General Terms and Conditions of haebmau AG for Agency Services to its Clients

1. Scope

These General Terms and Conditions (GTC) apply to the agency services provided by haebmau AG (hereinafter referred to as “haebmau“) to its clients acting in a commercial or self-employed professional capacity (hereinafter referred to as “Clients“). Other terms and conditions than these GTC expressly do not apply. This shall also apply to the extent that the Client refers to the validity of its General Terms and Conditions in standardized forms or in the context of letters of confirmation and wishes to incorporate them in this way. Any general terms and conditions of the Client shall not become part of the contract even if haebmau does not expressly object to them. Rather, they shall only apply if they are expressly accepted in writing.

2. Scope of services and remuneration

2.1 haebmau offers strategic consulting and services in the areas of communication and marketing.

2.2 The scope of services and remuneration result from the respective agreement made on the basis of the offer or the cost estimate of haebmau. If the remuneration has not been agreed separately, or if the Client subsequently requests modified or additional services, the hourly rates listed in haebmau’s respective valid price list shall apply.

2.3 The legal examination of ideas, concepts or other work results, in particular with regard to their legal admissibility in accordance with provisions of copyright, competition or trademark law, shall only be the subject of the services if this has been expressly agreed in writing and the Client assumes the costs incurred in this respect.

2.4 All payments and prices are subject to the applicable statutory sales tax.

3. Implementation of the projects; working hours

3.1 Minutes, which haebmau prepares about joint working discussions, shall be deemed to be a binding basis for work, unless the Client objects in writing without delay, at the latest within three working days after receipt.

3.2 The Client shall provide haebmau with the necessary information and content and deliver it in such a timely manner and in the form, quality and scope appropriate to the purpose that haebmau can perform the work smoothly and on schedule without additional costs or loss of quality.

3.3 Texts, documents, concepts or other work results to be accepted by the Client shall be accepted by the Client in writing without undue delay, at the latest, however, within three working days of receipt, or the Client shall notify the Client of its change requests. If the work result essentially corresponds to the agreements, acceptance shall also be deemed to have taken place if the Client does not make any comments within the above-mentioned period. With acceptance, the Client assumes responsibility for the correctness and legal harmlessness of the contents.

3.4 Dates and delivery periods shall only be deemed fixed if this has been agreed between the parties in writing.

3.5 If haebmau renders services from the Digital Communications area for the Client, the following shall additionally apply:

3.5.1 haebmau shall set up a social media presence by means of a so-called account on the social media platforms or take it over from the Client and publish content (in particular texts, photos and videos) there after having been granted a separate power of attorney by the Client.

3.5.2 haebmau shall not appear externally with its activity, but shall act directly on behalf of the Client as its representative. A contractual relationship with the social media platforms takes place exclusively between the Client and the respective platform operator on the basis of the terms of use issued by the platform operator. The Client is obligated to take note of these Terms of Use on the respective platform itself and to inform itself about their current status.

3.5.3 Additional services that become necessary due to a possible relaunch or redesign of a social media platform and the resulting adjustments of the Client’s social media presence, will be charged to the Client by haebmau according to the applicable price list.

3.6 haebmau renders its services on working days from Monday to Friday, 9:00 a.m. – 6:00 p.m. CET or CEST (legal holidays at the location of the respective place of business excluded), unless otherwise agreed.

3.7 If, in connection with the implementation of the projects, further services not assumed by haebmau, e.g. for the production (printing, photographers, models, etc.), become necessary (hereinafter referred to as “External Services“), haebmau shall place orders with external service providers, following approval in accordance with its free decision on behalf of the Client or in its own name.

If the commissioning of External Services is carried out for the account and in the name of haebmau, haebmau shall be entitled to demand a payment on account in the amount of the expected expenses from the Client in due time before placing the external order and to place the external order only after receipt of the payment. Otherwise, the Client shall pay directly to the respective external service providers.

In any case of commissioning of External Services by haebmau, the Client shall bear the entrepreneurial and contractual risks of a principal associated with the order, in particular the risk of defects, default and insolvency, insofar as haebmau is not at fault for the selection. The Client shall indemnify haebmau from all claims of third parties, which these may raise against haebmau in connection with the commissioning of the External Services by haebmau, insofar as these are not the responsibility of haebmau.

