FACTOR.partners –TERMS AND CONDITIONS
All agreements and service relationships between FACTOR DESIGN GMBH & CO KG, Schulterblatt 58, 20357 Hamburg (hereinafter: "FACTOR.partners" or "we") and our clients shall be governed exclusively by these General Terms and Conditions of Business ("GTCs") in the version applicable at the time of conclusion of the contract. They shall also apply in their most recent version to all future orders and services in the business relationship, even if they are not mentioned separately again. Any deviating terms and conditions or contract offers of the client are hereby rejected. These GTCs do not apply with regard to consumers. We provide our services exclusively for business cli-ents or public authorities or corporations under public law.
I. Basic principles
- The contract shall be concluded by confirmation of our binding offer by the customer or by confirmation or execution in accordance with the order of a binding enquiry by the customer on our part. The subject matter of the contract is the respective agreed service. We undertake to provide additional and not expressly named service components only insofar as they are indispensable as an essential contractual obliga-tion for the fulfilment of the respective purpose of the contract.
- If we submit proposals or offers to the client, in particular also within the framework of a business relationship, which the client then im-plements with third parties, the client shall remunerate us appropriately for the preparation of the concept/proposal in accordance with point I. 7 of these GTCs below.
- In case of doubt, our price and cost quotations are always exclusive of statutory value added tax. Costs for licence material, fonts, stand-ard software and other third-party material are not included in offers and cost statements unless otherwise indicated.
- We undertake to provide professional execution of our performance, whereby the suitability of the performance for a specific purpose not directly resulting from the order requires express agreement in text form.
- In the case of creative order content, we shall have freedom of design within the scope of the order according to our best judgement, inso-far as no express agreement has been made regarding the execution.
- We do not undertake to provide any success beyond our actual performance, such as awareness, sales, reach, client numbers, search engine positioning or the like. We shall include special technical, economic or media framework conditions and other technical or logistical or other circumstances and specifications attributable to the client only insofar as this is expressly agreed in text form.
- Subsequent changes to the subject matter and scope of the service require the consent of both parties. Additional services shall be ade-quately remunerated by the client. In case of doubt, the standard rates of FACTOR.partners shall be deemed appropriate; if such standard rates do not exist or prove to be inappropriate, the regulations of the respectively valid collective remuneration agreement or the relevant in-dustry fee tables shall be deemed appropriate; if such general regulations do not exist, the customary rates of remuneration for Hamburg for comparable services of professional agencies shall be deemed appropriate.
- Subsequent changes also include repeated design work, adjustments and corrections, insofar as these are not remedies for defects. We undertake to provide a basic proposal and a correction loop subject to deviating regulation or agreement,
- The place of performance is our place of business. Any dispatch shall be at the risk of the client. We will be pleased to take out transport insurance at the client's special request and at the client's expense. Reasonable travel expenses shall be reimbursed by the client insofar as the journey was made for the purpose of fulfilling the contract and with the approval of the client or was necessary, taking into account the expense and effectiveness of alternative methods of transmission or communication. In the case of the provision or transmission of data, we shall be responsible until the data is transferred from the infrastructure for which we are responsible to the transmission network. We are not responsible for errors in the transmission network or circumstances that occur in intermediate points or end points of the transmission network. The client is responsible for setting up his infrastructure in such a way that data transmitted by us can be received to the necessary extent and within the required time. This applies in particular to the provision of sufficient storage space quotas and the correct configuration of security devices.
- We do not undertake to provide the storage of documents and other items of the client which the client has not requested back within one month after termination of the order. Objects and documents handed over to FACTOR.partners by the client shall be insured by the client against damage, loss and theft. We shall only be liable for damage not covered by the insurance up to the value of the material.
- We shall only be in default on the basis of a reminder from the client in text form, insofar as there is no fixed transaction. The agreement of binding completion dates requires text form. The performance dates stated are subject to the fulfilment of all necessary obligations to co-operate on the part of the client.
