General Terms & Conditions of Business for Purchase of Goods and Order of Services
- Terminology, scope, issue of order
The terms “Order”, “Contractor” and “Client” shall be understood in their commercial sense. “Order” shall signify the contractual relationship, irrespective of the type of contract in question, i.e. irrespective of whether it is a contract of purchase, work, service, or any other
type; “Contractor” shall signify the contracting partner liable for the primary obligation; and “Client” shall signify the advertising agency Jung von Matt AG and/or its staff members, as the contractual partner in receipt of the main performance and liable for payment thereof.
These Terms & Conditions shall apply irrespective of whether the Client concludes the Contract in its own name for its own account, in its own name for the account of another, or in the name of another for the account of another. The Order must be executed via the Client even if it has issued the Order in the name of another. In such case the Client shall be liable neither for its customer’s fulfilment of contract nor for its customer’s credit standing, which it does not verify.
Orders or amendments thereto shall only be binding when concluded in writing.
Should the Contractor’s Terms & Conditions be different, they shall be valid only insofar as the Client has recognised them in writing.
The Order must be confirmed to the Client immediately, in writing, by fax, or by telegraph.
The term “technical EDP development work” shall refer to services by the Contractor that include but are not limited to: database development, HTML and other programming, screen design, etc.
2. Deadlines, delivery dates, fixed date delivery, place of fulfilment
Deadlines and delivery dates, once agreed, shall be binding. Orders involving the design, production or purchase of advertising material, goods and technical EDP development work shall be transactions for delivery by a fixed date (para. 281 and 323 of the German Civil Code, para. 376 of the German Commercial Code).
Should a delay in delivery be expected, the Contractor must give immediate notice thereof.
The Contractor must ship the delivery, at its own cost and risk, to the delivery address given, which shall be the place of fulfilment. In the case of technical EDP development work, com- pleted work must be transmitted free of charge in a machine-readable format, on CD ROM and, as far as possible, by e-mail in a format to be specified by the Client.
3. Scope of Order
The quantity of supplies and services set in the written Order shall be binding. No payment will be made for excess quantities, even if they are due to technical reasons of production. The Client shall own all drafts leading up to the completed work.
In the case of technical EDP development work, the Contractor shall supply all agreed development services as work performances. The Contractor shall have a duty to document, in writing and free of charge, all development work which it has supplied, and to hand over this documentation to the Client when handing over the results of said work. To coordinate the development work to be undertaken by the Contractor, each of the Parties shall appoint a project manager in charge. The project managers shall arrange project manager meetings, at which they shall consult and agree on any questions arising. Should differences of opinion emerge, instructions given by the Client’s project manager shall have precedence. Written minutes must be made of all decisions by the project managers, and these shall be binding on both Parties.
4. Statutory guarantee, supplementary performance
Goods deliveries, work performances and technical EDP development work must successful- ly execute the task required, must correspond to all templates and instructions issued, must fulfil the Order in quantity and content, and reflect the latest state of technology; and they must be of the same technical and artistic level, and be on the same level of advertising, as the work samples which the Contractor submitted prior to issue of order.
The Contractor hereby gives assurance that the results of the services provided, or the goods delivered, under contract shall be free of any third-party rights, in particular of copyrights, trademark rights and moral rights, and that they do not violate current competition law. To this extent the Contractor shall release the Client from all claims by third parties. Should a defect come to light within six months following passing of risk, it shall be presumed that the delivery or service was defective at the time when risk was passed.
The period of grace for statutory supplementary performance shall be so set as to ensure that the Client can give the Order elsewhere and meet subsequent deadlines should such supple- mentary performance fail.
Should the Client in receipt of work performances, upon making inspection, find discrepan- cies from the contractually agreed specifications, it shall inform the Contractor thereof. The Contractor shall then remove these notified discrepancies as quickly as possible and free of charge, and shall submit the corrected version of the resulting work to the Client once again for acceptance. Such acceptance shall be governed mutatis mutandis by the regulations in Sections IV and V.
