The following general terms and conditions apply to all legal transactions between the digital agency applepie Inh. Erdem Güner, hereinafter referred to as the "agency", and its contractual partners, hereinafter referred to in short as the "customer". Any terms and conditions of the customer that deviate from these terms and conditions shall only be accepted by the Agency after separate and written recognition.
All agreements made between the Agency and the Client for the purpose of executing an order shall be agreed in writing. Amendments, supplements and subsidiary agreements must be in writing to be effective.
These Terms and Conditions shall also apply to all future business relations with the Client, even if they are not expressly agreed again.
The Agency shall provide services in the areas of consulting, concept, planning, design, production, advertising placement of any advertising measures, programming and online marketing as well as other services by arrangement. The detailed descriptions of the services to be provided are contained in the Agency's tender documents, briefings, project contracts, as well as their appendices and service descriptions.
The basis for the Agency's work and an integral part of the contract is, in addition to the Project Contract and its appendices, the briefing to be handed over to the Agency by the Client. If the Client informs the Agency of the briefing verbally or by telephone, the Agency shall prepare a re-briefing on the content of the briefing, which shall be handed over to the Client within 5 working days of the verbal or telephone notification. This re-briefing shall become a binding part of the contract if the Client does not object to this re-briefing in writing within 5 working days. The project contract is concluded upon acceptance of an offer or upon conclusion of a project or agency contract. This can be in writing or verbally.
Any amendment and/or addition to the contract and/or its components must be made in writing. Any additional costs arising from this shall be borne by the customer.
Events of force majeure entitle the Agency to postpone the project commissioned by the Client for the duration of the hindrance and a reasonable start-up time. This shall not result in the Client's claim for damages against the Agency. This shall also apply if important deadlines and/or events for the Client cannot be met and/or do not occur as a result.
All drafts, drawings, artwork, concepts, ideas, etc. produced by the Agency are copyright-protected works within the meaning of § 2 UrhG (German Copyright Act), even if they do not meet the requirements of § 2 UrhG.
All services of the agency may therefore not be used, edited or changed without the consent of the agency. Any imitation, including that of parts of drafts, drawings, artwork, concepts, ideas, etc., is not permitted. Any violation of this provision shall entitle the Agency to demand a contractual penalty amounting to 2.5 times the agreed remuneration per violation. If no such remuneration has been agreed, the usual remuneration according to the Collective Agreement on Fees for Design Services SDSt/AGD (latest version) shall be deemed agreed.
The Agency shall transfer to the Client the rights of use required for the respective purpose. Unless otherwise agreed, only the simple right of use shall be transferred in each case. The rights shall only be transferred to the Client upon full payment of the total order. The transfer of granted rights of use to third parties (e.g. printers, agencies) and/or multiple uses shall be subject to a fee and require the consent of the Agency, unless otherwise stipulated in the initial order.
The Agency may sign the Advertising Media developed by it appropriately and in a manner customary in the industry and publish the placed order for self-promotion. This signing and promotional use can be excluded by a corresponding separate agreement between the Agency and the Client.
The Agency shall be entitled to information on the scope of use.
The remuneration agreed in the contract shall apply. Unless otherwise agreed in the contract, payments are due 50% in advance and 50% after completion/transfer. In the case of pure production services (e.g. print productions), which must be purchased externally by the Agency, or in the case of the purchase of a finished product, 100% of the sum to be paid will be invoiced in advance. Unless otherwise agreed, payments are due within 7 days of invoicing without any deductions. After receipt of the full invoice amount by the Agency, the ordered product will be sent or the service will be performed. If the payment dates are exceeded, the Agency shall be entitled, without further reminder, to default interest at a rate of 10% above the base interest rate in accordance with §1 of the Discount Rate Transition Act. The right to assert a claim for damages in excess thereof shall remain unaffected by this provision. Reminder costs and the costs - including extrajudicial - of legal investments shall be borne by the customer.
If the preparation of the agreed services extends over a longer period of time or involves several units, the Agency may invoice the Customer for partial payments for the partial services already provided. These partial services need not be available in a form that can be used by the Client and may also be available as a pure working basis on the part of the Agency.
In the event of changes or cancellation of orders, work and the like by the Client and/or if the conditions for the provision of services change, the Agency shall be reimbursed for all costs incurred thereby and the Agency shall be released from any liabilities to third parties.
If the Client withdraws from an order before the start of the project, the Agency shall charge the Client the following percentages of the originally contractually agreed fee as a cancellation fee: up to two weeks before the start of the order 25%, from two weeks before the start 50%.
All prices quoted in offers and orders and the resulting amounts to be paid shall be subject to the statutory value added tax at the current rate. Artist's social security contributions, customs duties, or other subsequently incurred charges will be passed on to the customer.
