terms & conditions|
Standard Terms and Conditions of Purchase of Avantgarde Performance GmbH
As of: Januar 2021
1. Definitions, scope, placing of Orders
(1) These Standard Terms and Conditions as amended at the time the Contract is concluded shall be applicable to all Orders between the Supplier and Client. The terms “Order”, “Supplier” and “Client” are meant in the commercial sense. “Order” means the contractual relationship between the „Supplier“ and „Client“, regardless of the nature of the contract concerned; „Supplier“ means the party owing the principal supply or service; and „Client“ means the party in whose name the Order is placed and which shall receive the principal supply or service and shall pay the fee. “Supply” means the provision of goods, the supply of services or the production of a work. The client Avantgarde Performance GmbH is hereinafter referred to as “client” for short. (2) The language of the Contract shall be German. The English translation is provided as an aid to understanding only. Should the English version of the Standard Terms and Conditions of Purchase not reflect the German, the German version shall prevail. For the purposes of these Standard Terms and Conditions, the term “Supplier” refers only to entrepreneurs (“Unternehmer”) as defined in section 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). (3) These Terms and Conditions apply regardless of whether the Client places the Order in its own name and for its own account, in its own name for the account of another, or in the name and for the account of another. (4) Terms of business of the Supplier which vary from these Terms and Conditions shall apply only if and to the extent that the Client has accepted them in writing. (5) Contracts shall be entered into individually by way of offer and acceptance. Unless otherwise agreed, the normal procedure is that the Client requests an offer from the Supplier and then receives a binding offer which it has two weeks to accept. The Contract is entered into when the offer is accepted. The Client will not store the text of such Contract separately; the terms of the contract are determined individually by the agreement reached. (6) The Client must commission any and all services related to performance of the commissionupfront. Additional services to be provided in connection with the event shall be listed individually by the Supplier and countersigned by a manager of the client authorised to do so. Otherwise billing will not be possible. Unless otherwise expressly agreed, the payment instalments and terms in accordance with the contract entered into and/or the Order placed shall apply as of the date of order placement. (7) The client is entitled to subsequently modify and supplement the Standard Terms and Conditions with regard to existing business insofar as amendments to legislation or rulings of the courts require or other circumstances result in a significant disturbance to the balance between performance and consideration under the contract. Subsequent modifications to the Terms and Conditions shall take effect if the Supplier does not object to them within six weeks of notification. At the start of such period, the client shall explicitly inform the Supplier that its silence will constitute acceptance of the modification, and give it the opportunity to make an express declaration during the period. If the Supplier objects in good time, both the client and the Supplier may terminate the contract for good cause unless the client allows the contract to continue under the old Standard Terms and Conditions.
2. Dates and deadlines, delivery periods, place of performance
(1) The time of performance shall be determined individually in the contract entered into by the client and the Supplier. Dates, deadlines and delivery periods agreed shall be binding. Unless otherwise agreed in the contract, deliveries must be made within two weeks of conclusion of the contract. (2) The Supplier must inform the client promptly of imminent delay. (3) Unless otherwise agreed in writing, the Supplier shall send deliveries at its own cost and risk to the delivery address specified in the Order, which shall also be the place of performance.
3. Scope of Order
Quantities specified in the Order shall be binding. No payment will be made for any extra quantities or extra services supplied even if this is done for technical production reasons. The deliverables shall include drafts, particularly for alternative solutions.
4. Use of third parties
The Supplier is authorised to engage third parties for the purpose of carrying out and fulfilling the Order. However, it is not authorised to represent the client in its dealings with such persons, i.e. it is not authorised to establish any legal relationship between the client and the third party.
5. Guarantee/advertising materials
(1) Services provided by the Supplier, in particular those relating to the design or production of advertising materials, must fulfil the task assigned; where applicable, they shall comply with any templates provided and instructions issued by the client and conform to the latest technical standards; they must be of the same standard, technically, promotionally and artistically, as the work samples provided to the client by the Supplier prior to or at the time of placement of the Order.
