TERMS AND CONDITIONS
§ 1 SCOPE
(1) These Terms and Conditions (T&C) apply to all current and future contractual agreements of Carta GmbH and their clients. Carta GmbH's clients are exclusively businesspeople to whom Carta GmbH provides services and contractual work in the areas of communication consultancy, visual communication, online communication, print communication, live communication, press and public relations services, marketing communication and other media production and communication services. The T&C do not apply to consumers.
(2) A consumer, according to § 13 CCC (German Civil Code), is any natural person who enters into a legal transaction for purposes that can predominantly be attributed neither to his commercial nor to his independent professional activity. A businessperson means a natural or legal person or a partnership with legal capacity who, when entering into a legal transaction, acts in exercise of their trade, business or profession, according to § 14 CCC (German Civil Code).
(3) Terms and conditions of the clients or third parties shall not apply, even if Carta GmbH does not specifically object to their validity in individual cases. Even if Carta GmbH alludes to a written document that contains or refers to the terms and conditions of the customer or a third party, this does not constitute an agreement with the validity of those terms and conditions.
(4) Amendments to the T&C shall be communicated to the clients in due time, informing them about their prospective implementation. If the amendment is not objected to within one month of receipt, Carta GmbH shall consider it to have been approved. The same applies to the inclusion of these T&C in existing contracts.
§ 2 OFFERED SERVICES AND THE FINALIZATION OF THE CONTRACT
(1) Assignments given to Carta GmbH shall be deemed accepted only upon written confirmation of the assignment by Carta GmbH, unless Carta GmbH indicates that it accepts the assignment, such as by taking action within the scope of the assignment. Confirmations of commissions by Carta GmbH, also electronically and informally within the scope of project communication, shall substitute a commission of the contracting party, if not objected to in writing within three days.
(2) The legal relationship between Carta GmbH and its clients shall be governed by the agreed upon contract including these T&C. The contractual agreement fully reflects the agreements between the contracting parties regarding the subject matter of the contract. Therein, the main service of Carta GmbH is primarily designated as the subject matter of the contract. Carta GmbH does not owe any success beyond that, in particular not the achievement of a certain economic success for the client.
§ 3 PRICES AND PAYMENTS
(1) Insofar as no flat-rate remuneration has been agreed, the prices stated in the agreement shall be decisive. Exceeding the total sum listed in the agreement by up to 10 %, max. 1000,- €, is considered approved and does not require any further approval. A transfer within the calculated individual items is permissible, provided that the total sum of the agreement is not exceeded beyond the aforementioned extent. Any changes to the scope of costs beyond this require a recalculation.
(2) All additional services that are not included in the aproved quotation are to be paid for separately and agreed with the client prior to commissioning. This applies in particular to the additional expenditures that result from necessary and reasonable use of services of third parties, commissioned research, copywriting services and legal reviews, as well as services that are provided outside of business hours due to the circumstances for which the client is responsible. In particular, the development of conceptual and design proposals by Carta GmbH as well as their presentation shall only take place against payment of a separate presentation fee, unless otherwise agreed.
(3) The typical office expenses including but not limited to postage, phone calls, copies and costs of documentation shall be reimbursed by a flat rate of 5% of the agency's fees. Any costs for courier services, transport, travel and accommodation, insurance, external services and platforms, etc. incurred in the course of providing the required services are not included in the flat rate, but will be invoiced separately.
(4) Travel and accommodation expenses incurred by the agency in order to fulfill the contract shall be borne by the client and shall be invoiced as follows.
• Travel by car - invoicing according to kilometers driven - flat rate per kilometer: € 0,40 per Km
• Air travel - invoicing by receipt - rate, if available: Economy
• Rail travel - invoicing by receipt – rate, if available: 2nd class
• Overnight stay according to local rates
If the above rates are not available for rail or air travel and alternative means of transport are out of the question, the agency is entitled to choose and charge a higher rate class. Travel times will be charged to the client at half of the actual duration based on the agreed hourly fees.
