braindinx GmbH – Design Agency 04/2019
The basis of a contract with braindinx GmbH are always these General Terms and Conditions, whose acknowledgment and inclusion you acknowledge and confirm by signing the contract. For all legal transactions with braindinx, the provisions of these terms and conditions prevail. By placing the first order, the client acknowledges the exclusive validity of our terms and conditions, even if the contrary terms of its terms and conditions, unless otherwise agreed in writing.
1 Copyright and Rights of Use
(1) Each order placed with braindinx GmbH is an authorship contract, which is aimed at the granting of rights of use for its work.
(2) All designs and artwork are copyrighted and protected as personal intellectual creations. The provisions of the Copyright Act shall apply even if the required amount of creation according to §2UrhG is not reached in detail. Thus, braindinx in particular has the copyright claims from § 97ff. UrhG too.
(3) The designs and drawings may not be altered in the original nor in reproduction without the express consent of braindinx GmbH. Any imitation – even of parts – is inadmissible. If no compensation has been agreed, the usual remuneration according to the collective agreement for design services SDSt / AGD and the fee recommendations of the Gesamtverband Deutscher Werbeagenturen (GWA, current version) shall be deemed agreed.
(4) braindinx GmbH transfers to the client the rights of use required for the respective purpose. Unless otherwise agreed, the simple right of use shall be transferred in each case. A transfer of the rights of use to third parties requires a written agreement.
(5) The rights of use are only transferred after full payment of the remuneration.
(6) According to the law, braindinx GmbH has the right to be named as originator on the copies. A violation of the right to name entitles the braindinx GmbH to compensation. Without proof of a higher damage, the compensation amounts to 100% of the agreed or customary remuneration according to the collective agreement for design services SDSt / AGD. The right to assert higher damages on proof remains unaffected.
(7) The braindinx GmbH has the right to use the drafts, designs and layouts created by it even after the acquisition of rights of use by the customer without special agreement of the customer as a reference to use in document folders or presentations, websites, social media or trade fairs.
(8) Proposals of the client, his employees and representatives or his other cooperation have no influence on the amount of the remuneration. They do not constitute a co-copyright.
(9) In accepting a presentation fee, there is no agreement to use our ideas, work and services. In the case of an unauthorized use of presentations – also in modified form – for own purposes and / or passing on to third parties, the client undertakes to pay a contractual penalty in the amount of EUR 2,500.00 for each case of the infringement.
(10) Copyright or license rights remain – unless otherwise agreed – with the respective author, creator, photographer, picture agency or software manufacturer.
(11) The works may only be used for the agreed usage and the agreed purpose. The customer acquires the right to use the work within the agreed framework with full payment of the fee. Repeat and multiple uses are subject to approval and fee.
(12) In the work of the braindinx GmbH only rights of use granted, a property right is not transferred. Unless otherwise agreed by contract, the originals shall be returned undamaged to braindinx GmbH after a reasonable period of time. Source files are the intellectual property of braindinx GmbH and will never be transferred. A surrender obligation does not exist. braindinx GmbH is not obliged to store it.
(1) Drafts and final artwork together with the granting of rights of use form a unified service. Unless other arrangements, e.g. in Estimates and Offers, the remuneration is based on the collective agreement for design services SDSt / AGD. The fees are net amounts to be paid plus VAT.
(2) If no rights of use are granted and only drafts and / or artworks are delivered, the remuneration for the use shall be canceled.
(3) If the designs are used later, or to a greater extent than originally planned, then braindinx GmbH is entitled to charge the remuneration for the use subsequently or to demand the difference between the higher remuneration for the use and the originally paid.
(4) The preparation of drafts and all other activities that braindinx GmbH provides to the client are subject to charges, unless otherwise agreed.
3 Due Date of the Remuneration
(1) The remuneration shall be due upon delivery of the work, unless otherwise stated in the order confirmations, and payable without deduction.
(2) If the ordered work is accepted in parts, then a corresponding partial fee is due upon acceptance of the part. If an order extends over a longer period of time or if it requires high financial advance payments from braindinx GmbH, then reasonable advance payments are permissible, namely 1/3 of the total remuneration at the time of placing the order, 1/3 after completing 50% of the work, 1/3 after delivery.
(3) In the event of late payment, braindinx GmbH may charge default interest of 6% above the respective base interest rate of the European Central Bank p. a. desire. The assertion of a proven higher damage remains unaffected.
(4) braindinx GmbH reserves the right to invoice the agreed service by post or electronically by e-mail.
