General Terms and Conditions of Trade
§ 1 GENERAL
1.1 General Terms and Conditions
For all transactions between the Client and Pferd & Reiter – Coaching und Public Relations (henceforth called the Agency), solely these Terms and Conditions of Business shall apply. Conflicting terms and conditions of business of the Client shall only be operative if they have been explicitly acknowledged in written form by the Agency. Any other arrangements diverging from or supplementing these Terms and Conditions of Business shall require the written form to be operative. Should individual provisions of these Terms and Conditions be ineffective, the validity of the remaining provisions and the Agreements entered into on the basis thereof shall not be affected hereby. The ineffective provision shall be replaced by one which is operative and which comes closest to the original sense and purpose of the original provision.
1.2 Conclusion of Commission
Business relations shall be based on the specific PR Contract as well as on the current price lists, in which the agreed scope of service and remuneration are specified. Order placement on the part of the Client shall only be considered accepted if confirmed in writing by the Agency, unless the Agency gives it to be understood that it accepts the order – possibly by reason of actions it undertakes for the order. The Agency shall retain the right to refuse orders. Order confirmations given by the Agency take the place of an order placement of the Client, unless written notice to the contrary has been given by three working days at the most.
1.3 Data storage
All work generated in dealing with the order shall be stored (where possible) on data carriers. The Agency cannot unfortunately be liable for storage.
1.4 Obligation to confidentiality
The Agency, its employees and all third parties appointed to act for the Agency undertake to maintain secrecy on all matters disclosed to them relating to their assignments for the Client. This obligation to observe secrecy relates both to the Client as well as to the business relations thereof. The Client may release the Agency in written form from this obligation to secrecy.
1.5 Applicable laws
Exclusively the laws of the Federal Republic of Germany shall apply to the legal relations between Clients and the Agency and to the question of the validity of the contract and precontractual effects and after-effects.
1.6 Place of performance/venue
The place of performance is Germany, Berlin. The courts of Berlin shall have non-exclusive jurisdiction over all disputes arising out of or in connection with this Agreement.
§ 2 SERVICES OF THE AGENCY
2.1 Presentation of concepts for campaigns/individual projects
Unless otherwise arranged, no costs shall be incurred by the Client for the presentation of concepts and individual projects. If, however, no order is placed with the Agency following the presentation, the Agency shall retain title to all services it has provided. The Client shall not be entitled to use them – in any form whatsoever – or to pass on any documents that have been handed out. The Agency reserves the right to claim for damages arising from any contravention thereof.
The Agency shall provide quotations that are binding, with the proviso that if the content or scope of the specification of the subject under the orders in hand is altered, the costs quoted may also alter. If the order is thus altered, the Client shall bear all extra costs that have been generated as a result thereof.
2.3 Cost estimates
Cost estimates issued by the Agency shall not be binding. If it can be foreseen that the actual costs will exceed the estimated costs by more than 20 percent, the Agency shall draw the attention of the Client to the increase in costs.
2.4 Implementation of campaigns or individual projects
Unless otherwise agreed, no costs are incurred by the Client for consultation, reporting, preparation and update of mailing lists or clipping services during the implementation of campaigns or individual projects. If costs/fees are incurred for text or contact work, the prices of the current price list shall apply, unless an individual quotation has been given. If the text or contact work proves successful, the success premiums set forth in the current price list shall apply, unless otherwise agreed.
2.5 Billing of campaigns or individual projects
The Agency’s claim to its fee for each individual service is generated as soon as the service has been rendered. For success-oriented services, only the direct cost shall initially become due for payment and may be calculated separately from the success premium. The success premium may still be payable for up to 12 months following termination of contract. The Agency shall be entitled to call for coverage of its expenses in the form of advance payments for services that are not success-oriented.
2.6 External costs
External costs, i.e. expenses and incidentals such as travel expenses, printing and mailing costs, room rentals, catering costs, costs for the decoration of event locations etc. shall be billed to the Client with a 10 percent mark-up for handling, unless these costs are settled directly by the Client.
2.7 Fixed orders
In cases where the Agency has committed itself towards third parties pursuant to order, the Client undertakes to meet these obligations through the medium of the Agency, even after termination of order.
Bills of the Agency shall be due for payment without deduction 8 days at the latest after receipt of the bill. The value added tax required by law shall be added to the sum total of the bill. When payment is delayed, a penal interest shall be charged of 8 percent in excess of the basic rate of interest. The Client shall have a right of off-set or retention only in respect of claims that have been acknowledged in writing or established in a legally binding manner.
