GENERAL TERMS AND CONDITIONS OF BRANDMARKE
§ 1 SCOPE
1.1 These General Terms and Conditions apply to all business relationships between brand:marke GmbH (hereinafter the “Agency”) and its clients.
1.2 Conflicting or deviating terms and conditions of the client shall not form part of the contract unless the Agency expressly agrees to them in text form. This also applies where the Agency performs its services without reservation in the knowledge of such terms and conditions.
§ 2 SUBJECT MATTER AND CONCLUSION OF THE CONTRACT
2.1 The Agency operates as an advertising and communications agency in the fields of brand development, marketing consultancy, advertising planning, advertising design and media brokerage for companies and other clients. The subject matter of the contract is the service described in the respective quotation.
2.2 The Agency’s quotations are non-binding. The contract is concluded as soon as the client confirms the quotation in text form, orally or by conduct implying acceptance – for example by giving approval, calling off the service or making an interim payment.
2.3 There is creative freedom within the scope of the commission. Complaints regarding the artistic design are excluded.
2.4 Meeting minutes and contact reports sent by the Agency are binding unless the client objects without undue delay after receipt.
§ 3 OBLIGATIONS OF THE CLIENT TO PERFORM AND COOPERATE
3.1 The client shall provide the Agency, in good time and free of charge, with all information, documents, data and access required for the provision of the services. This includes login credentials for third-party systems and platforms.
3.2 If the client fails to fulfil its obligations to cooperate, the Agency shall be released from its obligation to perform to that extent. Any additional work arising as a result shall be invoiced separately; agreed deadlines shall be postponed accordingly.
3.3 The client shall inform the Agency without undue delay of any circumstances that are material to the provision of the services and of which the Agency cannot be aware.
3.4 The client is solely responsible for its own IT infrastructure.
§ 4 THIRD-PARTY SERVICES
4.1 The Agency is entitled to carry out the work assigned to it itself or to commission third parties to do so – in its own name or in the name of the client; the client hereby expressly grants the corresponding authority. The Agency shall not be liable for defective services provided by third parties, nor is it obliged to supervise such services.
§ 5 DEADLINES AND DELIVERY PERIODS
5.1 Deadlines and delivery periods are only binding if they have been expressly agreed as binding in the quotation or in text form. Any deviations require confirmation in text form.
5.2 Delivery periods are conditional upon the client having duly fulfilled any obligations to cooperate (e.g. procurement of documents, approvals).
5.3 If it becomes apparent that an agreed deadline cannot be met, the Agency shall notify the client of this in text form without undue delay.
5.4 The Agency’s obligation to deliver is fulfilled as soon as the work and services have been dispatched. The client bears the risk of transmission (e.g. damage, loss, delay), irrespective of the medium used for transmission.
5.5 Templates and drafts provided by the Agency shall only become binding once the Agency has confirmed in text form that they can be realised.
5.6 Reviews under competition law are only the responsibility of the Agency if this has been expressly agreed.
§ 6 COPYRIGHT AND RIGHTS OF USE
6.1 Upon settlement of all invoices relating to the commission, the Agency shall transfer to the client the rights of use required for the use of the work results to the extent agreed or as follows from the circumstances of the commission recognisable to the Agency. In case of doubt, simple, non-exclusive rights of use shall be granted for the territory of the Federal Republic of Germany and for the period during which the advertising material is used. Exploitation abroad requires a separate agreement.
6.2 Rights to the Agency’s services, in particular rights of use under copyright law, shall only pass to the client upon full payment of all invoices relating to the commission. Until then, the Agency retains title to all documents and items provided.
6.3 Any use beyond the agreed scope, in particular editing, modification, imitation, disclosure to third parties or multiple use, requires the prior consent of the Agency and shall be remunerated separately.
6.4 Where the Agency engages third parties to perform the contract, it shall acquire their rights of use to the extent set out in paragraph 1 and transfer them to the client accordingly.
6.5 Templates, files and other working materials that the Agency creates or has created in order to provide the services owed remain the property of the Agency. There is no obligation to hand them over; the Agency is not obliged to retain them.
6.6 The client shall not acquire any rights to drafts that have not been executed or that have been rejected by the client. The client’s contribution to the work results does not establish joint authorship and does not reduce the remuneration.
§ 7 ACCEPTANCE
7.1 The Agency shall submit the completed services to the client for acceptance.
7.2 The client shall inspect the services without undue delay after receipt, and in any case before any further processing or publication, and shall notify any defects in text form without undue delay after discovery. If the client fails to carry out the inspection or to notify defects without undue delay, the service shall be deemed accepted.
