General terms and conditions of business
- Validity of the conditions
The services, deliveries and offers of TMC GmbH (hereinafter referred to as “agency”) to the contractual partners (hereinafter referred to as “customers”) are exclusively based on these Terms and Conditions. They shall therefore also apply to future business relations, even if they are not expressly agreed again. Deviations from these Terms and Conditions shall only be effective if the Agency confirms them in writing.
- Ownership and copyright protection
All services provided by the agency (e.g. ideas, concepts for events, delivered pictures, graphics, texts etc.) and also individual parts thereof, remain the property of the agency or are protected by copyright. By paying the fee, the customer acquires only the right of use for the agreed purpose. Unless otherwise agreed with the Agency, the customer may only use the services of the Agency itself, exclusively in Germany, and only for the duration of the contract. Changes to the services of the Agency by the customer are only permitted with the express consent of the Agency and - insofar as the services are protected by copyright - the author. For the use of services of the Agency, which go beyond the originally agreed purpose and scope of use, the consent of the Agency is required - regardless of whether this service is protected by copyright. The Agency and the author shall be entitled to separate appropriate remuneration for this. The Agency shall retain ownership of delivered goods until the claim for the delivered goods has been met in full. If the customer is a legal entity under public law, a special fund under public law or an entrepreneur who, upon conclusion of the contract, is acting in the exercise of his commercial or independent activity, the retention of title shall also remain in force for claims of the Agency against the customer from the current business relationship until all claims of the Agency against the customer have been settled. During the existence of the retention of title, the customer may not sell the goods (hereinafter: reserved goods) or otherwise dispose of the ownership thereof. In the event of access by third parties - in particular bailiffs - to the goods subject to retention of title, the customer shall draw attention to the Agency's ownership and notify the Agency immediately so that the Agency can enforce its ownership rights. In the event of conduct on the part of the customer in breach of contract, in particular default of payment, the Agency shall be entitled to demand the return of the goods subject to retention of title at the customer's expense, provided that it has withdrawn from the contract.
- Offer prices
Unless otherwise stated, the Agency shall be bound by the prices stated in its offers for 30 days from the date of the offer. The prices stated are decisive, plus the respective statutory value added tax. Additional deliveries and services shall be charged separately. Unless otherwise agreed, the prices shall be understood to be free of charge at the Agency's headquarters, including normal packaging.
Invoices of the agency are payable within 14 days after the invoice date without deduction. If the customer is in arrears, the Agency shall be entitled to charge interest from the date in question at the interest rate charged by the commercial banks for open overdrafts plus the statutory value added tax. These are to be set lower if the customer proves a lower burden. The customer shall only be entitled to offset, withhold or reduce payments, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. However, the customer shall also be entitled to withhold payment because of counterclaims arising from the same contractual relationship.
The customer is entitled to terminate the contractual relationship with the agency at any time with a notice period of three months. However, the premature termination of the contractual relationship shall oblige the customer to pay the agreed fees or advance payments already made. The contracting parties expressly agree that a reduction of the fee due to saved expenses is excluded by the Agency. In addition, both parties to the contract have the right to terminate the contract without notice. The Agency shall be entitled to this right in particular if the agreed fee is not paid by the Client on the due date. Furthermore, if budget services within the scope of the contractual agreement are not paid despite request. The notice of termination must be in writing to be effective.
- Delivery times
Delivery dates or periods, which can be agreed upon binding or non-binding, must be in writing. In the event of delays in delivery for which the Agency is responsible, the duration of the period of grace to be set by the Client shall be 2 weeks, which shall commence upon receipt of the set period of grace by the Agency.
- Dispatch and transfer of risk
The risk shall pass to the customer as soon as the consignment has been handed over to the person carrying out the transport or has left the premises of the agency for the purpose of dispatch. If dispatch is delayed at the request of the customer, the risk shall pass to the customer upon notification of readiness for dispatch.
If the delivery item is defective or lacks assured characteristics, the Agency shall, at its discretion and to the exclusion of any other warranty claims by the customer, deliver a replacement or remedy the defect. Multiple rectifications of defects are permissible. If the rectification or replacement delivery fails after a reasonable period of time, the customer may, at his discretion, demand a reduction in price or rescission of the contract.
