General Terms and Conditions
Status: 15.11.2016
The following business terms and conditions apply to all contracts concluded between the Designer and their Client. They also apply to all future business relationships, even if they are not explicitly agreed upon again. Deviating conditions of the Client which the Designer does not explicitly recognize shall not become part of the contract, even if the Designer does not explicitly object to them.
Graphic design, like other creative services, is a subjective activity. The choice of the Designer by the Client must be valued as a question of taste, following careful consideration and evaluation of the Designer's previous work. The Designer endeavors at all times to achieve a satisfactory result that meets the order and to fulfill the wishes of the Client, provided they are not completely incompatible with legal regulations, good taste, or common design virtues, and are not potentially harmful to the reputation of the Designer. In this respect, even in the unexpected event that the Client does not wish to continue the order with any of the options presented by the Designer, the Designer must be remunerated for the work performed up to that point.
1
Copyright and Usage Rights
1.1
The drafts and final artwork may not be changed - neither in the original nor in reproduction—without the express consent of the Designer. Any imitation - whether in whole or in part - is inadmissible.
1.2
The parties agree that any unauthorized imitation or modification of the work (as per §1.1) causes harm to the Designer's reputation and business that is difficult to quantify. Therefore, the Client agrees to pay liquidated damages equal to 100% of the total contract value for each instance of infringement. This amount is a good-faith estimate of the Designer's potential losses and not a penalty.
1.3
The Designer transfers to the Client the usage rights required for the respective purpose. Unless otherwise agreed, only a simple usage right is transferred for an unlimited period. The Designer remains entitled in any case - even if they have granted exclusive usage rights - to use their drafts and reproductions thereof for self-promotion in all media.
1.4
Passing on usage rights to third parties requires a written agreement between the Designer and the Client.
1.4.1 If the transfer takes place with the financial interest of the Client, or if a transfer with profit for the Client is planned from the outset, the Designer must be informed of the amount of the remuneration.
1.4.2 The Designer provides services exclusively to the named Client. To maintain professional standards and clear lines of liability, the following are prohibited without prior written consent:
a) The Client may not present the Designer’s work as their own or as that of an internal employee for the purpose of "reselling" design services to a third party.
b) The work may not be submitted to design competitions, pitches, or awards under any name other than the Designer’s.
c) The Client is prohibited from reselling, licensing, or sub-licensing the design assets as standalone products (e.g., as stock art, templates, "print-on-demand") where the design itself is the primary commodity being sold. Usage is strictly limited to the business purposes defined in the original brief.
1.5
Usage rights transfer to the Client only after full payment of the remuneration. In the case of an agreed and completed down payment of a partial amount before the start of the order, the usage rights transfer to the Client immediately upon receipt of the final artwork, limited to the duration of the payment period (14 days after receipt of the invoice).
1.6
Unless otherwise agreed, the Designer must be named as the author in the event of reproduction, distribution, exhibition, or public accessibility of the drafts and final artwork. If the Client violates the right to naming, they are obligated to pay the Designer a contractual penalty of 100 percent of the remuneration, in addition to the remuneration owed. This does not affect the Designer's right to claim higher damages based on a specific loss calculation.
1.6.1 Final artwork of word and figurative marks are fundamentally exempt from the requirement of naming during reproduction and distribution in their representative and advertising form.
1.7
If the Client intends to register formal property rights for the drafts, final artwork, or other works of the Designer in an official register, prior written consent from the Designer is required. Consent for word and figurative marks (logos/signets) is usually provided automatically.
2
Offers and Remuneration
2.1
Remunerations/fixed-price offers are net amounts, payable plus statutory VAT and without deduction.
2.2
Remunerations are due upon delivery of the drafts. If the drafts are accepted in parts, a partial remuneration of at least half the total remuneration must be paid upon acceptance of the first partial delivery.
2.3
For orders where the full remuneration was set as a fixed price before the start of the order, a down payment of 50% of the full remuneration is required, unless otherwise agreed. For services resulting from subsequent changes to the order or scope, as well as for un-agreed additional revisions, the Designer's regular hourly rate will be charged additionally. Fixed-price offers are generally valid for 14 days.
2.4
Any use of the work beyond the scope of the granted license, or any violation of the Designer's moral rights (such as unauthorized modification or omission of credit), shall trigger a retroactive licensing fee. The Client agrees that such unauthorized use incurs significantly higher administrative and management costs; therefore, a surcharge of 100% of the original project fee shall be applied to cover these additional costs and the expanded scope of use.