7.3 If the client puts the service into use, it shall likewise be deemed accepted. Acceptance may not be refused on account of insignificant defects.
7.4 Upon acceptance, the risk passes to the client and the warranty period commences.
§ 8 PROTECTION OF PRELIMINARY INTELLECTUAL WORK
8.1 Ideas, concepts, sketches, strategies and other work results that the Agency presents or hands over in the course of presentations, quotations or pitches remain its intellectual property – irrespective of whether they are protected by copyright.
8.2 Any use of this preliminary work, including partial use, requires the prior consent of the Agency and shall be remunerated separately. This also applies to use in modified or edited form and to the use of the underlying ideas, provided these have not been reflected in the client’s previous advertising material.
8.3 Where a presentation fee is charged, copyright, rights of use and property rights in work submitted as part of a presentation remain with the Agency. If such work is paid for in full as agreed, the rights of use shall pass to the client in accordance with § 6.
8.4 If no commission is awarded, use of the concepts presented is excluded.
§ 9 USE OF ARTIFICIAL INTELLIGENCE (AI)
9.1 The Agency uses artificial intelligence (AI) in areas such as brand development, conception, text and image generation, data analysis and process automation. In doing so, it complies with the applicable statutory provisions (in particular the GDPR) and fundamental ethical principles (e.g. avoidance of discrimination, transparency, etc.). However, there is no absolute guarantee that results will be free from errors.
9.2 As a matter of principle, the Agency reviews AI-generated content for quality, legal compliance (facts, plagiarism, copyright and trade mark rights) and ethical aspects. Nevertheless, the Agency does not give a complete guarantee that all content is free from errors or legal infringements. Responsibility for final approval and use lies with the client, while the Agency is responsible for exercising reasonable care in the creation and review.
9.3 Unless the client objects, the Agency may use AI-supported analysis tools in order to identify potential for optimisation. Personal data shall only be processed and stored in accordance with the applicable data protection regulations.
9.4 The Agency’s liability for damage arising from the use of AI-generated content is limited to intent and gross negligence. In the event of slight negligence, the Agency shall only be liable for breach of material contractual obligations and only up to the amount of the typically foreseeable damage. In particular with regard to possible copyright infringements, breaches of competition law or other legal disputes, the client must check the content for accuracy, legal admissibility and suitability before using it.
§ 10 USE OF PROJECTS FOR REFERENCE PURPOSES
10.1 The Agency is entitled to use completed projects and the services provided for them, including the client’s name and logo, for presentation and reference purposes – both offline and online, in particular on its own website, in presentations, pitches and on social media.
10.2 This does not apply where confidentiality has been expressly agreed in text form. The client may object to the use of testimonials in text form at any time.
§ 11 WARRANTY AND LIABILITY
11.1 The client shall inspect work and services delivered by the Agency without undue delay after receipt, and in any case before any further processing, and shall notify any defects without undue delay after discovery. If the client fails to carry out the inspection or to notify defects without undue delay, the client shall have no claims.
11.2 In the event of defects, the Agency shall be entitled to two attempts at rectification within a reasonable period.
11.3 Claims for damages of any kind are excluded if the Agency, its legal representatives or its vicarious agents have acted with slight negligence. This does not apply in the event of breach of material contractual obligations. In this case, liability is limited to typical and foreseeable damage. Damages exceeding the value of the materials are excluded.
11.4 The client warrants that it is entitled to use all materials provided to the Agency. Should the client, contrary to this warranty, not be entitled to such use, the client shall indemnify the Agency against all claims for compensation.
11.5 The risk of the legal admissibility of the measures developed and implemented by the Agency is borne by the client. This applies in particular in the event that the campaigns and measures infringe provisions of competition law, copyright law or specific advertising legislation. The Agency is, however, obliged to point out legal risks insofar as these become known to it in the course of its work. The client shall indemnify the Agency against third-party claims if the Agency has acted at the express request of the client despite having communicated concerns regarding the admissibility of the measures. Such concerns shall be raised in text form without undue delay after they become known. If the Agency considers a review under competition law by a particularly qualified person or institution to be necessary for measures to be carried out, the client shall bear the costs thereof following consultation with a legal representative of the Agency.
11.6 The above limitations of liability do not apply in the event of injury to life, body or health or within the scope of the German Product Liability Act (Produkthaftungsgesetz). They also apply for the benefit of the Agency’s employees and vicarious agents.
§ 12 REMUNERATION AND TERMS OF PAYMENT
12.1 The remuneration is set out in the respective quotation. Agreed prices are net prices, to which the applicable VAT shall be added. Artists’ social security contributions (Künstlersozialabgabe), customs duties or other charges, including those arising subsequently, shall be passed on to the client.
