§ 1 Scope, General
These General Terms and Conditions (GTC) are an integral part of all contracts concluded by KB&B with its client for the services offered by KB&B and apply in each case subject to any deviating agreement in the individual case. They also apply to all future contracts with the same contracting party without the need to agree their validity again in each individual case. These GTC apply exclusively. Deviating, conflicting or supplementary GTC of the contracting partner only become part of the contract if and to the extent that KB&B has expressly consented to their application in writing. This requirement of consent also applies if KB&B performs services without reservation in the knowledge of the contract partner's GTC. Minutes of meetings transmitted by KB&B are binding if the contract partner does not object within 48 hours of receipt. A written contract or the written confirmation of KB&B is decisive for the content of individual agreements with the contract partner. Legally relevant declarations and notifications to be made by the contracting party after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in text form (e.g. e-mail, fax) in order to be effective.
2 Services of KB&B
Any development of conceptual and design proposals by KB&B as well as their presentation - also in the context of presentations - shall be made against payment of a fee. Templates and drafts provided by KB&B are only binding in terms of colour, image or sound design once their feasibility has been confirmed in writing by KB&B. KB&B is entitled to provide the contractual services itself or through carefully selected third parties and to place orders for the production of advertising media with the contractual cooperation of KB&B on behalf and for the account of the contracting partner.
KB&B places orders with advertising media in its own name and for its own account. Quantity discounts or painting scales that are taken up will be credited to the principal. In the event of non-fulfilment of the discount or scale requirements, a subsequent charge shall be made which shall be due immediately. We shall not be liable for defective performance of the advertising media.
Performance deadlines and dates are always non-binding unless their binding nature has been expressly agreed. If KB&B is unable to meet binding deadlines due to an event for which it is not responsible (non-availability of the service), the performance deadlines/dates will be extended/postponed by the period of the hindrance plus a reasonable start-up period. Delivery obligations assumed by KB&B are fulfilled as soon as the services have been dispatched. The risk of transmission (e.g. damage, loss, delay), regardless of the medium, is borne by the contracting party.
The contracting partner alone is responsible for the legal admissibility, in particular under trademark, copyright or competition law, of the services provided by KB&B and of the templates, texts, images and the like supplied by the contracting partner; KB&B does not carry out a legal review. The contracting party shall indemnify KB&B against all claims asserted by third parties in this respect, including reasonable legal costs.
§ 3 Remuneration, cost estimates, terms of payment
Services are invoiced according to actual expenditure on the basis of KB&B's hourly rates valid at the time plus the applicable value added tax. KB&B is entitled to demand payment on account for partial services rendered without these having to be usable as such by the contracting partner. As a rule, one third of the fee shall be invoiced at the start of the order, one third after 4 weeks and one third after completion of the services.
Invoice amounts are to be paid within 14 days after invoicing without deduction. The date of receipt of payment by KB&B is decisive for the date of fulfilment; in the case of payment by cheque, the final crediting of the cheque amount is decisive.
Cost estimates and calculations are non-binding. Foreseeable overruns of more than 15% will be notified to the contract partner in advance. For the coordination of third-party services within the meaning of the above provision, KB&B is entitled to charge a commission on the order volume of these third-party services. Statutory levies and taxes, in particular artists' social security and claims by collecting societies (e.g. GEMA), are to be borne by the contracting party, even if they are levied retrospectively. The contracting party shall not be entitled to any rights of set-off or retention unless its claim has been legally established or is undisputed.
§ 4 Warranty
The warranty period is one year from performance. This limitation period also applies to contractual and non-contractual claims for damages by the contracting party based on defective performance. KB&B's services must be carefully inspected immediately after delivery to the contracting partner or to the third party designated by him. They are deemed to have been accepted if KB&B has not received a notice of defect in text form with regard to obvious defects or other defects which were recognisable on immediate, careful inspection within five working days of delivery, otherwise within five working days of the discovery of the defect or the point in time at which the defect should have been recognisable to the contracting partner on normal use of the goods without closer inspection.If there is a defect, KB&B has the right to rectify the defect twice. In the event of failure, the contracting partner has the right to withdraw from the contract or to reduce the purchase price.
KB&B is liable for damages - regardless of the legal grounds - only in the event of intent and gross negligence. In the case of simple negligence KB&B is only liable
a) for damages arising from injury to life, limb or health,
b) for damages arising from the breach of a material contractual obligation (an obligation the fulfilment of which is essential to the proper performance of the contract and compliance with which the contracting partner regularly relies on and may rely on).
Insofar as KB&B is liable on the merits for damages, this liability is limited to damages that KB&B foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or should have foreseen taking into account the circumstances that were known to it or that it should have known when exercising due care. Indirect damage and consequential damage resulting from defects in the service are also only eligible for compensation insofar as such damage is typically to be expected when the service is used as intended.
The above limitations of liability do not apply if KB&B has fraudulently concealed a defect or has given a guarantee for the quality of the service. The same applies to claims of the contracting party under the Product Liability Act.
§ 6 Property rights, copyrights and rights of use
Any use, even partial, of the services provided by KB&B by the contracting partner, whether in modified or edited form or by using the ideas on which the services are based, may only be made within the framework of the contractual agreements.
Services and work results provided by KB&B in the context of a presentation that does not lead to an order may not be used in any form without the written consent of KB&B, even if a presentation fee is paid. In the event of infringement by the contracting partner, KB&B is entitled to demand a fee corresponding to the offer made by KB&B in the context of the presentation, otherwise at standard market conditions. The contracting partner must return presentation documents in his possession to KB&B without delay. KB&B is entitled to use the presented services and work results for other purposes.
Ownership and rights of use to the services and work results are otherwise transferred to the contract partner only after full payment of all invoices relating to the respective contract and only to the extent and at the final stage that this is contractually agreed in the individual case or is necessary for the fulfilment of the purpose of the contract according to the recognisable circumstances.
For the publication of open data suitable for the reproduction or further development of KB&B's services and work results (excluding licensed content such as fonts and illustrations), an additional fee of 30% of the order value excluding third-party services will be charged.
In the case of publications, KB&B must be named as the author in the usual manner. KB&B may use the services provided to a reasonable extent for its own advertising.
§ 7 Miscellaneous
These GTC and all legal relationships between the contracting partner and KB&B are governed by the law of the Federal Republic of Germany to the exclusion of all international and supranational (contractual) legal systems.
The exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the place of business of KB&B. KB&B is, however, also entitled to bring an action at the general place of jurisdiction of the contract partner.