The parties shall cooperate in a spirit of trust and shall inform each other immediately in the event of deviations from the agreed procedure or doubts as to the correctness of the other's approach.
If the customer recognizes that his own information and requirements are incorrect, incomplete, ambiguous or impracticable, he must immediately inform ebene1 Kommunikation GmbH (hereinafter referred to as ebene1) of this and the consequences that are recognizable to him.
The contracting parties shall designate to each other contact persons and their deputies who shall be responsible and expert in the implementation of the contractual relationship for the contracting party.
The parties must inform each other immediately of any changes in the persons designated. Until receipt of such notification, the aforementioned contact persons and/or their deputies shall be deemed entitled to make and receive declarations within the scope of their previous power of representation.
The contact persons agree at regular intervals on progress and obstacles in the implementation of the contract, in order to be able to intervene in the implementation of the contract if necessary.
2. Obligations of the customer to cooperate
The customer supports ebene1 in the performance of its contractually owed services. This includes in particular the timely provision of information, data material as well as hardware and software, insofar as the customer's cooperation services require this. The customer shall instruct ebene1 in detail regarding the services to be provided by ebene1.
The customer shall provide the necessary number of its own employees who have the necessary expertise to carry out the contractual relationship.
If the customer has undertaken to procure materials (image, sound, text or similar) for ebene1 within the framework of the execution of the contract, the customer must make these available to ebene1 immediately and in a common, directly usable, preferably digital format. If it is necessary to convert the material provided by the customer into another format, the customer shall bear the costs incurred for this. The customer shall ensure that ebene1 receives the rights required for the use of these materials.
The customer shall perform cooperative actions at his own expense.
3. Participation of third parties
The customer shall be responsible for third parties who become active for him in the area of activity of ebene1 at the instigation of or with the acquiescence of the customer as for vicarious agents. ebene1 is not responsible to the customer if ebene1 cannot fulfill its obligations to the customer in whole or in part or not in time due to the behavior of one of the aforementioned third parties..
Deadline for the provision of services on the part of ebene1 may only be promised by the contact person.
The parties to the contract will set dates in writing if possible. Deadlines, of which the non-observance causes a contracting party to be in default without reminder in accordance with § 286 paragraph 2 of the German Civil Code (binding dates), must always be specified in writing and designated as binding.
ebene1 is not responsible for delays in performance due to force majeure (e.g. strike, lockout, official orders, general disruptions to telecommunications, etc.) and circumstances within the customer's area of responsibility (e.g. failure to provide cooperation services on time, delays caused by third parties attributable to the customer, etc.) and entitles ebene1 to postpone the provision of the affected services for the duration of the hindrance plus a reasonable start-up time. ebene1 will notify the customer of delays in performance due to force majeure.
5. Changes to services
If the customer wants to change the contractually agreed scope of the services to be provided by ebene1, he shall express this change request in writing to ebene1. The further procedure is governed by the following provisions. In the case of change requests that can be quickly examined and probably implemented within 8 working hours, ebene1 may refrain from the procedure in accordance with paragraphs 2 to 5.
ebene1 examines what effects the desired change will have, particularly with regard to remuneration, additional expenses and deadlines. If ebene1 recognizes that services to be provided cannot be performed or can only be performed with delay due to the review, ebene1 will inform the customer of this and point out to him that the change request can only be reviewed if the affected services are postponed for an initially indefinite period.
If the customer agrees to this postponement, ebene1 will carry out an examination of the change request. The customer is entitled to withdraw his change request at any time; the initiated change procedure then ends.
After examining the change request, ebene1 will explain to the customer the effects of the change request on the agreements made. The presentation shall contain either a detailed proposal for the implementation of the change request or information on why the change request cannot be implemented.
The contracting parties will immediately agree on the content of a proposal for the implementation of the requested amendment and will attach the result of a successful vote to the text of the agreement to which the amendment relates as a supplementary agreement.
If no agreement can be reached or if the amendment procedure ends for any other reason, the original scope of services remains unchanged. The same shall apply in the event that the customer does not agree to a postponement of the services for the further performance of the test in accordance with paragraph 2.
The deadlines affected by the amendment procedure shall be postponed as far as necessary, taking into account the duration of the examination, the duration of the vote on the amendment proposal and, if applicable, the duration of the change requests to be carried out plus an appropriate start-up period. ebene1 will notify the customer of the new deadlines.