4 Special Services, Incidental and Travel Costs
(1) The modification of drafts, the creation and presentation of further drafts, the modification of drawings and other additional services will be charged separately. An additional service is the maintenance of the created service.
(2) Special services such as the revision or change of final artwork, manuscript study or pressure monitoring, etc. are, unless specifically offered, calculated separately according to the time required in accordance with the collective agreement for design services SDSt / AGD. Unforeseeable additional expenditure requires the mutual agreement and if necessary the Nachhonorierung.
(3) braindinx GmbH is entitled to order the third-party services necessary for the fulfillment of the contract in the name and for the account of the client. The client undertakes to grant corresponding authority to braindinx GmbH.
(4) Insofar as contracts are concluded in individual cases in the name and for the account of braindinx GmbH, the client undertakes to indemnify braindinx GmbH internally from all liabilities arising from the conclusion of the contract. This includes in particular the assumption of costs.
(5) Expenses for additional technical costs, in particular for special materials, production of models, photos, intermediate shots, reproductions, phototypesetting, proof, printing, etc. are to be reimbursed by the client.
(6) Expenses such as travel expenses and expenses for meals, accommodation and travel expenses, which are to be undertaken in connection with the contract and agreed with the client, are to be reimbursed by the client and will be charged at cost price.
5 Retention of Title / Decrease
(1) Designs and artwork are granted only usage rights, but not property rights. These are inalienable by law.
(2) The originals must therefore be returned undamaged after a reasonable period of time, unless another agreement has been expressly made. In the event of damage or loss, the client must reimburse the costs necessary to restore the originals. The assertion of a further damage remains unaffected.
(3) The dispatch of the works and templates takes place at the risk and for the account of the client.
(4) braindinx GmbH is not obliged to hand over sketches or files and layouts created in the computer to the client. If the client desires the publication of hand drawings, computer data or scripts, this must be agreed separately and remunerated. If braindinx GmbH has provided computer files to the client, these may only be changed with the prior consent of braindinx GmbH, and only be used for the estimated project on an order-related basis.
6 Correction, Production Monitoring and Document Sample
(1) Before the duplication is carried out, braindinx release and correction samples must be submitted.
(2) Production monitoring by braindinx GmbH takes place only on the basis of a special agreement. When taking over production monitoring, braindinx GmbH is entitled, at its own discretion, to make the necessary decisions and give appropriate instructions. The braindinx GmbH is liable for errors only in case of own negligence and only for intent and gross negligence.
(3) Of all the duplicated works, the client gives the braindinx GmbH 10 to 20 flawless documents free of charge. braindinx GmbH is entitled to use these samples for the purpose of self-promotion in conjunction with a hyperlink.
7 Liability & Warranty
(1) braindinx GmbH undertakes to carry out the order with the greatest possible care, in particular to handle its provided templates, films, displays, layouts, etc. with care.
(2) The braindinx GmbH is liable for damages incurred only in cases of intent and gross negligence. Any compensation exceeding the material value is excluded.
(3) Complaints of any kind must be submitted in writing to braindinx GmbH within 14 days after delivery of the work. Thereafter, the work is considered to be free of defects.
(4) Insofar as braindinx GmbH commissions necessary external services, the respective contractors are not vicarious agents of braindinx GmbH. braindinx GmbH is liable only for its own fault and only for intent and gross negligence.
(5) Insofar as braindinx GmbH itself is the client of subcontractors, it hereby assigns all its warranty, damages and other claims due to faulty, late or non-delivery to the customer. The client undertakes to first attempt to enforce the assigned claims before claiming against braindinx GmbH.
(6) With the approval of drafts, clean executions or final artwork by the client, the latter assumes the responsibility for the correctness of text and image.
(7) Any liability of braindinx GmbH for the drafts, texts, clean executions and final artwork released by the client is void.
(8) braindinx GmbH is not liable for the admissibility and registration of the work as well as for the novelty of the product under competition or trademark law. Statements, e.g. also commissioned analyzes are not legally binding recommendations. Such information may only be provided by a trademark and patent attorney or a register court.
(9) The client exempts braindinx GmbH from all claims that third parties make against it for behavior for which the client bears the responsibility or liability under the contract. He bears the costs of any legal action. The above limitation of liability applies to contractual and non-contractual claims. No liability is accepted for the correct functioning of infrastructures or transmission paths of the internet.
(10) The warranty does not apply, maintenance or care instructions are not followed by the customer, changes made services, parts replaced or interventions by unauthorized third parties, if the defect is due. The customer has to prove that deficiencies are not due to one of the aforementioned conditions.
(11) The customer is responsible for the acceptance of the Internet applications for their data backup, any liability of braindinx GmbH deleted.
