General Terms and Conditions of Venividi GmbH
I. Subject and scope
These general terms and conditions (hereinafter “GTC”) apply, unless otherwise agreed, to all deliveries and services provided by Venividi GmbH to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law, in particular for services or works in the areas of advertising, Communication, digital, social media, influencer placement, content marketing, editorial, production, PR and strategic and political consulting.
These General Terms and Conditions also apply to all future business relationships between the agency and the commissioning company, without the need for express inclusion again.
Terms and conditions of the commissioning company are hereby rejected. They only apply if the agency expressly agrees to their validity in writing.
II. Presentations and pitches
If the agency presents drafts, concepts or designs to the commissioning company prior to a corresponding commissioning on its own initiative or as part of pitches, presentations or comparable formats (hereinafter referred to as “presentations”), this serves solely to initiate business.
Any reproduction and distribution of such presentations requires the consent of the agency. The agency does not transfer ownership of documents, samples, etc. handed out as part of presentations to the commissioning company and does not grant it any rights of use to the protectable content contained or embodied in the presentation (e.g. works, brands, designs). The commissioning company will not use the drafts, concepts and designs presented in presentations as a basis for producing its own material without the agency's consent and will not pass them on to third parties. If the commissioning company decides against commissioning the agency or does not commission the agency within three months at the latest, it will delete all copies of the presentations in its possession at the agency's request.
III. Offers and commissioning
At the request of the commissioning company, the agency will provide the commissioning company with a cost estimate or an offer, which shows the services to be provided by the agency, the remuneration and the other conditions of the assignment (hereinafter referred to as “cost estimate”). If the agency's remuneration shown in the cost estimate is calculated based on time spent and unless otherwise stated, this is a non-binding estimate of the expected effort.
The commissioning company instructs the agency to release the cost estimate within the period specified therein, or, in the absence of such, within one week of receipt.
IV. Agency services
The agency provides its services during its normal business hours. For services that the agency provides in consultation with the commissioning company outside of normal business hours, it receives a surcharge of 10% of the remuneration agreed for the corresponding services.
The agency provides the contractual services in compliance with the generally recognized principles of agency business with the usual care.
The examination of legal questions, in particular the implementation of license plate searches, their evaluation, an examination of possible collisions with pre-existing industrial property rights (e.g. trademarks, designs or utility models) as well as competition law (e.g. advertising comparisons, top position advertising, special advertising restrictions) and copyright law or data protection review is not part of the agency's services. The commissioning company decides independently whether to carry out appropriate legal examinations and carries them out at its own expense. However, the agency will inform the commissioning company of any legal risks it can identify with the content or design of planned advertising measures. In this case, the commissioning company decides (if necessary after checking) whether the advertising measure should still be carried out or changed.
If the subject of the agency's service is the development of trademarks (brands, logos, company symbols, slogans, etc.), the agency guarantees that at the time of presentation of the first draft it is not aware of any third-party rights with effect for the territory of the Federal Republic of Germany, which would be clearly violated by the agency through the use of the developed trademarks in commercial transactions. The agency is not responsible for the ability to protect and/or register the license plates developed. It is the responsibility of the commissioning company to carry out a license plate search in the area affected by the use at the latest before the start of use, so that possible collisions and legal violations can be identified and, if necessary, avoided before the start of use.
If agency services include correction loops, the following applies: Correction loops enable changes to agency services provided in accordance with the contract, which are transmitted by the agency to the commissioning company as final work or interim results. The subject of correction loops are generally requests for changes that represent an optimization or fine-tuning of agency services that have not already been approved. Changes to the commissioned services in the sense of an order change or extension (see section V.5) are not possible within the framework of correction loops. Correction loops included in the remuneration are specified in the respective individual order. If no specification is made in the respective individual order, included correction loops will only be compensated with the agreed remuneration up to the equivalent value of a total of 5% of the agency fee estimated for the overall service. Any additional effort must be reimbursed in accordance with the agency's hourly rates applicable at the time of the assignment.
V. Order processing
Delivery dates or deadlines are only binding if they are expressly marked or confirmed as binding by the parties in writing, otherwise they are considered target dates. After reaching a target date, the commissioning company can request the agency in writing to provide the outstanding services, setting a reasonable deadline; When this period expires, the commissioning company's claim to the service becomes due.