(2) The Supplier guarantees that its contributions to advertising materials will not breach competition law or violate rights of third parties (trademarks, copyrights, privacy rights, etc.). The Supplier shall be released from liability for this guarantee only if it informs the client in writing of any legal reservations prior to placement of the Order.
6. Claims for defects/liability
(1) All claims for defects against the Supplier shall be governed by the statutory provisions. Notwithstanding the statutory provisions, the limitation period for defect claims shall be 36 months from delivery/acceptance.
(2) All compensation claims against the Supplier by the client shall likewise be governed by the statutory provisions.
(3) The client and its statutory representatives and agents shall be liable only for loss or damage caused with intent. Liability for gross or ordinary negligence shall be accepted only if material contractual obligations (obligations compliance with which is of particular importance for achievement of the contractual purpose) are affected. In this case liability is limited to loss or damage which is foreseeable and typical for the type of contract concerned. This disclaimer/limitation of liability does not apply in respect of liability for loss or damage arising from loss or life, physical injury or damage to health. This is also without prejudice to the provisions of the German Product Liability Act (Produkthaftungsgesetz).
7. Acceptance in the case of contracts for work and services (Werkverträge)
The client shall be deemed to have given its acceptance only if it does not refuse acceptance within one week of handover.
8. Defect notices
Defect notices by the client shall be deemed to have been given in good time if they are given within 10 working days of handover or, in the case of defects which are not obvious, of discovery of the defect. It shall be sufficient if notices are sent during this period. Payments do not signify a waiver of the right to give notice of defects.
9. Preclusive period
The Supplier must submit its invoice to the client project manager immediately following supply. Claims of the Supplier shall lapse if they are not exercised in writing by way of submission of an invoice within a preclusive period of three months from acceptance in accordance with section 7 or, for contracts which are not contracts for work and services, from supply.
10. Invoice, price, payment, packaging
(1) The agreed price shall not be exceeded. If the client requests goods or services not included in the contract, the Supplier shall be entitled to extra payment. However, it must notify the client of such entitlement and reach agreement regarding the additional costs with the client before beginning work. No consideration will be paid for goods or services provided by the Supplier without being ordered or which deviate from the Order without authorisation.
(2) Unless other payment terms are agreed, the consideration shall be due and payable 60 days after receipt of an invoice satisfying the requirements of VAT law and specifying the client’s PO number and job number and following acceptance where applicable. The Supplier undertakes to send its invoice by email to the client email address specified in the order confirmation.
(3) Unless otherwise agreed in writing, the Supplier shall pay any and all packaging and packaging disposal costs.
(4) Prices agreed are net prices, i.e. statutory VAT must be added.
11. Special terms for photographers/ film makers/influencers/artists
(1) Unless otherwise agreed in writing in the Order, the Supplier shall engage models and obtain props in its own name and for its own account. Props shall be hired wherever possible. Props provided by the client or the customer must be treated with all due care. The Supplier shall be liable for damage which he/she or a third party causes to props provided.
(2) If a photo session cannot proceed because a model booked by the Supplier does not attend, the resulting additional model fees, costs for props, incidental expenses, etc. shall be borne by the Supplier.
(3) The agreed fee covers all services provided by the Supplier, including but not limited to the costs of models, props and materials and darkroom, travel and similar costs. Even if it has been agreed in writing that the client will reimburse the Supplier for third-party costs, it will do so only if the client has approved the type and the amount of such costs in writing on the basis of a full cost estimate provided by the Supplier.
(4) The Supplier waives its right to be identified as copyright holder and to sign photographs; however, the client is entitled to identify the Supplier.
(5) Ownership of photographic material (negatives, transparencies, internegatives, prints, image files, etc.) and artwork shall pass to the client at the time of supply or on the date of payment if earlier. If the material is not provided at the time of supply, it must, at the client‘s option, either be provided to the client together with the invoice or otherwise retained for the client free of charge for a period of at least six months from the invoicing date, after which time the client must be informed in good time of any intention to destroy the material.
(6) The Supplier undertakes to obtain from models a signed declaration transferring unrestricted rights of use to the client in accordance with section 12.3 and to submit such declaration to the client no later than the date of supply.
