General Terms and Conditions of G-force – Giesdorf Digital GmbH & Co. KG in the field of marketing, communication and digital strategy development
1. Validity and scope of application
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) apply to all consulting, creative and conceptual services and work performed by Giesdorf Digital GmbH & Co. KG, Detmolder Str. 108a, 33604 Bielefeld (hereinafter referred to as “G-force”) provides to its clients (hereinafter referred to as the “Client”) in the field of marketing, communication and digital strategy development. Clients of these services cannot be consumers, but only entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) sentence 1 of the German Civil Code (BGB), so that the GTC apply exclusively to them.
1.2 General terms and conditions of the client or of third parties which contain provisions deviating from these GTC shall not apply and shall not be applicable. Deviations from the terms and conditions listed here shall only be effective if G-force agrees to them in text form in any case.
2. conclusion/amendment of contract
2.1 The order requested by the client constitutes a non-binding offer to G-force. G-force shall submit a binding offer to the client in text form with a cost estimate if G-force decides to provide the respective service. The order quotation shall contain in particular
– Project description/type of project
– Description of the services to be provided by G-force (service description)
– Description of the area of the order
– Deadlines for presentation, completion of agreed services
– Remuneration for G-force (cost estimate); this includes the costs of third parties (subcontractors, vicarious agents).
2.2 By signing the order offer submitted by G-force, the client accepts the offer and places the order with G-force.
2.3 For the remuneration of the order placed by the client, a deviation of up to 10 percent more than stated in the cost estimate is approved in the respective invoice; deviations beyond this require additional approval by the client in text form.
2.4 If, by way of exception, an offer from G-force in text form with a cost estimate is not required for an order to be placed, but a verbal agreement on an order between G-force and the client is sufficient, G-force shall send the client an order confirmation in text form in any case. This order confirmation shall be deemed to be a commercial letter of confirmation. It is binding if the client does not object to G-force in text form within 3 working days.
2.5 The law of the contract for work and services of the German Civil Code (BGB) shall apply to the order placed – insofar as the subject matter of an order is not exclusively or mainly exhausted in consulting services of G-force. This law also governs the warranty for defects including supplementary performance and the regulation on remuneration in the event of termination or premature termination of the order by the client.
3. Briefing, meeting protocols
G-force shall also draw up minutes of verbal briefings and meetings during the performance of the contract and send them to the client without delay. These records shall also be regarded as commercial letters of confirmation and shall also be binding in text form. Agreements contained therein are binding if the client does not object to G-force in text form within 3 working days.
4. Contracting out to third parties
4.1 G-force may use third parties to fulfil the order, particularly in specialist areas. The client shall be informed of this in the order quotation or order confirmation.
4.2 Orders are generally placed with third parties by G-force in the name and on behalf of G-force. In such cases, the client undertakes to indemnify G-force internally against all costs vis-à-vis the third party arising from the conclusion of the contract. Any additional costs arising from the commissioning of third parties must be released by the client in advance.
4.3 Insofar as orders to third parties are exceptionally concluded in the name and for the account of the client, G-force shall obtain the client’s consent to the costs, unless it is a matter of follow-up services of a third party already acting by mutual agreement, where the prices are already known to the client. In such cases, the client shall indemnify G-force internally against all possible claims of the third party and costs incurred in connection with the commissioning of the third party.
5. Consents and approvals
The client undertakes to issue its approvals, releases and instructions in good time and to provide any necessary templates, documents, samples, data and information in advance in time to enable G-force to carry out the work smoothly and on schedule without incurring additional costs or compromising quality. The parties shall set appropriate deadlines for this in the course of placing and executing the order. Any additional costs due to failure to obtain approvals, releases, instructions or deliveries on time shall be paid by the client. The approvals, releases and instructions shall be issued in text form.
6. Deadlines and completion of the work
6.1 The performance dates or deadlines agreed between G-force and the client shall only be binding in those cases in which the binding nature is contractually agreed and the client has granted G-force all approvals, releases and instructions required for the performance of the service in good time or has provided G-force with all templates, documents, samples, data and information required for the performance of the service in good time. If approvals, releases and instructions as well as required templates, documents, samples, data and information are not granted or made available by the client, or are granted or made available late or not in the agreed manner, this shall extend the performance deadlines by the time until the approvals, releases and instructions as well as required templates, documents, samples, data and information have been granted or made available by the client in the agreed manner.
