Terms and Conditions Agency

General Terms and Conditions of Pat & Patachon GmbH, Alt-Marzahn 35, 12685 Berlin, for the service area (“Agency”), for the provision of agency services

I. GENERAL, SCOPE OF APPLICATION
1. The following General Terms and Conditions of Pat & Patachon GmbH (hereinafter referred to as “Pat & Patachon “,” Agency “or “We”) for the service area “Agency “(hereinafter referred to as “Terms and Conditions”) apply to all business relationships between the Agency and its customers (hereinafter referred to as “Customer “or “Client”), insofar as these are entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) or a legal entity under public law. The details of the service are set out in the offer submitted by the Agency and the order confirmation together with these Terms and Conditions in their most recent version (published, among other places, on the Internet at www.pat-patachon.de).

2. These Terms and Conditions apply to all declarations of intent, offers, contracts, orders (including main orders), deliveries and legal or quasi-legal actions of the Agency. These Terms and Conditions shall also apply in their respective version to future orders without the Agency having to refer to these Terms and Conditions again in each individual case. Furthermore, these Terms and Conditions apply exclusively. Conflicting or supplementary Terms and Conditions of the Customer shall only become part of the contract if and to the extent that the Agency expressly agrees to their validity in writing. This requirement of consent shall apply in any case, in particular also if the Agency carries out the service for the Customer without reservation in the knowledge of the Customer’s General Terms and Conditions. The Agency’s Terms and Conditions shall remain effective insofar as deviating individual agreements do not extend to their regulatory content and replace them. If orders are placed despite conflicting terms and conditions, we assume that the customer accepts our Terms and Conditions exclusively, despite contrary wording.

3. Our Terms and Conditions are part of our offers and are handed over or sent with them. In addition, we refer to the validity and inclusion of our Terms and Conditions on our delivery notes.

II. OFFER AND CONCLUSION OF CONTRACT
1. Unless expressly agreed otherwise in writing, the presentation of the services to be provided and/or the preparation of a cost calculation by the Agency does not constitute a binding offer by the Agency. The same applies to offers that are subject to change and are also non-binding, unless expressly agreed otherwise in writing.

2. The respective services are specified in independent contracts or orders to be concluded on the basis of these Terms and Conditions. Only the binding order placement by the Customer to the Agency constitutes an offer to conclude a contract, which the Agency can accept – also tacitly or by conclusive behavior, such as in particular the provision of the contractual services. Supplements to a main order are recorded as an independent order and fulfilled and invoiced within the contractual deadlines.

3. Orders placed verbally, order confirmations, order changes or other agreements must be in writing to be effective for reasons of proof.

III. DEADLINES, DELIVERY PERIODS, PLACE OF PERFORMANCE
1. Deadlines and delivery periods are generally non-binding guidelines. This does not apply if deadlines are expressly agreed in writing as fixed.  

2. The Agency is not liable for delivery delays that are based on the Client’s failure to fulfill necessary cooperation obligations. 

3. If the Client is in default of acceptance or culpably violates other cooperation obligations, the Agency is entitled to demand compensation for the resulting damage, including any additional expenses. Further claims remain reserved.

4. If the Agency is in default, the Customer may only withdraw from the contract after having set the Agency a reasonable deadline in writing after the occurrence of the default, but at least two (2) weeks, and this deadline has expired fruitlessly.

5. Operational disruptions, both at the Contractor and at a third party or in the operation of a supplier, in particular strikes, lockouts and all other cases of force majeure, including epidemics and pandemics, do not entitle to termination of the contractual relationship. The principles of the frustration of contract remain unaffected.

IV. SCOPE OF SERVICES AND REMUNERATION
1. The scope of individual services and the remuneration due are determined by the respective contracts/orders. The subject of the respective contract/order is the agreed service specified in the contract document; in case of doubt, a specific result is not owed. Subsequent changes to the scope of services require written form. In the event of subsequent changes to the scope of services, any deadlines, acceptance modalities, remuneration, and reimbursement of expenses shall be adjusted accordingly. Additional effort by the agency resulting from this will be charged as additional work according to the agreed hourly rates.

2. The client must immediately provide the agency with all information and documents necessary for the provision of the service. They will inform the agency about all processes immediately, but no later than 48 hours after placing the order or becoming aware of them, which are significant for the execution of the order, even if these circumstances only become known during the execution of the order. The client bears the costs incurred as a result of work having to be repeated or delayed by the agency due to their incorrect, incomplete, or subsequently changed information. The client bears the damage resulting from work having to be repeated in whole or in part or delayed by the agency due to their incorrect, subsequently corrected, or incomplete information, insofar as the client is responsible for the damage.

3. The agency may also have the services incumbent upon it performed by third parties as subcontractors. The client can only reject such a third party if there is an important reason in the person of the third party.