Objections to fee settlements by Agency shall be raised immediately upon receipt of the invoice, but no later than 2 weeks after the date of settlement or invoice, without, however, affecting the due date. Failure to raise objections in good time shall be deemed to constitute approval.
The Agency shall retain ownership of the delivered goods until payment has been made in full.
Only rights of use shall be granted for drafts and work drawings, in particular for services subject to copyright (see 3.1.), but no rights of ownership shall be transferred.
The originals must therefore be returned undamaged within a reasonable period of time unless otherwise agreed.
The sending and possible return of the work shall be at the risk and expense of the customer.
The Agency shall not be obliged to hand over to the Client any files, source files or layouts created in the computer. If the Client wishes to surrender computer data or source data, this shall be agreed and paid for separately. If the Agency has provided the Client with computer files, these may only be changed with the prior consent of the Agency.
Special services, such as proofreading of texts, are carefully read to the best of our knowledge. Reworking, changes to final artwork, preparatory necessities for order processing, print monitoring etc. will be charged separately according to the time required.
If more concepts or drafts of advertising material are produced at the customer's request, these will be invoiced separately. The number of drafts is stated in the offer and requires a detailed briefing of the Customer. As a rule, an offer includes 3 drafts for advertising material and one advertising concept.
Expenses for additional technical costs, in particular special material, production of models, photos, intermediate shots, reproductions, photo typesetting, printing etc. are to be reimbursed by the customer.
Costs for travel to be undertaken in connection with the order will only be invoiced if this has been agreed with the customer.
Unpredictable additional expenditure requires mutual agreement and, if necessary, subsequent payment.
The production monitoring of external services (e.g. printing) by the Agency shall only be carried out on the basis of special agreements. When taking over production supervision, the Agency shall be entitled to make the necessary decisions and issue corresponding instructions at its own discretion - taking into account the Client's ideas and specifications. The Agency shall charge a lump-sum handling fee for this expenditure.
Of all reproduced work, the Agency shall be provided with 10-20 unfolded, wall-free, unfolded receipts (in the case of valuable items, an appropriate number) free of charge. The Agency shall be entitled to use these items for its own advertising purposes.
The Agency shall be entitled to refer to the author on all advertising material and in all advertising measures without the Customer being entitled to a claim for remuneration.
The Agency shall be entitled to refer to the business relationship on its internet websites with name and company logo.
The Agency's delivery obligations shall be fulfilled as soon as the work and services have been dispatched by the Agency. The Client shall bear the risk of transmission (e.g. damage, loss or delay), regardless of the medium used for transmission.
Delivery periods and delivery dates shall only be binding if the Client has duly fulfilled any obligation to cooperate (e.g. procurement of documents, releases, provision of information, preparation of service catalogues/performance specifications and the dates have been confirmed in writing by the Agency.
Due to delays on the part of the Client, it can no longer be guaranteed that deadlines will be met on time.
Templates and drafts made available by the Agency shall only be binding in terms of colour, image, line and sound design once their corresponding feasibility has been confirmed in writing by the Agency.
If the Agency defaults on its services, it shall first be granted a reasonable period of grace. If the grace period expires without result, the Client may withdraw from the contract. Compensation for damages caused by delay may only be demanded up to the value of the order (own contribution excluding advance performance and material).
The Agency undertakes to keep secret all information and documents accessible to it in connection with the conclusion of the contract which are designated as confidential or which are clearly recognisable as business or trade secrets of the Customer according to other circumstances, and not to record or pass them on to third parties unless this is necessary to achieve the purpose of the contract.
Corresponding obligations shall also apply to the Client with regard to business and trade secrets of the Agency - this shall apply in particular to ideas and concepts brought to the attention of the Agency during the development phase / cooperation.
The Client agrees that personal data (inventory data) and other information concerning his usage behaviour (connection data), such as the time, number and duration of connections, access words, uploads and downloads, may be stored by the Agency for the duration of the contract, insofar as this is necessary to fulfil the purpose of the contract. The Client declares its consent to this collection and storage. The Agency shall also process and use the collected inventory data for advising its customers, for self-advertising and for market research for its own purposes and for the design of its services in line with requirements. The customer may object to such use of the data. The Agency shall not pass this data on to third parties without the customer's consent. This shall not apply only insofar as the data is publicly accessible anyway or the Agency is legally obliged to disclose such data to third parties, in particular to law enforcement agencies, or insofar as internationally recognised technical standards provide for this and the Client does not object.
The Client shall provide the Agency with all data and documents required for the implementation of the project free of charge. All working documents shall be handled with care by the Agency, protected from access by third parties, used only for the preparation of the respective order and returned to the Client after completion of the order.
In connection with a commissioned project, the Customer shall only award contracts to other agencies or service providers after consultation with and in agreement with the Agency.