After the order has been placed, the initial determination, shortening or bringing forward of delivery times and dates requires the approval of the agency. The agency can make its consent dependent in particular on the payment of an appropriate surcharge on top of the agreed remuneration of up to 100% for the service affected by the setting or shortening of the deadline.
The parties will cancel appointments (meetings, etc.) with at least 3 working days’ notice. If the commissioning company does not meet this deadline, the agency is entitled to charge 25% of the remuneration estimated for this date. The parties will cancel production dates with at least 10 working days' notice. If the commissioning company does not meet this deadline, the agency is entitled to charge 50% of the remuneration estimated for this production date. If cancellation is made 5 or fewer working days in advance, the entire remuneration estimated for this production date will be due. The commissioning company and the agency reserve the right to prove that the actual damage suffered by the agency as a result of the cancellation was lower or higher. In this case, the agency can demand compensation for the lower or higher proven damage. The agency's claims in accordance with Section VII.4 remain unaffected by the provisions of this paragraph.
Meeting minutes that the agency creates and sends to the commissioning company become binding in terms of their content if the commissioning company confirms them in text form (e.g. email) or does not object to them in the same form within five working days of receipt.
Subsequent requests for changes to commissioned services (hereinafter referred to as “change requests”) must be communicated to the agency by the commissioning company as early as possible and in sufficient detail. They will only become effective with the express confirmation of the agency. If, due to a change request, the originally ordered service cannot be carried out or can only be partially carried out, the agency will inform the commissioning company of this and agree with them whether the provision of the service should be suspended until the change request has been clarified or the original provision of the service should be continued. Dates and deadlines are postponed or extended by the period of suspension. If the change request results in additional costs, the agency will inform the commissioning company of this. The commissioning company then decides whether the change request should be carried out against payment of the additional costs or whether the original service content should remain.
Drafts, templates, files and other work materials such as negatives, models, original illustrations, etc., which the agency creates or has created in order to provide the service owed under the contract remain the property of the agency. There is no obligation to hand it over.
If technical know-how such as programming, structure and functionality of programs and software, as well as the linking of programs, data, databases and systems, including the source code, is developed as part of the fulfillment of this contract, a claim to the release of the source code only exists if this expressly agreed or necessary to exercise the usage rights granted to the commissioning company. If the release of the source code is required and the software contains standard third-party software or other software that is subject to license restrictions, the source code will be released taking such license restrictions into account.
The agency is authorized to use or integrate open source software or components when creating software. You must inform the commissioning company of this, stating the open source components used. The use of open source components that are under a license that would cause a so-called copy-left effect is only permitted with the express consent of the commissioning company.
VI. Cooperation of the commissioning company
1. The commissioning company will support the agency to an appropriate extent in providing its services and, in particular, will provide it with information and data material in a timely manner and will grant releases or approvals in a timely manner so that the agency's work processes and the implementation of the order are not impaired. If the agency cannot provide the services or can only provide them with additional expenses due to a lack of or inadequate cooperation or provision, it is entitled to claim necessary additional expenses approved by the commissioning company from the commissioning company. Dates and deadlines will be postponed by the delay caused by the commissioning company plus a reasonable start-up time of at least three working days.
The commissioning company informs the agency, without being asked, of any special restrictions that apply to the commissioning company or its industry (e.g. legal advertising bans or restrictions) or requirements for advertising measures that must be observed (e.g. consumer information according to the PKW-EnVKV, food information regulation). and provides the agency with the information and documents necessary to meet such requirements in a timely manner.
The commissioning company ensures that materials or content provided or suggested to the agency (e.g. brand logos, texts, images) are free of third-party rights and their use does not violate applicable law. If claims are made against the agency by third parties due to such content, the commissioning company will release the agency from these claims (including the necessary legal costs) upon first request.
The commissioning company will back up data and programs before handing them over to the agency in order to enable restoration in the event of data loss.
VII. Compensation and payment conditions
Unless otherwise agreed, the agency receives compensation based on time spent based on the agency's hourly rates applicable at the time of the assignment. The agency regularly concludes individual contracts for agency services in the area of the development of brands, company symbols, brand claims or comparable symbols for comprehensive use in the corporate communications of the commissioning company only for separate remuneration for the use of the work results, the amount of which depends on the scope of the commissioning company desired usage rights.