- The presentation of the object, scope and effect of our services and their use by the client serves exclusively to describe the services and does not constitute an independent guarantee promise. Guarantees in the legal sense by us shall only exist in the event of a guarantee agreement in text form using the term "guarantee".
- We provide consultancy services exclusively on the basis of the information provided by the client. Insofar as third parties are used for the consultancy services and the collection of necessary data, these third parties shall be used in the name and on behalf of the client, unless otherwise agreed.
- We undertake to provide a professional execution of the consultancy service taking into account the requirements agreed with the client in each case, but not a specific consultancy result. Consultancy services are always subject to service contract law. Our consultancy state-ments and recommendations are always in accordance with the best of our knowledge. If there are several possible alternative solutions, we do not owe it to the client that a particular alternative is named or recommended with priority.
- Insofar as we provide consultancy services for the client as well as other services, these parts of the service shall each be qualified as an independent service. Insofar as we are active for the client within the framework of project preparation as well as the conception and plan-ning of measures and services, this shall be deemed to be a consultancy service. We shall coordinate the services resulting from the con-sultancy with the client and agree on appropriate measures from the result of the consultancy. In the implementation phase, we do not un-dertake to provide a renewed review of the tasks, assumptions and framework conditions and can consider the consulting result agreed with the client as the basis.
III. Media production
- For the development and execution of productions in the field of film, photography, animation and other creative services (hereinafter col-lectively referred to as "production") by us, the following provisions shall apply additionally:
- We prepare a concept proposal for production, which shows the planned basic concept as well as the anticipated scope and intended use of the production(s).
- After submission of the concept proposal, the client must approve the proposal within two weeks in writing or by e-mail or present de-tailed requests for improvements in writing or by e-mail.
- Following approval of the concept by the client, we create a proposal for the content, for example the storyboard corresponding to the con-cept. After its presentation by us and examination as well as approval by the client, the implementation of production takes place. If the client rejects the concept proposal in a substantially modified version that takes into account the client's wishes more than twice in succession or if the client does not comment on the first or an adjusted version within 7 days, we shall have the right to terminate the contract and demand the remuneration agreed for the respective development phase. If such remuneration of the development phase has not been expressly agreed, we shall have the right to demand a pro rata remuneration amounting to 20% of the remuneration agreed for the overall project per development phase.
IV. Websites / web design / applications
- The following regulations shall apply in addition to the conception and creation of websites and app layouts (hereinafter collectively: "web content") by us:
- We create a concept proposal for the website, which shows the planned number and link as well as the key elements of the web content.
- After submission of the concept proposal, the client must approve the proposal in writing or by e-mail within two weeks or present de-tailed requests for improvement in text form. If the client rejects the concept proposal in a substantially modified version that takes into ac-count the client's wishes more than three times in succession or if the client does not comment on the first or an adjusted concept proposal within 7 days, we shall be entitled to terminate the contract and to demand a pro rata remuneration of 25% of the remuneration agreed for the overall project for the concept development phase. If no remuneration has been agreed, the client shall pay us the remuneration provided by us in accordance with the offer, but at least an appropriate remuneration for the concept development. Section VI.6 of these GTCs remains unaffected.
- After approval of the concept by the client, we create the website according to the concept.
- We are free in the technical design of the website as long as there is no deviation from the concept proposal. Furthermore, minor, rea-sonable deviations from the approved concept proposal shall not be deemed to be a defect, provided that the change is due to technical rea-sons, does not cause any significant restriction of the functionality of the website and could only be avoided with considerable additional ef-fort.
- The web content is provided on data carriers or by making it available on a web server. Unless expressly agreed otherwise, we do not undertake to provide the installation and hosting of the website.
