GENERAL TERMS AND CONDITIONS

The following terms and conditions apply to all business transactions with suppliers, intermediaries, resellers and end customers. The following general terms and conditions form the basis of all supply contracts, services and offers of Melters Werbeagentur GmbH and also apply to all future business relationships, even if they are not expressly agreed again. Deviating terms and conditions of the business partner shall only become part of the contract if they have been expressly agreed to in writing beforehand. All legal relationships between Melters Werbeagentur GmbH (hereinafter referred to as the Agency) and the customer shall be governed exclusively by the laws of the Federal Republic of Germany.

Principle of cooperative collaboration

The agency will safeguard the customer’s interests to the best of its ability. For its part, the customer shall provide the agency with all data required for the proper execution of the order for strictly confidential treatment in the interests of trusting cooperation.

§1 Offers

Offers are subject to change and non-binding and only become valid after written order confirmation by the customer. Offers are valid for 30 days from the date of the offer. Subsidiary agreements are only effective if they are confirmed in writing.

§2 Subject matter

The agency’s contractual obligations arise primarily from the service specifications or offers sent and orders signed between the agency and the customer. The agency generally takes over the conception of orders, projects and agreed services as well as their commercial and organizational implementation. The agency assumes no liability for the legal admissibility of the projects and campaigns developed and implemented, but endeavors to obtain and comply with all legal guidelines.

§3 Pricing

Drafts, final artwork, final layouts, concepts, texts and electronic media, together with the granting of rights of use, form a uniform service. The prices listed in the confirmed offer or the order plus statutory VAT shall be decisive. The prices do not include discounts and other reductions. If the customer does not make use of the rights of use after delivery of the designs, which are part of every design order, or decides in favor of another provider, the remuneration for the designs must be paid in any case. The production of designs, products and services which the agency provides for the customer shall be subject to a charge, unless expressly agreed otherwise in writing. If no remuneration has been agreed for a service or partial service, the usual agency remuneration according to the agency price list shall apply. Agreed ancillary services and costs disbursed by the agency as agreed shall be borne by the customer, unless otherwise agreed. Price increases after conclusion of the contract, which are based on fluctuations in exchange rates, wage or material price increases, can be passed on to the customer.

§4 Terms of payment

Payment is due upon acceptance of the service, product or work. It is payable without deduction within 14 days of receipt of the service/product. An invoice shall be sent to the customer after delivery/after provision of the service. If the ordered work, products or services are accepted in parts, a corresponding partial payment shall be due upon acceptance of the product/service. If an order extends over a longer period of time (31 calendar days or more) or if it requires high financial advance payments from the agency, payment for the services shall be made at the end of each month. In the event of default in payment of the aforementioned payment term and subsequent two reminders at intervals of 14 calendar days each, the agency shall be entitled to withdraw from the contract immediately without special prior notice. In such cases, all claims of the agency including all claims from the ultimately terminated and current contract (100%) against the customer shall become due immediately in one amount without special request. In the event of late payment (14 days) according to the initial invoice, the agency may impose a delivery, service and/or production stop. The agency shall be entitled to withdraw from the contract with the customer without notice if it becomes aware of the customer’s inability to pay.

§5 Copyrights and rights of use, ownership, contractual penalty

All designs, drawings, artwork, concepts, ideas, etc. produced by the agency are copyrighted works within the meaning of § 2 UrhG, even if they do not meet the requirements of § 2 UrhG. None of the agency’s services may therefore be used, edited or modified without the agency’s consent. Any imitation, including of parts of designs, drawings, artwork, concepts, ideas, etc. is not permitted. In the event of non-compliance, the customer is obliged to pay the agency an immediately due contractual penalty in the amount of the originally agreed fee.

In the event of a transfer of rights, their scope in terms of territory, time and content shall be based exclusively on the contractual agreements or the purpose of the contract, § 31 para. 5 UrhG applies accordingly. The rights shall only be transferred to the customer upon full payment of the entire order. The transfer of granted rights of use to third parties and/or multiple uses are subject to a fee, unless regulated in the initial order, and require the consent of the agency. The agency is entitled to information about the scope of use. In the case of publications, the agency is named as the author in the usual form. The agency may sign the advertising material it develops appropriately and in line with industry standards and publish the completed job for its own advertising. Ownership of the agency’s work results (PDF data) shall not pass to the customer until the order has been paid for in full. The publication of open data/raw data (.indd, .ai or .psd files) is generally not intended and requires an express written agreement between the customer and the agency.

