consultancy Firm shall still be deemed to have been provided in accordance with the contract if they are not registrable or protectable (e.g. patents, trademarks, copyright). The Consultancy Firm is not obliged to make its services the subject of intellectual property right applications, but is entitled to do so.
8. The Consultancy Firm shall submit all drafts and designs to the Client for review and approval
prior to publication. By approving the work, the Client accepts responsibility for the accuracy of content, images, audio and text.
IV. IMPLEMENTATION MONITORING (CONTRACTING, COORDINATION AND IMPLEMENTATION MONITORING)
1. Within the context of implementation monitoring, the Consultancy Firm shall select suitable service providers and award contracts following approval by the Client in text form. Individual orders of up to a maximum of €1,000 do not require approval by the Client. Contracts to manufacturers of advertising materials shall be awarded in the name of and for the account of the Client unless expressly agreed otherwise.
2. The Consultancy Firm shall coordinate implementation handling and review the services and invoices of the companies or individuals contracted.
3. Insofar as the Consultancy Firm awards production contracts in exceptional cases in its own name and for its own account – due to an express agreement with the Client – all third-party costs incurred shall be passed on to the Client by the Consultancy Firm. In the event of production contracts that are expected to be worth more than €5,000 or more, the Consultancy Firm is entitled to demand immediately payable advance payments up to the amount of the gross order value.
V. LIABILITY, WARRANTY
1. In the event of intent and gross negligence, the Consultancy Firm shall be liable in accordance with statutory provisions. However, liability for warranty claims is limited to a twelve-month period following delivery.
2. In the event of minor negligence, the Consultancy Firm and its agents shall only be liable if a major contractual obligation (‘cardinal obligation’) has been breached or in the case of default or impossibility.
3. In the event of liability arising from minor negligence, this liability on the part of the Consultancy Firm and its agents due to breach of contract and tort, as well as in respect of claims for compensation for wasted expenditure, shall be limited to such losses as are foreseeable and/or typical.
4. The aforementioned liability limitations and the shortened warranty obligation do not apply in respect of the absence of assured characteristics, cases of bad faith, damage to life, limb or health, defects of title and liability pursuant to the German Product Liability Act (Produkthaftungsgesetz).
5. In the event of non-culpable errors and printing/transmission errors that entitle the Consultancy Firm to dispute the agreement, the Client cannot claim compensation as a result of the dispute being made.
VI. APPROVAL
If the Consultancy Firm is obliged to provide a specific work outcome, i.e. a customisable piece of work (e.g. draft/design), the Client is obliged to give approval. Approval shall be deemed to have been given if it has not been declared or refused within seven days of delivery, provided that the work output largely corresponds with the agreements made. In the event of significant deviations, the Consultancy Firm shall remedy these deviations within a suitable time frame and resubmit the work output for approval. At the latest, approval will be deemed to have been given upon payment or upon use of the work.
VII. BILLING, PRICE, PAYMENT, PAYMENT TERMS
1. The Consultancy Firm shall invoice for its services as soon as they have been rendered.
2. Unless otherwise agreed, payment shall be made in full within 10 days from the date of the invoice.
3. All prices are net prices and do not include statutory VAT. Customs duties, fees and other taxes, as well as contributions to the artists’ social security scheme, shall be borne by the Client, even if they are levied at a later date.
4. The Client may only offset undisputed or legally upheld claims against fee claims held by the Consultancy Firm. The Client may only assert a right of lien in the event of undisputed or legally upheld claims.
VIII. EXPENSES
1. Each Party shall bear the costs that it incurs in connection with its business dealings with the other Party.
2. Travel expenses shall be charged to the Client as follows:
– Third-party costs: against receipts
– Hours taken: see current standard price list.
3. All other expenses – such as legal fees, courier costs, transport costs associated with the preparation and monitoring of productions and outputs, as well as data storage media, colour copies and colour printouts ordered by the Client – will be charged to the Client as per receipts.
IX. COPYRIGHTS/
INTELLECTUAL PROPERTY RIGHTS
1. Unless otherwise stipulated in the service description, the Client shall, upon payment in full, acquire the contractually required usage rights to the advertising materials designed by the Consultancy Firm; these rights shall be acquired for the duration of the consultancy agreement, but for at least six months following approval. These usage rights are limited to Europe. The materials may only be edited or the content thereof altered with the prior permission of the Consultancy Firm. Any further transfer or licensing of the usage rights to third parties by the Client is only valid with the prior written permission of the Consultancy Firm.
2. If the consultancy firm requires usage and/or commercial exploitation rights (e.g. photo/film rights, copyrights, GEMA rights) or the permission of third parties (e.g. personality rights) for the production or implementation of work outputs, the Consultancy Firm shall obtain such rights and third-party permission in the name of and for the account of the Client. Unless otherwise expressly agreed in text form, such rights and permissions shall only be obtained in the temporal, geographic and substantive scope required for the materials concerned. Any subsequent demands pursuant to Sect. 32 and 32a of the German Act on Copyright and Related Rights (UrhG) shall be borne by the Client.
3. The Consultancy Firm shall accept no liability that third-party rights do not apply in respect of the content and work outputs supplied by the Consultancy Firm.
4. The Consultancy Firm shall, without temporal restriction, be entitled to use content created by the Consultancy Firm for the purpose of its own advertising.
5. The usage rights for drafts/designs rejected by the Client or otherwise not implemented shall remain with the Consultancy Firm. This also applies, in particular, to services of the Agency that are not subject to specific legal rights, particularly copyright.
X. MINUTES OF MEETINGS
Within 48 hours of every meeting with the Client, the Consultancy Firm shall provide minutes of the meeting concerned. These minutes of the meetings constitute a legally binding basis for the subsequent handling of projects unless an objection is raised to them in text form within a period of three further working days.
XI. FINAL PROVISIONS
1. If individual provisions are invalid, this does not affect the validity of the remaining provisions. The contested provision shall be replaced by a provision that comes as close as possible to the economic purpose of the original provision.
2. The legal venue for any disputes between the Client, who is a merchant, and the Consultancy Firm shall be the registered office of the Agency.
3. These Terms and Conditions are governed solely by the laws of the Federal Republic of Germany, to the exclusion of German international private law.
July 2018