General Terms and Conditions of Business

The official language of theses General Terms and Conditions of Business is German. This translation is provided for information purposes only.

1. Scope
   1. These General Terms and Conditions of Business of schwarzspringer Werbeagentur GmbH (hereinafter “schwarzspringer”) shall apply exclusively. Any other general terms and conditions which deviate from, contradict or supplement the present Terms and Conditions of Business shall not form part of the contractual relationship, unless schwarzspringer gives its express written agreement hereto. These General Terms and Conditions of Business shall also apply if schwarzspringer delivers services to the Client and has been made aware of terms and conditions that deviate, contradict or supplement these General Terms and Conditions of Business or if the Client refers to its terms and conditions in an enquiry, offer or order, and schwarzspringer does not expressly object.
   2. These General Terms and Conditions of Business apply to businesses as defined in Section 14 of the German Civil Code (BGB).
2. Scope of services – changes
   1. The scope and content of services to be delivered shall be defined in writing in the form of an offer by schwarzspringer, unless the Client and schwarzspringer (hereinafter “Party” or collectively, “the Parties”) have agreed to terms that deviate from this. schwarzspringer’s offers generally constitute cost estimates. If the Parties agree to a change in the scope or content of a service, schwarzspringer shall issue an updated offer and make this available to the Client.
   2. The Parties enter a contract if the Client verbally or in writing accepts the offer issued by schwarzspringer or if the Client takes delivery of services from schwarzspringer.
   3. Changes to scope and/or content of services may also be recorded in the minutes of a meeting. In the event of a contradiction between the minutes of a meeting and updated offer with respect to the same change in scope and/or content of a service, the information contained in the offer shall apply, unless the Parties have agreed otherwise.
   4. schwarzspringer offers no legal advice relating to its services, particularly with regard to the Client’s competitors, and does not verify their legal basis.
3. External services – third parties
   1. schwarzspringer is entitled to deliver the services itself or to task third parties with the delivery of the required services at schwarzspringer’s own expense.
   2. Unless the Parties have agreed otherwise, schwarzspringer is entitled to task third parties with the delivery of required services in schwarzspringer’s own name at the Client’s expense, provided that the costs thereof do not exceed 40 per cent of the total amount the Client is required to pay to schwarzspringer. Moreover, schwarzspringer shall seek consent from the Client prior to tasking third parties with the delivery of services in schwarzspringer’s name at the expense of the Client.
   3. If schwarzspringer tasks third parties in its own name with the production of advertising materials, schwarzspringer shall not be liable for any defects, unless the Parties have agreed otherwise. In the case of a defect, however, schwarzspringer shall assign any claims against the third party to the Client.
4. Limitation periods – Deadlines– Acts of God – Timely receipt of goods– Partial fulfilment
   1. schwarzspringer’s offers generally do not specify limitation periods or deadlines. These are usually defined in the course of a project. Notwithstanding this, any information provided regarding the time of delivery of schwarzspringer’s services does not constitute a fixed deadline (pursuant to Section 323 paragraph. 2 no. 2 of the German Civil Code, Section 376 of the German Commercial Code (HGB)).
   2. Compliance with agreed deadlines requires the timely and proper fulfilment of obligations on the part of the Client. In particular, the Client must promptly approve, verbally or in writing, all layouts and drafts or communicate its objections. schwarzspringer reserves the right to take action associated with the Client’s non-performance of contractual duties.
   3. If the Client is delayed or culpably fails to fulfil its obligations, schwarzspringer is entitled to claim compensation for any damages arising from this as well as any additional expenditure. schwarzspringer reserves the right to make further claims.
   4. If the failure to meet an agreed deadline can be attributed to an act of God, i.e. an unexpected event that is beyond schwarzspringer’s control and over which schwarzspringer has no influence – for example, without limitation, government or authority measures (irrespective of whether these are legitimate or illegitimate), fire, flood, storms, explosion, natural disasters, mobilisation, war, riots, industrial action, including strikes and lock-outs – the deadline is automatically extended for the duration of these events, provided that it can be proven that they have a significant impact on schwarzspringer’s ability to deliver the services . This also applies when these events occur during a prior delay or affect a sub-contractor of schwarzspringer.
   5. schwarzspringer is released from its obligation to deliver when schwarzspringer, through no fault of its own, does not receive the correct goods on time from its suppliers that are necessary to fulfil the contractual agreement.
   6. schwarzspringer is entitled to make partial deliveries or partially fulfil contractual agreements to a reasonable extent.
   7. schwarzspringer is liable for delays in delivery in accordance with legal regulations subject to the limitations in clause 12.