4. If the client prematurely terminates an order that they have approved for the agency, § 649 BGB (German Civil Code) applies regarding the agency’s fee between the contracting parties.

5. The client is obliged to check the documents provided for the execution of the order (in particular texts, images, graphics, logos, etc.) for any existing copyrights, trademark rights, or other third-party rights. The agency is not liable for infringement of such rights. If the agency is held liable for such a legal infringement, the client shall indemnify and hold the agency harmless; they must compensate the agency for all disadvantages incurred as a result of claims by third parties. This also applies to appropriate costs of legal defense in this regard.

6. Unless expressly agreed otherwise, the client must obtain all necessary official permits in connection with the contractual service in a timely manner and at their own expense. They are responsible for compliance with these permits as well as all other public law and statutory regulations in connection with the provision of services.

7. The agency only owes the review of the legal admissibility of advertising (in particular competition, trademark, food, and pharmaceutical law) if this is expressly the subject of the order. If the client commissions the agency with these services, they bear the resulting fees and costs of the agency and third parties (lawyers, authorities, etc.) at market conditions unless otherwise agreed.

8. The agency is not obliged to verify the accuracy of factual statements about products and services of the client contained in the advertising, which have been provided or approved by the client.

9. The services of the agency are also contractually rendered if they are not registrable or protectable (e.g., patents, trademarks, copyright protection), unless expressly agreed otherwise.

10. For the purpose of review and approval, the agency submits all drafts to the client before publication. All services of the agency (especially design drafts, drafts of the website structure, etc.) are to be checked by the client for their content and functionality and approved within 48 hours after receipt by the client. If the client requires a longer period for more extensive projects in individual cases, they must inform the agency immediately and before the expiry of the 48 hours. In this case, the agency and the client will mutually agree on an appropriate extension of the deadline. If not approved in time, the services are deemed approved by the client. With the approval of the work, the client assumes sole responsibility for the correctness of content, image, sound, and text.

V. PRODUCTION SUPERVISION (ASSIGNMENT, COORDINATION AND MONITORING OF ADVERTISING MATERIAL PRODUCTION)
1. Insofar as the agency places production orders in its own name and for its own account based on an explicit agreement with the client, all incurred external costs will be recharged to the client by the agency. For production orders with a value of 300.00 EUR or more, the agency is entitled to demand an immediately due advance payment of up to 100% of the order volume.

2. If the client explicitly requests the placement of orders with advertising material manufacturers in the name and on account of the client, the agency selects suitable advertising material manufacturers.

3. The agency assumes responsibility for production supervision, coordination of production processing, and control of the services and invoices of the manufacturers.

4. For production supervision according to Section V, Paragraph 3, the agency receives an agency fee of 15% on the net value of the invoices from the advertising material manufacturers. The agency fee is due with each billing of the manufacturers’ services.

5. Packaging and shipping costs are valid for 8 weeks.

6. For printed products and advertising materials, we reserve the right to over- or under-deliver by 10% due to production-related reasons, which will also be taken into account in the invoicing.

VI. WARRANTY
1. The agency does not owe success in the legal sense unless expressly agreed otherwise in writing.

2. If purchase or contract for work law applies, the latter only if the parties have exceptionally expressly agreed that a work is owed according to individual agreement, the following applies: There is no claim for rectification of defects in case of only minor deviation from the agreed quality, only minor impairment of usability, natural wear and tear or damage that occurs after the transfer of risk due to faulty or negligent handling, excessive stress, unsuitable operating resources, or that arise due to special external influences that are not assumed under the contract, as well as for non-reproducible software errors. If improper modifications or repair work are carried out by the customer or third parties, there are also no warranty claims for these and the resulting consequences.

3. The customer must report obvious defects within one (1) week of delivery or possibility of use. If the customer is an entrepreneur according to § 14 BGB, they must report non-obvious defects within two (2) weeks of discovery. Late defect notifications exclude the warranty.

4. Warranty claims of the contracting parties expire within one (1) year from the respective contracting party’s knowledge of the circumstances giving rise to the claim. The statutory provisions on the commencement, suspension, and recommencement of the limitation period remain unaffected.

VII. LIABILITY, COMPENSATION
1. The agency is liable for damages – regardless of the legal grounds – only in case of intent and gross negligence. In case of simple negligence, the agency is only liable for damages resulting from injury to life, body, or health or for damages resulting from the breach of an essential contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the client regularly relies and may rely); in this case, however, the agency’s liability is limited to compensation for the foreseeable, typically occurring damage.

2. The agency assumes no liability for defective deliveries or services from third parties that are commissioned at the customer’s request. An exception to this is possible selection and supervision fault for unauthorized actions.

3. The agency is not liable for the accuracy of content provided by the customer for service provision and which is the subject or part of the owed service. The use of the content is based exclusively on information provided by the customer to the agency.

