General terms and conditions of Brandmonks GmbH
1. Subject of the contract
1.1. The following general terms and conditions apply to all legal transactions between Brandmonks GmbH, hereinafter referred to as "Agency", with its contractual partners, hereinafter referred to as "Customer" for short. Conditions of the customer that differ from these terms and conditions will only be accepted by the agency after separate and written approval.
1.2. All agreements that are made between the agency and the customer for the purpose of executing an order must be made in writing. Changes, additions, and side agreements must be made in writing to be effective.
1.3. These terms and conditions also apply to all future business relationships with the customer, even if they are not expressly agreed again.
1.4. The agency provides services in the areas of consulting, marketing, and IT solutions. The detailed description of the services to be provided result from the tender documents, briefings, project contracts, their attachments and the agency's service descriptions.
2. Parts of the contract and changes to the contract
2.1. The basis for the agency work and part of the contract is, in addition to the project contract and its attachments, the briefing to be handed over by the agency's customer. If the customer communicates the briefing to the agency orally or by telephone, the agency will prepare a re-briefing on the content of the briefing, which will be handed over to the customer within 5 working days of the verbal or telephone notification. This re-briefing becomes a binding part of the contract if the customer does not object to this re-briefing within 5 working days.
2.2. Any change and / or addition to the contract and / or its components must be made in writing. The customer must bear the resulting additional costs.
2.3. Force majeure events entitle the agency to postpone the project commissioned by the customer for the duration of the hindrance and a reasonable start-up time. This does not result in a claim for damages by the customer against the agency. This also applies if dates and / or events that are important for the customer cannot be met and / or do not occur.
3. Copyright and Usage Rights
3.1. With the full payment of the agreed fee for the contractually agreed duration and to the contractually agreed scope, the customer acquires the rights of use to all work carried out by the agency within the scope of this order. This transfer of rights of use applies insofar as a transfer is possible under German law and applies to the agreed use in the territory of the Federal Republic of Germany. Uses that go beyond this area require a written agreement within the scope of the order or a separate written subsidiary agreement. Unless otherwise agreed, rights of use to work that have not yet been paid for at the end of the contract remain with the agency.
3.2. The services developed in the context of the order are protected as personal intellectual creations by the copyright law. This regulation is also deemed to have been agreed if the level of creativity required by copyright law has not been reached.
3.3. The agency may sign the advertising material it has developed appropriately and as is customary in the industry and publish the order placed for self-promotion. This signature and promotional use can be excluded by a corresponding separate agreement between the agency and the customer.
3.4. The work of the agency may not be changed by the customer or third parties commissioned by the customer, neither in the original nor in the reproduction. Any imitation, including parts of the work, is not permitted. In the event of non-compliance, the agency is entitled to an additional fee from the customer of at least 2.5 times the originally agreed fee.
3.5. The transfer of granted rights of use to third parties and / or multiple uses are, unless regulated in the first order, subject to a fee and require the consent of the agency.
3.6. The agency is entitled to information about the scope of use.
4.1. The remuneration agreed in the contract applies. Unless otherwise contractually agreed, payments are due within 14 days of invoicing without any deduction. If the payment deadline is exceeded, the agency is entitled to interest on arrears of 10 percentage points above the base rate without further warning. The right to assert further damage remains unaffected by this regulation.
4.2. If the development of the agreed services extends over a longer period, the agency can invoice the customer for down payments for the partial services already provided. These partial services do not have to be available in a form usable for the customer and can also be available as a pure working basis on the part of the agency.
4.3. In the event of changes or cancellation of orders, work, and the like by the customer and / or if the requirements for the provision of services change, the agency will reimburse all costs incurred and release the agency from any liabilities towards third parties.
4.4. If the customer withdraws from an order before the start of the project, the agency will charge the customer the following percentages of the originally contractually regulated fee as a cancellation fee: up to six months before the start of the order 10%, from six months to three months before the start of the order 25% , from three months to four weeks before the start of the order 50%, from four weeks to two weeks before the start of the order 80%, from two weeks before the start of the order 100%.