3.8 The statutory provisions shall apply to the passing of risk.

4. External costs, remuneration surcharge (handling fee)

External costs are costs for services of third parties commissioned in the interest of the Client, costs for special services of haebmau (e.g. showroom presence, press days, storage costs or service staff), general office costs, Client-related charges (e.g. charges to the artists’ social security fund, customs costs, sales tax in foreign traffic, etc.) as well as costs incurred due to travel in the interest of the Client. Insofar as such costs are incurred in the area of haebmau, their amount shall be determined in accordance with the agency price list, Items II, III. haebmau shall pass on third-party costs to the Client with a surcharge (so-called handling fee) in the amount of 15%.

5. Travel times and costs

5.1 Unless expressly agreed as included, travel time shall be additionally remunerated according to the hourly rates listed in haebmau’s current price list.

5.2 Travel costs and expenses will be reimbursed upon proof. For flights within Europe the economy class, for flights outside Europe the business class, for journeys by train the 2nd class and for overnight stays in hotels the upper middle class are considered as agreed. The use of own cars is charged according to the tax deductible rate (currently at 0.30 Euro/km).

6. Cost exceedings or modification of orders

6.1 Additional costs for which the Client is responsible or which occur due to unforeseen circumstances shall be borne in full by the Client. This shall apply both to the remuneration and to external costs. Reasons for overruns include in particular, but are not exhaustive:

– changed or additional services at the request of the Client;

– insufficient cooperation of the Client (e.g. due to a new or changed briefing; new or subsequently supplied information or materials);

– delayed release;

– changed or additional services to ensure the success of the project (e.g. illness of a presenter, artist or testimonial and replacement at short notice);

– consumption- or usage-based costs.

haebmau shall subsequently invoice the Client separately for the costs exceeded in this manner (in accordance with the respectively valid price list or invoicing of third parties).

6.2 If the actual costs of a project (remuneration and external costs) exceed the costs listed in a binding cost estimate by up to 15%, these costs shall be borne by the Client. Exceedances of more than 15% shall be borne by the Client, insofar as the Client is not responsible for them in accordance with Clause 6.1, only if the Client had approved them in advance.

7. Due dates and settlement

7.1 Invoices from haebmau are due for payment immediately upon receipt by the Client. Haebmau does not grant any discounts, bonuses or comparable reductions in payment.

7.2 If regular monthly payments (retainers), other costs, charges and deductions for third-party services have been agreed within the scope of a project, these shall be due for payment against invoice on the first day of each month of performance.

7.3 Haebmau is entitled to demand advance payments on the remuneration and external costs, or to issue partial invoices according to the progress of the project.

7.4 The invoices shall always be accompanied by a list of all external cost items incurred. Due to the invoice data processing, no copies of invoices of such external costs shall be submitted, which haebmau has commissioned in its own name. However, the Client shall have the right to inspect the originals at haebmau’s premises in Munich after prior notification in order to verify the correctness of the invoice in justified cases. The work and other expenses incurred by haebmau in the course of such an examination shall be borne by the Client.

7.5 The parties shall settle any credit balances or shortfalls after receipt of the invoice and, if applicable, invoicing. haebmau shall be entitled to offset any credit balances of the Client against its own claims.

7.6 The Client may only offset against claims of haebmau with undisputed or legally established claims. The same shall apply in the event of the assertion of any rights of retention.

8. Rights of use

8.1 haebmau grants the rights to the Agency’s work results, which the Client has released for use and paid for, as a simple, non-sublicensable right of use for all types of use required within the scope of the agreed purpose of use, for the duration of the intended use.

8.2 haebmau grants the Client the rights of use to work results of third parties (for example, photographs, illustrations, music or performances of actors, speakers, models), which the Client has paid for, for the purpose intended in the respective individual case and in the temporal and spatial scope required for this purpose.

8.3 The Client undertakes to use work results of third parties only within the scope in which they were acquired. Should haebmau be held liable in this context by third parties due to an actual or alleged transgression of the rights granted, the Client shall indemnify haebmau from all claims in this regard and reimburse haebmau for all costs incurred in this context, including reasonable legal defense costs.

8.4 The granting of rights shall only apply to the work results actually implemented and paid for by the Client, not, however, to haebmau’s proposals used by the Client; the rights of use thereto shall remain with haebmau without restriction.