4. Furthermore, the agency is also not liable for the legal protection or registrability of ideas, concepts, drafts, or other materials created as part of the order.

5. The customer is obliged to adequately protect themselves against data loss. If the service provision includes software development, the following applies: Since the installation of software, but also the editing of installed software, carries the risk of data loss, the customer is obliged to take precautions against data loss through comprehensive data backup before such measures.

6. The client cannot claim damages as a result of contestation due to unintentional errors and printing or transmission errors that entitle the agency to contest.

7. If the client independently modifies or extends products or services delivered by the agency or has such modifications or extensions made by third parties, any warranty by the agency expires.

8. In color reproductions in all manufacturing processes, minor deviations from the original cannot be objected to. The same applies to the comparison between proofs and print run.

9. If color-binding proofs are desired by the client, these must be explicitly ordered by the client. The billing will be done separately.

VIII. INVOICE, PRICES, PAYMENT TERMS
1. The agency’s compensation for the contractual service is determined by the individual contractual agreement.

2. If work by the agency is not carried out for reasons for which the agency is not responsible and the agency is not entitled to the full contractual remuneration, the customer shall in any case owe an appropriate fee for the work performed. The fee is determined by the ratio of the work performed to the contractually agreed scope of services. This does not affect the assertion of further claims against the customer, in particular any claims for compensation.

3. Unless expressly agreed otherwise, expenses incurred by the agency in connection with the respective service are to be reimbursed separately by the customer. Expenses within the meaning of this paragraph are, in particular, third-party costs arising from the commissioning of third parties (e.g. those pursuant to Section V Para. 1), travel and transport costs, etc. The agency may request reasonable advance payments for expenses.

4. The customer acknowledges that the agency’s calculated expenses may differ in amount from the actual expenses. If it is foreseeable that the actual expenses will exceed those calculated by the agency, the agency will inform the customer of the additional expense. In case of a deviation of no more than 10%, the actual expenses are deemed to have been approved by the customer. Expenses incurred beyond this are only to be reimbursed by the customer if they have been expressly approved. The approval is deemed to have been granted by the customer if the customer does not object in writing within three (3) working days after such notification by the agency and at the same time proposes more cost-effective alternatives.

5. The agency generally invoices its services immediately after provision. For longer-term activities, remuneration and reimbursement of expenses are due at the end of each month without deductions, otherwise at the latest after the agency has provided the service and issued an invoice.

6. Unless other payment terms have been agreed, payment shall be made within 10 days of invoicing.

7. All prices are net prices and are subject to the applicable statutory VAT. In the case of ongoing services, the VAT rate applicable at the time the respective claim becomes due is decisive.

8. Customs duties, fees and other charges, as well as artists’ social insurance (if the agency uses freelance artists or other freelancers as subcontractors in individual cases and these are members of the KSK) shall be borne by the client, even if they are levied subsequently.

 9. The customer is in default immediately upon receipt of a reminder, but at the latest 30 days after the due date and receipt of an invoice. In accordance with § 288 Para. 2 of the German Civil Code, the agency is entitled, upon the occurrence of default, without prejudice to its other rights and claims, to demand default interest at a rate of 9 percentage points above the respective base interest rate. Any further right of the agency to assert higher claims for damages remains unaffected by this.

10. If the customer has not made due payments, the agency is entitled to assert a right of retention on the services still to be provided or to refuse further performance. This does not affect any further rights of the agency, in particular the right to withdraw from the contract.

11. The agency is entitled to first credit payments by the customer to older claims against the customer. The crediting is done as follows: If costs and interest have already been incurred, the agency will first credit the payment to the costs, then to the interest and finally to the principal claim. Within each claim category, the crediting is done depending on the age of the claim (the due date is decisive in this respect), with the oldest claims always being settled first.

12. The client may only offset undisputed or legally established claims against the agency’s remuneration claims. The client can only assert a right of retention in cases of undisputed or legally established claims.

IX. CONTRACT DURATION, TERMINATION
1. Unless otherwise agreed, the contract runs until the completion of the order or, in the case of a main order with several (partial) orders, until the completion of the main order and the last order.

2. Termination of continuing obligations can only be made without notice for good cause. This is particularly the case if a party
a) breaches a material contractual obligation,
b) or is in default of acceptance, provided that a reminder has been issued beforehand, or
c) files its own application for the opening of insolvency proceedings, if insolvency proceedings are opened or an application for the opening of insolvency proceedings is rejected for lack of assets.

3. The notice of termination must be in writing.

4. In the event of termination pursuant to paragraph 2, the agency is entitled to 80% of the agreed remuneration as lump-sum compensation for the outstanding part of the order, provided that the fact justifying the termination is based on culpable conduct of the client. The client remains permitted to prove that the agency has suffered no or significantly less damage; the agency reserves the right to prove higher damages.