Should the performance supplied by the Contractor following an attempt at supplementary performance fail to satisfy contractually agreed specifications, the Contractor shall have no further right to supplementary performance.
Insofar as contractual relations between the Parties involve the purchase of goods, statutory regulations shall apply, whereby the period of guarantee shall be 24 months, irrespective of the condition of the goods delivered.
5. Acceptance, notice of defects
Acceptance shall be deemed to have been made if it is not refused within two weeks follow- ing supply or delivery. The acceptance period for technical EDP development work shall be extended to four weeks.
Notice of defects shall be deemed in any case to have been made in due time if they are raised and notified to the Contractor within five working days following discovery of defect in the course of the Client’s business. Payment shall signify no waiver of right to make notification of defects.
Should inspection of the supply or service be satisfactory, the Client shall inform the Con- tractor of its acceptance in writing. Full payment by the Client of an invoice issued by the Contractor following provision of the supply or service shall not be deemed to be acceptance of said supply or service.
6. Refusal of defect-free supply or service, cancellation fee
If the Contractor’s supply or service is free of defects, but does not comply with the Client’s requirements with respect to advertising and/or taste, the Client, in waiver of claim to performance, shall be entitled to pay as a cancellation fee only one third of the agreed fee, but no less than a sum amounting to the Contractor’s external costs as proven.
7. Invoice, price, payment, packing
The invoice must be sent to the Client’s Invoice Receipt Department immediately following delivery.
The agreed price must not be exceeded. Should the Client, following issue of Order, require work — e.g. changes or additions — which will involve additional expenditure on the part of the Contractor, the Contractor shall be entitled to special payment only insofar as it has noti- fied the Client of this claim immediately and in writing or, should the additional expenditure for the work so ordered exceed 5 % of the price agreed therefor, has submitted a proper cost estimate for approval.
Insofar as no other terms and conditions of payment have been agreed, payment shall be within 14 days following receipt of invoice at 2% discount, or within 30 days without deduc- tion.
Costs of packing shall not be reimbursed.
All agreed prices shall be net, i.e. plus statutory VAT.
8. Special Terms & Conditions for photographers and for manufacturers of videos and films
Unless agreed otherwise in writing, the Contractor shall obtain all models and props on its own account and at its own risk.
If filming or photography is impossible because a model, booked by the Contractor in good time, fails to appear at the film or photography session, the Contractor shall pay all additional costs for model’s fees, props and ancillary expenses.
The agreed fee shall be deemed to cover all the Contractor’s performances, including — unless agreed otherwise in writing — all costs of models, props and materials, laboratory costs, travel expenses, and similar expenditure. Insofar as the Client is required to reimburse the Contractor’s external costs as agreed, their amount must be approved by the Client before they are incurred, such approval to be based on a full prior cost estimate prepared by the Contractor.
The Contractor shall waive any signature on such films or photographs and to any right it may have to an authorship credit, but it may be named by the Client.
Upon payment of fee the Client shall acquire ownership of all photographic material (nega- tives, slides, films, intermediate negatives, prints, etc.). Such photographic material must be handed over to the Client along with the invoice, if this has not been done earlier, or, should the Client so wish, must be stored free of charge for the Client from the time when invoice is issued.
The Contractor shall have a duty to ensure that all third parties engaged in the production, and others possessing rights in the result of the production, sign a declaration on transfer of rights of use, as set out in Section IV 2, and to submit this declaration to the Client.
Film material shall be handed over in a format specified by the Client.
