GENERAL CONTRACTUAL PRINCIPLES COMMUNICATION DESIGN
Status 2016
1. General
1.1 The following AVG apply exclusively to all contracts for communication design services between the communication designer and the client. They also apply if the client uses general terms and conditions and these contain conditions that conflict with or deviate from the AVG listed here.
1.2 The AVG of the communication designer also apply if the communication designer carries out the order without reservation in the knowledge of conflicting or deviating conditions of the client.
1.3 Deviations from the conditions listed here are only valid if the communication designer expressly agrees to them in writing.
2. Subject of the contract
The subject of the contract is based on the individual agreements of the parties. The communication designer does not owe any services that have not been expressly agreed individually. It is owed that the drafts are handed over in a way that enables the production of the products resulting from the purpose of the contract/order; the transfer of so-called "open" files is generally not owed.
3. compensation
3.1 All services that the communication designer provides for the client are subject to a charge, unless expressly agreed otherwise. If the client requests special and/or additional services from the communication designer during or after the communication designer has provided the service, this results in an additional obligation to pay. If the execution of the order is delayed for reasons for which the client is responsible, the communication designer can demand a reasonable increase in payment. In the event of intent or gross negligence, he can also assert claims for damages. The assertion of further damage caused by default remains unaffected.
3.2 Subject to other agreements, the remuneration consists of a draft fee and – insofar as use of the services is contractually provided for – a usage fee. The usage fee is determined according to the contractually agreed scope of use. Additional uses must be paid for additionally. Unless otherwise agreed, the remuneration for the design and usage fee is calculated according to the current AGD remuneration tariff for design, as concluded between the Alliance of German Designers (AGD) and the Association of Independent Design Studios (SDSt). The AGD remuneration tariff design can be requested from the contractor at any time.
3.3 Suggestions by the customer or his employees or his or their other cooperation have no influence on the amount of the remuneration.
3.4 The fees are net amounts to be paid plus statutory VAT.
4. Payment due date, acceptance, default
4.1 The remuneration is due upon delivery of the work, insofar as it has been performed in accordance with the contract. If the ordered work is accepted in parts, a corresponding partial payment is due for such a partial acceptance. If an order extends over a period of more than two months or if it requires financial advance payments from the communication designer that exceed 25% of the agreed fee, appropriate advance payments must be made, namely 1/4 of the total remuneration when the order is placed, 1/4 after completion of 50% of the work, 1/2 after delivery.
4.2 Acceptance may not be refused for creative or artistic reasons. There is freedom of design within the scope of the order. Claims for defects with regard to the artistic design are excluded.
4.3 In the event of default in payment, the communication designer can charge default interest of 9 percentage points above the base rate of the European Central Bank pa for legal transactions in which a consumer is not involved, and 5 percentage points above the base rate for legal transactions in which a consumer is involved require the European Central Bank pa. The assertion of a proven higher damage remains reserved.
5. Rights of Use
5.1 The drafts and final artwork may only be used for the agreed scope of use (in terms of time, space and content). Any use beyond the agreed scope of use (in terms of time, space and content) must in any case be remunerated separately with a usage fee. It is not permitted for legally protected services and entitles the communication designer to assert claims for injunctive relief and claims for damages in addition to demanding an additional usage fee. Any imitation, even partial, of a legally protected draft or a legally protected final artwork is not permitted. All drafts, final artwork, concepts and other services of the communication designer are entrusted to the client within the meaning of § 18 Para. 1 UWG. Unauthorized use or disclosure to third parties outside of the contractual agreement between the parties is not permitted.
5.2 The communication designer grants the customer the rights of use required for the respective contractual purpose. Unless otherwise agreed, in case of doubt only the simple right of use is granted.
5.3 Any transfer or partial transfer of rights of use and any granting of sublicenses requires the prior written consent of the communication designer.
5.4 The rights of use are transferred step by step to the customer upon full payment of the remuneration.
5.5 Protected drafts and final artwork may not be changed in the original or in the reproduction without the express consent of the communication designer. The communication designer has the right to prohibit any distortion or other impairment of his protected drafts and final artwork that is likely to endanger his legitimate intellectual or personal interests in the aforementioned work.
6. Attribution
The communication designer is to be named on or in the immediate vicinity of the copies and/or in direct connection with the public reproduction of the communication designer's services, insofar as naming is not entirely unusual in the industry.
7. Special services, ancillary and travel expenses
7.1 Special services such as reworking or changing drafts ready for acceptance, final artwork, concepts, studying the manuscript, monitoring the print or additional proofreading runs are charged separately according to the time required in accordance with the current version of the AGD remuneration tariff for design.
