General Terms and Conditions
1.1 The parties shall cooperate in good faith and shall inform each other without delay of any deviations from the agreed procedure or doubts about the correctness of the other party’s approach.
1.2 Should the client notice that its own information and requirements are incorrect, incomplete, ambiguous or not feasible, it must notify Medienfreunde Hofmann & Baldes GbR of this and of any consequences apparent to it without delay.
1.3 The contractual parties shall notify each other of contact persons and their representatives, who shall responsibly and expertly manage the implementation of the contractual relationship on behalf of the contractual party which has appointed them to do so.
1.4 The parties must notify each other without delay of any changes to the appointed persons. Until such time as such notification has been received, the previously appointed contact persons and/or their representatives shall be deemed entitled to make and receive statements within the scope of their hitherto existing power to act as a representative.
1.5 The contact persons shall communicate at regular intervals on the subject of any progress and obstacles affecting the implementation of the contract, so as to be able to intervene in the implementation of the contract if necessary.
1.6 Medienfreunde Hofmann & Baldes GbR shall log the exchange of information between the contact persons. This log shall be passed on to the client. In the event of a conflict of opinion, the client shall have the right to have their view added to the log. This right must be exercised within one week of receiving the log.
2 Duty of cooperation on the part of the client
2.1 The client shall support Medienfreunde Hofmann & Baldes GbR in carrying out its contractual services. In particular, this involves the timely provision of information, data material and hardware and software, insofar as the client’s duty to cooperate requires this. The client shall instruct Medienfreunde Hofmann & Baldes GbR in great detail with regard to which services Medienfreunde Hofmann & Baldes GbR is expected to provide.
2.2 The client shall make available as many of its own staff as necessary for the implementation of the contractual relationship, and these persons shall possess the required specialist knowledge.
2.3 Provided the client has pledged to provide Medienfreunde Hofmann & Baldes GbR with materials for implementing the contract (images, audio, text etc.), the client shall make these available to Medienfreunde Hofmann & Baldes GbR without delay and in a common, immediately usable format (digital if possible). Should the material provided by the client require conversion into another format, the client shall be liable for any costs involved. The client shall ensure that Medienfreunde Hofmann & Baldes GbR receives the rights required to use any such material.
2.4 Any acts of cooperation on the part of the client shall be performed at its own expense.
3 Third-party involvement
The client shall be responsible for third parties, just as it would for vicarious agents, who work at the client’s instigation or on its sufferance in Medienfreunde Hofmann & Baldes GbR’s field of activity. Medienfreunde Hofmann & Baldes GbR shall not be answerable to the client if Medienfreunde Hofmann & Baldes GbR is completely or partially unable to meet, or delayed in meeting, its obligations to the client due to the conduct of one of the third parties described above.
4.1 On the part of Medienfreunde Hofmann & Baldes GbR, deadlines for the provision of services may only be agreed on by the contact person.
4.2 The contractual parties shall set deadlines in writing whenever possible. Deadlines which, if not met, result in one of the contractual parties being in default without prior warning pursuant to Section 286 Para. 2 of the German Civil Code (binding deadlines), must always be set in writing and described as binding.
4.3 Medienfreunde Hofmann & Baldes GbR shall not be responsible for delays in the provision of services owing to force majeure (e.g. strike action, lockouts, official decrees, general telecommunication disruptions etc.) or circumstances in the client’s area of responsibility (e.g. failure to cooperate on time, delays caused by third parties contracted by the client etc.), and such delays in the provision of services shall entitle Medienfreunde Hofmann & Baldes GbR to extend the deadline for providing the affected services by the duration of the delay plus an adequate start-up period. Medienfreunde Hofmann & Baldes GbR shall advise the client of any delays in the provision of services caused by force majeure.
5 Changes to the service
5.1 If the client wishes to change the contractually determined scope of the services to be provided by Medienfreunde Hofmann & Baldes GbR, it shall express this desire for changes to Medienfreunde Hofmann & Baldes GbR in writing. How to proceed shall be governed by the following provisions. If the desired changes can be checked quickly and are estimated to be implementable within 8 working hours, Medienfreunde Hofmann & Baldes GbR need not follow the procedure described in Paragraphs 2 to 5.
