Terms and conditions

General terms and conditions of Homepagely GmbH (the “agency”) for the provision of agency services.

I. Definitions, scope

These general terms and conditions apply to the business relationship and to all future business of Homepagely GmbH. The terms “contract, agency and client” are to be understood in the commercial sense. “Contract” denotes the contractual relationship irrespective of the type of contract, “agency” the party that owes the main service, “client” the party that is to receive the main service and pay the fee.

Deviating terms and conditions of the client are only valid to the extent that the agency has acknowledged them in writing. Agreements made with clients in individual cases (including side agreements, additions and amendments) always take precedence over these terms and conditions.

II. Dates, delivery periods

Dates and delivery periods are, as a rule, non-binding guidance. This does not apply where dates have been expressly agreed in writing as fixed.

The agency is not liable for delivery delays caused by the client failing to fulfil necessary duties to cooperate.

The client will support the agency to a reasonable extent in performing the services it owes under the contract. This includes in particular providing information and data in good time, where the client's cooperation requires it. The client will grant approvals in such good time that the agency's workflow, and thereby the realisation of the advertising measure, is not impaired. If the agency cannot provide the services, or can only provide them at additional expense, because of missing or insufficient cooperation or supplied materials, it is entitled to charge the client for the additional expense this causes.

The client must further be aware that dates and delivery periods agreed at the outset will shift if the client is in default of acceptance or breaches other duties to cooperate.

Once a contract has been placed, the service must be taken up within one year. Otherwise the total sum falls due immediately after the year has elapsed, unless agreed otherwise in writing.

III. Changes to work (change request)

1. Subsequent changes to the commissioned services (change request) by the client must be communicated to the agency as early and as concretely as possible and require express confirmation by the agency to take effect.

2. If, following a subsequent change to the service description, the originally commissioned service can no longer be carried out or can only be carried out in part, the agency is entitled to stop further performance. The agency will inform the client of this. If the client objects to performance being stopped, the agency will continue the original performance.

3. Where the change request causes the agency additional costs, the agency will point this out to the client. The agency is entitled to invoice the client for the additional work.

IV. Scope of services, fees

The scope of the individual services and the fee owed follow from the agency's service description. If no fee is specified for a service, the agency's prices valid at the time of the commission apply. Additional work by the agency, in particular due to change and addition requests by the client, is charged as additional effort at the agreed hourly rates, or otherwise at the agency's prices valid at the time of the commission.

The client bears the damage arising from work having to be repeated in whole or in part by the agency, or being delayed, as a result of incorrect, subsequently corrected or incomplete information provided by the client, provided the client is responsible for the damage.

The agency may also have the services it owes performed by third parties as subcontractors. The client may only reject such a third party where there is good cause relating to that third party.

If the client terminates a contract it has released to the agency early, § 649 of the German Civil Code (BGB) applies between the contracting parties with regard to the agency's fee.

Checking the legal admissibility of the advertising (in particular competition law, trade mark law, food law and pharmaceutical law) is only owed by the agency where this is expressly the subject of the contract. If the client commissions the agency with these services, the client bears the resulting fees and costs of the agency and of third parties (lawyers, authorities and others) at standard market rates, unless agreed otherwise.

The agency is not obliged to check the accuracy of factual statements about the client's products and services that are contained in the advertising and have been specified or released by the client.

The agency's services are also performed in accordance with the contract if they are not registrable or protectable (for example patents, trade marks, copyright), unless expressly agreed otherwise. The agency is not obliged, but is entitled, to make its services the subject of applications for industrial property rights.

For the purpose of review and approval, the agency submits all drafts to the client before publication. By releasing the work, the client assumes responsibility for the accuracy of content, image, sound and text.

V. Production supervision (placing, coordinating and supervising the production of advertising material)

As part of production supervision, the agency selects suitable producers of advertising material and places production orders after release by the client in text form. Individual orders up to a maximum of EUR 2,000 do not require release by the client. Orders are placed with producers of advertising material in the name and for the account of the client, unless expressly agreed otherwise in text form.

The agency coordinates the production process and checks the services and invoices of the producers.

For production supervision under sections IV.1 and 2, the agency receives an agency fee of 20 % of the net value of the invoices of the producers of advertising material. The agency fee falls due in each case when the producers' services are invoiced.

Where the agency exceptionally places production orders in its own name and for its own account on the basis of an express agreement with the client, all external costs incurred are passed on by the agency to the client. For production orders with an expected value of EUR 5,000 or more, the agency is entitled to demand immediately due advance payments up to the gross order value.

VI. Liability, warranty

The agency is liable for intent and gross negligence in accordance with the statutory provisions. Liability for warranty claims is, however, limited to 12 months from delivery. In the case of slight negligence, the agency and its vicarious agents are only liable where a material contractual obligation (a cardinal obligation, that is an obligation whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the other contracting party regularly relies and may rely) is breached, or where there is a case of default or impossibility.

The agency is not liable for breaches of the General Data Protection Regulation (GDPR).

In the case of liability for slight negligence, this liability of the agency and its vicarious agents for breach of duty and in tort, as well as for claims for compensation for futile expenditure, is limited to such damage as is foreseeable or typical.