4.5. All prices stated in offers and orders and the resulting amounts to be paid are plus the legally applicable sales tax at the currently applicable rate.
5. Additional services
Unpredictable additional work requires mutual agreement and, if necessary, additional fees.
6. Agency's duty of confidentiality
The agency is obliged to treat all knowledge it receives from the customer based on an order in strict confidentiality for an unlimited period and to oblige both its employees and third parties involved in the same way to absolute confidentiality.
7. Obligations of the customer
7.1. The customer provides the agency with all data and documents required to carry out the project free of charge. All work documents are handled carefully by the agency, protected from access by third parties, only used to work out the respective order and are returned to the customer after the order is completed.
7.2. In connection with a commissioned project, the customer will only place orders with other agencies or service providers after consulting and in agreement with the agency.
8. Agency's guarantee and liability
8.1. The risk of the legal admissibility of the measures developed and implemented by the agency is borne by the customer. This applies if the actions and measures violate the provisions of competition law, copyright law and special advertising laws. However, the agency is obliged to point out legal risks if they become aware of them during its work. The customer releases the agency from claims by third parties if the agency has acted at the express request of the customer, although it has informed the customer of concerns about the admissibility of the measures. The agency must report such concerns to the customer immediately after they become known in writing. If the agency considers a competition law review by a particularly competent person or institution to be necessary for a measure to be carried out, the costs for this shall be borne by the customer after consultation with the agency.
8.2. The agency is in no way liable for the factual statements contained in the advertising measures about products and services of the customer. The agency is also not liable for the patent, copyright, and trademark protection or registrability of the ideas, suggestions, suggestions, concepts, and drafts delivered in the context of the order.
8.3. The agency is only liable for damages that it or its vicarious agents willfully or grossly negligent
have brought about. The agency's liability is limited to the one-time income of the agency resulting from the respective order. The agency's liability for consequential damage caused by defects on the legal basis of a positive breach of contract is excluded if and to the extent that the agency's liability does not result from a breach of the obligations essential for the fulfillment of the purpose of the contract.
herbeigeführt haben. Die Haftung der Agentur wird in der Höhe beschränkt auf den einmaligen Ertrag der Agentur, der sich aus dem jeweiligen Auftrag ergibt. Die Haftung der Agentur für Mangelfolgeschäden aus dem Rechtsgrund der positiven Vertragsverletzung ist ausgeschlossen, wenn und in dem Maße, wie sich die Haftung der Agentur nicht aus einer Verletzung der für die Erfüllung des Vertragszweckes wesentlichen Pflichten ergibt.
9. Collecting Societies
9.1. The customer undertakes to pay any fees that may arise to collecting societies such as Gema. If these fees are disbursed by the agency, the customer undertakes to reimburse them to the agency against proof. This can also take place after the contractual relationship has ended.
9.2. The customer has been informed that when the order is placed in the artistic, conceptual, and advertising area with a non-legal person, an artist's social contribution is to be paid to the artist's social security fund. This tax may not be deducted from the agency invoice by the customer. The customer is responsible and responsible for compliance with the registration and submission obligations.
10. Third party services
Freelancers or third parties engaged by the agency are agents or vicarious agents of the agency. The customer undertakes to commission these employees employed by the agency within the framework of the execution of the order neither directly nor indirectly with projects in the 12 months following the conclusion of the order without the involvement of the agency.
11. Working documents and electronic data
All working documents, electronic data and records that are prepared on the part of the agency as part of the order processing remain with the agency. The customer cannot demand that these documents and data be handed over. With the payment of the agreed fee, the agency owes the agreed service, but not the intermediate steps leading to this result in the form of sketches, drafts, production data, etc.