(5) Carta GmbH is entitled, but not obligated, to purchase services and/or goods from third parties (e.g. design and programming services, clipping service, dispatch of press releases via external service providers such as ots, printing services or other services) for the purposes of project or contract fulfillment and within the scope of the calculated budget, after discussing it with the client. Carta GmbH commissions third-party services under its own name and at its own expense and charges the invoice amount to the client with an agency surcharge of 15% plus VAT as required by law.
(6) Carta GmbH reserves the right to change its prices after the conclusion of the contract. In the event of such a price increase by Carta GmbH, the client shall be entitled to cancel the contract. The right of cancellation must be exercised within 14 days after receipt of the notification of the price increase.
(7) Services, including partial services provided by Carta GmbH, are generally invoiced on a monthly basis. The prices, remunerations, costs and expenses stated in the invoice are due for payment without discounts within 14 days after receipt of the invoice.
Once 30 days have elapsed from the due date, Carta GmbH shall charge an interest in the amount of 8% above the base interest rate without any additional reminders. The interest on arrears shall accrue even without a reminder if the payment deadline is exceeded. In case of default Carta GmbH is also entitled to charge a processing fee of 5 EURO for the first reminder and a processing fee of 10 EURO for the second and last reminder.
(8) All our prices are quoted ex works in Euros and do not include packaging, value added tax, customs duties for export deliveries, tolls and other government levies.
(9) Compensation of counterclaims of the client or the withholding of payments due to such claims is only permitted if the counterclaims are undisputed or have been established as legally binding.
§ 4 SERVICES
(1) The services to be rendered by Carta GmbH shall be specified in detail in a separate agreement to be concluded between the client and Carta GmbH or shall result from the commissioning of the assignment.
(2) Specific deadlines and dates are only binding if they have been confirmed as binding by Carta GmbH in writing. Should Carta GmbH fail to meet an agreed delivery date, the client shall set a reasonable grace period, which shall in no case be less than two weeks.
(3) Carta GmbH may use third parties to fulfill its contractual obligations. If the contracting partner has not expressly stipulated to be part of the decision-making process, the selection of third parties shall be made by Carta GmbH.
(4) The client is obligated to undertake all necessary actions to cooperate and to support Carta GmbH for the implementation of this agreement. This obligation to cooperate shall apply in particular to projects subject to deadlines, for which the cooperation of the client is indispensable in order to meet these deadlines. The client shall ensure that Carta GmbH receives all documents necessary for the fulfillment of the contract promptly and without being asked to do so, and that Carta GmbH is informed without delay of all events that may be of importance for the fulfillment of the contract. The contact persons named by the client must be authorized to act as signatories, in particular with regard to the approval of budgets, cost estimates, drafts, texts and other approval processes. Restrictions on the authority to act as signatory must be communicated by the client in writing in advance.
(5) Should the client fail to comply with his obligation to cooperate in accordance with § 4 (4) of these T&C as agreed, Carta GmbH shall be entitled to refuse its services to the client.
§ 5 GUARANTEE
(1) The contractual period of guarantee shall be one year from the date of hiring/delivery or, if acceptance of services is required, from the date of acceptance. This period shall not apply to claims of the client for damages arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by Carta GmbH or its subcontractors, which shall be subject to the statutory limitation period in each case.
(2) Delivered items or yielded work results are to be carefully inspected immediately after delivery to the client or to the third party designated by them. Obvious defects or other defects that would have been recognizable in the course of an immediate, careful inspection, shall be deemed approved by the client if Carta GmbH does not receive a written notice of defects within seven working days after delivery. As to further defects, the delivered items and work results shall be deemed to have been approved by the client if the notice of defect is not received by Carta GmbH within seven working days after the date on which the defect became apparent; if the defect was already apparent to the client at an earlier point in time during normal use, this earlier point in time shall, however, be decisive for the commencement of the period for giving notice of defect.
