General Terms and Conditions

General Terms and Conditions dated 01.10.2015 –
myartwork GmbH

The following General Terms and Conditions apply to all legal transactions in which myartwork GmbH is involved.

All agreements and offers are based on the conditions of the Contractor. They are considered recognised when the order is issued or the service or delivery is accepted and thus also apply to all future business relationships even if they are not expressly agreed upon again. Deviating conditions from the Client or third parties that the Contractor does not expressly recognise in writing are not binding for the Contractor even if no express objection is submitted in individual cases. Even if the Contractor references or cites a document that includes the terms and conditions of the Client or a third party, this does not substantiate consent to the applicability of those terms and conditions.

1. Conclusion of the contract, prices

All offers from the Contractor are subject to change and non-binding unless they are expressly identified as binding or contain a specific acceptance deadline and are directed solely toward businesses in accordance with § 14 of the BGB (German Civil Code). The respective contract concluded between the Contractor and the Client, including these General Terms and Conditions, are the definitive documents with respect to the legal relationship between the Client and the Contractor. This contract fully describes all agreements between the contractual parties with respect to the subject of the agreement. Verbal commitments from the Contractor prior to the conclusion of this agreement are not legally binding. Verbal agreements between the contractual parties shall be replaced by the written agreement. Addenda and amendments to the concluded agreements including these General Terms and Conditions must be made in writing in order to be effective. Transmission via fax is sufficient for fulfilling this written form requirement; incidentally, telecommunication transmission, in particular via email, is not sufficient.

The Client is obligated to notify the Contractor, in due time, regarding the type, scope and time of the required services and to provide all information or documents required for the proper execution of the order on time and free of charge.

myartwork is entitled to execute the assigned orders itself or commission third parties with the execution.

The Client shall be responsible for ensuring that the content of the delivered materials do not violate statutory provisions. The Client shall indemnify the Contractor from any and all claims from third parties, including potential legal costs.

The prices specified in the Contractor’s offer apply, subject to the condition that the order data on which the offer is based does not change. The prices are in EURO unless otherwise specified and are ex works without value added tax. Packaging, freight, postage, insurance and other shipping costs are not included in the prices. Later changes upon request of the Change shall be invoiced to the Client.

Additional unforeseeable expenses require mutual agreement and, if necessary, subsequent remuneration. The Contractor shall charge a separate remuneration for concepts, sketches, layouts, sample prints, patterns or similar preliminary work initiated by the Client.

Until all claims (including balance claims) against the Client to which the Contractor is entitled or will be entitled in the future have been settled, the delivered goods remain the property of the Contractor (reserved goods).

2. Payment conditions

The invoice (net price plus value added tax) shall be issued on the date the goods are shipped or service is performed. This also applies to the completion of partial services.

The payment periods start from the invoice date. The payment of the invoice amount (net price plus value added tax) is due, without deduction, within 14 days after the invoice date. The Contractor reserves the right to demand advance payment or partial payments for work already performed. For bank transfers and checks, the date on which the credit notification is received by the Contractor applies as the payment receipt date.

If the Client does not pay when due or only makes partial payment, 4% interest per year shall be charged on the pending amounts from the due date; the assertion of higher interest and further damages in the event of default remains unaffected.

If a significant deterioration of the Client’s financial situation that endangers the Contractor’s claims for payment becomes known, the Contractor is entitled to demand advance payments, retain the goods and cease work on the ongoing orders. The Contractor is entitled to the same right if the Contractor is in default on payments resulting from the business relationship. The Contractor has the right to assign its claims against the Client to third parties. If the Client goes into default on a payment claim, the Contractor can declare the payment of all pending claims due, including claims that are not yet due. Payments shall be made free of charges from the supplier. The Client shall bear all fees, costs and expenses incurred in conjunction with any prosecution successfully enforced against the Client outside of Germany.

3. Copyrights and usage rights

Upon complete payment of the contractual remuneration, the Customer acquires usage rights, for the contractual duration and in the contractual scope, to all work produced by myartwork in the framework of this order.

Third-party usage rights are excluded and must be separately acquired by the Customer.

This transfer of usage rights applies, insofar as a transfer is possible in accordance with German law, and applies for the contractual use within the Federal Republic of Germany. Uses beyond this region require a written agreement in the framework of the order or a separate written supplemental agreement. Unless otherwise agreed, myartwork retains the usage rights to work that has not been paid for upon termination of the agreement.

The services and products developed in the framework of the order are protected as personal intellectual creations by the German Copyright Act.

This provision also applies as agreed upon if the required level of creation in accordance with the German Copyright Act is not achieved.