6.2 If a bindingly agreed performance date is exceeded, the client shall be entitled and obliged to set G-force a reasonable period of grace. The client may only withdraw from the contract after the unsuccessful expiry of this period of grace. Claims for damages due to delayed performance or non-performance shall also be excluded in this case, insofar as G-force is not responsible for the delay or non-performance.
6.3 In cases where G-force uses third parties to fulfil the order, the date of performance is subject to the condition that G-force itself is supplied in good time.
6.4 If G-force is in default of performance for reasons for which G-force is not responsible (e.g. force majeure, natural disasters, industrial disputes, fault of third parties or similar), the deadline shall be extended appropriately by at least the duration of the disruption. The client shall be informed of the occurrence of the disruption in a timely manner. If the causes of the delay last longer than one month after conclusion of the contract, either party shall be entitled to withdraw from the contract.
6.5 In the event of termination of the contract by the customer in accordance with § 648 of the German Civil Code (BGB) prior to completion of the contract, G-force shall have any expenses saved and any other income offset against the agreed remuneration, up to a maximum of 40 percent of this remuneration in total.
6.6 Acceptance may not be refused on creative-artistic reasons. There is freedom of design within the scope of the order.
6.7 Acceptance shall take place within 10 working days. If no declaration of acceptance is received after the expiry of 10 working days, the work performances shall be deemed to have been accepted and shall be invoiced.
7. Payment, term of payment
7.1 The payment agreed between the parties shall be due for payment after completion of an order and issue of the invoice by G-force. G-force’s invoices shall be deemed to be a due date notice within the meaning of Section 286 (3) of the German Civil Code (BGB). In the case of larger orders or those extending over a longer period, G-force shall be entitled to issue interim invoices or to call for payments on account.
7.2 Payment shall be based on G-force’s price list, which shall be adjusted at reasonable intervals to reflect the market situation. If the order offer or order confirmation does not contain a remuneration regulation, remuneration shall be based on the time spent in accordance with G-force’s currently valid price list.
7.3 If media services (media placement) are included in the order, G-force shall invoice the costs for the placement volume to the client in due time so that all achievable prepayment discounts can be exhausted. The discounts shall be passed on in full to the client if the advance payment is made on time. All payments by the client shall be made exclusively to G-force, not to the respective media.
7.4 All invoices issued by G-force shall be subject to the addition of the applicable statutory rate of value added tax.
7.5 Shipping and copying costs, GEMA fees, KSV levies etc. shall be reimbursed by the client upon receipt.
7.6 In the event of default in payment by the client, G-force shall charge interest on arrears in accordance with Section 288 (2) BGB. The assertion of higher damages remains unaffected by this, as does the client’s right to prove a lower charge in individual cases.
7.7 If the Client decides to change the original subject matter of the order after conclusion of the contract, this shall be recorded in a separate supplementary agreement between the parties. Additional services, expenses and costs caused by this shall be remunerated separately by the Client in accordance with the supplementary agreement. If the Client wishes to make changes after completion of the order, he shall also bear the additional costs.
8. Copyright and rights of use
8.1 As a matter of principle, G-force shall be entitled to all copyright and other rights of use and exploitation in the works created and services rendered by G-force. G-force shall fulfil its contractual obligations by granting the client a comprehensive right to the works created and all work results that may be the subject of related property rights, the scope of which shall be defined by the respective individual project order and the related agreements in the individual case. The Client shall be entitled to transfer the granted right in whole or in part to subsidiaries or affiliated companies within a group of companies. Any use going beyond the above provision shall require the separate consent of G-force.
8.2 If G-force uses third parties to fulfil the contract, it shall acquire the rights of use and exploitation to their services to the extent of the above provision 8.1 for the client at the client’s expense and transfer them to the client accordingly. If in individual cases these rights are not available to this extent or their acquisition is only possible at disproportionately high cost, G-force shall inform the customer of this and proceed in accordance with the customer’s instructions. Any additional costs incurred as a result shall be paid by the client.
8.3 G-force is entitled – even if a comprehensive right is granted to the client – to use the works and work results free of charge as part of its own advertising, even after the end of the contract, in all media including the internet and as part of competitions and presentations, as well as naming the client.
8.4 If G-force creates electronic programmes or parts of programmes as part of its contractual services, the respective source code and the corresponding documentation shall not be the subject of the granting of rights to the client.
8.5 The granting of rights to the client does not apply to services provided by G-force (concepts, drafts, final artwork, etc.) that have been rejected by the client, abandoned or not used within 6 months of handover. These rights of use and exploitation shall remain with G-force.