8 Freedom of design and templates
(1) Within the scope of the acquired order there is freedom of design. Complaints regarding the artistic design are excluded. If the client wishes to make changes during or after production, he has to bear the additional costs. braindinx GmbH retains the right to remuneration for work already started.
(2) If the execution of the order is delayed for reasons for which the client is responsible, braindinx GmbH may demand a reasonable increase in the remuneration. In the case of intent or gross negligence he can also assert claims for damages. The assertion of further damage caused by default remains unaffected.
(3) The client assures that he is entitled to use all submitted to the braindinx GmbH templates. Should he not be entitled to use contrary to this insurance, the client exempts braindinx GmbH from all compensation claims of third parties.
9 Termination of the Order
(1) With the order confirmation by the customer the order becomes binding for him, d. H. for our services the agreed price is to be paid after acceptance. This order is only revocable within the scope of the legal provisions.
(2) If the client terminates or stops a commissioned service, braindinx Gmbh is entitled to demand the agreed remuneration for the service phase already performed, including the phase in which the termination took place, as well as the reimbursement of all direct investments, corresponding expenses and consequential damages.
(3) braindinx GmbH informs the client of the completion of the individual service phases and undertakes to give the client the opportunity to assess the phase-completion.
(4) If the client terminates, no rights of use shall apply to him. An additional user fee is waived.
(5) All prepared sketches, fine drafts, objects, volumes, data media and other models must be returned to braindinx GmbH immediately. Copies of data must be deleted.
(1) If software programs or scripts are included in the scope of delivery, the purchaser is granted a simple, unrestricted right of use. D. H. he may neither copy nor leave this to others for use. A multiple right of use requires a special written agreement and can be charged several times. In the event of a breach of these rights of use, the buyer is fully liable for the resulting damage.
11 Availability, Maintenance
(1) Liability of braindinx GmbH for loss of data caused by technical failures, interrupted data transfers or other problems in this context is excluded.
12 Online Transmissions, Search Engines
(1) Various customer-specific settings are set online. The transfer of such data is at the risk of the customer without guarantee of braindinx GmbH via the Internet.
(2) The customer is aware that the data provided by him for the registration (keywords, descriptions) are transmitted on the Internet and are generally accessible after being included in a search engine.
13 Data Protection
(1) The braindinx GmbH collect, process and use in the context of the provision and processing of orders of personal data of the client. The braindinx GmbH observes in particular the regulations of the Federal Data Protection Act and the Telemedia Act.
(2) The client declares his consent to the collection and processing of data by braindinx GmbH with the aim of providing and processing orders.
(3) Without the consent of the client, braindinx GmbH will not use the data for advertising, market or opinion research purposes.
(5) The client has the right to revoke his declaration of consent in the collection and processing of data by the braindinx GmbH at any time without giving a justification. Furthermore, collected data can be corrected, deleted or limited if necessary. The information acc. The information obligations and the right of access to personal data in accordance with Article 13 and, if applicable, Article 14 of the GDPR, as well as information on your rights as affected / affected person, are recorded in a separate document with this declaration of consent. Upon request, you can request detailed information on the scope of the data collection we have made at the address below. Also, a data transfer may be requested should the consentor desire a transfer of his data to a third party.
14 Place of Fulfillment and Effectiveness
(1) The place of performance is Aachen as the headquarters of braindinx GmbH.
(2) The law of the Federal Republic of Germany.
(3) The invalidity or even the contractual annulment of any of the above conditions shall not affect the validity of the remaining provisions.
(1) Consultation minutes submitted by braindinx GmbH are binding if the customer does not object immediately upon receipt.
(2) Changes and additions or the partial or total annulment of these terms and conditions or of an underlying contract require the countersigned written form.
(3) Insofar as this general contract basis is missing a provision, the provisions of the Copyright Act and the Design Law apply.
(4) These terms and conditions also apply to future business of the parties.
(5) Changes and additions to these General Terms and Conditions are made available to the customer on the Internet at www.braindings.com/agb. If the customer does not object within 14 days after publication, the change / extension is considered as agreed.
(6) Changes to the contract, supplements and additional agreements must be in writing in order to be valid. The written form requirement also applies to the waiver of this formal requirement.
(7) The exclusive place of jurisdiction for all disputes arising from this contract is, if the customer is a merchant, a legal entity under public law, a special fund under public law or domestically without jurisdiction, Aachen. The relevant law of the Federal Republic of Germany applies.
(8) Deviating terms and conditions of the customer are not recognized by the braindinx GmbH. This also applies if this is not expressly contradicted.