12. Consulting and IT solutions
12.1. The customer undertakes to provide the agency with all data or documents required for an order or to enable them to be created by the agency. This applies in particular to documents that are required to search for suitable applicants, such as Recording a job description or determining a requirements profile.
12.2. If an applicant proposed by the agency has already applied to the customer regardless of the placement contract, the customer is obliged to notify the agency immediately after the agency has received the application documents. If the customer fails to provide information and in this case a contract is concluded with the applicant, the agency is entitled to invoice the placement fee in full.
12.3. The agency fee is specified in the offer / contract.
12.4 The fee entitlement arises when an employment contract or other employment relationship has been concluded between the customer or a company affiliated with him and the applicant proposed by the agency. If a contract is concluded on terms other than those offered or if the proposed applicant is intended for a job that differs from the requirement profile, this does not affect the agency's fee claim.
12.5. The customer undertakes to immediately provide the agency with evidence of the conclusion of an agreement that justifies the fee claim.
12.6. Special lines such as Advertisement-supported personnel search in print media or aptitude tests must be agreed separately in writing between the agency and the customer. Travel costs incurred by the agency as part of an order at the request of the client will be billed to the customer separately.
12.7. The information provided by the agency about an applicant is based on the information provided by the applicant or by third parties. The agency cannot therefore guarantee the correctness and completeness of the information provided. Likewise, no guarantee can be given that a proposed applicant will not be placed elsewhere.
13. Duration of contract, notice periods
The contract comes into force when it is signed. It is concluded for the contract period specified in the contract. If the contract is concluded for an indefinite period, it can be terminated by both sides at the end of the month with a period of three months. The right to terminate the contract without notice for an important reason remains unaffected by this provision. Notice of termination must be given in writing.
14. Right of withdrawal for consumers
Right of withdrawal
Consumers (§ 13 BGB) have a statutory right of withdrawal.
Right of withdrawal
The cancellation period is fourteen days from the day the contract is concluded.
To exercise your right of withdrawal, you must contact us
Phone: +49 6131 62 35 610
Fax: +49 6131 62 35 611
by means of a clear declaration (e.g. a letter sent by post, fax or email) of your decision to withdraw from this contract. To meet the cancellation deadline, it is sufficient for you to send your notification of exercising your right of cancellation before the cancellation period has expired.
Consequences of withdrawal
If you withdraw from this contract, we will give you all payments that we have received from you, including delivery costs (except for the additional costs that result from the fact that you choose a different type of delivery than the cheapest one offered by us Standard delivery), to be repaid immediately and at the latest within fourteen days from the day on which we received notification of your cancellation of this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless something else was expressly agreed with you; In no case will you be charged any fees for this repayment. If you have requested that the services should commence during the cancellation period, you must pay us a reasonable amount that corresponds to the proportion of the services already provided up to the point in time at which you informed us of the exercise of the right of cancellation regarding this contract Compared to the total scope of the services provided in the contract.
End of revocation
If a dispute arises during or after the completion of an order regarding the commissioned project, an out-of-court mediation process must be carried out before judicial proceedings are initiated. In the event of disputes regarding questions of quality assessment or the amount of the fee, external reports are prepared to reach an out-of-court settlement if possible. The costs for this are shared between the customer and the agency.
16. Final provisions
16.1. The customer is not entitled to assign claims from the contract.
16.2. A set-off or the assertion of a right of retention by the customer is only permitted with recognized or legally established counterclaims.
16.3. The law of the Federal Republic of Germany. The place of performance and jurisdiction is Mainz.
16.4. Should a provision of these general terms and conditions be wholly or partially ineffective or lose its legal validity at a later point in time, this shall not affect the validity of the remaining provisions. Instead of the ineffective provision, another appropriate regulation should apply by way of the contract adjustment, which comes closest in economic terms to what the contracting parties would have wanted if they had been aware of the ineffectiveness of the regulation.
Mainz, January 1st, 2020