- With regard to the technical compatibility of web content and web applications provided by us, we are liable solely for the quality agreed in each case. We shall provide compatibility with screen resolutions, end devices, browsers, web technologies and standards exclusively to the extent agreed in each case. In case of doubt, we undertake to provide compatibility with the 2 most widespread screen resolutions de-termined as the most widespread for the year preceding the order. Restrictions that usually result from the mobile display of content are in accordance with the contract. In the case of the creation of responsive content, we undertake to provide the complete functionality on state-of-the-art, current mobile end devices with wide distribution. We do not undertake to provide identical display on different end devices, nor do we undertake to give consideration to non-common technologies, screen resolutions or display technologies, nor do we undertake to pro-vide a specific look on a specific end device, unless otherwise agreed in individual cases.
- We are not liable for the suitability of web content created by us with regard to the fulfilment of certain legal or technical standards, insofar as this is not the subject of the order in question. The client is responsible for the legal admissibility of the design requested by the client as well as the fulfilment of legal requirements with regard to the client's web content.
- Insofar as standard programs and/or components of third parties are used within the scope of web content and programming provided by us (for example standard software, open source software, operating systems, server components, browsers, etc.), our liability and respon-sibility for their function and compatibility is excluded, subject to our own performance. In particular, we are not responsible for malfunctions and limitations caused by defective third-party software. Unless otherwise agreed, the licence relationship with regard to third-party soft-ware components exists directly between the client and the respective software provider.
- In the case of the provision of software and other applications, we undertake to provide the binary code, but not the transfer of source codes.
V. Third parties
- We may use third parties for the provision of services at our discretion. Our responsibility for the contractual obligations incumbent upon us remains unaffected by this.
- Insofar as agreed, the placing of orders with third parties shall be carried out in the name and on behalf of the client following the client's consent. If third parties are included in the service on behalf of or at the request of the client (third-party services), we shall not be liable for these third parties or their performance. We shall only be responsible for the selection or supervision of third-party services or their debtors if this has been expressly agreed and separately remunerated. We may demand advance payment for any remuneration (third-party costs) to be paid by us to such third parties and defer an order until receipt of payment. The same shall apply to other costs and expenses incurred due to the specifications or wishes of the client for the respective production (e.g. rental, travel, transport, accommodation costs).
- Subject to an express agreement to the contrary, we undertake to provide only the services in the areas of conception and design of the measure in question and not the implementation and/or delivery of the performance result, such as the advertising material, the photos, the film or the programming of any websites etc.. If we organise the implementation of the concept or design as agreed, we shall not be liable for the performance of the companies used for the implementation, unless we are expressly named as general contractor or debtor of the delivery/service.
VI. General cooperation obligations
- The client shall provide us with all information essential for the respective order and inform us in good time of any problems or alteration requirements. Instructions shall be given in good time so that a reasonable implementation period remains.
- We are entitled to communicate with the client by email within the scope of the execution of the order. Unless otherwise requested by the client and agreed in text form, electronic communication shall take place without content encryption. The client is requested to protect any data transmitted by him that requires particular secrecy from unauthorised access, for example by means of password protection, and to in-form us of this circumstance and of the information required for use in accordance with the order before such transmission.
- The client shall ensure that communication on his side is conducive to the project. This includes the actual receipt of messages ad-dressed to the client by us, the regular checking of incoming mail as well as the answering of questions at short notice by sufficiently quali-fied employees with sufficient decision-making powers, taking into account the agreed time requirements.
- We may assume that the information and notifications provided by the client are correct and complete and we are not obliged to make en-quiries and requests. However, we will point out to the client any inaccuracies or gaps in information that we have identified. Delays result-ing from incorrect, incomplete or delayed cooperation entitle us to a correspondingly later provision of our performance, even if this occurs during a delay that has already occurred.
- The client shall only provide us with templates and materials whose use and processing in accordance with the order does not infringe any third-party rights. Furthermore, the client shall only give us instructions whose execution does not violate the rights of third parties or statutory provisions. We are expressly not obliged to carry out a legal examination, but we shall inform the client of any infringements of rights that we have identified. The client shall indemnify us against claims and rights of third parties as well as damages, expenses and costs which are attributable to infringements of rights for which the client is responsible.