(3) In case the delivered items have material defects, Carta GmbH shall be obligated and entitled, at its discretion within a reasonable period of time, first to remedy the defect or to make a compensatory delivery. In the event of failure, i.e. impossibility, infeasibility or unreasonable delay of the improvement or replacement of the delivery, the client may withdraw from the contract or reduce the purchase price appropriately.
(4) If the defect is due to the fault of Carta GmbH, the client may demand compensation under the conditions specified in § 8 of the T&C.
(5) The warranty shall not apply if the client modifies the subject of the contract or has it modified by a third party without the consent of Carta GmbH and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the client has to bear the additional costs of the defect rectification resulting from the modification.
(6) In individual cases, delivery of used items agreed with the client shall be made to the exclusion of any warranty.
(7) The provision of § 7 (4) of these T&C applies with priority.
§ 6 DURATION OF CONTRACT
(1) Terminations of contracts must be made in writing by mail or e-mail. Revocation and cancellation shall also be deemed to be termination in the case of recurring assignments.
(2) Unless otherwise agreed, if invoicing is based on fixed prices for project sections, the contract may be terminated at the end of the project sections stated in the project plan. The right to terminate the contract without notice remains hereby unaffected.
§ 7 PROPRIETARY RIGHTS
(1) All rights to the preliminary work - such as drafts and concepts - as well as other deliverables - in particular copyrights, rights of use and ownership - shall remain with Carta GmbH even after the deliverables have been handed over to the client, unless transferable rights have been expressly assigned in writing.
(2) The granting of rights of use or the transfer of copyrights or rights equivalent to copyrights must be made in writing. The scope of the granted rights and/or the transferred rights shall be governed exclusively by the written agreement. The granting of rights and/or transfer of rights shall be subject to full payment of the total amount of the contract. It is expressly pointed out that services for the design of the Internet presence of the client are limited to a use of the website and/or other components on the Internet. A use of contents from it in other media is not covered by the granting of rights in principle.
(3) The client shall transfer to Carta GmbH all required rights of use, copyrights and other rights to the data and materials transmitted for the fulfillment of the contract, in particular the right to edit, duplicate, distribute, transmit, broadcast, extract from a database and access, to the extent necessary for the execution of the contract in terms of both time and content. The client guarantees that he holds all rights to the transmitted data and materials necessary for the execution of the contract. The client indemnifies Carta GmbH from all claims of third parties, which arise due to the violation of claims of third parties or legal regulations during the execution of the order. Furthermore, Carta GmbH is indemnified from the costs for the necessary legal defense. The client is obligated to support Carta GmbH in good faith with information and documents in a legal defense against third parties.
(4) If the deliverables provided by Carta GmbH infringe an industrial property right or copyright of a third party, Carta GmbH shall, at its discretion and expense, modify or replace the deliverables in such a way that the rights of third parties are no longer infringed, but the deliverables continue to fulfill the contractually agreed function, or procure the right of use for the client by concluding a license agreement. If Carta GmbH does not succeed in doing so within a reasonable period of time, the client shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages on the part of the client are subject to the limitations of § 8 of these T&C.
(5) The client is obligated to refer to copyrights and/or exclusive rights of use when publishing the deliverables originating from Carta GmbH in the usual form. When they are published by Carta GmbH, Carta GmbH is entitled to refrain from naming photographers and/or designers as authors. The client is obligated to make appropriate agreements with the photographers and designers they have commissioned. The participation of the client in the context of the briefing or in the discussion of deliverables does not establish any joint copyright of the client in the deliverables.
(6) Unless individually otherwise agreed, all media distribution lists are in principle the property of Carta GmbH. They shall not be handed over to an outsider. Only the table of contents of the individual media distribution lists will be made available to the client upon request.
§ 8 LIABILITY
(1) Carta GmbH's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and torts, insofar as it depends on the fault in each case, shall be limited in accordance with the provisions of this § 8.
(2) The obligations for the timely rendering of services and delivery of the subject of the contract, the lack of legal defects as well as material defects which impair the functionality or usability of the subject of the contract more than insignificantly, as well as consulting, protection and care obligations which are intended to enable the client to use the subject of the contract in accordance with the contract or which are intended to protect the life and limb of the client's personnel or to protect the client's property from considerable damage are essential to the contract.