Exceeding the effort shown in approved cost estimates by up to 10% is subject to the approval of the commissioning company.
After the service has been fully provided and before that, at the end of each month, the agency is entitled to invoice (partial) services provided based on time spent or project progress.
GEMA fees, artists' social security contributions, customs costs and similar costs must be borne by the commissioning company and will be passed on in the event of payment by the agency, even if they are only charged subsequently. Expenses and additional costs, such as travel expenses, accommodation costs, couriers, etc., must be reimbursed separately upon proof. Travel times are billed at 50%. If the commissioning company terminates an order before the service has been fully provided without an important reason, the agency is entitled to demand the agreed remuneration. However, she must be credited for any expenses she saves as a result of completing the order or what she acquires or maliciously fails to acquire through other use of her labor. It is assumed that the agency is then entitled to 60% of the agreed remuneration for the part of its services that has not yet been provided. All remuneration and expenses of the agency are exclusive of VAT at the applicable statutory rate. Remuneration and expenses are payable 10 days after invoicing, advance invoices are payable immediately. The assertion of retention rights and offsetting against counterclaims is only permitted due to claims or counterclaims arising from the same contractual relationship or with claims or counterclaims recognized by the agency or legally established.
VIII. Subcontractors and third-party services
Subcontractors. The agency is entitled to carry out the work assigned to it itself or to commission subcontractors to do so.
External services:
2.1. The agency is also entitled to commission third-party services. Third-party services are services provided by third parties who are clearly not intended to act as vicarious agents of the agency for the commissioning company (regularly, for example, film productions, photo shoots, delivery of stock photos, testimonials, influencers, actors and models, production of advertising material, printing, proofreading, translations, market research, legal advice and trade fair construction).
2.2. Third-party services are always recognizable as such for the commissioning company if the agency shows them separately as part of a cost estimate or if the commissioning company can recognize the nature of the third-party service based on its own expertise.
2.3. If the agency takes over the processing of contracts for third-party services as part of its activities (e.g. selection, obtaining offers, negotiations, coordination, invoice or payment processing), it receives additional compensation based on the time spent in accordance with Section VII.1
2.4. The agency will obtain the consent of the commissioning company to commission external services. Separate approval is not required if the costs, the essential conditions of the assignment and the names of the third parties are already stated in the cost estimate approved by the commissioning company, especially if third-party offers are already attached to the cost estimate. Furthermore, it is not necessary if the order is not expected to exceed the net amount of EUR 10,000.00 or if it involves follow-up services from suppliers who have already agreed to work.
2.5. The client of third-party services is the commissioning company. Under the conditions of Section VIII.2.4, the agency is authorized to commission the third-party services in the name and on behalf of the commissioning company.
2.6. If, in deviation from Section VIII.2.5, the agency commissions third parties in its own name and on its own account, this is done at the expense and risk of the commissioning company. In this case, the regulations on business management (§§ 675 ff. BGB including the corresponding reference to the regulations of contract law) apply. In particular, the agency is entitled to demand an advance payment and, without prejudice to its own remuneration claims (see section VIII.2.3), to pass on any remuneration paid or incurred by third parties plus a risk surcharge of 5%. Claims by the commissioning company due to defects in third-party services are limited in content and scope to the rights to which the agency is entitled vis-à-vis third parties.
IX. Rights of use, retention of rights and title
1. Rights of use
1.1. Unless otherwise agreed, the agency grants the commissioning company, upon full payment of the remuneration owed for the respective order, all copyright usage rights necessary for the use of the work results owed by it (in the sense of agency services) to the extent necessary to achieve the contractual purpose assumed by the parties. In case of doubt, the agency fulfills its obligation by granting simple usage rights for the territory of the Federal Republic of Germany and the planned duration of use of the work results. Any use beyond this, in particular processing and changes, requires the agency's prior written consent. The same applies to the transfer of usage rights from the commissioning company to third parties and the
Granting of sublicenses.
1.2. If the agency uses subcontractors to fulfill the contract, it will acquire usage rights from them to the agreed extent and transfer or have them transferred to the commissioning company.
1.3. When commissioning third-party services (see Section VIII.2), the rights of use are based on the agreement between the commissioning company and the third party. If the agency commissions third-party services, it will agree on usage rights to the same extent as for its agency services. If this is not possible or only possible with disproportionately high economic effort, the agency will inform the commissioning company of this and coordinate with them about possible alternatives (e.g. commissioning other service providers, acquiring limited rights of use, etc.). A corresponding reference to restrictions on the rights of use in the cost estimate from the agency or the third party is sufficient.