8.6 The rights of use and exploitation referred to in clause 8.1 above shall be satisfied by payment of the fee agreed in this contract in accordance with clause 8.1 above. The extension of use beyond the end of the use of the advertising material specified in this contract and/or beyond the contract territory and/or use in media/advertising media other than those specified in the order shall be agreed separately between the parties. For this purpose, G-force shall receive from the customer a usage fee to be agreed independently of clause 7. Insofar as the rights of third parties used by G-force to fulfil the contract are affected by the extension of use, the provision in 8.2 shall apply accordingly.
8.7 Any negotiation of buy-outs by G-force for the client for the use of third party work results shall also be agreed separately between G-force and the client. For this G-force shall receive a commission fee from the client to be agreed independently of point 7.
9. Property rights and retention of title
9.1 Only rights of use are granted for concepts, drafts and final artwork, but ownership rights are not transferred. The originals or corresponding original files must therefore be returned undamaged to G-force as soon as the client no longer urgently requires them for the exercise of rights of use, unless expressly agreed otherwise. In the event of damage or loss, the client must reimburse the costs necessary to restore the originals or corresponding original files. This shall not affect the right to claim further damages. The Client shall only be entitled to retain copies within the scope of its statutory retention obligations.
9.2 If G-force produces items (e.g. advertising materials or other products) for the client on the basis of its concepts, designs and final artwork on the client’s instructions, these items shall remain the property of G-force until all claims to which G-force is entitled against the client under the contract have been settled in full.
9.3 In the event of breach of contract by the client, in particular default in payment, G-force shall be entitled to demand the return of the goods subject to retention of title at any time at the expense of the client or to take them back or to demand assignment of the client’s claims for return against third parties. The client must provide all necessary information in this regard without delay upon G-force’s request.
10.1 G-force shall treat as strictly confidential all templates, documents, samples, data and information of which it becomes aware in the course of its cooperation with the client and which are not intended for disclosure to third parties. It shall impose the same obligation of confidentiality on employees and third parties who receive such templates, documents, samples, data and information for the performance of work under this contract.
10.2 In the same way, the client shall treat as strictly confidential information, documents and data received from G-force, as well as ideas, concepts, images, texts and designs presented to it by G-force.
10.3 The protection of the above-mentioned business secrets of the respective contractual partner shall apply beyond the duration of this contract.
11. Retention, archiving and release of data and documents
11.1 Insofar as G-force is subject to a statutory retention obligation (e.g. the retention period for documents and records relevant under tax or fiscal law in accordance with Section 257 of the German Commercial Code (HGB) and Section 147 of the German Fiscal Code (AO)), G-force will retain the relevant documents and records or store corresponding data for the prescribed period in order to fulfil the statutory obligation. After expiry of the respective retention periods, G-force may destroy the documents and records or delete the corresponding data. G-force may destroy or delete all work materials and results not covered by a statutory retention period, which G-force creates or has created in order to provide the service owed under the contract, at the end of the contract or termination of the cooperation.
11.2 G-force can immediately delete or destroy documents and records that are no longer required or data on measures that have not been implemented.
11.3 If G-force has been commissioned to archive digital data against payment, this data shall be archived by G-force and surrendered at the request of the client at any time during the term of the contract, otherwise at the end of the contract. The data shall be released by handing over a standard data carrier containing the data and in such a way that it can be processed by the client or his agent for the purpose of updating the communication measure embodied in the data (e.g. change of addresses, telephone numbers, price details). The client shall have no claim to the surrender of the source code and the corresponding documentation; this shall remain with G-force.
11.4 G-force must retain templates, documents, samples and data that the client has provided to G-force in accordance with section 5 for the purpose of fulfilling the contractual management until the end of the contract or until the end of the cooperation. After the end of the contract, the client’s templates, documents, samples and data shall be returned to him at his request, otherwise they shall be destroyed.
12.1 G-force undertakes to execute each order with the greatest possible care, and in particular to treat any templates, documents, samples etc. provided with care.
12.2 The customer’s claims against G-force in the event of defects shall be governed by the statutory provisions unless otherwise stipulated below in clause 12.3.
12.3 If G-force’s performance under the contract consists of the manufacture of products in the sense of a work (Section 631 of the German Civil Code), the following provisions shall apply:
12.3.1 The quality of the contractually agreed service is exclusively determined by the specific contractual agreement with regard to the properties and characteristics.