- The client shall inspect the contractual performance as well as the preliminary and intermediate products handed over to him immediate-ly upon receipt and shall grant acceptance without delay. We are entitled to demand an interim acceptance upon completion of individual work sections. Acceptance of a service shall be deemed to have been granted if it is not refused by the client within 7 days with meaningful justification or if the client uses the work result. Complaints made thereafter shall be deemed to be subsequent alteration requests. Ac-ceptance may not be refused on design/artistic grounds, provided there is no deviation from a design result agreed in text form. Our liability for content accepted or provided by the client is excluded to the extent of the acceptance/provision by the client. This applies in particular to grammar/spelling, correctness of content, usability for the intended purpose, legal admissibility and other such factors and their respective effects. Proofreading is only part of our service if this has been expressly agreed and separately remunerated.
- The client is responsible for clarifying the legal requirements applicable to the client for our performance. In particular, the client shall en-sure that the implementation of client-related requirements does not infringe any industrial property rights, rights of third parties or other statutory provisions. We are not obliged to provide legal advice or research. This shall not affect our liability for the provision of contractual copyright usage rights with regard to the services provided by us.
- A warranty for the freedom of conflicting rights of third parties in relation to our performance exists exclusively in relation to the Federal Republic of Germany. This shall not affect our liability for the fact that we have produced the result of the service ourselves and without un-lawful use of third-party materials. Intellectual property rights searches shall be carried out exclusively if this has been expressly agreed and subject to the reservation that the search shall be remunerated to the extent of the expenses of a qualified law firm specialising in intel-lectual property rights plus our expenses for briefing, support and preparation of the search result.
- The client shall appoint a contact person who is responsible for the respective project on the client's side and who can either make key decisions for the project himself or bring them about at short notice. The contact person or a deputy named in good time must be reachable at short notice during the client's normal business hours. If both the client and we have named a contact person/representative, the exchange of information essential to the contract shall take place via this contact person.
- The delivery or performance date or the delivery or performance period shall be agreed according to our anticipated performance capaci-ty and shall be non-binding and subject to unforeseen circumstances and obstacles, in particular force majeure, government measures, general risk situations or measures due to epidemics or diseases, non-issuance of official permits, industrial disputes of any kind, sabotage or non-delivery, incorrect delivery or late delivery for which we are not responsible, pandemic incidents or pandemic-related restrictions on the availability of services, facilities and cooperation of third parties. Such events extend the delivery date accordingly, even if they occur during a delay that has already occurred. The client reserves the right to terminate the contract extraordinarily in the event of a hindrance to performance lasting more than three months. In this case, the client shall reimburse us for the expenses already incurred up to the termina-tion, non-cancellable expenses and our imputed profit for the order, insofar as we are not responsible for the impediment to performance.
- If the work required increases and the cause does not lie in our area of responsibility, we can demand reasonable compensation for the additional effort actually incurred. This shall apply in particular in the case of additional expenditure resulting from interruptions or delays in the project caused by the client, whereby in this case we shall be entitled to a reasonable adjustment of the time schedule taking into account a reasonable restart. We shall inform the client of this circumstance in text form.
VIII. Rights of use
- We grant the client the rights of use to the service result (final result) required for the respective purpose of use. Unless otherwise agreed in writing, remuneration shall cover the granting of simple, non-exclusive rights of use for the intended purpose, form of use and period of use in accordance with the original order. Any further use, in particular in or on media not expressly included, in a different geographical ar-ea, in an edited form (insofar as the editing is not necessary for the use as agreed) and/or in a different period of time shall require an ex-press additional grant of rights. The transfer of rights of use and sub-licensing require our consent in text form. The transfer of open, editable files to the client is not provided, unless such an obligation has been agreed in text form. All rights to interim results, proposals or drafts as well as concepts and contributions to tenders shall remain with us unless otherwise agreed in text form; the client shall only be entitled to use them for his own purposes with our consent.