The Client is liable for ensuring that the content of the templates it provides does not violate statutory provisions and is not encumbered by third-party rights. The Client shall indemnify the Contractor from any and all claims in this context.

myartwork may sign the advertising materials it develops to a reasonable extent and publish the issued order for its own advertising purposes.

This signature and commercial use can be excluded by a corresponding separate agreement between myartwork and the Customer.

Neither the original version nor reproductions of the work from myartwork may be modified by the Customer or third parties commissioned by the Customer.

Any imitation, even of parts of the work, is prohibited.

In the event of violations, myartwork shall charge the Customer an additional remuneration of at least 2.5 times the amount of the originally agreed upon remuneration.

Unless otherwise agreed upon in the initial order, the transfer of granted usage rights to third parties and/or multiple uses are subject to remuneration and require the approval of myartwork.

myartwork is entitled to information regarding the scope of use.

4. Deliveries

Deliveries are ex works unless otherwise agreed upon. Shipping is at the risk of the Client. Unless the Client issues special instructions, the Contractor shall not assume any liability with respect to utilising the least expensive or fastest shipping method. Transport insurances shall only be concluded by the Contractor upon express instruction and at the Client’s cost; otherwise the goods shall only be insured in accordance with the respective transporter’s freight forwarding conditions.

If the Client goes into default on acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the Client is responsible, the Contractor is entitled to demand compensation of the resulting damages, including additional expenses.

5. Delivery period

Delivery periods are only binding if they have been confirmed, in writing, by the Contractor. The agreement of a specific delivery date does not substantiate a fixed date transaction. If shipment has been agreed upon, the delivery deadlines and dates pertain to the time of transfer to the shipping company, freight forwarder or other third party commissioned with the transport. Regardless of rights due to Client default, the Contractor can demand an extension of the delivery and service deadlines or a postponement of delivery and service dates by the period during which the Client does not fulfil a contractual obligation to cooperate with respect to the Contractor.

If no delivery dates have been agreed upon, but rather a reasonable delivery period based on specific periods, this period begins on the date the order receipt confirmation is sent; it ends on the day on which the goods leave the supplying factor or are stored due to the shipment not being possible. If the Client demands changes to the order that impact the production duration after the order confirmation has been issued, a new delivery period shall begin, namely, when the changes are confirmed. If a print file transmitted by the Client contains errors or does not comply with the required specifications, a new delivery period shall begin upon receipt of the error-free print file. The Contractor is not responsible for the unsuccessful delivery of the shipment or if the delivery period is exceeded if these are caused by mobilisation, war, strikes, lock-outs, riots, failure of transportation or the occurrence of unforeseeable hindrances. A temporary exceedance of the delivery period and insignificant exceedance of the price as a result thereof do not grant the Client the right to withdraw from the agreement.

6. Deliver delay and default

In the event the Contractor is delayed in delivering, the Client can withdraw from the agreement after a reasonable grace period has passed without success or if a deadline is not required in accordance with the law. Incidentally, the Contractor is only liable for delivery delays in accordance with No. 8.

7. Complaints

Complaints regarding detectable defects must be asserted immediately in writing. If the Client fails to perform a proper inspection and/or to submit a notification of defects, liability for unclaimed defects is excluded. Defects to a part of the delivery can only result in a complaint regarding the entire delivery if the entire delivery is significantly negatively impacted by the defect.

Under exclusion of other claims, the Contractor is obligated, as per its choice, to provide subsequent improvement and/or a replacement delivery unless a guaranteed property is missing or the Contractor or its fulfilment assistants are guilty of intent or gross negligence. The same applies in the event of a justified complaint regarding the subsequent improvement or delivery. In the event of delayed, omitted or subsequent failed improvement or replacement delivery, the Client can demand a reduction of the remuneration or withdraw from the agreement. The rectification of defects is considered failed after a second unsuccessful attempt unless another result arises, in particular, from the nature of the matter or defect or the other circumstances.

Incidentally, the Contractor is only liable in accordance with No. 8.

8. Liability

8.1. The Contractor only assumes unlimited liability in cases of intent or gross negligence, for damages due to life, limb or health and in accordance with the German Product Liability Act.

8.2. In all other cases, the Contractor is only liable for compensation of damages, regardless of the legal grounds, in the event of a culpable violation of cardinal obligations. Cardinal obligations include obligations required to properly execute the agreement and which the Client can generally trust will be complied with. In these aforementioned cases, the Contractor is only liable for the foreseeable contract-typical damages. In addition, in these cases, the Contractor is not liable for damages caused by the delivery object to other legal assets of the Client, e.g. damage to other assets. Incidentally, liability due to slight or moderate negligence is excluded.

