1.1. These General Terms and Conditions (hereinafter “terms and conditions”) of schwarzspringer Werbeagentur GmbH (hereinafter “schwarzspringer”) shall apply exclusively. Conflicting or contrary terms and conditions, as well as any conditions of the customer not covered by these terms and conditions, shall not be recognized by schwarzspringer, unless schwarzspringer has explicitly consented to their applicability in writing. These terms and conditions shall also apply when schwarzspringer unconditionally performs its services for the customer despite being aware of any conditions of the customer which conflict with, are contrary to or are otherwise not covered by these terms and conditions, or when the customer refers to the applicability of his general terms and conditions in his inquiry, offer, order or in any other context relevant to the conclusion of the contract and schwarzspringer does not explicitly contradict.
1.2. These terms and conditions shall only apply to business persons as defined by Section 14 of the German Civil Code (BGB).
2.1. The scope and content of the services can be found in schwarzspringer's written offers, unless the customer and schwarzspringer (hereinafter referred to individually or collectively as “party” or “parties”) have reached a different agreement. schwarzspringer's offers are generally to be viewed as cost estimates. If the parties agree to alter the scope or content of the services, schwarzspringer will prepare an updated offer and provide the customer with this offer.
2.2. A contract between the parties is concluded when the customer accepts the offer verbally, in writing or effectively by utilizing schwarzspringer's services.
2.3. Changes to the scope or content of the services can also be recorded in the minutes of a meeting. If the minutes of the meeting and the updated offer, which refer to the same change to the scope or content of a service, are contradictory, the content of the offer shall apply, unless the parties have reached an alternate agreement.
2.4. schwarzspringer does not provide any legal assessment or advice, particularly in regard to competition law, in connection with its services.
3.1. schwarzspringer is entitled to perform the contracted services itself or to contract a third party at its own expense to provide the services.
3.2. schwarzspringer will only contract third parties for work necessary for the provision of services in its own name at the cost of the customer after obtaining the customer's consent.
3.3. If schwarzspringer engages a third party with the production of advertisement materials in its own name and at the cost of the customer, schwarzspringer shall not be liable for any deficient services provided by the contracted third party, unless the parties have reached an alternate agreement. However, schwarzspringer shall assign its defect claims toward the contracted third party to the customer in the case of deficient services.
4.1. schwarzspringer's offers generally do not contain any deadlines or dates. These typically develop during the processing of the order. Regardless thereof, schwarzspringer's time frames for the performance of services are generally not fixed deadlines (Section 323 (2) no. 2 of the German Civil Code, Section 376 of the German Commercial Code).
4.2. In order for the agreed upon dates and deadlines to be met, the customer must fulfil all his duties to cooperate duly and in good time; in particular, the customer must issue his approval or make clear his objections to all layouts and drafts without delay either verbally or in writing. We reserve the right to plea non-fulfilment of contractual duties.
4.3. If the customer defaults on acceptance or infringes any other duties, schwarzspringer shall be entitled to demand compensation for the damage, including any additional expenses, incurred as a result. We reserve the right to assert more extensive claims.
4.4. If an established deadline or date is missed due to an instance of force majeure, i.e. an unforeseeable event upon which schwarzspringer has no influence and for which schwarzspringer is not responsible, (e.g. measures and directives of public authorities (regardless of the validity thereof), fire, floods, storms, explosions or other natural disasters, mobilization, wars and civil disorder), the deadline shall be extended for the duration of the events causing the delay, insofar as these obstacles have a significant demonstrable influence on the completion of the service. This shall also apply when these circumstances arise during a delay in delivery or if the circumstances affect a subcontractor of schwarzspringer.
4.5. If schwarzspringer does not receive in a timely fashion the correct, ordered goods needed to fulfill the contract, without fault of its own, schwarzspringer shall be released from its delivery obligations.
4.6. Partial performance may be made to a reasonable extent.
4.7. schwarzspringer is liable for delivery delays according to statutory regulations, taking into account the limitations listed under Clause 11.