- If acceptance is provided for the service, the granting of rights of use shall be subject to the condition precedent of the granting of ac-ceptance of the service by the client. We undertake to grant the client the rights of use required for the use of our performance upon the cli-ent's request in text form if the client refuses acceptance for justified reasons and nevertheless requires the use of the performance before acceptance is granted in order to safeguard its justified business interests.
- In the event of unauthorised use, the client shall be obliged to pay remuneration for such use, with our further claims and rights remaining unaffected. The minimum remuneration shall be 1.5 times the remuneration to be paid by us for the use according to the standard rates at the time of the use. If such remuneration is not provided for or if a corresponding offer has not been made, 1.5 times the standard remunera-tion according to the remuneration collective agreement applicable to the respective work result or the applicable fee table shall apply, whereby the collective remuneration agreement for design (AGD – Alliance of German Designers) shall apply to design services and the image fees of the German Photo Marketing Association (MFM – Mittelstandsgemeinschaft Foto-Marketing) shall apply to photographs. Our right to claim higher damages in the event of concrete calculation of damages shall remain unaffected by the above provisions. The above provisions shall also apply insofar as a design does not reach copyright level in an individual case.
- All grants of rights are subject to the condition precedent of full payment of the remuneration owed for the overall performance. No partial rights shall be granted in the event of partial payment. Any use prior to full payment and use by the client of materials provided by us within the scope of application services rendered free of charge (e.g. pitches) shall be unauthorised and inadmissible.
- Insofar as we provide third-party material for the client in accordance with the order (e.g. stock photos whose rights are held by third par-ties), the client must observe the applicable restrictions on the right of use. As a rule, materials provided for websites or mobile apps may not be used within the framework of other websites or other media. Our liability for transgressions of the right of use by the client is exclud-ed.
- We are entitled - even if exclusive rights of use are granted - to use the performance results and their designs within the scope of our own advertising as well as for participation in competitions, in particular also on the Internet, in particular also as a reference, naming the client.
IX. Retention of title
In the case of deliveries of goods, we reserve title to the delivery item until receipt of all payments under the delivery contract. In the event of conduct by the client in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. The taking back of the object of sale by us is at the same time a withdrawal from the contract. After taking back the delivery item, we shall be entitled to utilise it; the utilisation proceeds shall be credited against the client's liabilities, less reasonable utilisation costs.
- Invoices are due and payable without deduction within 10 working days after receipt of the invoice. Invoices shall be deemed accepted if the client does not object to them in text form within 30 days of receipt of the invoice, stating factual and verifiable reasons. The due date re-mains unaffected by this.
- We shall be entitled to demand reasonable payments on account when the order is placed and during the performance of the service, and in particular to issue partial invoices for the accepted part of the service in the case of interim acceptance.
- If the client defaults on the payment of an invoice despite a reminder or if we become aware of circumstances that give rise to considera-ble doubts about the client's ability to pay (e.g. application for the opening of insolvency proceedings or negative assessment of creditworthi-ness by a recognised credit reference agency), we shall be entitled to settle all services rendered up to that point and to suspend our per-formance until all claims arising from the business relationship have been settled in full. Furthermore, we are entitled to make the continua-tion of the service dependent on an advance payment covering the expected expenses as well as our remuneration. Claims or rights against us due to a justified suspension of performance in the event of default are excluded.
- If an order cannot be carried out at all or in full due to circumstances for which we are not responsible (in particular in the event of termi-nation by the client in accordance with § 648 BGB / German Civil Code), the client shall owe us compensation for the omitted service in the amount of 70 % of the remuneration to be paid for the respective omitted service. Saved expenses shall be offset against this, provided that the expense is expressly part of the service and is actually saved (e.g. travel expenses). The client reserves the right to prove higher ex-penses saved and we reserve the right to prove lower expenses saved.