The customer shall bear the expenses incurred by the change request. These include in particular the examination of the change request, the preparation of a change proposal and any downtimes. In the event that the parties have agreed on daily rates, the expenses will be charged according to these rates, otherwise according to the usual remuneration of ebene1 Kommunikation GmbH.
ebene1 is entitled to change or deviate from the services to be provided under the contract if the change or deviation is reasonable for the customer taking into account the interests of ebene1.
For all services, the fee is agreed in advance on a case-by-case basis between the customer and ebene1. If no agreement has been made in advance, the current remuneration rates of the agency apply.
In consultation with the customer, a remuneration of 15% will be added to the external price for the placing of external orders.
For data records (final artwork), ebene1 calculates its respective valid remuneration rates according to the price list or hourly rates. ebene1 is entitled to change or supplement the remuneration rates on which the agreements are based at its reasonable discretion (§ 315 BGB). Cost estimates or budget plans prepared by ebene1 are not binding.
If the customer cancels orders, work, extensive planning and the like, he shall reimburse ebene1 for all costs incurred (including any commissions, fees and time costs incurred) and release it from all liabilities to third parties.
Cash expenses and special costs incurred by the agency at the express request of the client shall be charged at cost price. These include for example extraordinary communication, shipping and reproduction costs. GEMA fees and other compensation under usage law, artists' social security contributions and customs costs etc. will be charged to the customer.
The customer shall bear all expenses, such as travel and accommodation costs, expenses and claims for remuneration from third parties arising in the context of the execution of the contract, against proof. Travel expenses will only be reimbursed if the distance from the seat of ebene1 is more than 50km. The pure travel time is not reimbursed. ebene1 may charge a handling fee of 15% for handling orders with third parties whose costs are charged directly to the customer.
All services provided by ebene1 are subject to statutory value added tax.
Invoices issued by the agency to the client are due for payment upon receipt without deductions, unless otherwise agreed. Discounts on agency remuneration are not granted.
In the case of larger orders or those that extend over a longer period of time, the agency is entitled to issue interim invoices or advance invoices.
The basis of the work of ebene1 is the briefing of the customer.
As a rule, cost estimates are to be submitted to the customer in written form before the start of any cost-generating measure.
The agency places orders with third parties in its own name and for its own account after approval by the client. Photo and illustration orders are placed in the name and for the account of the client.
Smaller individual orders up to a maximum of € 500,00 as well as orders within the scope of ongoing work, such as intermediate shots, typesetting costs, retouching and the like, do not require the obtaining of cost estimates or prior approval.
The open assignment of claims is only permitted with the prior written consent of the other contracting party. Such consent may not be unreasonably withheld. The regulation of § 354a HGB remains unaffected.
A right of retention can only be asserted due to counterclaims from the respective contractual relationship.
The contracting parties may only set off claims which have been legally established or are undisputed.
ebene1 may name the customer as a reference customer on its website or in other media. Furthermore, ebene1 may publicly reproduce the services rendered for demonstration purposes or refer to them, unless the customer can assert an opposing legitimate interest.
ebene1 is not obliged to pass on "open work files" for processing the data.
ebene1 grants the customer the simple, spatially and temporally unrestricted right to use the services provided in accordance with the contract. If software is the object of the service, §§ 69d and e UrhG (German Copyright Act) apply.
Any further use than described in paragraph 1 is not permitted. In particular, the customer is prohibited from granting sub-licenses and from duplicating, renting or otherwise exploiting the services.
Until full payment has been made, the customer is only permitted to use the services rendered on a revocable basis. ebene1 can revoke the use of such services for which the customer is in default of payment for the duration of the default.
9. Property right infringements
In the event of infringements of property rights, ebene1 - without prejudice to any claims for damages by the customer - may, at its own discretion and at its own expense, make changes with regard to the affected service after prior consultation with the customer which, while safeguarding the interests of the customer, ensure that an infringement of property rights no longer exists or acquire the necessary rights of use for the customer.
The customer may only withdraw from the contract due to a breach of duty not consisting of a defect in the purchased item or work if ebene1 is responsible for this breach of duty.
The liability of ebene1 is limited to intent and gross negligence and to compensation for typical and foreseeable damages. In the case of slight negligence, ebene1 is only liable in the event of violation of an essential contractual obligation (cardinal obligation) as well as in the event of damages resulting from injury to life, body or health.
It undertakes to carry out the work assigned to it with professional and commercial care to the best of its knowledge and in compliance with the generally recognised principles of advertising. It shall inform the customer in good time of any significant risks that are recognisable for a proper marketing communications merchant
In the case of slight negligence, liability is limited to the amount of the foreseeable damage, the occurrence of which must typically be expected. In any case, liability is limited to the agreed remuneration.