§6 Presentation

If no order is placed after a presentation, all services, in particular the presentation documents and the drafts, works, ideas etc. contained therein, shall remain the property of the agency. The customer is not entitled to use this material in any form whatsoever, to process it or to use it as a basis for the production of its own material. If the order is not placed, the customer must return all presentation documents in his possession to the agency without delay. If no order is placed, the agency is at liberty to use the ideas, works, designs etc. presented for other projects and clients. The forwarding of presentation documents and offers to third parties as well as their publication, reproduction, distribution or other use by the customer or his authorized representatives shall oblige the customer to pay a fee in the amount of the service concerned. This is based on the agency’s offer or, if such an offer is not yet available, on the usual market conditions.

§7 Special services and ancillary costs

Special services, such as the reworking or modification of final layouts, manuscripts, concepts, service processes, etc., which are requested by the customer due to changes in the contents of the order/contract, shall be invoiced according to the time required and in accordance with the price scale of the present order. The agency is entitled to order the external services required to fulfill the order in the name and for the account of the customer. The customer shall authorize the agency to do so. Insofar as contracts for external services are concluded in the name and for the account of the agency in individual cases, the customer undertakes to indemnify the agency internally against all liabilities arising from the conclusion of the contract. This includes in particular the assumption of costs. The agency shall charge a fee for the handling and coordination of external services amounting to 15% of the order volume of the contracted external services. Expenses for incidental technical costs and material costs, in particular for special materials, for the production of models, photos, proofs, intermediate shots, reproductions, typesetting and printing shall be reimbursed by the customer. Travel costs and expenses for trips to be undertaken in connection with the order and agreed with the customer or deemed necessary shall be reimbursed by the customer.

§8 Correction, production, production monitoring, production management and samples

Production, supervision and management by the agency shall only take place on the basis of special agreements and contracts. When taking over production services of any kind, the agency is entitled to make the necessary decisions and issue the corresponding instructions at its own discretion. In addition, the customer has the option of defining production processes in more detail in the order and, after consultation with the agency, to declare them in writing as part of the production service. The agency shall only be liable for errors if it is at fault and only for intent and gross negligence. The agency shall not be held liable for damage, theft or destruction of equipment of any kind provided by the customer, unless gross negligence on the part of the agency can be proven. The burden of proof lies in any case with the customer. The customer shall provide the agency with up to 10 flawless copies of all work reproduced and produced by the agency free of charge. The agency is entitled to use these samples for the purpose of self-promotion. The agency shall also be entitled to use copies of print and electronic media produced for reference purposes in its own presentations and, unless otherwise agreed in writing, to name the customer publicly from the time the order is executed. Correction samples must be submitted to the agency before duplications of products created by the agency are carried out by companies other than the agency. The customer shall receive a galley proof from the agency after the graphic services ordered have been produced. This must be checked by the customer for the accuracy of the information contained therein and for typing errors. Improvements and changes must be reported or sent to the agency immediately and within a maximum period of 5 working days. After changing the template, the customer will receive a new proof on request. This must also be checked and returned. For technical reasons, the colors of a color proof are not binding for printing. The customer shall be given a period of 5 working days to return the proof (unless otherwise agreed in writing when the proof is sent). If no proof is received by the agency by this time, it shall be deemed to be free of errors. The customer is ultimately liable for the correctness of the template. If the customer does not request a proof, he shall also be liable for correctness and typing errors.