Provided that the parties have not reached an alternate agreement, in the case of deliveries, the risk of accidental loss and deterioration of the delivered products is transferred to the customer when the products are handed over to the person responsible for their transport, or at the latest when they leave the premises of schwarzspringer or - in the case of production by a third party and direct delivery from the premises of the producer - the premises of the producer.
6.1. The agreed upon prices are net prices to which the applicable value added tax shall be applied. schwarzspringer will issue a special invoice for social security contributions for artists, customs duty or other costs, including ones that arise subsequently, to the customer.
6.2. Unless the parties have reached an alternate agreement, the customer shall bear all costs of travel, packaging and transportation (packaging, freight, postage, insurance, etc.). schwarzspringer will issue a special invoice for these costs to the customer.
6.3. schwarzspringer's invoices shall be settled immediately at no discount. Prompt payment discounts may only be deducted if this has been agreed specifically in writing.
6.4. schwarzspringer is entitled to issue invoices to customers for partial performance; schwarzspringer is entitled to demand advance payments from the customer for services by third parties.
6.5. The customer shall only be entitled to offset against counterclaims which have been recognized by non-appealable declaratory judgement, are undisputed, are recognized by schwarzspringer or are closely and reciprocally associated with schwarzspringer's claim. The customer shall only be entitled to exercise a right of retention if the customer’s counterclaim is based on the same contractual relationship.
7.1. schwarzspringer shall be liable for deficiencies in its services to the extent of the statutory provisions subject to the following conditions.
7.2. The customer shall issue a written complaint to schwarzspringer without delay after the service (obvious deficiencies) or after discovery of the deficiencies. Otherwise the assertion of damage claims shall be excluded.
7.3. Claims for defects expire 12 months after provision of the service and/or after transfer of risk (cf. Clause 5). This does not apply if longer periods mandatorily apply pursuant to Section 438 (1) no. 2 (constructed works, items for constructed works), Section 479 (1) (rights of recourse) and Section 634a (438) no. 2 (structural defects) of German Civil Code (BGB).
7.4. The customer can only demand compensation for damage according to the provisions of Clause 11 below.
8.1. If the parties have not reached an alternate agreement, schwarzspringer shall only be obligated to provide its services in the country of the place of performance free of intellectual property rights and copyrights of third parties (hereinafter “intellectual property rights”). The “place of performance” shall refer to those countries in which the advertisement shall be used according to the agreements made. Unless the parties have reached an alternate agreement, this only includes the Federal Republic of Germany.
8.2. Should, owing to an infringement of intellectual property rights, a third party assert admissible claims against the customer based on the contractually agreed services performed by schwarzspringer, schwarzspringer shall be liable to the Customer within the period stipulated under Clause 7.4 as follows:
8.3 schwarzspringer shall, at its discretion and cost, either secure a license for the relevant services, modify the services in such a way that they no longer infringe the intellectual property rights, or exchange such services. Should schwarzspringer not be able to carry out any of the above measures at reasonable conditions, the customer shall be entitled to assert its statutory right to withdraw from the contract or to demand a reduction in price. schwarzspringer's obligation to provide compensation for damage remains unchanged and is subject to Clause 11 below.
8.4. The duties of schwarzspringer referred to above shall only apply if the customer immediately informs schwarzspringer in writing about the claims asserted by a third party, does not acknowledge such an infringement, and ensures measures to ward off such claims or composition negotiations remain the exclusive preserve of schwarzspringer. Should the customer cease to use the services with the aim of minimizing the scale of claims or for any other important reasons, the customer shall advise the third party that such cessation of use shall not be deemed to be a recognition of the infringement of the relevant intellectual property rights.
8.5. Customer claims are excluded to the extent that the customer is responsible for the infringement of the intellectual property rights.
8.6. schwarzspringer shall not be liable for any documents, data, information, etc. provided by the customer, particularly in regard to whether they are free of intellectual property rights. The customer shall release schwarzspringer from all claims by third parties based on such a violation of rights and shall reimburse schwarzspringer for all damage, expenses and costs arising from such a culpable violation of his duties.