12.2 As a rule, before commencing any work that incurs costs, the Agency shall submit to the client a cost estimate in text form for the client’s approval.
12.3 Unless otherwise agreed between the parties, the Agency’s invoices are normally due for payment within 14 days of receipt without deduction of any discount. In the event of late payment, the Agency is entitled to charge statutory default interest and to withhold further services until the outstanding amounts have been settled.
12.4 In the case of larger commissions or those extending over a longer period, as well as for the production of advertising material, the Agency is entitled to issue interim and progress invoices according to the progress of the work. The Agency does not pre-finance third-party costs.
12.5 If the client requests changes during or after production, the client shall bear the additional costs. The Agency retains its entitlement to remuneration for work already begun.
12.6 Set-off is only permitted with counterclaims that are undisputed or have been finally established by a court.
12.7 The Agency owes the agreed service, not the commercial success of a measure, unless such success has been expressly promised.
§ 13 INVOICING OF CLIENT MEETINGS AND TRAVEL TIME
13.1 The subject matter of the Agency’s services is the working time, expertise and advice of its employees. Client meetings are an integral part of the service process and therefore constitute billable working time – irrespective of whether they take place on site, online or by telephone.
13.2 The following shall in particular be invoiced:
a) strategy and coordination meetings in which concepts are discussed, feedback is incorporated or roadmaps are defined;
b) project management meetings such as regular status meetings (jour fixe), status updates and presentations of interim results;
c) workshops and briefing meetings in which the Agency already provides strategic input.
d) Initial meetings, chemistry meetings and pitch presentations in competition for an account are, as a matter of principle, free of charge for the client, unless a pitch fee or other remuneration has been expressly agreed in advance.
13.3 Invoicing is based on the model agreed in the quotation:
a) Time and materials: meetings are recorded in increments of 30 minutes or part thereof and invoiced at the hourly rate of the respective participants. If several of the Agency’s employees attend, the time shall be charged accordingly for each of them.
b) Project lump sum or fixed price: the estimated coordination time is included in the overall calculation; the quotation specifies the number of correction rounds or coordination meetings included. The Agency shall give timely notice if the specified time allowance is exceeded – any additional work shall be invoiced separately.
c) Retainer: in the case of ongoing support, regular coordination meetings (e.g. weekly jour fixe) shall be offset against the agreed monthly allowance of hours or services.
13.4 Travel time ties up working time and is charged – likewise in increments of 30 minutes or part thereof – at 50% of the respective hourly rate. Travel expenses for meetings shall additionally be passed on at actual cost upon presentation of individual receipts. The following parameters apply:
a) Within the Hamburg city area, travel costs (e.g. car-sharing or hire vehicles, public transport) shall be charged at actual cost upon presentation of receipts or, alternatively, at a mileage rate of €0.30 per km.
b) For rail travel in Germany and abroad, the Agency’s employees generally travel second class. First class shall only be used following prior agreement with the client or where the client so specifies.
c) For domestic and international flights, the Agency’s employees generally use economy fares. Business fares shall only be used with the client’s prior consent, for example for flight times of more than 3.5 hours.
d) Travel expenses exceeding €500.00 in an individual case require the client’s prior consent, unless otherwise agreed in the quotation.
§ 14 TERM AND TERMINATION
14.1 The term and scope of the collaboration are set out in the respective quotation.
14.2 Continuing obligations, in particular retainer agreements, may be terminated by either party in text form with three months’ notice to the end of a calendar quarter, unless otherwise agreed.
14.3 The right to extraordinary termination for good cause remains unaffected.
14.4 Services already provided and obligations entered into with third parties at the time of termination shall be invoiced.
§ 15 CONFIDENTIALITY
15.1 The Agency is obliged to maintain the confidentiality of all trade secrets of the client that become known to it in the course of the collaboration. Where it engages third parties to perform its tasks, it shall oblige them to exercise the same degree of care.
15.2 The duty of confidentiality continues to apply beyond the term of the collaboration and also in the event that no commission is awarded.
15.3 The same applies to the client with regard to the Agency’s internal processes, calculations and working methods that become known to it.
§ 16 FINAL PROVISIONS
16.1 Amendments and additions to the contract require text form.
16.2 Should any provision of these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall remain unaffected. The parties shall replace the invalid provision with a valid provision that comes closest to its economic purpose. The same applies to any gaps in the provisions.
16.3 Both parties shall comply with the applicable data protection regulations.
16.4 German law shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
16.5 If the client is a merchant (Kaufmann), the exclusive place of jurisdiction for all disputes shall be the Agency’s registered office in Hamburg.