- Offsetting is only possible with claims that are not disputed by us or that have been legally established. The exercise of a right of retention is only permissible insofar as the counterclaim is based on the same contractual relationship.
- The client is responsible for any fees or contributions to collecting societies as well as for the levy to the artists' social security fund and must bear these costs.
XI. Liability for defects
- After approval by the client, we are released from any responsibility for the correctness of the templates and drafts. We are not liable for errors overlooked by the client.
- Deviations in colour, size and shape of samples, specimens, proofs or other originals from the final production that are unavoidable in the exercise of due diligence shall not be deemed to be defects. In the area of digital pre-press, material and process-related deviations between digital reproduction and the final production result are conceivable. This applies in particular to unavoidable deviations of a representation on the screen from the final print result, taking into account the respective technology used. Insofar as such deviations do not lead to a re-striction of the suitability of the final product, there is no defect. Unless expressly agreed otherwise, services provided by printers and other service providers in the area of digital or analogue print preparation and print execution shall be deemed to be third-party services within the meaning of No. V.2 above.
- We shall not be liable for the admissibility of performance results under competition, design, patent and trademark law, nor for their suit-ability or admissibility for obtaining industrial or other property rights.
XII. Other liability
We are liable for intent and gross negligence in accordance with the statutory provisions. Otherwise, we shall only be liable to the client in the event of a breach of an essential contractual obligation (cardinal obligation) and in the event of damage resulting from injury to life, limb or health as well as for any guarantees assumed. Material contractual obligations are those whose fulfilment is necessary to achieve the ob-jective of the contract as well as those on whose compliance the client as a contractual partner may regularly rely. In the event of a slightly negligent breach of cardinal obligations, our liability shall be limited to the foreseeable damage typical of the contract, but not more than the amount of the total remuneration for the order on the basis of which the cause for liability exists. Liability for loss of profit is excluded. The above limitations of liability shall also apply in favour of our employees, vicarious agents, organs and legal representatives as well as cor-respondingly for claims for reimbursement of expenses.
XIII. Confidentiality / data privacy
- We undertake to maintain confidentiality about business and trade secrets as well as about all client information designated as confiden-tial which becomes known to us in connection with the performance of the contract. We will disclose confidential information of the client exclusively for the purpose of the contractual relationship with the client and not to third parties, unless this is necessary for the fulfilment of our obligations towards the client or for the fulfilment of legal obligations. All business secrets of the client are considered confidential in ac-cordance with the German Business Secrets Act.
- If and to the extent that our service involves the processing of personal data for the client on the client's behalf in accordance with Art. 28 of the General Data Protection Regulation, we shall conclude an agreement with the client on order processing at the client's request, taking into account the statutory requirements. We do not undertake to provide the consent to agreements that provide for contents that go beyond the legal obligations, for example the agreement of contractual penalties or the granting of guarantees. We are not responsible for any delay or impairment of the project work resulting therefrom. If the client requests the conclusion of agreements on commissioned processing which go beyond the legally required content, the client shall reimburse us for the costs of the legal examination and negotiation of the con-tract proposal in accordance with an hourly rate of EUR 250, but at least EUR 250 per agreement, irrespective of any actual conclusion. The same shall apply accordingly to confidentiality agreements or declarations of confidentiality requested by the client which go beyond the re-quirements of the German Act on the Protection of Business Secrets.
XIV. Final provisions
- The law of the Federal Republic of Germany shall apply. This shall also apply if our performance is used abroad for the intended purpose.
- In the event of invalidity of individual provisions of these General Terms and Conditions, the validity of the remaining provisions shall not be affected.
- The place of performance and jurisdiction for business persons, legal entities under public law and clients without a general place of ju-risdiction in Germany is Hamburg.
- Status of these GTCs: April 2021