12.3.2 The unconditional acceptance of the service by the client shall lead to an exclusion of the client’s rights in respect of defects, provided that the defects were recognisable to the client at the time of acceptance. If the defects were not recognisable to the client at the time of acceptance, the client must inform G-force of the defects immediately after they become recognisable; otherwise its warranty rights are excluded. Defects shall be notified by means of a comprehensible description of the symptoms of the defect, as far as possible evidenced by written records or other documents illustrating the defects.
12.3.3 If the notice of defect proves to be unjustified and the customer could have recognised this, the customer shall be obliged to compensate G-force for all damages incurred in this connection.
12.3.4 Justified defects shall be rectified by G-force at its own discretion free of charge or a defect-free service shall be provided as a substitute (“subsequent performance”). The customer shall set G-force a deadline for this, granting a reasonable period of time. Should this first deadline expire unsuccessfully, the client shall set a further reasonable period of additional time.
12.3.5 Should subsequent performance fail, be unreasonable for the client or have been refused by G-force, the client shall have the option, in accordance with the statutory provisions, to withdraw from the contract, reduce the payment and/or demand compensation for damages or reimbursement for futile expenditure in accordance with clause 13.1.
12.3.6 Claims for material defects do not exist in the case of an insignificant deviation from the agreed or assumed quality and in the case of only insignificant impairment of the usability or functionality. Product descriptions do not constitute a guarantee without a separate agreement.
12.3.7 Modifications or extensions to the delivered work made by the Client himself or by third parties shall render the Client’s warranty claims null and void, unless the Client proves that the modification or extension is not the cause of the defect.
12.3.8 G-force may refuse subsequent performance until the client has paid G-force the agreed remuneration, less a portion corresponding to the economic significance of the defect.
12.3.9 Warranty claims shall expire one year after notification of the defect.
12.4 For orders placed with third parties on behalf of and for the account of the client, G-force shall not assume any warranty or liability vis-à-vis the client, insofar as G-force is not at fault for the selection. In these cases G-force acts only as an intermediary.
12.5 Insofar as G-force itself is the client of subcontractors for an order in the name and for the account of G-force, G-force hereby assigns to the client all warranty claims, claims for damages and other claims arising from faulty, delayed or non-performance to which it is entitled. The client undertakes to first attempt to enforce the assigned claims before making a claim against G-force.
13.1 G-force shall be liable to the client within the scope of the order for the due care of a prudent businessman. The liability of G-force and its representatives and vicarious agents for slightly negligent breaches of duty is excluded with the exception of the breach of essential contractual obligations (so-called cardinal obligations), of life, body or health and of guarantees and the Product Liability Act.
13.2 Insofar as G-force, its representatives and subcontractors are liable in accordance with the above provision, liability shall be limited to compensation for the damage that is foreseeable and typical for the type of performance.
13.3 The tasks of G-force do not include the examination of legal issues, in particular from the area of copyright, competition and trademark law. G-force shall, however, inform the client in due time of any legal risks of the content or design of the advertising measures commissioned which are recognisable to G-force. If the client nevertheless insists on the implementation of the advertising measure, G-force shall not be liable for any resulting disadvantages and risks. In this respect, the client shall indemnify G-force against all claims by third parties upon first request.
13.4 The client’s claims for damages shall become statute-barred after one year. The limitation period shall start to run when the respective claim for damages arises and the client has knowledge or grossly negligent ignorance of the grounds for the claim and the person of the infringer; irrespective of this, the claim shall become time-barred three years after the breaching act.
13.5 By placing the order, the client declares that the templates, documents, samples, etc. provided by him to G-force for the execution of the order are free of third-party rights or that he has been granted all unrestricted rights of use for these by the respective rights holder. In this respect, the client must clarify all rights for the templates, documents, samples etc. provided to G-force for the execution of the order before placing the order. This applies in particular to logos, designs and other files intended for the respective order. If, contrary to this assurance, the client is not entitled to use them, the client shall indemnify G-force against all third-party claims in this respect on first demand.
14. Concluding provisions
14.1 Unless otherwise stated in the contract or the order confirmation, the place of performance and jurisdiction shall be the registered office of G-force. This shall also apply in the event that the client relocates his registered office or usual place of residence outside Germany after conclusion of the contract or if his registered office or usual place of residence is unknown at the time the action is brought. The law of the Federal Republic of Germany shall apply exclusively. The application of the UN Convention on Contracts for the International Sale of Goods and German international private law is excluded.
14.2 The German language version of the General Terms and Conditions shall be authoritative for the rights and obligations arising from these General Terms and Conditions as well as for the interpretation thereof.
14.3 The non-validity of one of the above terms and conditions shall not affect the validity of the remaining terms and conditions.