8.7. More extensive customer claims or customer claims other than those described in Clause 8 against schwarzspringer on the basis of defects in title are excluded.
9.1. Upon settlement of all invoices related to the contract between the customer and schwarzspringer, schwarzspringer shall transfer all usage rights related to the contract to the customer in the agreed upon scope. If the parties have not agreed upon the scope of the usage rights, schwarzspringer shall transfer the customer a non-exclusive, non-transferable, non-sublicensable usage right limited to the territory of the Federal Republic of Germany and the duration of use of the advertising material for schwarzspringer's products in their unaltered form. Any use of these products, and in particular any changes made to them, require the prior written consent of schwarzspringer and schwarzspringer may make this usage dependent on additional compensation.
9.2. schwarzspringer is entitled to publish the services provided to the customer either in full or in part, to use these in competitions and to use these for purposes of advertisement for schwarzspringer free of charge.
10.1. Should the customer seriously and definitively refuse to settle the contract or accept the contractual services, or should the customer terminate the contract without a justifiable reason for such termination, schwarzspringer shall be entitled to
a) Demand the agreed upon compensation; schwarzspringer shall, however, accept deductions equal in value to any costs saved as a consequence of the termination or the revenues obtained by the alternative use of their employees and work operations which would have been obtained but for wilful neglect,
b) Demand the fulfilment of the contract, or
c) Demand compensation for damage due to non-fulfilment in the amount of 25% of the agreed upon compensation for the costs incurred due to work on the contract and for lost profit. The customer is permitted to bring proof that no or significantly less damage was incurred; schwarzspringer retains the right to assert demonstrably higher damage.
10.2. For continuing obligations without an established duration, the contract may be ended by either party 3 months in advance of the end of the year. The right of the contracting parties to terminate immediately for good cause remains unaffected.
11.1 schwarzspringer is liable for compensatory damages and for reimbursement of futile expenses as described in Section 284 of the German Civil Code (hereinafter “compensatory damages”) due to deficient or late delivery or services as well as due to breaches of other contractual or non-contractual obligations, in particular those arising from tortious acts, only in the case of intent or gross negligence. The limitation of liability above does not apply to injury to life, limb or health, when assuming a guarantee or supply risk, breaches of essential contractual obligations or to liability according to the German Product Liability Law.
11.2. Compensatory damages due to breaches of essential contractual obligations are limited to compensation of damages intrinsic to the contract, which schwarzspringer must have anticipated at the time of conclusion of the contract as possible consequences due to circumstances recognizable for schwarzspringer, provided that neither intent nor gross negligence is evident or the liability is incurred by damage to life, limb or health or assumption of a guarantee or supply risk.
11.3. All limits on liability shall apply to the same extent for agents in performance and vicarious agents.
11.4. The above provisions do not constitute a modification in the burden of proof to the customer’s disadvantage.
11.5. Essential contractual duties as described under 11.1 and 11.2 are those obligations which must be complied with for the contract to be performed properly and which the ordering party can routinely rely on being complied with.
The transfer of claims against schwarzspringer is only permissible with schwarzspringer's prior written consent. There is no entitlement to have such permission given. Section 354 (a) of the German Commercial Code remains unaffected.
13.1. If the parties have not reached an alternate agreement, schwarzspringer is entitled to advertise with the customer and their relationship.
13.2. The customer agrees that the personal data gathered in the context of the conclusion of the contract shall be processed automatically. schwarzspringer will process and use this data solely according to the provisions and limits of the German Federal Data Protection Act. Data will only be given to third parties to the extent necessary for the proper completion of the contract.
14.1. The place of incorporation of our company shall be the place of performance for both parties with regard to all rights and duties arising from our deliveries and services.
14.2. The legal venue for companies, business persons, legal persons as defined by public law or public special assets is Stuttgart. schwarzspringer is entitled to choose to bring legal action in the place of incorporation of the customer.
14.3. The contractual relationship is subject to the substantive law of the Federal Republic of Germany with the exception of provisions related to conflict of laws.