12. Transfer of rights
(1) Upon supply, or upon payment if earlier, all transferable intellectual property rights and other rights of publication, reproduction, use, exploitation, distribution, adaptation, modification and alteration, including the right to combine part or all of the work with other works by the Supplier which exist in the Supplier’s work, including transferable legal positions in relation to drafts and designs in any medium of any kind, shall pass to the client. This transfer shall be unrestricted as to territory, time, and purpose of use and shall also be otherwise unrestricted. If and insofar as the rights are not transferable, the client shall be granted a worldwide, perpetual and exclusive right of use without restriction as to purpose of use. The client shall be entitled to transfer all or part of these rights to third parties or to allow such parties to use them, and to file and/or register such rights in its own name. Thus the following rights in particular are granted to the client for purposes of full evaluation:
a) the right to reproduce, distribute, rent and lend the work or parts thereof on data, image or sound storage media of any kind (e.g. CD, CD-ROM, CDI, CD+, cartridges, chips, hard drives, servers etc.) and similar or comparable media;
b) the right of communication to the public by image, data or audio recordings, including interactive use;
c) the rights of presentation, i.e. the right to make the work perceivable to the public by means of technical devices using all currently known and future procedures and systems, regardless of whether the presentations are of a commercial or non-commercial nature;
d) the right to make available to the public and to perform the work or parts or excerpts thereof, including digital services or by broadcasting, regardless of which technical systems and procedures are used to do this and including cable television [and] satellite broadcasting and irrespective of the legal form under which the broadcaster concerned is operated; this includes the right to authorize the public reception of such broadcasts; also the right to use the programme or parts or excerpts thereof for procedures which enable it to be recorded by way of audiovisual, mechanical, electronic, digital or other procedures and to be communicated to the public and privately, commercially or non-commercially, including the right of use/ transmission via information storage systems and data networks (e.g. via online services etc.) which can be accessed, stored and interactively changed by the user terrestrially, non-terrestrially and via cable;
e) the right to advertise the work in all media and to use it for the advertising purposes of any kind and for any product;
f) the right of reproduction/publication on online platforms/cloud services;
g) in the case of software, in particular the right to store, load, run, reproduce, distribute, present, make available to the public and communicate it, and to adapt, modify and exploit it. This right of use relates to the software, including the associated data and data protection structures in all development and final stages, and to the associated documentation and other materials necessary for exercise of the rights of use, such as analyses, requirements and specification documents, concepts and descriptions, source code and passwords and login data.
(2) Ownership of all all advertising material, logos, images, videos, data, tracking, analytics, marketing technology, texts, websites, works, texts and drafts, photographs, film templates, retouched work, printing materials, copies, concepts, composition, designs, models, artworks, etc. which are produced by the Supplier in performance of its contract shall pass to the client at the time they are completed. If the materials are not provided at the time of supply, they must, at the client’s option, either be provided to the client together with the invoice or otherwise retained for the client free of charge for a period of at least six months from the invoicing date, after which time the client must be informed in good time of any intention to destroy the materials.
(3) If and insofar as the rights of third parties used are affected as a result of and in connection with the transfer of rights, the Supplier shall acquire and transfer such rights to the client in accordance with the foregoing provision.
(4) The Supplier guarantees that no third-party rights exist in its contractual work which could affect the transfer of rights and/or exploitation of the work (points 1 and 2).
(5) Consideration for transfer of rights of use is included in the agreed price.
13. Documents of the client
Drafts, drawings, printing plates, texts, data, templates, patterns, inventory materials or other documents that the Supplier receives from the client and passwords and login data received from the client or created for the client or its customers shall remain the property of the client, may be used only to fulfil the Order, must be stored carefully by the Supplier and must be returned to the client upon first request. The Supplier has no right to withhold such documents until performance of obligations owed to the Supplier.
14. Drafts, reproduction material, photographic material
The Supplier must retain drafts not supplied to the client and reproduction material (e.g. printing materials such as printing plates, photographs, cutting dies, lithographs, films, tools, etc.) created or procured by it to fulfil the Order for at least six months from acceptance and thereafter inform the client in good time of any intention to destroy such material.