By approving the work, the customer assumes responsibility for the correctness of the image and text. The Agency shall only be liable for the legal feasibility of the concept to the extent that it complies with the general provisions of competition law and takes into account any existing personal rights and the rights of third parties known to it. It is not obliged to carry out a more far-reaching examination, e.g. with regard to the property rights of third parties. The customer shall be solely liable if rights, in particular third-party copyrights, are infringed by the execution of his order. The Client shall indemnify the Agency against all claims of third parties arising from such an infringement of rights. Insofar as the Agency, at the instigation of the Client, commissions external services in the Client's name and for the Client's account, it shall not be liable for the services and work results of the commissioned service providers. If, in exceptional cases, the customer delegates the release in whole or in part to the Agency, the customer shall release the Agency from liability. Claims for damages against the Agency, regardless of the legal basis, in particular for impossibility, delay, defective or incorrect delivery, positive violation of claims, culpa in contrahendo and tort are - insofar as culpa in contrahendo is involved - excluded against the Agency, provided that no intentional or grossly negligent action is involved. Any liability is limited to the damage foreseeable at the time of the conclusion of the contract. In the event of liability for simple negligence, the obligation to pay compensation in the event area is limited to an amount of EUR 5,000,000 per case of damage (corresponding to the current coverage of his product liability insurance or liability insurance). The above exclusions and limitations of liability apply to the same extent in favor of the agency's organs, legal representatives, employees and other vicarious agents. The limitations of liability shall not apply to the liability of the Agency due to willful conduct, for guaranteed characteristics, due to injury to life, body or health or according to the Product Liability Act. Furthermore, the liability for the breach of obligations, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely, shall remain unaffected.
- Statute of limitations
The limitation period for claims and rights due to defects - regardless of the legal basis - is one year. This limitation period shall also apply to other claims for damages against the Agency, irrespective of their legal basis. It shall also apply insofar as the claims are not related to a defect. The limitation period shall apply with the following proviso: The limitation period shall generally not apply in the case of intent. The period shall also not apply if the Agency has fraudulently concealed the defect or if the Agency has assumed a guarantee for the quality of the delivery item. Furthermore, the statute of limitations shall not apply to claims for damages in cases of injury to life, body or health or freedom, in the case of claims under the Product Liability Act, in the case of a grossly negligent breach of duty or in the case of culpable violation of essential contractual obligations. The limitation period for all claims for damages begins with the acceptance. Insofar as this provision refers to claims for damages, claims for reimbursement of futile expenses are also included. Unless expressly provided otherwise, the statutory provisions on the commencement of the limitation period, suspension of the statute of limitations, suspension and restart of time limits shall remain unaffected. A change in the burden of proof to the disadvantage of the customer is not associated with the above provisions.
- Correction and production monitoring
Correction samples shall be submitted to the Agency before the start of production. The production shall be supervised by the Agency only on the basis of a special agreement. If such an agreement exists, the Agency shall be authorized to make necessary decisions and issue instructions. Of all reproduced work, up to five perfect copies (in the case of valuable pieces an appropriate number) shall be provided free of charge. The Agency shall be entitled to use these samples for the purpose of self-promotion.
- Claim for advance payment
The Agency regularly places orders with subcontractors (printing works/lithographic institute). Orders are placed in the name and for the account of the Agency, which may demand an advance payment of 50% of the order amount from the customer in return.
- Additional services
Changes to drafts, the creation and submission of further drafts, changes to artwork and other additional services (manuscript revision, production monitoring, etc.) will be charged separately according to time and effort. Insofar as the Agency commissions external services in its own name at the instigation of the Client, the Client shall indemnify the Agency against any resulting liabilities.
The development of conceptual and design proposals by the Agency with the aim of concluding a contract with the Client shall be carried out against payment of a fee to be agreed separately (presentation fee), notwithstanding any provisions to the contrary in individual cases. Copyrights, rights of use and ownership of the work presented by the Agency shall remain with the Agency despite the calculation of a presentation fee. If the Agency does not receive an order after participation in a presentation, all services provided by the Agency, in particular their content, remain the property of the Agency. The customer shall not be entitled to continue to use these - in whatever form. Instead, the documents shall be returned to the Agency immediately upon request.
- Obligation of secrecy
The agency is obliged to maintain secrecy on all business secrets of the client that it becomes aware of during the cooperation.
- Applicable law. Legal venue. Partial invalidity
The law of the Federal Republic of Germany applies to these terms and conditions and the entire legal relationship between the agency and the customer. Insofar as the customer is a registered trader within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Paderborn. Should a provision in these terms and conditions or a provision within the framework of other contractual agreements be or become invalid, the validity of all other provisions or agreements shall not be affected. In such a case, the contracting parties are obliged to replace the invalid provision by mutual agreement with another provision in accordance with the purpose of the contract, by which the intended purpose of the contract can be achieved in a legally permissible manner, insofar as this is possible.