5. Delivery
   1. Unless the Parties have agreed otherwise, the risk of accidental loss or deterioration for delivered goods passes to the Client as soon as such goods have been transferred to a transport contractor or, at the latest, when these leave schwarzspringer’s premises.
6. Prices – Payment – Payment terms – Netting – Withholding of payment
   1. Agreed prices are net prices and exclusive of the applicable value-added tax. Contributions to artists’ social welfare (KSK) (Germany-specific levy on all creative work), customs duties or other additional fees and levies, including subsequent charges, shall be invoiced to the Client separately.
   2. Unless the Parties have agreed otherwise, the Client shall bear the cost of all packaging, post and transport (without limitation, packaging, freight, post charges, insurance, etc.). schwarzspringer shall invoice these to the Client separately.
   3. Invoices from schwarzspringer shall be paid immediately without any reductions. The application of any discounts requires express written agreement or acceptance from schwarzspringer.
   4. schwarzspringer is entitled to invoice partial services. schwarzspringer is entitled to demand pre-payment for third-party services.
   5. The Client is only entitled to net schwarzspringer’s claims for payment under this contract with its own claims if those claims have been finally adjudicated (res judicata) or are undisputed or acknowledged by schwarzspringer. The Client is only entitled to exercise its right to withhold payment if its claims relate to the same contractual relationship.
7. Defects
   1. schwarzspringer is liable for defects in its services in accordance with legal regulations subject to the following provisions.
   2. The Client shall inform schwarzspringer immediately and in writing of any defects, or as soon as the defect is noticed. Otherwise the Client shall not be entitled to claim any damages.
   3. The Parties agree that where the Client has a right to repair or replacement, (improvement, amendment or additional delivery) the lowest cost option shall be chosen, provided this does not constitute a disadvantage to the Client.
   4. Claims for defects expire after twelve (12) months following the delivery of a service or the transfer of risk (see clause 5). This does not apply if, in accordance, with Section 438, paragraph 1, no. 2 (buildings and objects used in construction), Section 479, paragraph 1 (right of recourse), Section 634a (construction defects) and Section 438 paragraph 2 (bad faith) of the German Civil Code (BGB) longer terms apply.
   5. The Client may only claim damages in accordance with clause 12.
8. Implied warranties of title and non-infringement
   1. Unless agreed otherwise, schwarzspringer is only required to provide its services free from the proprietary rights of third parties (including, without limitation, intellectual property rights) in the country in which the services are delivered. The “country in which the services are delivered” comprises the countries targeted by the advertising, as agreed by the Parties. Unless agreed otherwise, this is limited to Germany.
   2. Should any third parties make any justified claims against the Client, alleging an infringement of proprietary rights by the Client’s contractual use of services delivered by schwarzspringer, schwarzspringer’s liability to the Client shall be limited to the period in clause 7.4 as follows:
   3. schwarzspringer, at its sole discretion and at its own expense, shall either obtain a right of use, change the services so that the proprietary rights are not infringed, or substitute the service with a suitable equivalent. If under the circumstances, it is not reasonable for schwarzspringer to take any of these actions, the Client can exercise their statutory rights to withdraw from the contract or reduce the price. This does not affect schwarzspringer’s obligation to pay damages, which is governed by clause 12.
   4. schwarzspringer’s obligations, as set out in the above, shall only arise when the Client advises schwarzspringer of the claims made by the third party immediately and in writing, does not acknowledge any infringement and leaves schwarzspringer free to raise any defences and/or conduct negotiations as it sees fit. Should the Client cancel the services in order to minimise potential damages, or for any other significant reason, the Client is obliged to inform the third party that the cancellation of services does not constitute acknowledgement of the alleged infringement.
   5. schwarzspringer shall not be liable in cases where the Client is solely responsible for the infringement, by their own acts or omissions.
   6. schwarzspringer shall not be liable for documentation, data, information, etc. provided to the Client. In particular, without limitation, schwarzspringer does not warrant that these are not subject to any third-party proprietary rights. The Client shall indemnify schwarzspringer from and against all damages, liabilities, costs and expenses incurred by schwarzspringer arising from any claims by third parties as to such infringements.
   7. chwarzspringer expressly disclaims any liability for claims by the Client against it relating to implied warranties of title or non-infringement that go beyond the scope of clause 8.
9. Rights of use
   1. On the payment of all invoices owing under the contract between the Client and schwarzspringer, schwarzspringer shall transfer all relevant rights of use to the customer, to the agreed extent. Unless agreed otherwise, schwarzspringer shall transfer to the Client a non-exclusive, non-transferable, non-licensable right to use the services provided by schwarzspringer unaltered, limited to the geographical territory of Germany and for the duration of the advertising campaign. Any other use of the services, in particular, without limitation, any alteration of the services, requires the prior written consent of schwarzspringer. Schwarzspringer can make its consent conditional on additional payment.
