General Terms and Conditions
1. General provisions
1.1 The following General Terms and Conditions apply, unless otherwise agreed between the Contracting Parties, to all legal transactions of FishermanHealth GmbH – hereinafter referred to as the “Agency” – with its contractual partner – hereinafter referred to as the “Customer” –, insofar as the latter is not a consumer [as defined by German law]. No conflicting general or special terms or conditions of the Customer will be accepted, unless the Agency has agreed to their applicability in writing.
1.2 The present General Terms and Conditions likewise apply to all future business with the Customer, even if not agreed upon separately again.
1.3 The Agency provides services inter alia in the areas of communications consulting, conceptual design, creation, text, design / layout, programming, online communication measures, PR, distribution and advertising material production. The specific provisions of the services to be furnished and products to be manufactured by the Agency are set out in the tender documents, briefings, project contracts and service descriptions by the Agency.
1.4 All agreements of the Agency with the Customer for the purpose of fulfilling an order must be in writing. This also applies to the validity of any amendments, additions, supplementary and ancillary agreements. If in an exceptional case an order is placed orally, a contact report prepared by the Agency shall be the basis for the work.
1.5 By placing an order by written confirmation of an offer by the Agency, but at the latest upon the first utilisation of services, the Customer acknowledges and accepts the present General Terms and Conditions.
1.6 The present General Terms and Conditions and all amendments thereto are available online at fishermanhealth.com.
2. Conclusion and implementation of contracts
2.1 Any, including partial, use of work results presented or handed over by the Agency with the aim of concluding a contract (presentation) requires the consent of the Agency. This also applies to any use of the ideas underlying these work results, as far as these are not recognisable in previous activities and products of the Customer.
2.2 The offers of the Agency are subject to change and non-binding, unless expressly stated otherwise. The Agency’s work is based on the offer by the Agency confirmed in writing by the Customer (work order). A contract is concluded only when the Agency accepts the work order by written confirmation or by provision of services. If the work order is placed verbally, the offer made to the Customer is a binding working basis.
2.3 The scope of services and deliverables results from the final product or service description on hand at the time of conclusion of the contract. Subsequent changes to the scope of services and costs must be bindingly agreed between the Contracting Parties.
2.4 Delivery and service provision dates must be agreed in writing by the Agency with the Customer. Any change to the same likewise requires written form.
2.5 The Agency is entitled, at its discretion, to employ third parties in the execution of a [work] order.
2.6 Events of force majeure entitle the Agency to postpone fulfilment of the order placed by the Customer for the duration of the hindrance. This shall not constitute a claim for damages on the part of the Customer.
3.1 The consideration agreed in the contract, which is calculated according to the current hourly rates of the Agency or agreed as a lump sum consideration, shall apply. For the granting of copyright-related and other rights of use – regardless of achievement of the threshold of creativity according to § 2 of the German Copyright Act (Urheberrechtsgesetz) and also with regard to the drafts, designs and final drawings handed over by the Agency –, a licensing remuneration is to be agreed separately, as far as it is not expressly part of the lump sum consideration.
3.2 Payments are due within 30 days after invoicing without any deductions. If the payment deadlines are exceeded, the Agency is entitled to claim a default interest amounting to 9 % above the annual base interest rate announced by the European Central Bank plus a lump sum of € 40 without the need to send any further reminder. The right to assert any further damage remains unaffected thereby. Any dunning costs and attorney fees are to be borne by the Customer.
3.3 If the provision of the agreed services extends over a longer period, or if it comprises several delimitable units, the Agency may bill the Customer for advance payments for partial services already furnished, even if they are not available in a form that can be used by the Customer.
3.4 If the Customer changes and/or cancels any orders, work, extensive planning and the like outside the ongoing support, or if the conditions for provision of services change, the Customer shall reimburse the Agency for all costs incurred thereby and indemnify it and hold it harmless from and against all liabilities towards third parties.
3.5 Cash expenditures and special costs incurred by the Agency at the express request of the Customer will be billed at cost price. These include e.g. exceptional communication, shipping and copying costs.
3.6 In the event of cancellation of the order prior to start of performance, the Agency is entitled to claim a cancellation fee amounting to 15 % of the contractually agreed consideration. Upon termination of the contract, the Agency is entitled to claim compensation for services already provided and reimbursement for costs incurred. Any further claims for damages remain unaffected thereby.
3.7 In the event of default of payment, the Agency may stop further processing of the order until payment has been made, and demand advance payments for the remaining works.