The Client shall inspect the work and services provided by the Agency immediately upon receipt, but in any event within three working days and in any event before passing them on, and shall give notice of defects immediately upon discovery.
If the notification of defects is justified, the defects shall be remedied within a reasonable period of time.
The risk of legal admissibility of the measures developed and implemented by the Agency shall be borne by the Client. This shall apply in particular in the event that the actions and measures violate provisions of competition law, copyright law and special advertising law. However, the Agency shall be obliged to point out legal risks if it becomes aware of them in the course of its activities. The customer shall indemnify the Agency against claims by third parties if the Agency has acted at the express request of the customer although it has informed the customer of concerns regarding the permissibility of the measures. The notification of such concerns by the Agency to the Customer shall be made in writing immediately after they become known. If the Agency deems it necessary for a measure to be carried out to be examined under competition law by a particularly competent person or institution, the costs of this shall be borne by the Customer after consultation with the Agency.
With the approval of drafts, final artwork or work drawings by the Client, the Client shall assume responsibility for the correctness of the image and text.
The Agency shall not be liable for drafts, final artwork or work drawings approved by the Client.
The Agency shall not be liable for the admissibility and registrability of the drafts under competition or trademark law.
The Agency shall assume no liability for the images, data and fonts provided by the Client.
The Agency shall in no case be liable for factual statements about the Client's products and services contained in the advertising measures. The Agency shall also not be liable for the patent, copyright and trademark protection or registrability of the ideas, suggestions, proposals, concepts and drafts supplied within the framework of the order.
The Agency shall only be liable for damage caused by it or its vicarious agents intentionally or through gross negligence. The liability of the Agency shall be limited to the one-off income of the Agency resulting from the respective order. The liability of the Agency for consequential damages due to defects arising from the legal ground of positive breach of contract is excluded if the liability of the Agency does not result from a breach of obligations essential to the fulfilment of the purpose of the contract.
Insofar as the Agency commissions necessary external services, the respective contractors/contractual partners are not vicarious agents of the Agency. Liability for the services and work results of such contractors/contractual partners shall be excluded, insofar as this does not conflict with the statutory provisions.
The customer undertakes to pay any fees that may be incurred to collecting societies such as Gema. If these fees are disbursed by the Agency, the Client undertakes to reimburse these to the Agency against proof. Depending on the agreement, this can be done immediately or after termination of the contractual relationship.
Freelancers or third parties engaged by the Agency are vicarious agents or assistants of the Agency. The Client undertakes not to commission these employees, who are employed by the Agency within the framework of the execution of the order, with projects either directly or indirectly during the 12 months following the conclusion of the order without the involvement of the Agency.
All working documents, electronic data and records which are produced on the part of the Agency within the framework of the processing of the order shall remain with the Agency. The Client may not demand the surrender of these documents and data. Upon payment of the agreed fee, the Agency shall owe the agreed service, but not the intermediate steps leading to this result in the form of sketches, drafts, production data etc.
The Agency shall procure commissioned projects in the field of media planning to the best of its knowledge and belief on the basis of the media documents available to it and the generally accessible market research data. The Agency does not owe the Client any particular advertising success as a result of these services.
In the case of extensive media services, the Agency shall be entitled, by agreement, to charge the Client a certain proportion of the external costs and to make a booking with the relevant media only after receipt of payment. A flat-rate handling fee shall be charged for this. The Agency shall not be liable for any failure to meet a placement date due to late receipt of payment. This shall not give rise to a claim for damages by the Customer against the Agency.
The contract shall enter into force upon its signature. It is concluded for the contractual period specified in the contract or for a specific project. If the contract is concluded for an indefinite period of time, it may be terminated by either party at the end of a month with a notice period of three months. The right of termination without notice for good cause remains unaffected by this provision. A termination must be made in writing.
If a dispute arises in the course of or after completion of an order with regard to the commissioned project, an extrajudicial mediation procedure must be conducted before legal proceedings are initiated. In the event of disputes concerning quality assessment or the amount of the fee, external expert opinions will be prepared in order to reach an out-of-court settlement if possible. The costs for this are shared by the client and the agency.
The customer is not entitled to assign claims arising from the contract.
The customer's general terms and conditions shall not become part of the contract.
Set-off or the assertion of a right of retention by the customer shall only be permissible with recognised or legally established counterclaims.
The law of the Federal Republic of Germany shall apply. Place of performance and jurisdiction is Berlin.
Should any provision of these General Terms and Conditions of Business be invalid in whole or in part or lose its legal validity at a later date, the validity of the remaining provisions shall not be affected thereby. In place of the invalid provision, another appropriate provision shall apply by way of contract adjustment, which comes as close as possible in economic terms to what the parties to the contract would have wanted if they had been aware of the invalidity of the provision. Translated with www.DeepL.com/Translator (free version)