§9 Liability

The agency undertakes to carry out the order with the greatest possible care, in particular to treat the templates, films, work data, internal company documents etc. provided to it with care. The sale of information and documents provided to it to third parties is only permitted with the separate and written approval of the customer or only if it is necessary for the proper execution of the order. The agency shall only be liable for damages incurred in cases of intent and gross negligence. Compensation in excess of the material value is excluded. If the agency commissions necessary external services, the respective contractors are not vicarious agents of the agency. The agency shall only be liable for its vicarious agents in cases of gross negligence and only in accordance with § 8.1 BGB. The dispatch of work, services, products and templates shall be at the risk and for the account of the customer. The risk shall pass to the customer as soon as the consignment has been handed over to the person carrying out the transportation. The customer shall also bear the transportation risk for partial deliveries or in the case of returns. Any transport damage can only be claimed from the commissioned transport company (post office, railroad, forwarding agent, etc.). With the approval (written or verbal) by the customer of proofs, drafts, final versions, final layouts, texts, electronic media and concepts that the agency provides to the customer for checking/proofreading, the customer assumes responsibility for the accuracy of the words and images (including content). The agency shall not be liable for any drafts, texts, final versions, electronic media, concepts and products approved by the client. Should the agency be held liable by third parties in or out of court for the use of data provided by the customer, the client hereby declares in a legally binding manner to indemnify and hold the agency completely harmless and to reimburse the agency for all costs incurred at the agency’s first request. The customer assures the agency that it owns the rights to use all data provided by it (slogans, logos, images, videos, texts, etc.) worldwide, without restriction and for an unlimited period. The agency shall make every effort to ensure the admissibility and registrability of the work/services under competition and trademark law to the best of its knowledge and in accordance with current guidelines and resolutions, but accepts no liability whatsoever. Complaints of any kind must be made in writing to the agency within 5 working days of delivery of the work or notification/transmission/performance of a service. The work/service shall then be deemed to have been accepted as free of defects. The agency may reject complaints after this period, especially in the case of an obvious defect. The defective goods may not be used until the matter has been clarified. In the event of a justified complaint, the customer shall only be entitled to rectification or replacement delivery at the discretion of the agency, up to the amount of the order value. Color-accurate samples require the use of production paper and production machines. The customer must in any case immediately check that the delivered goods and the preliminary and intermediate products sent for correction are in accordance with the contract. The risk of any errors is transferred to the customer with the declaration of readiness for printing. In the case of color reproductions, minor deviations between proofs and the print run as well as within the print run are deemed to be agreed up to a tolerance of +/- 15% of the full-tone density value. Proofs, wax prints, Cromaline, colored laser prints and other simulations of the printed image are never color-accurate. Orders with these templates are processed according to the usual printing standards. In the case of the publication of print and e-media (in particular advertisements, radio spots, television and cinema spots), all liability issues of the agency with regard to flawless publication shall also be transferred to the executing company once the order has been handed over. If the media are not published correctly or not published at all due to technical or organizational errors, negligence, etc. on the part of the publishing company, the latter shall be liable for all resulting claims on the part of the customer existing vis-à-vis the agency.

§10 Creative freedom and templates

There is freedom of design within the scope of the order. Complaints regarding the artistic design are excluded. If the customer wishes to make changes during or after the design production, he has the option of having up to two change samples produced. Any further changes will be charged to the customer at additional cost in accordance with the agency’s existing price list. If the customer wishes to make changes to the final draft/layout after having previously declared it to be faultless (verbally or in writing), he shall bear the additional costs. The agency retains the right to remuneration for work already commenced. Instead of conversion/reduction, the agency reserves the right to initially provide a maximum of two subsequent improvements. The customer assures that he is authorized to use all templates provided to the agency. If, contrary to this assurance, the customer is not authorized to use the material, the customer shall indemnify the agency against all third-party claims for compensation.

§11 Mention claim

The agency is entitled to refer to the agency and, if applicable, to the author on all advertising material and in all advertising measures, without the customer being entitled to any remuneration for this.

§12 Delivery and submission dates

The agency shall endeavor to meet the agreed deadlines for completion of the order as precisely as possible. The agency shall not be liable for omissions and delivery difficulties of third-party services contracted within the scope of order processing. The targeted fulfillment dates can only be met if the customer provides all necessary work and documents in full by the dates specified by the contractor and fulfills its obligation to cooperate to the extent required. Delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed details and information or documents provided cannot lead to default on the part of the agency. Any resulting additional costs shall be borne by the customer. However, failure to meet the deadlines shall only entitle the customer to assert the rights to which he is legally entitled if he has granted the agency a grace period of at least 14 days. This period begins with the receipt of a reminder letter to the agency. An obligation to pay compensation for damages due to delay shall only exist in the event of intent or gross negligence on the part of the agency. Further claims are excluded. Force majeure, war, riots, strikes, lockouts and significant operational disruptions for which we are not responsible shall extend the respective deadlines and the duration of the disruptions to performance caused by these circumstances by a further 2 weeks. Unavoidable or unforeseeable events – in particular delays at the agency’s contractors – shall also release the agency from compliance with the agreed delivery date. If the execution of the order is delayed for reasons for which the customer is responsible, the agency may demand an appropriate increase in remuneration. In the event of intent or gross negligence, the agency may also assert claims for damages. The assertion of further damages caused by delay remains unaffected.

§13 Customer withdrawal

Cancellations by the customer are only possible with the written consent of the agency. If the agency agrees to a cancellation, it shall be entitled to charge a cancellation fee amounting to 50% of the unbilled order value of the overall project in addition to the services rendered and costs incurred; this shall include expenses incurred and lost profit.

§14 Final provisions

Should individual provisions of these General Terms and Conditions be invalid due to statutory or court rulings, all other provisions shall remain unaffected. In place of the invalid terms and conditions, the new statutory provision shall come into force. The General Terms and Conditions of the agency shall apply to all its business areas. The place of jurisdiction is Düsseldorf (in case of doubt, the place of business of the agency). The law of the Federal Republic of Germany shall apply. Collateral agreements, amendments and agreements deviating from these GTC, such as the assurance of properties, must be made in writing. The same applies to this provision.

Düsseldorf, March 2015