9. Rights of use under copyright, including ancillary copyrights
In granting the above rights the intention on the part of the Contractor and Client is to provide the Client and its customers, as thoroughly as possible, with full rights of use in the contractual supplies and services. The Contractor shall therefore transfer to the Client, at the moment of their creation, all transferable rights to its contractual work, such transfer to be unrestricted as to time or substance, worldwide, and for exclusive exploitation, covering all types of use. The Client in particular shall be entitled, at its own discretion, to exploit the Contractor’s contractual work and to supply it to third par- ties in all media, wholly or in part, modified or unmodified, in digital or analogue form, to publish, duplicate, disseminate, broadcast or perform it, and to transfer its rights to third parties, wholly or in part. Such transfer of rights shall include particularly, but not exclusively, the right of duplication, the right of dissemination, rights of exhibition, recital, performance and presentation, right of broadcast (including satellite broadcasts and cable rediffusion), right of public reproduction (including reproduction via sound and picture carriers, via online services and mobile services, the internet or wireless broadcasts) and the right to make revisions.
The above grant of rights shall likewise cover the Client’s right to grant exclusive or non-ex- clusive rights of use in the said work to third parties without the permission of the Contractor, and to transfer rights of use to third parties without the permission of the Contractor.
Should the Contractor employ staff and/or subcontractors in executing the Order, it shall have a duty to acquire their rights of use and to transfer them to the Client. Should the Client so require, the Contractor shall prove to the Client that such staff or subcontractors have granted said rights in due and proper form. The Contractor shall have a duty to ensure that third parties whom he may employ in executing and carrying out the Order waive any right of authorship credit (e.g. para. 13 Clause 2 of the German Copyright Act).
In the case of technical EDP development work, the Contractor shall have a duty, should the Client so require, following completion and transfer of any item of development work, to hand over to the Client all software codes, materials, documentation or other papers pro- duced in connection with said development work. This shall apply in particular to all source and object codes created in connection with an item of development work. The Contractor shall not be entitled to refuse handover by adducing claims, actual or putative, against the Client arising from other commissions.
Payment for transfer of rights of use and for production of detailed documentation shall be contained in the fee as agreed.
Should new types of use emerge subsequent to transfer of rights, and should these new types of use not be covered by the above transfers of rights, the Client shall have the option of acquiring the rights for said types of use for a reasonable additional fee. The Contractor shall only be entitled to make these rights available to others after the Client has declined in writing to purchase the rights which it has been offered.
10. Client’s documents
Drafts, drawings, printing plates, templates, patterns or other documents received by the Contractor shall remain the property of the Client, may only be used to execute the Order, must be stored carefully by the Contractor, and must be returned upon first demand. The Contractor shall have no right of retention in these documents.
11. Illustrations, drafts, reproduction materials, photographic materials
The Client shall acquire ownership of illustrations upon payment of the fee as agreed.
The Contractor must carefully store all unsupplied drafts and all reproduction materi- als which it has created or acquired to execute the Order (e. g. printing components such as printing plates, photographs, matrixes, lithographs, films, tools) until the end of six months following acceptance; it must hand these over to the Client upon demand and, fol- lowing expiry of the storage period, give the Client advance notification of their destruction in good time.
All information and all documents becoming known to the Contractor in connection with the Order must be treated in strict confidence, even after the Order has been concluded, and even if the Order fails to be executed. The Contractor may use copies of its contractual work for its own advertising purposes only with the prior written agreement of the Client.
The Contractor must impose this duty of secrecy upon all its staff, subcontractors, models etc. involved in executing the Order, insofar as this is necessary to guarantee secrecy.
13. Prohibition of transfer
The Contractor’s rights arising from the Order, particularly claims to payment, cannot be transferred.
14. Particular regulations
Should the Contractor supply the Client with other work or services, e.g. web hosting, domain reservation etc., the Parties shall set out their collaboration amicably by way of a separate regulation in the individual case.
15. Concluding regulations
Should any individual regulations be invalid, this shall not affect the validity of the remain- ing regulations. Should any individual clauses be invalid, the Parties shall make every effort to replace the invalid clause by a valid clause which shall approach most nearly to the sense of the invalid clause.
The place of jurisdiction for all disputes between the Client and a Contractor, as far as permit- ted by law, shall be London.
The Law of the United Kingdom shall apply except for the provisions of International Commercial Law ( ICL )