X. COPYRIGHT USAGE RIGHTS/ANCILLARY COPYRIGHTS
1. All services provided by the agency within the scope of the order, in particular the creation of drafts, concepts, graphics, data sets, software, etc., as well as the rights thereto, remain the sole property of the agency and may be used by the client only for the agreed purpose and within the agreed period of use. The client is not entitled to any further use unless expressly agreed otherwise in writing. The transfer of rights requires a separate written agreement.

2. All advertising materials designed by the agency (e.g., graphics, layouts, drafts, etc.), electronic documents, and computer programs are subject to copyright law as copyrighted works. With full payment, the client acquires the right to use all services provided by the agency for the agreed purpose of the advertising materials and other contractual works designed by the agency.

3. The granted usage rights are non-exclusive and limited to the territory of the Federal Republic of Germany. A transfer of usage and exercise rights by the client to third parties requires an individual contractual agreement; this also applies to ideas, concepts, and drafts.

4. Suggestions from the client or their employees have no influence on the remuneration. They do not establish co-authorship.

5. The contractual work and services of the agency may only be used for the agreed types and purposes of use. Without express agreement, the purpose made known by the client at the time of contract conclusion applies. Any further use is only permitted with the written consent of the agency.

6. Changes, adaptations, etc. of the agency’s services, such as their further development by the client or by third parties working for them, are only permitted with the express written consent of the agency, unless a corresponding objection by the agency would violate the principle of good faith (§ 242 BGB). The prohibition of changes therefore does not apply in particular to necessary and contractually presupposed updates. The prior written consent of the agency is also required for any partial or complete, express or implied transfer of usage rights by the client to third parties. A separate contract is generally required for this. This also applies to any actual making accessible that amounts to a transfer of usage rights. The agency may only refuse consent to a transfer to companies affiliated with the client for good cause. If a license fee for the transfer is not agreed, there is always good cause. Any violation of this clause IX. paragraph 6 by the client entitles the agency to demand a contractual penalty of three times the agreed remuneration, without excluding further claims.

7. The agency may grant the client a time-limited and non-exclusive right to use third-party property rights that arise in the course of fulfilling this contract, insofar as this is absolutely necessary according to the meaning and purpose of this contract.

8. A transfer of such rights, services, and products to third parties can only take place with the consent of the agency in exchange for appropriate remuneration.

9. Suggestions that the agency submits to the client may not be provided by other service providers of the client without the written consent of the agency if they concern the agency’s range of services.

10. Software products from third-party providers remain the intellectual property of the respective licensor. The corresponding brand names and logos belong to the manufacturing companies of the offered goods. When utilizing delivered goods, proprietary rights of third parties must be observed. The warranty provisions of the respective software manufacturer apply additionally.

11. If usage or exploitation rights (e.g., photo, film, copyright, GEMA rights) or consents of third parties (e.g., personality rights) are required for the creation or implementation of the agency’s work results, the agency will obtain the rights and consents of third parties in the name and for the account of the client. This is generally done only to the extent necessary in terms of time, space, and content for the intended advertising measure, unless otherwise expressly agreed in text form. Subsequent claims according to §§ 32, 32a UrhG are at the expense of the client.

12. The agency assumes no liability for ensuring that no third-party rights exist with regard to the advertising materials and work results it supplies.

13. The agency may use the advertising materials it has designed for its own promotional purposes, without time limitation, on its Internet website, in print media regularly produced for self-promotion purposes, and on its social media presences. This authority extends to all company divisions of Pat & Patachon GmbH.

14. Usage rights for drafts rejected by the client or not executed remain with the agency. This also and especially applies to services provided by the agency that are not subject to special legal rights, in particular copyright.

XI. RETENTION OF TITLE
1. Until full payment of all present and future claims of the agency arising from the contractual relationship and an ongoing business relationship (secured claims), the agency retains ownership of all physically delivered services (in particular data carriers, documentation material, etc.).

2. The agency’s services subject to retention of title may neither be pledged to third parties nor transferred as security before full payment of the secured claims. The customer must immediately notify the agency in writing if and to the extent that third parties access the works belonging to the agency.

XII. FINAL PROVISIONS
1. No verbal side agreements have been made. Additions and amendments to the contract must be made in writing. This also applies to the waiver of the written form requirement.

2. Unless otherwise stated in the agency’s order confirmation, the place of performance is the agency’s registered office.

3. The place of jurisdiction for all disputes between the client, who is a merchant, and the agency, is Berlin.

4. Only the law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods and German international private law.

5. Should provisions of these General Terms and Conditions be or become invalid, the remaining provisions shall remain in effect. Invalid provisions are to be replaced by valid ones that correspond to the purpose as far as possible.

Version: April 15, 2024