The above limitations of liability and the shortened warranty obligation do not apply to the absence of warranted characteristics, to cases of fraudulent intent, to injury to life, body or health, to defects of title, or to liability under the German Product Liability Act.

The client cannot claim damages as a consequence of rescission on account of non-culpable errors and printing or transmission errors that entitle the agency to rescind.

VII. Acceptance, revision rounds

Where the agency owes a specific result of work, that is an identifiable work (for example a draft), the client is obliged to accept it. Acceptance is deemed to have taken place if it is not declared or refused within seven days of delivery, provided the result of the work substantially corresponds to what was agreed. If there are substantial deviations, the agency will remedy those deviations within a reasonable period and submit the result of the work for acceptance again. In producing any agency service there are as a rule two revision rounds, unless otherwise recorded in writing in the contract. Acceptance is deemed to have taken place at the latest upon payment or use of the work.

VIII. Invoice, price, payment, SEPA direct debit

1. The agency invoices its services immediately after they have been performed.

2. Unless other payment terms have been agreed, payment is made within 14 days of invoicing without deduction. Where payment is made by SEPA direct debit, the collection date stated on the invoice applies instead.

3. All prices are net prices and are subject to statutory value added tax. Customs duties, fees and other charges, as well as the German artists' social insurance contribution, are borne by the client, including where they are levied subsequently.

4. The client may only offset against the agency's fee claims with claims that are undisputed or have been established with final legal effect. The client may only assert a right of retention in cases of undisputed claims or claims established with final legal effect.

5. If the client has granted the agency a SEPA direct debit mandate, the agency is entitled to collect amounts due by SEPA core direct debit from the account named in the mandate. The mandate applies to all claims arising from the business relationship until it is revoked.

6. The agency notifies the client of the amount and the collection date at least five calendar days before collection (pre-notification). Pre-notification is generally made on the invoice. The period of 14 days provided for in the SEPA rulebook is hereby shortened to five calendar days.

7. The client ensures that the account to be debited has sufficient funds on the collection date. The client notifies the agency of changes to bank details without delay in text form.

8. If a direct debit is returned or refunded for reasons for which the client is responsible, the client bears the bank charges the agency incurs as a result. Such reasons are in particular insufficient funds, a closed or incorrectly stated account, or a chargeback without valid reason. Further claims remain unaffected.

9. In the event of a return or refund, the amount concerned is immediately due for payment. After repeated returns, the agency may require that future payments are made by bank transfer or in advance.

IX. Expenses

Each party bears the costs for postage, telephone and fax arising from its business dealings with the other side.

Travel costs are charged to the client as follows:

• External costs: against receipts,
• Hourly effort: see the current standard price list,
• Travel in an own car: EUR 0.51 per km.

All other costs such as legal fees, courier costs, transport costs for preparing and supervising the production of advertising material, as well as colour copies and colour prints ordered by the client, are charged to the client against receipts.

X. Copyright usage rights and ancillary copyright

Unless regulated otherwise in the service description, upon payment in full the client acquires the usage rights required by the purpose of the contract in the advertising material created by the agency, for the term of the agency contract, but for at least 6 months after acceptance. The usage rights are limited to the territory of the Federal Republic of Germany. Editing or changing the content of the advertising material created by the agency is only permitted with the prior consent of the agency. Any transfer or licensing of the usage rights by the client to third parties requires the prior written consent of the agency to be effective. If the agency creates software as part of its contractual services, the respective source code and the corresponding documentation are not part of the rights granted to the client. If the client wishes to be given the source code, this must be agreed separately with the agency.

If usage or exploitation rights (for example photo, film, copyright or GEMA rights) or the consent of third parties (for example personality rights) are required in order to create or implement 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. As a rule this is done only to the extent required in terms of time, place and content for the intended advertising measure, unless expressly agreed otherwise in text form. Subsequent claims under §§ 32, 32 a of the German Copyright Act (UrhG) are borne by the client.

The agency accepts no liability for the absence of third-party rights in the advertising material and work results it delivers.

The agency may use the advertising material it has conceived for an unlimited period for its own promotion on its website, on social media channels and on data carriers it produces regularly for the purpose of its own promotion (for example USB sticks, DVDs).

Usage rights in drafts rejected by the client or not executed remain with the agency. This applies in particular to services of the agency that are not the subject of specific statutory rights, especially copyright.

XI. Data protection

The client is aware of and consents to the personal data required to carry out the contract being stored by the agency on data carriers. The client expressly consents to the collection, processing and use of their personal data. The stored personal data is of course treated confidentially by the agency. The collection, processing and use of the client's personal data takes place in compliance with the German Federal Data Protection Act (BDSG), the German Telemedia Act (TMG) and the privacy policy.

The client has the right to withdraw their consent at any time with effect for the future. In this case the agency is obliged to delete the client's personal data immediately. For ongoing contracts, deletion takes place once the contract has been completed.

XII. Meeting reports

Where meeting reports have been produced, they become the legally binding basis for the work. These meeting reports are binding as the legally binding basis for the further processing of projects, unless they are objected to in text form within a period of three working days.

XIII. Place of jurisdiction

The place of jurisdiction for all disputes between a client who is a merchant and the agency is the registered office of the agency.

Only the law of the Federal Republic of Germany applies, to the exclusion of German private international law.