      Notwithstanding this, schwarzspringer is at minimum entitled to a fee for the usage of the services beyond the duration of the advertising campaign; beyond the geographical territory in which the services were to be delivered; and/or for other types of uses/advertising media. schwarzspringer shall receive this fee for at most three years, in decreasing amounts, as follows:
      – the first year 5 (five) per cent
      – the second year 3 (three) per cent
      – the third year 2 (two) per cent
      of the relevant net price.
   2. schwarzspringer is entitled to partially or fully publish or otherwise disseminate the services provided for the Client, enter such services in competitions, or use these for schwarzspringer’s own advertising, without payment.
10. Reservation of rights
    1. Until the payment of all outstanding claims relating to the business relationship between the Client and schwarzspringer, any items provided to the Client remain the property of schwarzspringer. This applies even when the Client has paid for certain services, as specified by the Client.
11. Termination of the contract – Continuing obligations
    1. Should the Client repudiate the contract by preventing performance of the contract or by refusing to accept the contractual services, or should the Client terminate the contract without good cause, schwarzspringer shall be entitled to:
       a) demand the agreed payment; however, schwarzspringer shall subtract any amounts saved as a result of the premature termination, or obtained by using the resources for other purposes in bad faith, b) insist on the performance of the contract, or c) claim damages for non-performance, to the amount of 25 per cent of the agreed payment, for costs incurred by work already performed and lost earnings. In such cases, the Client shall be entitled to prove that no damages or considerably lower damages arose from the termination; schwarzspringer reserves the right to claim compensation for higher damages, should it have sufficient proof.
       
    2. In the event of continuing obligations, without an agreed term, the contractual relationship may be terminated by either Party at the end of a calendar year, on the provision of at least three months’ notice. This shall not affect the Parties’ right to terminate for good cause.
12. Liability
    1. schwarzspringer shall only be liable for damages and wasted expenditure pursuant to Section 284 of the German Civil Code (BGB) (hereinafter “damages”) due to defective and/or delayed services and/or the delivery thereof, and the breach of any other contractual or non-contractual duties, in particular, without limitation, by unauthorised acts, in the event of wilful misconduct or gross negligence. This limitation of liability shall not apply to damages arising from death, physical injury or injury to health, acceptance of a guarantee or procurement risk, the breach of significant contractual obligations, or to statutory product liability under the German Product Liability Act.
    2. Damages for breach of significant contractual obligations shall be limited to damages that should reasonably have been foreseen by schwarzspringer at the time the contract was concluded, unless there is proof of wilful misconduct or gross negligence, or the damages arise from death, physical injury or injury to health, acceptance of a guarantee or procurement risk.
    3. All limitations of liability shall apply in the same extent to schwarzspringer’s agents, with respect to performance of the contract.
    4. These provisions do not in any way alter the burden of proof to the detriment of the Client.
    5. Significant contractual obligations, as per clauses 12.1 and 12.2 above, are those obligations essential for the performance of the contract, and that the Client may reasonably expect to be fulfilled.
13. Assignment of claims
    1. Claims against schwarzspringer may only be assigned with the prior written consent of schwarzspringer. The Client is not entitled to receive such consent. This does not affect the operation of Section 354a of the Commercial Code (HGB).
14. Customer relationship management – Data protection
    1. Unless the Parties have agreed otherwise, schwarzspringer is entitled to use the identity of the Client and schwarzspringer’s business relationship with the Client for advertising purposes.
    2. The Client hereby accepts that by concluding a contract, its personal information will be electronically captured and processed. schwarzspringer will only use this data in compliance with the German Federal Data Protection Act (BDSG). This information shall only be disclosed to third parties for the purposes of performance of the contract.
15. Place of performance – Governing law and jurisdiction
    1. For the purposes of all rights and obligations pertaining to schwarzspringer’s services and the delivery thereof, the place of performance shall be schwarzspringer’s place of business.
    2. Any disputes arising from contracts with corporations, business persons, legal persons under German public law or special funds under German public law shall be subject to the jurisdiction of the courts of Stuttgart. schwarzspringer is entitled, at its discretion, to take legal action in the jurisdiction of the Client’s place of business.
    3. The contractual relationship shall be governed by the laws of Germany, excluding its conflict of laws provisions.
    4. The official language of these Terms and Conditions is German. This English translation is provided for the purposes of information only.