5.2 Medienfreunde Hofmann & Baldes GbR shall examine what effects the desired changes will have, in particular with regard to remuneration, additional costs and deadlines. Should Medienfreunde Hofmann & Baldes GbR realise as a result of this examination that services cannot be provided, or can only be provided with a delay, Medienfreunde Hofmann & Baldes GbR shall notify the client of this and draw its attention to the fact that the desired changes can only be examined further if the affected services are initially postponed indefinitely. Should the client agree to this postponement, Medienfreunde Hofmann & Baldes GbR shall complete the examination into the desired changes. The client has the right to withdraw its request for changes at any time; the amendment process which has been initiated will then end.
5.3 Having examined the desired changes, Medienfreunde Hofmann & Baldes GbR shall present to the client the effects of the desired changes on the agreements already made. This presentation shall include either a detailed proposal for implementing the desired changes or information about why the desired changes cannot be implemented.
5.4 The contractual parties shall attempt, without delay, to come to an agreement with regard to the contents of a proposal for implementing the desired changes, and add the results of any successful agreement to the text of the agreement to which the changes relate in the form of a supplementary agreement.
5.5 Should there be no agreement or should the amendment procedure end for any other reason, the original scope of services shall apply. The same shall apply if the client does not agree to a postponement of the services to continue with the examination in accordance with Paragraph 2.
5.6 The deadlines affected by the amendment procedure shall be postponed if required, taking into consideration the time required for the examination, the time required to agree on the proposed changes and, if necessary, the time required to carry out the desired changes plus an adequate start-up period. Medienfreunde Hofmann & Baldes GbR shall advise the client of the new deadlines.
5.7 The client shall be liable for any costs associated with requesting the changes. This includes in particular the examination of the desired changes, the preparation of an amendment proposal and any downtime. In the event that the contractual parties agree on day rates, the costs shall be calculated according to these, and in all other cases according to the usual rates of Medienfreunde Hofmann & Baldes GbR.
5.8 Medienfreunde Hofmann & Baldes GbR shall be entitled to change the services to be provided according to the contract or to deviate from them, if the changes or deviations are reasonable for the client considering the interests of Medienfreunde Hofmann & Baldes GbR.
6.1 Upon submission of proof, the client shall be liable for any costs, such as travel and accommodation costs, expenses and any third-party fees arising as a result of contract implementation. Travel costs shall only be reimbursed if the distance travelled is more than 50 km from the registered office of Medienfreunde Hofmann & Baldes GbR. Travel time itself shall not be remunerated. For processing work with third parties whose costs are passed on directly to the client, Medienfreunde Hofmann & Baldes GbR may charge a handling fee of 10 % of the costs.
6.2 Remuneration of Medienfreunde Hofmann & Baldes GbR shall generally be based on the time taken, which is billed monthly. Unless otherwise agreed, remuneration for the time taken shall be determined by the relevant valid remuneration rates of Medienfreunde Hofmann & Baldes GbR. Medienfreunde Hofmann & Baldes GbR is entitled to change or adjust the remuneration rates upon which the agreements are based at its reasonable discretion (Section 315 of the German Civil Code). Cost estimates or budget plans drawn up by Medienfreunde Hofmann & Baldes GbR are non-binding.
6.3 Should the parties not have agreed upon the remuneration of a service provided by Medienfreunde Hofmann & Baldes GbR which the client could, given the circumstances, normally only expect in return for payment, the client shall be required to pay the usual charge for that service. In case of doubt, the remuneration rates charged by Medienfreunde Hofmann & Baldes GbR for its services shall be considered usual.
6.4 All contractually agreed fees exclude VAT.
7.1 With regard to the services provided, Medienfreunde Hofmann & Baldes GbR shall grant the client the simple right, without any restriction of territory or time, to use these services in accordance with the contract. If software is part of the services, Sections 69 d and e of the German Copyright Act (UrhG) shall apply.
7.2 No use that exceeds what is described in Paragraph 1 is permitted. In particular, the client is prohibited from issuing sub-licences and from copying, renting out or exploiting the services in any other way.
7.3 Until such time as the services have been paid for in full, the client shall only have a revocable right to use the services provided. If the client is behind in its payment of any service, Medienfreunde Hofmann & Baldes GbR may prohibit the use of said service for the duration of the default.
7.4 Medienfreunde Hofmann & Baldes GbR shall be entitled to be named as the author on any works and reproductions (hard and soft copies). Should the client violate this right to be named, it shall be required to pay Medienfreunde Hofmann & Baldes GbR a contractual penalty amounting to 100 % of the agreed remuneration. This does not affect the right of Medienfreunde Hofmann & Baldes GbR, when calculating actual damages, to claim higher damages.