2.9 Change or break-off of assignment
If the Client changes or stops work on orders, assignments, large-scale planning and such like, the Client shall reimburse the Agency for all costs incurred and release the Agency from all obligations towards third parties. A compensatory fee for losses shall be payable in the event that progress has been made in contact work for telephone interviews, interviews, editorial visits, participation in press conferences or similar events to such extent that confirmed dates have already been received at the time of any contact work stoppage instruction by the Client. Work already carried out shall be charged at the hourly rate fixed in the price list. In the event of contact work for advertising or internal purposes being broken off by the Client prior to completion. Payment of text fees shall be due in full (100 %) in the event of progress in text work (PR texts and advertising texts) being such at the time of text work stoppage that the text is already available for approval. Work already carried out shall be charged at the agreed hourly rate in the event of work being broken off by the Client prior to completion. For PR texts that are written and billed by a fixed rate or by the reduced hourly rate for text work (press releases, statements, articles, success stories) and cannot be used for press work for reasons not caused by the Agency, the full hourly text rate or the double fixed rate will be billed to make allowance for the lost performance based fee. Payment of artwork fees shall be due in full (100 %) in the event of progress in artwork being such at the time of artwork stoppage that the artwork is already available for approval. Work already carried out shall be charged at the agreed hourly rate in the event of work being broken off prior to completion. The enforcement of further claims shall not be affected hereby.
2.10 Retention of title
Up until full payment has been effected, the goods delivered shall remain the property of the Agency.
§ 3 RIGHT OF USE
Upon effecting full payment, the Client acquires the right to the unlimited use of all copywriting and graphics produced by the Agency inasmuch as the granting of such right is possible under German law or under the actual circumstances. If the Agency incorporates third parties for the fulfilment of contract (vicarious agents), it shall acquire the necessary rights of utilization and concede them to the Client to the same extent. All mailing lists fundamentally remain the property of the Agency. They shall not leave the premises of the Agency, yet may be viewed on site by the Client. At the request of the Client, only the contents of the individual mailing lists may be made available. All services of the Agency including individual parts thereof shall remain the property of the Agency.
§ 4 LIABILITY AND COMPLAINTS
The Agency shall be liable to the Client for damages caused intentionally and by gross negligence. Moreover, liability as set forth in the above paragraph and for further claims derived from the contract or under law not affected by paragraph 1, shall be restricted to the damages which could be foreseen at the time the contract was entered into. For precontractual liability (or culpa in contrahendo) at contract negotiations, the above paragraphs shall apply accordingly. Any claims for damages other than those detailed in these Terms and Conditions of Business and governed by the text of the contract shall be ruled out, with the exception of the claims derived from the Product Liability Act and if the Client loses his life or suffers bodily harm by reason of the conduct of the Agency.
The Client shall lodge any complaints in written form by three days following the provision of the service by the Agency and shall substantiate its complaint. In the event of justified complaints that have been lodged on time, the Client shall be entitled to remedy of the service by the Agency. The client shall release the Agency from third party claims if the Agency acted at the express wish of the Client, although the Agency had already informed the Client of its misgivings as regards the admissibility of the PR measure.
4.3 Legal protection
For compliance of the communication measures proposed by the Agency with the regulations laid down by law governing trade practices, in particular the legal regulations governing competition, the Client shall be explicitly responsible. In particular, the Client shall only release a measure proposed by the Agency if the Client has verified the clearance of the aspect under the laws governing competition or if the Client is prepared to bear the risk involved in implementing the PR measure himself. At the request of the Client, the Agency shall propose suitable consultants who are able to review the pertinent legal aspects involved with the PR measure proposed.
4.4 Keeping to deadlines
The Agency shall make every effort to keep to the deadlines arranged. Non-adherence to a deadline shall only entitle the Customer to assert the rights to which he is entitled by law if the Client has accorded the Agency a suitable period of time for remedy. This period of time shall commence with the receipt of a letter of caution to the Agency. An obligation to compensate for damages derived from the delay in time shall only be given for damages caused intentionally or by gross negligence. Unavoidable or unforeseeable circumstances – in particular delays with the Agency’s contractors – nevertheless release the Agency from keeping to the agreed delivery deadline.
Germany, Berlin, 1st April 2006
Agentur Pferd & Reiter represented by Peter Bangert.