(3) Insofar as Carta GmbH is liable for damages as per § 8 (2) of these T&Cs, this liability shall be limited to damages which Carta GmbH foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen by exercising due diligence. Indirect damages and consequential damages which are the result of defects in the subject matter of the contract shall also only be compensable insofar as such damages are typically to be expected when using the subject matter of the contract as intended.
(4) In the event of liability for simple negligence, Carta GmbH's obligation to pay compensation for property damage and further financial losses resulting therefrom shall be limited to an amount of EUR 1,000,000 per case of damage (corresponding to the current coverage amount of its business liability insurance), even if this involves a breach of essential contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent in favor of the executive bodies, legal representatives, employees and other vicarious agents of Carta GmbH.
(6) Insofar as Carta GmbH provides information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services to be provided by Carta GmbH, this shall be done free of charge and to the exclusion of any liability.
(7) The client is exclusively responsible for the contents of advertisements, PR texts or other documents approved by the client. In the case of remotely issued assignments and changes, Carta GmbH assumes no liability for the correctness of the reproduction. Carta GmbH also assumes no liability for documents of the client, which were provided to Carta GmbH for editing.
(8) The limitationsof this § 8 shall not apply to the liability of Carta GmbH for intentional conduct, for guaranteed quality features, for injury to life, limb or health or under the Product Liability Act.
(9) The dispatch of information and documents is carried out in the name, at the risk and responsibility of the client. The client indemnifies Carta from any claims of third parties, particularly in the event of violations of any legal provisions, and bears the ensuing costs.
(10) The client is obligated to provide Carta with correct and complete information in connection with assignments, in particular regarding the technical characteristics, performance and quality of products and services to be communicated by Carta. In no case may Carta be deprived of information that contradicts the claimed properties of the products or services. In case of non-compliance, Carta is entitled to demand the agreed fee of the respective project as a penalty without fulfilling the contract; Carta furthermore reserves the right to take legal action and to claim damages for jeopardizing Carta's reputation.
§ 9 FINAL PROVISIONS
(1) Place of delivery and payment is Speyer. The exclusive place of jurisdiction for disputes between the contracting parties shall be Speyer, if the client is a businessperson. For lawsuits against the client, Carta GmbH may choose another place of jurisdiction, if several are available.
(2) Should individual provisions of these T&C be invalid or void, this shall not affect the validity of the remaining provisions. The parties shall replace the invalid or void provisions with such valid provisions that come as close as possible to the commercial purpose intended by the parties. The same shall apply if there is an unforeseen gap in the general terms and conditions of use.
(3) Unless otherwise agreed, German law shall also apply to contractual relationships with foreign clients.
(4) The contracting parties are obliged to carry out the collection, storage and processing of personal data only within the framework of the relevant data protection regulations, in particular in compliance with the necessary and organizational security measures. They undertake to instruct all their employees assigned to carry out the data processing to comply with this regulation.
(5) The contracting parties commit themselves to treat confidentially all information of the other contracting party and its representatives as well as the companies associated with them or having a business relationship with them, which becomes known to them through the cooperation, during and after the termination of the contract. A corresponding obligation shall also be imposed on the employees and commissioned companies.
(6) Carta GmbH is entitled to include the website of the client in a reference list and to set corresponding links for advertising purposes.
(7) Until the complete settlement of its claims, Carta GmbH shall have a right to withhold all documents, which have been provided by the client for the fulfillment of the contract. The documents shall be surrendered upon request. This shall not apply to correspondence between the contracting parties and to simple copies or backup copies of photographs, graphics, layouts, reports, organization charts, drafts and drawings, etc., provided that the client has received the originals. An obligation to store documents on the part of Carta GmbH shall expire six months after receipt of the written request addressed to the client for collection, and independently thereof one year after termination of the contractual relationship.