3.8 All fees of the Agency are quoted before the statutory value added tax to the respectively applicable amount. Artists’ social contributions, customs duties or other subsequently incurred charges can be passed on to the Customer.
3.9 Any objections to the Agency’s billing must be presented in writing immediately upon receipt of the invoice, but no later than two weeks after the settlement date, without the due date being affected thereby. If no objections are raised within the specified period, the billing shall be deemed approved.
4. Copyright and rights of use
4.1 With the full payment of the agreed total consideration, the Customer acquires the rights of use for all work carried out by the Agency under this order for the duration and scope of the contract, insofar as such transfer is possible under German law or the actual circumstances, for use in the territory of the Federal Republic of Germany. Any other uses require a written agreement. Rights of use for works that have not yet been paid upon termination of the contract remain with the Agency until further notice. The territorial restriction on the transfer of rights of use does not apply to the granting of the right of public access.
4.2 The works produced by the Agency may be used only in accordance with the offer or supplementary agreement, in the agreed manner of use and within the agreed scope. Unless expressly agreed otherwise, only simple rights of use are transferred. Any further uses (e.g. transfer of rights to third parties) must be expressly agreed with the Agency, and they constitute a claim to additional usage compensation. The Customer must provide information about the scope of use to the Agency upon request.
4.3 The Agency may sign the advertising material developed by it in an appropriate and customary manner and refer to it in the context of self-promotion, unless this is excluded by separate agreement.
4.4 Works by the Agency, in particular drafts, designs and final artworks, may not be edited or altered by the Customer or third parties commissioned by the Customer, neither in the original nor in the case of reproductions. Any imitation – even of parts of a work – is inadmissible. Upon infringement of this stipulation, the Agency shall be entitled to a contractual penalty amounting to at least 250 % of the agreed usage compensation from the Customer.
4.5 Examinations for compliance with intellectual property law (in particular copyright and competition law) are the task of the Agency only if this is expressly agreed in writing.
4.6 The Customer represents being entitled to use the templates provided to the Agency (e.g. texts, photos, samples, electronic data, etc.) without any conflict with rights of third parties.
4.7 By accepting the services of the Agency, the Customer assumes responsibility for the correctness of the image and text.
4.8 The Agency is not liable for any third-party services that it commissions on behalf of the Customer to third parties.
5. Retention of title
5.1 The Agency reserves ownership of the delivered work results and items until full payment.
5.2 Usage rights to drafts, designs and drawings will be granted only as far as necessary. No transfer of ownership takes place. They must be returned undamaged within a reasonable period, unless otherwise agreed. The delivery and any returns are at the risk and expense of the Customer.
5.3 The resources used by the Agency for production of the works or for provision of its other services, in particular films, lithographs, electronic and other data carriers, etc., remain the property of the Agency, even if billed separately.
5.4 Upon payment of the agreed consideration, the Agency owes the agreed performance. All work documents, electronic data and records, sketches, drafts, designs, production data, etc. required for the fulfilment of the order that are made by the Agency or on its behalf by third parties shall remain with the Agency. The Customer cannot demand surrender of these documents and data. Likewise, there is no obligation for the Agency to provide any files, source files or computer-generated layouts to the Customer. If the Customer wishes surrender of the same, this must be separately agreed and remunerated. In case of a surrender to the Customer, change is permitted only with the prior consent of the Agency.
5.5 The Customer provides the Agency with all data and documents required for the fulfilment of the order, free of charge. All work documents must be handled carefully by the Agency and protected against access by third parties. They may be used only for the fulfilment of the respective order and are to be returned to the Customer after fulfilment of the order.
6. Special and additional services, incidental and travel costs
6.1 Special services, such as proofreading of texts, reworking, modification of final artworks, necessary preparatory work for order processing, production monitoring, etc., can be billed separately according to the required expenditure of time.
6.2 If, upon the Customer’s request, more conceptions or designs of advertising material are made than specified in the offer, these will be billed separately.
6.3 Production monitoring is carried out by the Agency only if expressly agreed. If the Agency takes over production monitoring, it is entitled to make the necessary decisions, taking into account the interests and specifications of the Customer, and to issue appropriate instructions at its own discretion. For the effort involved, the Agency can charge a lump sum.
6.4 Products are approved and published by the Customer. If at the Customer’s behest the approval is granted by the Agency, the latter is exempted from liability.
6.5 Additional technical costs incurred by the Agency, in particular for special materials, production of models, photos, reproductions, phototypesetting, printing, etc., shall be reimbursed by the Customer after billing.
6.6 Sketches, drafts, designs, samples, models and the like, including electronic preparatory work, which have been prompted by the Customer, will be billed to the same, even if a further order is not placed or a given order is cancelled.
