Terms and Conditions
General Terms and Conditions
of the Design Office Dipl.-Ing. Markus Binz
The following General Terms and Conditions (hereinafter: GTC) apply for all our works performed for the customer. This in particular applies also when the customer uses its own general terms and conditions, and these contain provisions conflicting with or diverging from the provisions set forth herein. Any general terms and conditions of the customer are hereby expressly objected to.
2. Copyright and rights of use
The customer hereby expressly acknowledges our rights to all works performed by us.
Our works must not without express approval be changed, neither in the original nor in reproduction. Any imitation, even if only in part, is prohibited. A breach of these provisions entitles us to request a contract penalty of 200% of the agreed remuneration. If such remuneration has not been agreed, the common remuneration according to the current collective bargaining agreement for designer services SDSt/ADG shall be deemed agreed.
Insofar as we have granted the customer any rights of use to our works by individual agreement, such rights of use shall be transferred only upon full payment of the remuneration. Unless otherwise expressly agreed in writing, only a non-exclusive right of use shall in each case be transferred. We shall in any case remain entitled to use our works within the scope of self-promotion.
We are entitled to be named as originator on the reproductions and publications of our works. If the customer infringes our right to be named, the customer shall be obliged to pay a contract penalty of 200% of the agreed remuneration. This shall not affect our right to assert higher damages upon concrete calculation of damage.
Proposals and instructions of the customer or its employees and agents shall not affect the amount of the remuneration. They shall not establish any joint copyright.
3. Acceptance of delivery and remuneration
Unless otherwise agreed in writing, the remuneration shall be due upon delivery of the works. It is payable without deduction.
Remuneration is stated in net amounts with statutory value added tax to be paid in addition.
If the works are accepted in parts, then a partial remuneration shall be paid upon first partial delivery; such partial remuneration shall amount to at least half the total remuneration. Any diverging agreements require written form.
Any complaints whatsoever about the works have to be asserted towards us in writing within two weeks of delivery. Thereafter, the works shall be deemed as accepted according to contract and free from defects.
Acceptance may not be denied for design or for artistic reasons. Creative freedom shall apply within the scope of the assignment.
Upon acceptance of the works, the customer will assume responsibility for the correctness of text and image.
In the event of default in payment, the designer may request default interest of 8% per annum above the relevant base rate. The assertion of a proven higher damages shall remain unaffected thereby, as shall be the customer’s entitlement to prove a lower burden in the individual case.
If the works are used again and within a wider scope than originally envisaged, then we shall be entitled to subsequently charge the difference between the higher remuneration for the actual use and the remuneration originally received.
If the tax authorities impose value added tax deviating from the VAT of 7%, we may additionally request the difference.
4. Special services, ancillary costs and travel expenses
Special services, including but not limited to the revision or alteration of final artwork, study of manuscripts or print monitoring, etc., are charged separately according to time spent, in compliance with the applicable collective bargaining agreement for designer services SDSt/AGD.
We are entitled to order third party services required for the performance of the assignment in the name and for the account of the customer. The customer undertakes to grant us corresponding authorisation.
If in the individual case any contracts for third party services are entered into in our name and for our account, the customer undertakes to indemnify us in the internal relationship against all obligations arising from the conclusion of the contract. This in particular includes the assumption of the costs.
Expenses for technical ancillary costs, in particular for special materials, the production of models, photos, intermediate shots, reproductions, setting and printing, etc., must be refunded by the customer.
5. Retention of title
We grant only rights of use to our works, without any transfer of ownership rights. The originals are to be handed back to us undamaged, at the latest three months after delivery, unless otherwise agreed in writing.
In case of damage to or loss of the originals, the customer will have to reimburse the restoration costs. The assertion of further damage shall remain unaffected.
6. Correction, production monitoring and reference samples
Prior to reproduction, checking copies for correction have to be provided to us upon request.
We will only monitor production upon separate agreement. When monitoring production we shall be entitled to take necessary decisions at our own discretion and to give corresponding instructions. We shall be liable for errors only in case of own fault and only for intent and gross negligence.
Of all works reproduced, the customer shall provide us with six faultless copies, free of charge. We are entitled to use these samples for self-promotion.
Unless otherwise agreed in writing, we will be liable, irrespective of the legal cause, only for intent and gross negligence. This limitation of liability also applies for our vicarious agents and with respect to contractual or tortious liability. We shall be liable for slight negligence only upon violation of material obligations. In such case, however, the liability for indirect damage, consequential damage and lost profits shall be excluded. Our liability is furthermore limited to compensation of typical, foreseeable damage, in any case however to a maximum liability sum of EUR 15.000,-.
The dispatch of the works and templates, in particular also the transportation of data carriers, and the online transportation of data files, data and layouts is at the risk and for the account of the customer.
Our liability is excluded in case of any failure relating to data carriers, data files, data and layouts caused upon data import to the customer’s system.
We do not assume any liability or warranty towards the customer for orders passed to third parties in the name and for the account of the customer, except to the extent of fault in selecting (culpa in eligendo). In these cases we only act as intermediaries.
Insofar as we directly commission subcontractors, we hereby assign to the customer all warranty claims, claims for damages as well as any other claims from defective or delayed delivery or from non-delivery. The customer undertakes to try to enforce the assigned claims before taking recourse to the designer.
The customer indemnifies us from all claims asserted by third parties against us for any conduct for which the customer is responsible or liable under the contract. The customer shall bear the costs of any legal action.
We are released from liability for the drafts, developings, elaborations, final designs and drawings released by the customer.
We do not assume liability for any admissibility under competition and trademark laws and for the capability of our works to be registered, nor are we liable for the novelty of the product.
The customer declares to use our works only for such products or services that have been produced or rendered in consideration of the general ethical standards.
8. Creative freedom and templates
Creative freedom shall apply within the scope of the assignment. Complaints regarding artistic design are excluded. The customer must bear any additional costs for alterations requested during or after production. We remain entitled to remuneration for works already commenced.
If the performance of the assignment is delayed for any reasons for which the customer is responsible, we may request a reasonable increase in remuneration. In case of intent or gross negligence, we may also assert claims for damages. The assertion of further default damage remains unaffected thereby.
The customer represents being entitled to use all templates submitted to the designer, and that such templates are free from rights of third parties. If contrary to this representation the customer is not entitled to use the template, the customer shall within the internal relationship indemnify us from any claims for damages asserted by third parties.
9. Final Provision
Place of performance and place of jurisdiction is Bühl.