General terms and conditions of ecomeda - media agency

Strategic marketing, visual communication, photography and video productions, web design and TYPO3 content management systems.

§ 1 Extent of the contract

(1) The subject of the contract is the declared, and within the offer specified, creative activity, respectively the advisory activity, yet not the achievement of a specific economic success.
(2) Data, which is provided by the client or by others, will not be tested on plausibility.
(3) Unless otherwise agreed, we may avail ourselves of expert sub-contractors for the execution of order.

§ 2 Modifications in the scope of services

(1) Modifications and amendments of the contract must be in written form. Meeting minutes may be eligible if they are signed by the parties to the contract or their representatives.
(2) We invoice an appropriate payment for all additional services commissioned by the client.
(3) In the case of involvement of sub-contractor?s services, we reserve the right to pass on increases of price to our clients.
(4) We are authorized to process data, which has been left to us in line with the purpose of the order, considering data privacy.

§ 3 The client's duty to co-operate

(1) The client is obliged to play an active part and to set the stages for the proper execution of order. The client is particularly obliged to provide all necessary or significant information, material or documents which are vital for the order execution. These have to be provided in due time.
(2) If the client does not meet his obligations given in paragraph 1, he will be liable for all resulting loss or damages.
(3) On our demand, the client has to confirm the accuracy and completeness of the provided documents as well as the given information and oral statements in writing. Furthermore, he has to give print approvals and correction approvals on our demand.
(4) The client authorizes us to make contracts with third persons in the name and for the account of the client if services of sub-contractors are necessary. The invoice then comes off with the parties of contract directly, that is the client and the third person.

§ 4 Accomplishment and default

(1) We are authorized to fulfill our obligations in partial performances.
(2) In the case of default, our claims for damages act in accordance with §8 (liability exclusion).
(3) In the case of a culpable exceedance of an appointed performance deadline, default is given not until an adequate respite.

§ 5 Terms of payment

(1) Payment for our services is either calculated by the expended time (time-based) or as a fixed price. Unless otherwise agreed, the contractor has next to the claims for fees a demand for compensation of expenses. Details of payment are regulated in the contract.
(2) In case of time-based payment, we are authorized make out invoices in regular intervals and according to the by then achieved services.
(3) We are authorized to invoice adequate advancements in individual cases.
(4) As far as invoices are made out by expenses at long-term contracts, the respective current price lists are valid. If these will exceed the commercially available prices after a change in prices in a considerable extend, the client is authorized to terminate the contract.
(5) All accounts are due with the invoice and have to be paid as specified in the invoice. All prices are net cash, that is plus value added tax.
(6) In the event of default, we are authorized to invoice default interests in the amount of 3 % above the respective discount rate of the German Deutsche Bundesbank. The assertion of further claims will be reserved.
(7) In case of returning of a direct debit we will raise an extra fee of 30 ? in addition to the incurred banking fees. The client is free to submit proof for a minor damage.   
(8) If the client is behind his payment more than two weeks, we are authorized to withdraw from all current or prospective contracts with the client.
(9) In the case of more than one ordering party, all clients are jointly liable.
(10) A setoff against our account is only valid with the proof of indefeasibility or legal ascertainment of the client?s account.

§ 6 Warranty for defects

(1) Liability for defects or consequential damage, which might be effected by our services, is only given in accordance with § 8 (disclaimer).
(2) In the case of legitimate notice of defect, we are authorized to mend our services at first.
(3) The client has to name any assumed defects in written form and without any delay, yet within three weeks after service provision at the latest.
(4) If subsequent improvements fail, the client is authorized to claim a reduction in payment respectively a cancelation of the contract. Further claims for damages are solely in accordance with § 8 (disclaimer).

§ 7 Specification sheets

All technical outlines and drafts, measurements, performance data, engineer standards or other descriptive information, found in brochures, advertising folders, data sheets, drawings or equivalent print works, are non-binding if they are not explicitly warranted by the contractor.

§ 8 Disclaimer
(1) In the case of breach of contract or obligations beyond the contract,
with particular regard to:

Infeasibility

Default

Default with contract conclusion

Illegitimate actions

ecomeda is only liable for its own business and auxiliary persons in the cases of willful intent and gross negligence.
(2) Liability according to paragraph 1 is restricted to foreseeable damages which are typical for this type of contract.  
(3) The disclaimer in accordance to paragraph 1 is invalid in the case of culpable offenses against integral contractual obligations. Moreover it does not apply if warranted elements are not provided and in the case of compulsive liability according to the Product Liability Act.
(4) As far as we pass on services from sub-contractors to our clients, we are not liable for their default.

§ 9 Protection of literary property

(1) The client has to ensure that all photographs, graphics, layouts, reports, organization charts, drafts and drawings, which have been created in line with the project, are solely used for contractual purposes.
(2) As far as work results can be copyrighted, we remain the copyright owner. In these cases, and unless there aren?t any exceptional declarations in the contract, the client will obtain the sole usage rights for the work results, which are only constricted by paragraph 1, but temporally and locally unrestricted, irrevocable, exclusive and nontransferable.


§ 10 Obligation to co-operate

The contracting parties are obliged to mutual loyalty. They shall immediately communicate all project-related information, which might have an impact on its further development.


§ 11 Force majeure clause

Damages by external forces, which affect the client?s or the contractor?s performances in a severe way or even lead to infeasibility, authorized the respective party to defer the fulfillment of the performance for the duration of the disablement or interference and an additional, appropriate period for the restart.
Industrial actions or similar events rank equal with force majeure if they are unforeseeable, severe and through no fault of one?s own. In this case, the parties of contract are obliged to convey the occurrence of such an event promptly.


§ 12 Notice of cancelation

(1) If not otherwise agreed, the assignment can be terminated to the end of each single milestone listed in the project schedule if the total account is made up out of partial statements with fixed prices. The right of extraordinary dismissal will remain unaffected.
(2) The notice of cancelation has to be in written form.

§ 13 Right of retention

(1) By the time of complete payment, we retain a right of retention for all provided documents and materials.
(2) With completed operations and compensation of all claims out of the contract, we will hand back all documents and materials which had been provided by the client or third parties for the execution of order.
This does not apply for the correspondence between the contract parties and for simple transcriptions, respectively copies of photography, graphics, layouts, reports, organization charts, drafts and drawings etc., as far as the clients has received the original documents.

(3) Our obligation to preserve records expires 6 month after a request in written form and provision for collection. Irrespective of this case, the obligation will expire 3 years after contractual relationship and, in accordance to paragraph 1, 5 years after contractual relationship.

§ 14 Miscellaneous

(1) Rights, which arise from the contract, may only be subrogated by the client with written agreement.
(2) The place of jurisdiction is Marburg.
(3) The legal relationship of the parties of contract is determined by the law of the Federal Republic of Germany.

§ 15 Severance clause

If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this agreement.