Terms & Conditions
1. General Information & Scope of Application
- The following General Terms and Conditions of Business (GTC) apply exclusively to all orders that you (hereinafter referred to as the “Client”) give to Sebastian Klammer Graphic Design (hereinafter referred to as the “Contractor”) as well as to all contracts between the Contractor and the Client. These General Terms and Conditions shall also apply in particular if the customer uses general terms and conditions of business themselves and these conditions conflict with or contradict the Terms and Conditions set out here.
- These Terms and Conditions shall also apply if the Contractor carries out the order unconditionally in the knowledge of conditions of the Customer deviating from the Terms and Conditions set out here.
- These General Terms and Conditions shall be deemed as accepted by the Client at the latest upon commencement of the agreed service.
- These Terms and Conditions are subject to written individual agreements.
- Deviations from these Terms and Conditions are valid only if the Contractor expressly agrees to them in writing.
2. The Contract; Copyright and Rights of Use
- Each contract awarded to the Contractor is a copyright agreement which is aimed at the granting of the right to use the work created. The contract does not include a review of the lawfulness of the contractor’s work. It does also not include any research into trademark or other property rights or any examination of the legal usability of the contractor’s work. The contractor deems the client solely responsible for the execution of such research.
- All designs as well as the final works are subject to the copyright law. The provisions of this act shall also apply between the parties if the necessary protection requirements, e.g. the so-called “Schöpfungshöhe”, should not be given in individual cases. In such a case, the provisions of sections §§ 31 et seq of the German Copyright Act (UrhG) shall be applied. In addition, the parties are entitled in particular to copyright claims from sections 97 et seq. of the German Copyright Act.
- Drafts, drawings and finished designs created by the Contractor may not be altered or passed on to third parties in the original or in the reproduction without the express consent of the Contractor. Any imitation, even in part, is prohibited. A breach of this clause entitles the Contractor to demand a contractual penalty of 100% of the agreed remuneration in addition to the remuneration to be paid in any case.
- The Contractor shall grant the Client the rights of use required for the respective purpose. Unless otherwise agreed, only the simple right of use is granted. A transfer of the rights of use to third parties requires a written agreement.
- The rights of use shall only be transferred to the Client after the agreed remuneration has been paid in full.
- The Contractor shall be named as the author on all duplicates of the created work. A breach of this provision entitles the Contractor to demand a contractual penalty of 100% of the agreed remuneration in addition to the remuneration to be paid in any case.
- Proposals made by the Client or their employees or his or her other co-operation have no influence on the amount of the remuneration. They do not constitute a co-copyright.
- Drafts and finished works 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) is not permitted and entitles the Contractor to demand a contractual penalty of 100% of the agreed remuneration in addition to the remuneration to be paid in any case.
3. Compensation and Charges
- Drafts, designs and the finished product represent a uniform work together with the granting of usage rights. The remuneration for this work is based on the collective agreement for design services of the Alliance of German Designers (AGD), unless other agreements have been made. All remunerations are net values which are to be paid plus the statutory VAT.
- If no usage rights are granted and only drafts and / or designs are delivered, the remuneration for the right of use does not apply.
- The preparation of drafts and all other activities which the Contractor provides to the Client are subject to a charge, unless expressly agreed otherwise.
4. Approval, Maturity of Remuneration and Payment Delay
- The remuneration is payable without deductions upon delivery of the work. If the ordered work is carried out in parts, a corresponding partial remuneration is due as soon as each part has been accepted by the Client. If a contract is to be extended over a longer period of time or if the Contractor needs to make financial investments in order to carry out his work, appropriate advance payments must be made. These are 1/3 of the total remuneration when the contract is signed, 1/3 after the completion of 50% of the work, and 1/3 after the project has been completed.
- Client approval may not be refused for creative and artistic reasons. Within the framework of the contract there is freedom of design.
- In the event of a payment delay, the Contractor may charge a default interest of 8% above the respective base rate of the European Central Bank p.a. The assertion of a proven higher damage remains reserved.
- The Contractor shall be entitled to withdraw all design services until full payment of the outstanding invoice amount has been received.
- All remuneration invoiced to the Client shall be subject to a 10-day payment period unless otherwise agreed. Upon the expiry of the payment term, any fees charged shall be due immediately.
- If the Client has been charged a partial remuneration for a design project that has not yet been fully completed and the client is in arrears with the payment of this partial remuneration, all further work on the project will be terminated until the outstanding amount has been paid in full.
- If the Client is in arrears with his payments and the payment delay exceeds a time frame of 3 months, the Contractor reserves the right to resign from the contract with immediate effect, to withhold or destroy all works already completed and to cease all further service. Services already rendered within the framework of the contract must be remunerated by the Client. Payments made by the Client for services already rendered will not be refunded.
- If services and works provided by the Contractor are used in public media without full payment of the remuneration, the Contractor reserves the right to make a complaint about copyright infringement without prior notice.
5. Special Services, Incidental Costs and Travel Expenses
- All special services such as the processing or alteration of designs, manuscript studies or print monitoring are calculated separately according to the hourly fee communicated to the Client in the initial quote.
- After prior agreement with the Client, the Contractor shall be entitled to order any external services required to fulfil the contract in the name and on behalf of the Client. The Client agrees to grant to the Contractor the appropriate power of attorney.
- Insofar as in the course of the contract, external contracts are made on behalf of and for the account of the Contractor, the Client agrees to release the Contractor from all liabilities resulting from the establishment of such contract.