7.2 After prior agreement with the customer, the communication designer is entitled to order the external services required to fulfill the order in the name and for the account of the customer. The client undertakes to grant the communication designer the appropriate power of attorney.
7.3 Insofar as contracts for necessary external services are concluded in the name and for the account of the communication designer in individual cases after prior agreement, the client undertakes to indemnify the communication designer internally from all claims for remuneration resulting from the conclusion of the contract. Contrary to Section 4.1, the communication designer is entitled to charge for these costs as soon as they are charged by the third party.
7.4 Expenditures for necessary technical ancillary costs, in particular for special materials, for the production of models, photos, intermediate recordings, reproductions, typesetting and printing, etc. are to be reimbursed by the customer after prior agreement.
7.5 Travel costs and expenses for trips undertaken in connection with the order and agreed with the client are to be reimbursed by the client.
8th. Ownership of Designs and Data
8.1 Only rights of use are granted for drafts and final artwork, but ownership is not transferred, unless otherwise agreed or if something else results from the purpose of the contract.
8.2 The originals are to be returned to the communication designer undamaged after a reasonable period of time, unless otherwise agreed or the purpose of the contract indicates otherwise. In the event of damage or loss, the customer must reimburse the costs that are necessary to restore the originals. The assertion of further damage remains unaffected.
8.3 The data and files created in fulfillment of the contract remain the property of the communication designer. The latter is not obliged to hand over data and files to the customer. If the client wishes their release, this must be agreed and paid for separately.
8.4 If the communication designer has provided the customer with data and files, in particular so-called "open" files, these may only be changed with the prior consent of the designer, unless the purpose of the contract indicates otherwise.
8.5 All of the items specified in Sections 8.1 to 8.4 are shipped for the account of the customer and, if the customer is not a consumer, at the risk of the customer.
9. Proofreading, production monitoring, specimen copies and self-promotion
9.1 Correction samples must be submitted to the communication designer before any duplication is carried out.
9.2 The production monitoring by the communication designer only takes place on the basis of a special agreement.
9.3 The client shall provide the communication designer with up to ten flawless specimen copies of all reproduced work free of charge, unless otherwise agreed or the purpose of the contract indicates otherwise.
9.4 The communication designer is entitled to use these templates and all work resulting from the fulfillment of the contract for the purpose of self-promotion in all media, naming the client and otherwise to point out the work for the client, provided that the communication designer does not have any conflicting confidentiality interests of the client Client has been informed in writing. The communication designer must obtain any rights of third parties for his advertising purposes himself.
10 liability
10.1 The communication designer is only liable for damage caused, e.g. to templates, films, displays, layouts etc. provided to him in the event of intent and gross negligence, unless for damage resulting from injury to life, limb or health; the communication designer is also liable for such damage in the event of negligence. Otherwise, he is only liable for slight negligence if an obligation is violated, compliance with which is of particular importance for the achievement of the purpose of the contract (cardinal obligation).
10.2 The communication designer assumes no liability towards the customer for orders placed with third parties in the name and on account of the client, unless the communication designer is at fault in the selection of the third party. In these cases, the communication designer merely acts as an intermediary.
10.3 The client assures that he is entitled to use all templates handed over to the communication designer. If, contrary to this assurance, he is not entitled to use it, the customer shall indemnify the communication designer against all third-party claims for compensation.
10.4 The customer must check drafts or final artwork for any defects (correctness of image, text, numbers, etc.) and release them if necessary. The communication designer shall not be liable for recognizable defects for such drafts or final artwork released by the customer. This does not apply if the client is a consumer.
10.5 Complaints about obvious defects must be made in writing to the communication designer within 14 days of delivery of the work. The timely dispatch of the notice of defects is sufficient to meet the deadline. This does not apply if the client is a consumer.
10.6 The customer is obliged to have the legal admissibility of the drafts and other work checked independently and conscientiously before using the drafts and other work in commercial transactions. Except in the case of intent and gross negligence, the designer is not liable for the legal admissibility of his designs and other work. He will point out legal concerns to the client, insofar as they are known to him. Any further liability of the communication designer is void for the work to be reproduced and released by the customer.
11. Termination of Contract
If the client terminates the contract prematurely, the communication designer will receive the agreed remuneration, but must be credited for saved expenses or replacement orders that have been carried out or maliciously omitted (§ 649 BGB).
12. Final Provisions
12.1 Place of performance and place of jurisdiction is the headquarters of the communication designer if the contracting parties are merchants, legal entities under public law or special funds under public law, or at least one party has no general place of jurisdiction in Germany.
12.2 The law of the Federal Republic of Germany applies.