The agency is not liable for the legal admissibility of an advertising measure if the measure is carried out at the express instruction of the customer, although ebene1 has pointed out existing legal concerns.
ebene1 is only liable for errors in the insertion of advertisements insofar as it itself is entitled to claims against the advertiser. Limitations of liability agreed in insertion contracts also apply to the customer.
ebene1 does not guarantee that the services provided are protectable according to the copyright, trademark, design, patent and utility model regulations. The customer alone is responsible for clarifying the questions in connection with this, and he also takes the necessary measures for this on his own responsibility, unless otherwise expressly agreed between the parties in the individual case.
Under no circumstances is ebene1 liable for factual statements about the customer's products and services contained in the advertising.
ebene1 is not liable for the loss of data and/or programs to the extent that the damage is due to the fact that the customer failed to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.
The above provisions also apply in favour of the vicarious agents of ebene1.
12. Non-poaching agreement
The customer undertakes not to entice away any employees of ebene1 or employ them without the consent of ebene1 for the duration of the cooperation of the parties and for a period of one year thereafter. For each case of culpable infringement, the customer undertakes to pay a contractual penalty to be determined by ebene1 in terms of amount and to be reviewed by the competent court in the event of a dispute.
In the event of any differences of opinion arising from or in connection with this contractual relationship, the parties shall first attempt to find a solution through a detailed discussion between the contact persons.
Differences of opinion that cannot be resolved by the parties shall be settled by a conciliation procedure. If one party refuses to go through with a mediation procedure, it may go to court if it has informed the other party in writing in advance.
In order to conduct a conciliation procedure, the parties will call upon the conciliation office of the Deutscher Multimedia Verband e.V., Kaistraße 14 in 40221 Düsseldorf with the aim of resolving the disagreement in whole or in part, provisionally or finally, in accordance with its conciliation rules.
In order to facilitate arbitration, the parties mutually waive the defence of the statute of limitations for all claims arising from the life circumstances in dispute from the request for arbitration until one month after the end of the arbitration proceedings. The waiver causes the statute of limitations to be suspended.
The dates affected by the arbitration procedure, including the preceding discussion between the contact persons, shall be postponed as necessary, taking into account the duration of the arbitration and, if applicable, the duration of the arbitration results to be carried out plus an appropriate start-up period.
14. Exclusivity, prohibition of competition, confidentiality, press release
During the term of this contract, ebene1 undertakes not to work simultaneously for a competitor of the customer in the same field of work (e.g. development of packaging, brand logos, etc.) without written consent.
ebene1 will maintain secrecy about all business transactions of the customer and the companies and persons associated or related to him that become known to it in the course of the cooperation - even after the end of the contractual relationship. It also undertakes to ensure this by means of appropriate agreements with employees and companies and persons working on its behalf.
The documents, communicated knowledge and experience handed over to the other party to the contract may only be used for the purposes of this contract and may not be made accessible to third parties, unless they are intended to be made accessible to third parties or are already known to the third party. Third parties are not the auxiliary persons consulted for the execution of the contractual relationship such as freelancers, subcontractors etc.
In addition, the contracting parties agree to maintain confidentiality regarding the content of this contract and the knowledge gained during its execution.
The obligation of secrecy also applies beyond the termination of the contractual relationship.
ebene1 will keep the working documents produced by it or third parties free of charge until the expiry of the contract. If one of the contracting parties so requests, the documents handed over, such as strategy papers, briefing documents, etc., are to be returned after termination of the contractual relationship or destroyed, unless the other contracting party can claim a legitimate interest in these documents. The above provision shall apply without prejudice to longer statutory retention periods.
15. Final clauses
All changes and amendments to contractual agreements must be recorded in writing for verification purposes. Terminations must be made in writing. Notices, which must be in writing, can also be made by e-mail.
Should individual provisions of the party agreements be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. In this case, the parties shall replace the invalid provision by a valid provision which comes as close as possible to the economic purpose of the invalid provision. The same applies to any loopholes in the agreements.
General terms and conditions of the customer are not part of the contract.
The law of the Federal Republic of Germany shall apply to the exclusion of private international law and the UN Sales Convention.
Exclusive place of jurisdiction for all legal disputes arising from or in connection with this contract is the registered office of ebene1.
Düsseldorf, January 14, 2020