15. Confidentiality/data protection
(1) The Supplier shall keep confidential all business and trade secrets and information identified as confidential communicated to it by the client or becoming known to it. This non-disclosure obligation shall continue to apply after completion of the Order and in the event that the Order is ultimately not carried out. This also applies in respect of operations, data or other facts relating to the business of the client‘s customers. The Supplier may use copies of the contractual work for the purpose of its own advertising or the advertising of another party only with the prior written consent of the client. The Supplier shall not make available to third parties or publish depictions of logos, images or project descriptions. the client also undertakes not to do so, unless the Order requires disclosure to third parties. It shall be expressly permitted e.g. to process or to permit a third party to process personal data provided to it in connection with provision of the service. In connection with a legal dispute, the client shall be permitted to disclose internal information belonging to the Supplier in order to protect its legitimate interests even without prior release from the nondisclosure obligation. Confidentiality is not required for information which is in the public domain, which was published by the other party itself, or which was obtained from a third party.
(2) The Supplier shall also require those of its employees involved in performance of the Order and other third parties used by it to comply with this non-disclosure obligation.
(3) The Supplier shall comply with all provisions of the German Federal Data Protection Act (Bundesdatenschutzgesetz) and require third parties used by it to do likewise.
(4) For each breach of the obligations under section 15 paragraphs 1 and 2 for which the Supplier is responsible, the Supplier shall pay a penalty in an amount to be determined by the client on an individual basis; in case of dispute, the proportionality of this amount may be reviewed by the competent court. If the breach continues following issue of a warning notice by the client, each week of continued breach or part thereof shall constitute a separate instance. Any penalty paid shall be credited towards any claims for damages by the client for breach of obligations under section 15.
16. Prohibition of setoff and assignment
(1) The Supplier may set off its claims only if such counterclaims have been established as valid by a court, are ready for final judgment in a legal dispute, or are uncontested.
(2) The Supplier shall not assign claims arising from the Order, in particular its claim to payment.
17. Orders placed on behalf of an advertiser
The Order must be transacted via the client even if it is placed by the client on behalf and for the account of another in accordance with section 1 paragraph 3.
18. Force majeure
(1) If the event covered by the contract does not or cannot take place for reasons of force majeure (e.g. disease, health risk or the prevention of such risk, related administrative orders, natural disaster, strike, lock-outs, war, acts of terrorism or other unavoidable events) not caused by the client, he client shall be entitled to rescind the contract. The parties’ mutual performance and remuneration obligations shall lapse upon rescission. Claims for reimbursement of expenses and claims for damages based on the rescission shall be excluded. Notice of rescission must be given in text form.
(2) The party concerned shall inform the other party without delay of the commencement and ending of the force majeure and shall use its best endeavours to remedy the force majeure and limit its effects insofar as possible.
The Supplier shall arrange business and environmental liability insurance providing adequate coverage per claim for personal injury, property damage and pecuniary loss, and shall maintain such insurance for the duration of the contract. The insurance policy including the relevant terms and conditions of insurance and proof of payment of premiums must be submitted to the client on request within two weeks.
20. Final provisions
(1) It is agreed that all disputes arising from this Agreement shall be subject to the exclusive jurisdiction of the courts of the place in which the client has its registered office, if the Supplier is a merchant as defined under German law (“Kaufmann”), a legal person under public law, or a special entity under public law.
(2) Unless precluded by mandatory provisions of domestic law applicable to the client, German law shall apply and application of the UN Convention on Contracts for the International Sale of Goods is excluded.
(3) The Supplier must comply with all statutory provisions applicable to it in connection with the contractual relationship. In particular, this concerns anti-corruption and money laundering laws and the provisions of antritrust, employment and environmental protection law. The Supplier shall ensure that products supplied by it satisfy all relevant requirements regarding placement on the market in the European Union and the European Economic Area. It shall present suitable documents as proof of such conformity on request.
(4) The Supplier guarantees that it complies with all relevant health protection provisions applicable to it. Contractually agreed hygiene and/ or safety plans imposing higher standards shall apply in addition to such provisions.