8.5 Processing or the granting of rights of use by the Client to third parties is only permissible with the prior written consent of haebmau.

8.6 By participating in competitions or concept presentations (so-called pitch), haebmau does not grant any rights to the presented concepts, texts, images, sounds or other work results. This also applies if the Client should pay an expense compensation (pitch fee).

9. Warranty, contractual penalties or lump-sum damages

9.1 As a matter of principle, haebmau does not give any warranties, unless this is agreed separately and in writing.

9.2 Any defects of work results shall be notified by the Client without undue delay. haebmau shall remedy defects without undue delay. A reduction or substitute performance is only possible if a defect rectification has been rejected despite the due date or if two rectification attempts have failed. The period for warranty for defects ends after 12 months.

9.3 haebmau does not accept any contractual penalty regulations or lump-sum damage payments.

10. Liability

10.1 haebmau shall be liable for intent and gross negligence as well as damages culpably caused by haebmau resulting from injury to life, body or health or in case of assumption of a guarantee for the quality or the existence of a performance success or in case of assumption of a procurement risk in accordance with the statutory provisions. Liability under the Product Liability Act (Produkthaftungsgesetz) remains unaffected.

10.2 Notwithstanding clause 10.1, haebmau shall not be liable for damages caused by it due to simple negligence, unless it has violated an essential contractual obligation, i.e. an obligation, the fulfilment of which enables the proper execution of the contract in the first place and on the compliance with which the Client may regularly rely.  In this case, however, the liability shall be limited to the damage that haebmau typically had to expect according to the circumstances known at the time of the conclusion of the contract.

10.3 Any further liability of haebmau is excluded regardless of the legal nature of the asserted claim. This applies in particular to tortious claims, claims for reimbursement of futile expenses, items of damage that are not typical for the contract or unforeseeable items of damage and liability for any indirect or consequential damages, such as loss of profit.

10.4 haebmau shall point out to the Client any legal risks of the content or the design of planned communication measures that are recognizable to haebmau. If haebmau considers a legal (e.g. competition law) examination by a particularly competent person or institution to be necessary for the realization of the measures, the Client shall bear the costs incurred for this after consultation. If haebmau has pointed out concerns and the Client nevertheless does not wish an examination or insists on the realization of the communication measures despite a different examination result, haebmau is not liable for any damages resulting therefrom. The Client agrees to indemnify haebmau to the full extent from claims of third parties in the event of a claim due to a violation of rights in this context and to reimburse haebmau for all costs incurred in this context, including reasonable legal defense costs.

10.5 The Client’s claims for damages, with the exception of those pursuant to Section 10.1 and insofar as otherwise inadmissible by law, shall be subject to a limitation period of one year. The limitation period shall commence when the respective claim for damages arises and the Client has knowledge or grossly negligent ignorance of the grounds for the claim and the person of the infringer; irrespective of this, the claim for damages shall become time-barred three years after the infringing act.

10.6 Insofar as the liability of haebmau is excluded or limited, this shall also apply to the liability of its employees, representatives and vicarious agents or other third parties used by haebmau for the performance of this contract.

10.7 haebmau is not liable for uses of the contractual services not included in the original order or not released, e.g., if these are used outside the contractual area or the agreed purpose of use. The Client agrees to fully indemnify haebmau from any claims of third parties in the event of a claim due to an infringement of rights in this context and to reimburse haebmau for all costs incurred in this context, including reasonable legal defense costs.

10.8 The Client assures that any content and data (in particular personal data) that it provides to haebmau are correct, legally permissible, suitable for the purpose of the contract and free of third party rights. The Client shall indemnify haebmau upon first request against claims for compensation by third parties based on inadmissible contents or the violation of third party rights and shall reimburse haebmau for any legal costs.

10.9 haebmau reserves the right to exclude content that the Client or third parties have made available on a website or similar operated for the Client and that appears to haebmau to be questionable from dissemination on the portal as soon as haebmau becomes aware of this. It shall inform the Client of this without delay. The same shall apply if haebmau is requested by a third party to change or delete contents that have been made publicly accessible online because they allegedly violate third-party rights. In the event that the Client can prove that there is no infringement of third party rights, haebmau will make the affected content accessible again upon the Client’s request.