6.7 Costs for trips that are related to the fulfilment of the order and have been agreed with the Customer are to be reimbursed to the Agency after presentation of appropriate documentary evidence.
7. Delivery times
7.1 The Agency fulfils its delivery obligations by sending its agreed work results to the Customer or a third party designated by the Customer. The Customer bears the risk of the transfer (e.g. damage, loss, delay) regardless of the type of the transfer medium.
7.2 Delivery periods and delivery dates are binding only if the Customer has completely fulfilled any cooperation obligations (e.g. approvals, provision of information and documents, etc.) and the dates have been confirmed in writing by the Agency.
7.3 If the Customer defaults on the fulfilment of its obligations to cooperate, the Agency is not obliged to keep the agreed deadlines. Irrespective of any other claims that may arise from the Customer’s default of payment, the Agency may claim an extension of the time limits by the length of the period during which the Customer fails to meet its contractual obligations.
7.4 If the Agency defaults on the fulfilment of its obligations, it must first be granted a reasonable grace period [for performance]. After its fruitless expiration, the Customer can withdraw from the contract.
7.5 The Agency is not liable for any delay or impossibility of fulfilling its contractual obligations in case of and due to force majeure or other unforeseeable events. If the resulting inability to perform is not temporary, the Agency may withdraw from the contract. In case of only temporary inability, the term for fulfilment is to be extended accordingly.
8. Warranty and liability
8.1 The work results and services provided by the Agency shall be checked by the Customer immediately prior to each use and dissemination, and any deficiencies are to be reported. If no immediate reporting of defects occurs, the Customer loses any claims. If no deficiencies are reported within two weeks after delivery of works completed according to the order, the work is deemed to have been accepted.
8.2 In case of timely and justified reporting of deficiencies, the Customer is entitled to demand rectification within a reasonable period.
8.3 The Agency is not liable for admissibility under competition or trademark legislature, nor for eligibility of the delivered results and services for protection under patent, copyright and trademark law. The Customer bears the risk of legal admissibility of the use of work results and performance of actions. However, the Agency is obliged to inform the Customer about any legal risks that have come to its attention. If legal examination by experts proves necessary, the Customer will bear the costs for this after consultation.
8.4 If the Agency has acted at the express request of the Customer despite having pointed out risks, the Customer shall indemnify and hold harmless the Agency from and against any claims of third parties.
8.5 By approving drafts, designs and drawings, the Customer assumes responsibility for the correctness of the image and text. The Agency assumes no liability for the drafts, designs and drawings approved by the Customer.
8.6 The Agency accepts no liability for pictures, data and texts, etc., that are provided by the Customer.
8.7 The Agency shall be liable only for damages caused by intent or gross negligence on the part of the Agency or its vicarious agents. This liability is limited in amount to the one-off income of the Agency from the specific order. Liability for consequential damages resulting from positive breach of contract is excluded unless the liability results from breach of essential contractual obligations.
8.8 If the Agency outsources any necessary performances, the contractual partners thus commissioned are not vicarious agents of the Agency. Any liability for its services and work results is excluded, unless otherwise provided by law.
9. Business and trade secrets
9.1 The Agency shall keep secret all documents and information made accessible to it in connection with the fulfilment of the contract that are undoubtedly identifiable as business and trade secrets of the Customer, and neither record nor disclose them unless, and in this case only insofar as, this is necessary for the fulfilment of the contract.
9.2 The same obligations apply to the Customer with regard to business and trade secrets of the Agency.
10.1 Templates, printing substrates, files and other items suitable for reuse and electronically stored services shall be retained, free of charge, for at least three months after delivery. Should the Customer require a longer storage period, this must be agreed separately and remunerated.
10.2 The Customer shall pay any fees that are payable to collecting societies or, insofar as they have been advanced by the Agency, to reimburse them against presentation of documentary evidence, respectively. The same applies to artists’ social contributions that may be payable to the German Artists’ Social Welfare Fund (Künstlersozialkasse).
11. Term of the contract and periods of notice
The contract is concluded for the contractual period specified in the contractual documents, or for a specific project. If it has been concluded for an indefinite period, it can be terminated by either Contracting Party with a notice period of three months to the end of the month. The right to termination without notice for cause remains unaffected by this provision. The termination must be made in writing.
12. Concluding provisions
12.1 Claims under the contract cannot be assigned by the Customer.
12.2 The law of the Federal Republic of Germany applies. The place of fulfilment and legal venue is – as far as permissible under applicable law – Berlin.