8 Infringements of property rights
8.1 Medienfreunde Hofmann & Baldes GbR shall indemnify the client from all claims brought by third parties for infringements of property rights (patents, licences and other property rights) at its own cost. The client shall inform Medienfreunde Hofmann & Baldes GbR without delay if any third-party claims are asserted. Should the client fail to inform the Medienfreunde Hofmann & Baldes GbR without delay of any third-party claims which have been asserted, the right to indemnification shall expire.
8.2 Should property rights be infringed, Medienfreunde Hofmann & Baldes GbR reserves the right – irrespective of any rights to damages on the part of the client – at its own discretion and cost to make changes regarding the affected services, after prior consultation with the client, which ensure that there is no longer any infringement of property rights, provided the client’s interests are protected, or acquire the necessary usage rights for the client.
The client may only withdraw from the contract due to a breach of duty not resulting from a defect of the item being purchased or the work, if Medienfreunde Hofmann & Baldes GbR is responsible for said breach of duty.
10.1 Medienfreunde Hofmann & Baldes GbR shall be liable for intent and gross negligence. In the case of slight negligence, Medienfreunde Hofmann & Baldes GbR shall only be held liable if an essential contractual obligation has been breached as well as in cases of injury to life, limb or health.
10.2 In the case of slight negligence, liability shall be restricted collectively to the amount of the foreseeable damage which must typically be expected. In any case, liability shall be restricted to the agreed remuneration.
10.3 Medienfreunde Hofmann & Baldes GbR shall not be liable for the loss of data and/or programs insofar as the damage was caused by the client neglecting to create data back-ups and thereby ensure that lost data could be retrieved at reasonable expense.
10.4 The preceding provisions shall also apply in favour of the vicarious agents of Medienfreunde Hofmann & Baldes GbR.
11 Anti-poaching clause
The client agrees not to poach any employees of Medienfreunde Hofmann & Baldes GbR, or employ them without the express permission of Medienfreunde Hofmann & Baldes GbR, for the duration of the cooperation between the parties and for a period of one year thereafter. For each case of culpable violation, the client shall be required to pay a contractual penalty, which shall be determined by Medienfreunde Hofmann & Baldes and, in case of any dispute, reviewed by the responsible court.
12 Non-disclosure, Statements to the press
12.1 The documents given to the other contractual party as well as any knowledge and experience passed on may only be used for purposes of this contract and may not be made accessible to third parties, provided they are not supposed to be made accessible to third parties according to their intended purpose or already known to the third party. Third parties do not include the auxiliary persons involved to implement the contractual relationship, such as freelancers, subcontractors etc.
12.2 Furthermore, the contractual parties agree to keep confidential the contents of this contract and any knowledge gained when processing it.
12.3 This obligation to maintain confidentiality shall continue to apply even after the contractual relationship has ended.
12.4 Should one of the contractual parties so request, the documents provided by it, such as strategy papers, briefing documents etc., must be returned to it after the contractual relationship has ended, provided the other contractual party is not able to justify a legitimate interest in said documents.
12.5 Press releases, the provision of information etc. in which one of the contractual parties refers to the other, shall only be permissible upon prior written agreement – including via email.
13.1 The assignment of claims shall only be permissible with the prior written consent of the other contractual party. Consent may not be denied without just cause. This does not affect the regulation of Section 354 a of the German Commercial Code (HGB).
13.2 A right of retention may only be asserted due to counterclaims arising from the relevant contractual relationship.
13.3 The contractual parties may only offset claims which are legally binding or undisputed.
13.4 Medienfreunde Hofmann & Baldes GbR may name the client as a reference client on its website or in other media. Medienfreunde Hofmann & Baldes GbR shall further be entitled to publicly present or refer to the services provided for demonstration purposes, unless the client is able to justify a legitimate interest to prevent this.
14 Final provisions
14.1 For evidence purposes, all changes and additions to contractual agreements must be made in writing. Any notice of termination must be given in writing. Notifications which must be submitted in writing may also be submitted via email.
14.2 Should individual provisions of the parties’ agreements be or become wholly or partially ineffective, this shall not affect the validity of the remaining provisions. In such cases, the parties shall replace the invalid provision with an effective provision which comes as close as possible to the economic purpose of the invalid provision. The same shall apply to any loopholes in the agreements.
14.3 The client’s general terms and conditions shall not form part of the contract.
14.4 The law of the Federal Republic of Germany shall apply, excluding private international law and the United Nations Convention on the International Sale of Goods.
14.5 The sole place of jurisdiction for all legal disputes arising from or in connection with this agreement shall be the registered office of Medienfreunde Hofmann & Baldes GbR.