3
Third-Party Services
3.1
The Designer is entitled to order the third-party services necessary for the fulfillment of the order in the name and for the account of the Client. The Client is obligated to provide the Designer with written authorization for this purpose.
3.2
If contracts for third-party services are concluded in the name and for the account of the Designer, the Client is obligated to indemnify the Designer against all liabilities arising from the contract, specifically the payment of the price. The Designer may insist on an advance payment by the Client to cover expected costs.
4
Ownership, Return Obligation
4.1
Only usage rights are granted for physical drafts and final artwork; ownership rights are not transferred. Originals must be returned undamaged to the Designer no later than three months after delivery, unless otherwise agreed in writing.
4.2
In the event of damage or loss of physical drafts or final artwork, the Client must replace the costs for restoration. The Designer’s right to claim further damages remains unaffected.
5
Delivery of Data
5.1
The Designer is not obligated to release data carriers, files, or data unless this is strictly necessary for the exercise of the granted usage rights. If the Client additionally wishes the Designer to provide data carriers, files, or data, this must be agreed upon in writing and compensated separately.
5.2
If the Designer has provided the Client with data carriers, files, or data, these may only be modified with the Designer's consent.
5.3
If the Designer has provided the Client with data carriers, files, or data, these may only be modified with the Designer's consent.
5.4
The Designer is not liable for errors on data carriers, files, or data occurring during data import into the Client's system.
6
Correction, Production Monitoring, and Samples
6.1
If the Client wishes for monitored print approval, they shall provide the Designer with correction samples before reproduction.
6.2
If the Designer is to perform production monitoring, they and the Client shall conclude a written agreement. If the Designer performs monitoring, they decide and provide instructions at their own discretion.
6.3
The Client shall provide the Designer with ten flawless copies of all reproduced works free of charge.
7
Liability and Warranty
7.1
The Designer is liable only for damages caused intentionally or by gross negligence. This excludes damages from the violation of essential contractual obligations (cardinal obligations) and injury to life, limb, or health, for which the Designer is liable even for slight negligence.
7.2
Claims of the Client arising from a breach of duty lapse one year after the statutory start of the limitation period. This excludes claims based on intentional or grossly negligent breaches or injury to life, limb, or health.
7.3
The sending and returning of works and templates are at the risk and expense of the Client.
7.4
Upon acceptance of the work and release of drafts/final artwork, the Client assumes responsibility for the accuracy of text and image, and the Designer's liability in this regard expires.
7.5
The Designer is not liable for the protectability or registrability (copyright, design, or trademark) of the drafts and other design work. The Client must conduct their own searches at their own expense.
7.6
The Designer is not liable for the legal admissibility (specifically competition and trademark law) of the intended use. However, they are obligated to inform the Client of legal risks if they become known during the execution of the order.
7.7
The Designer is not liable for the violation of usage or copyrights in material provided by the Client. Working with third party intellectual properties requires proof of license. If the Designer identifies a clear violation, the project will be terminated. Remuneration for work performed up to that point is due.
7.8
The Designer is not liable for the accuracy of factual statements about products or services provided by the Client. Upon release of the final artwork, the Client assumes responsibility for the accuracy of texts and images.
7.8
Special Discount: Every new customer has the one-time opportunity for their first fixed-price order to receive an "TOS-Reader Bonus Discount" of 5% (for orders up to €500) or 2% (for orders over €500) by sending an email with the subject "TOS acknowledged" after the price has been set.
8
Freedom of Design and Templates
8.1
Freedom of design exists for the Designer within the scope of the order. Changes requested during or after production must be paid for by the Client.
8.2
If the execution of the order is delayed for reasons for which the Client is responsible, the Designer may demand a reasonable increase in remuneration.
8.3
The Client warrants that they are entitled to use all templates and files provided to the Designer and that these are free of third-party rights. The Client shall indemnify the Designer against all third-party claims.
9
Final Provisions
9.1
The invalidity of individual provisions does not affect the validity of the remaining provisions.
9.2
If the Client does not have a general place of jurisdiction in Germany or moves abroad after the conclusion of the contract, the place of residence of the Designer is agreed as the place of jurisdiction.