- Payments made by the Contractor for technical ancillary costs, for special materials, for the production of models, photographs, interim photographs, reproductions, set and printing, etc. shall be reimbursed by the Client.
- Any travel expenses that arise in connection with the contract and agreed with the Client shall be reimbursed by the Client.
- All consultations – personally, by telephone, by e-mail or by any other means – are paid services, which are billed according to hourly rate communicated to the Client in the initial quote.
6. Ownership of Designs and Data
- For all works created in the course of the contract only the rights of use are granted. There will be no transfer of ownership.
- All originals shall be returned to the Contractor without undue delay after a reasonable period, unless otherwise agreed in writing. In the case of damage or loss, the Client has to replace the costs necessary for the restoration of the originals. The assertion of further damage shall remain unaffected.
- All data and files resulting from the fulfilment of the contract remain the property of the Contractor. The Contractor is not obliged to provide any data and files to the client. If the client wishes to receive these data or files, their transferral must be agreed and will be remunerated separately.
- If the Contractor has provided the Client with data and files, these may only be altered with the prior written consent of the Contractor.
- The shipment of all objects referred to in items 6.1 to 6.4 shall be made at the risk and expense of the Client.
7. Corrections, Production Monitoring, Document Copies and Self-Promotion
- Before completing any duplications, the Contractor shall be provided with proof of correction.
- Production monitoring by the Contractor is only carried out if expressly agreed with the Client. When monitoring production, the Contractor is entitled to make all necessary decisions and give appropriate instructions at his own discretion.
- Of all duplicated works, the Client shall provide the Contractor with 10 copy documents free of charge. The Contractor shall be entitled to use these samples and all work resulting from the contract for the purpose of self-promotion in all media, and shall also point out the services rendered for the Client.
- The Contractor shall be liable for damages on samples, films, displays, layouts and other material provided to him by the Client only in the case of wilful intent or gross negligence, except for damages resulting from injury to life, body or health; for such damages the Contractor shall also be liable in the case of slight negligence. Furthermore, the Contractor shall only be made liable for slight negligence if a duty is violated, the compliance of which is of particular importance for the fulfilment of the contract (cardinal obligation).
- If the Contractor has to establish contracts with third parties on behalf of the Client, the Contractor shall not be liable to the Client, unless the Contractor is at fault in the selection process. In such cases, the Contractor shall only act as an intermediary.
- With the approval of drafts or designs by the Client, the Client assumes responsibility for the technical and functional correctness of the product, including all text and image content.
- Any liability of the Contractor for products, services, designs or content approved by the Client shall be void.
- Complaints of obvious defects must be made in writing to the Contractor within 14 days after delivery of the work. The punctual dispatch of the complaint is sufficient to meet the deadline.
9. Freedom of Design, Contract Execution and Templates
- Within the limitations of the contract there is freedom of design. Complaints regarding the artistic design of the work are impossible. If the Clients wishes to make changes during or after the design process, he or she has to bear the additional costs incurred thereby.
- All deadlines and dates of delivery specified by the Contractor are non-binding, unless otherwise agreed in writing.
- If the completion of the contract is delayed for reasons which the Client is responsible for, the Contractor may demand a reasonable increase in the remuneration. In the event of wilful intent or gross negligence, the Contractor may also claim damages. This shall not affect the assertion of a further breach of contract.
- If the completion of the contract is delayed on the part of the Contractor due to force majeure and/or due to events which render the completion of the contract substantially more difficult or impossible, the Contractor shall be entitled to postpone the delivery by the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract.
- Delay shall not occur until the client has set a deadline of at least one month. In the event of default, the client shall be entitled to default compensation of 0.5% for each completed week of the delay, but in total up to 5% of the invoice value of the service affected by the delay. Claims, in particular damages claims of any kind, are excluded.
- If, at the request of the Client, reserved working days are canceled or postponed less than 5 days before the start of the contract, the Contractor is entitled to charge a cancellation fee of 50% of the service sum. In the case of a cancellation less than 2 days before the start of the reservation, the cancellation fee shall be 100% of the service sum. The Client reserves the right to prove that the loss has resulted in a considerably lower loss than this lump sum.
- The Client guarantees that he is entitled to use all documents submitted to the Contractor. If the Client is not entitled to use documents submitted to the Contractor in spite of his/her insurance, the Client shall release the Contractor from all third party substitute claims.
10. Contract Termination
- If the Client terminates the contract prematurely, the Contractor shall receive the agreed remuneration, but shall not be able to claim any expenses incurred or any substitute orders executed or maliciously omitted (§ 649 BGB). Both parties agree, however, to flat-rate the benefits and expenses paid up to the termination as follows: In case of termination before commencement of the contract: 10% of the agreed remuneration. In addition, different individual agreements are, of course, possible. The Client is entitled to prove the actual lower performance or higher expenses.
11. Closing Provisions
- Place of performance of contract delivery is Berlin, Germany.
- It is agreed exclusively that Berlin, Germany shall be court of jurisdiction, as far as §§ 38, 40 ZPO do not oppose.
- Only the law of the Federal Republic of Germany shall be applied.
- Should individual provisions of these General Terms and Conditions be or become inaccurate, invalid or contestable, they shall be interpreted or supplemented in such a way that the intended economic purpose is achieved as closely as possible; all other provisions shall remain unaffected. This also applies to gaps which are in need of supplementation.
Current as of July 6, 2017