8.3. The Contractor shall only save transmitted data for the duration of the order, insofar as no other storage duration is expressly agreed upon. The Contractor is not liable for the loss of data the Client transmits; the Client shall create and submit backups itself. This limitation of liability does not apply in the event of No. 8.1.

8.4. The risk for all defects is transferred to the Client upon approval unless these defects arose or could not be detected until after the production process following the approval. This limitation of liability does not apply in the event of No. 8.5. The limitation of liability in Nos. 8.1. – 8.4. also applies to the claim for compensation of wasted expenses and the behaviour of the fulfilment and performance assistants, the bodies and other representatives of the Contractor.

8.6. The risk of the legal admissibility of measures developed and implemented by myartwork shall be borne by the Customer.

This applies in particular in the event that actions and measures violate competition law, copyright law and special advertising law provisions. myartwork is, however, obligated to report legal risks if they become known during the activities. The Customer shall indemnify myartwork from third-party claims if the agency has acted upon the express request from the Customer although it notified the Customer of concerns with regard to the admissibility of the measures.

myartwork must report such concerns to the Customer in writing immediately after they become known.

If myartwork deems a competition law-related audit by a special expert or institution necessary for a measure to be implemented, the Customer shall bear the costs after consultation.

8.7. myartwork is not liable under any circumstances for objective messages about products and services of the Customer in the advertising materials. myartwork is also not liable for the eligibility of ideas, suggestions, recommendations, concepts and designs for patent, copyright and trademark protection or registration.

9. Transmission of digital documents

9.1. If the Client does not follow the Contractor’s recommendations regarding the creation and transmission of digital documents, the Client is not entitled to any claims due to incorrect processing. This also applies if the Client culpably ignores other provisions in these General Terms and Conditions and the price lists, which are directly significant for the processing quality.

9.2. If documents are digitally transmitted to the Contractor, the Client is liable for ensuring that the transmitted files are free of computer viruses. The Contractor can delete files with computer viruses without the Client being entitled to claims based on the deletion. The Contractor reserves the right to assert claims for compensation if the computer viruses cause further damages for the Contractor.

10. Statute of limitations

10.1. The statute of limitations on claims for compensation of damages, regardless of the legal grounds, or other claims or rights due to defects, is one year.

10.2. Contrary to § 438 Para. 1 No. 3 of the BGB, the general statute of limitations for claims due to material and legal defects is one year.

10.3. The statute of limitations begins upon delivery.

10.4. The aforementioned statutes of limitation do not apply in the event of intent. They also do not apply if the Contractor has maliciously concealed the defect or has assumed a quality guarantee. The specified statutes of limitation for claims for compensation of damages also do not apply in cases of injury to life, limb, health or freedom, claims in accordance with the German Product Liability Act, grossly negligent violation of obligations or culpable violation of cardinal obligations (cf. No. 8.2. for a definition of the term).

10.5. All other Client claims expire within one year. The start of this statute of limitations is based on the statutory regulations.

11. Author corrections

Customer and author corrections shall be invoiced based on the actual hours worked unless otherwise agreed upon.

12. Property rights, unethical content

The Client declares that he/she is the owner of the rights to the transmitted documents and data, in particular reproduction rights, required to execute the order. The Client shall indemnify the Contractor from all third-party claims due to such legal violations (e.g. copyright and trademark violations).

Criminal or unethical orders or orders that violate the basic rules of ethics will not be accepted. The Contractor reserves the right of withdrawal in these cases.

13. Information regarding the protection of customer data

Customer data shall be processed and used for the Contractor’s advertising purposes in compliance with the data protection provisions. If necessary (usually, e.g. for telephone numbers, fax numbers, email), this is done only after express consent has been obtained by the Client. Regardless thereof, the Client can object to the use and processing of personal data for advertising purposes by myartwork GmbH & Co. KG (Ulmenstr. 52h, 90443 Nuremberg) at any time.

14. Place of fulfilment, jurisdiction severability clause

The entire contractual relationship between the Contractor and Client is subject to the laws of the Federal Republic of Germany; this also applies if German law references foreign law. The application of the Vienna UN Convention on Contracts for the International Sale of Goods is excluded.

The place of fulfilment and jurisdiction for all claims and legal disputes, including proceedings concerning documents and bills of exchange is Nuremberg.

The invalidity or unenforceability of one or more provisions does not affect the validity of the remaining provisions. In this case, the Contractor and Client herewith agree to replace the invalid or unenforceable provision with a valid provision that, to the extent possible, achieves the economic purpose pursued by the parties.

If loopholes are discovered in the agreement, the provisions that correspond with the intent and purpose of the agreement and which would have been agreed upon had the loophole been known shall apply.

myartwork 01.10.2015