1.4. If, in deviation from Section VIII.2.5, the agency exceptionally commissions third-party services in its own name and on its own account, sentences 2 ff. of Section IX.1.3 above apply mutatis mutandis with the proviso that the agency acquires the usage rights from the third parties at its discretion and grants the commissioning company to the agreed extent or has the rights granted directly to the commissioning company.
1.5. The agency will not use work results delivered to the commissioning company (subject to Section IX.2.2) in the same or only slightly modified form for other clients.
2. Retention of rights and title
2.1. The granting of usage rights by the agency is subject to the suspensive condition that the commissioning company pays the full remuneration owed for the order. Until payment has been made in full, the use of work results that have already been delivered is only permitted to be revoked at any time to the extent specified in Section IX.1.1. The permission expires if the commissioning company defaults and does not pay even after a reasonable grace period has expired.
2.2. Rights of use for agency services (ideas, drafts, etc.) rejected by the commissioning company or not approved for execution remain with the agency and can be used freely by the agency.
2.3. Until the remuneration owed for the order has been paid in full, the agency reserves ownership of all work results from the respective order handed over to the commissioning company.
3. Reference advertising
3.1. The agency is entitled to publish the commission and, in a factually accurate manner, as part of its own advertising, the work results, the name and brands of the commissioning company free of charge in all media (including the Internet and social media channels (e.g. Instagram, Facebook, YouTube )) as well as in competitions and presentations, even after the end of the contract.
3.2. Reference advertising is excluded if it conflicts with obvious legitimate interests of the commissioning company. The commissioning company also has the opportunity to object to self-promotion in writing with future effect, provided this is justified taking into account the interests of both parties. In this case, the agency will remove the reference advertising within a reasonable period of time. Physical media that has already been created (particularly print material) may be used up.
XI. Liability
The agency is fully liable in accordance with the statutory provisions for claims for damages by the commissioning company due to a) injury to body, life or health, b) a grossly negligent or intentional breach of duty by the agency, its legal representatives or vicarious agents, c) violation of a contractual obligation Guarantee d) fraudulently concealed defects, e) according to the Product Liability Act or f) according to §§ 44, 44a TKG.
In all cases not covered by Section . Cardinal obligations are those whose fulfillment characterizes the contract, enables the proper execution of the contract in the first place and on whose compliance the commissioning company can regularly rely. In this case, liability is limited to damage that is typical for the contract and is foreseeable. Furthermore, the agency is not liable for damage caused easily or simply through negligence.
To the extent that the agency is liable in accordance with Section XI.2 above, the amount of liability is limited to EUR 250,000.00. If there is a risk of greater damage, the commissioning company will inform the agency of this so that the parties can adjust the limit and the agency can insure itself against such damage.
The agency's liability is excluded if and to the extent that the agency has informed the commissioning company of concerns in accordance with Section IV.3 and the commissioning company decides against changing the relevant contractual services despite the information. In these cases, the commissioning company releases the agency from third-party claims upon first request. This also includes the necessary legal costs.
XII. Confidentiality
The parties hereby mutually undertake to keep secret all information and documents from the other party that are accessible or transmitted to them in connection with the conclusion of the contract and which are marked as confidential or, based on the other circumstances, recognizable as business or trade secrets of the respective contracting party - unless necessary to achieve the purpose of the contract - not to record, store, pass on, exploit or make accessible to unauthorized persons. A disclosure by the agency or others with this i. Companies affiliated with Section 15 et seq. AktG are always permitted provided that they undertake to maintain confidentiality in accordance with this regulation.
If the parties have concluded a separate agreement regarding confidential information, their provisions apply exclusively.
XIII. Data protection
The parties will observe the legal regulations on data protection, in particular the regulations of the GDPR and the BDSG-new, and require their employees accordingly.
If personal data is transferred or processed to carry out the contractual services, the parties conclude a separate order processing agreement (AVV).
XIV. Final provisions
The place of performance for services and payment as well as the place of jurisdiction for all disputes between the contracting parties is the agency's headquarters.
The law of the Federal Republic of Germany applies, excluding the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).