11. Confidentiality and self-PR

11.1 The parties shall be obligated to maintain secrecy for an unlimited period of time with respect to information which the other party to the contract has expressly designated in writing as confidential or which is clearly identifiable as a business or trade secret of the other party to the contract based on other circumstances and to neither record nor disclose or exploit such information unless required to achieve the purpose of the contract. The obligation to maintain secrecy shall continue to apply after termination of the contract. It shall apply to such information that was provided to haebmau for the purpose of publication only until the publication date determined by the Client.

11.2 The obligation to maintain confidentiality shall not apply to information,

– which is already publicly known at the time of disclosure or – through no fault of the receiving party – becomes publicly known at a later date;

– which was already known to the receiving party prior to the transfer or which was lawfully transferred to it by a third party thereafter without the receiving party being obligated to maintain confidentiality;

– which must be disclosed by the receiving party due to mandatory legal provisions – in this case the receiving party shall inform the disclosing party immediately in advance and agree on the further procedure;

– whose disclosure to third parties the disclosing party has previously consented to in writing;

– which have been developed or are being developed by the receiving party independently of the transfer.

11.3 haebmau is entitled to name and reproduce the name, brand and logo of the Client for its own advertising – in particular on the agency website, in Client presentations and in the presentation of itself in so-called cases – as well as to show the work results achieved within the scope of the contractual relationship in compliance with the obligations pursuant to Section 11.1. The latter shall also apply after termination of the contract.

12. Privacy

12.1 The personal data provided by the Client shall be stored and processed electronically and shall also be passed on to service providers or other third parties to the extent necessary to fulfill the contractual obligations. The processing of personal data necessary for the contractual relationship is based on Article 6 (1) b), c) and f) DSGVO. Data subjects have rights to the protection of their data arising from Articles 12 to 21 DSGVO. Further data protection information can be found at https://www.haebmau.de/datenschutz .

12.2 If the Client forwards data of third parties, it shall ensure that it has obtained the necessary rights of the third parties properly and in accordance with the German and European data protection provisions. If necessary, the Client shall conclude an order processing contract with haebmau.

13. Non-solicitation of employees – contractual penalty

Both parties undertake, for the duration of their cooperation and for a period of three months per commenced contract year thereafter, but no longer than two years, not to solicit any employee of the other party, who was entrusted with the contractual services during the cooperation, without the written consent of the party concerned. The party which nevertheless hires an employee of the party concerned shall be obliged to prove that such employee could have been hired without its own attempts at solicitation. For each case of culpable infringement, the soliciting party undertakes to pay a contractual penalty to be determined by the party concerned and, in the event of a dispute, to be reviewed by the competent court. The benchmark for this shall be an amount equivalent to six months’ salary of the solicited employee. The assertion of claims for damages in addition to the contractual penalty shall remain unaffected. However, a forfeited contractual penalty shall be offset against such claims for damages.

14. Termination

14.1 Insofar as haebmau provides continuously recurring services for an indefinite period of time on the basis of a so-called retainer (regular monthly remuneration), either party may terminate the cooperation by giving six months’ notice by the end of a month. During the notice period, the retainer remains owed, regardless of whether the Client calls for fewer services or no services at all. The right to terminate for cause remains unaffected.

14.2 The statutory provisions shall apply to the termination of projects agreed for a certain period of time or of services other than those referred to in Section 14.1.

14.3 The right to terminate for good cause shall remain unaffected. Good cause shall be deemed to exist in particular if the financial circumstances of the other contracting party deteriorate significantly, in particular in the event of compulsory enforcement measures, the initiation or commencement of insolvency proceedings, rejection for lack of assets or in the event of a check or bill protest.

14.4 Any termination must be in writing.

15. Miscellaneous

15.1 Should individual provisions of these Terms and Conditions be invalid in whole or in part, the validity of the remaining provisions shall not be affected. Instead, they shall be replaced by a provision that comes as close as possible to the economic purpose originally intended by the parties.

15.2 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). The place of jurisdiction for all disputes arising from the contractual relationship shall be Berlin, provided that the Client is a merchant, a legal entity under public law or a special fund under public law or does not have a general place of jurisdiction in Germany. haebmau reserves the right, however, to also invoke any other competent court.

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