General Terms and Conditions of haebmau AG for the commissioning of services and delivery of goods

1. Scope

These General Terms and Conditions (GTC) shall apply to the services ordered by haebmau AG (hereinafter referred to as “haebmau“) from its commercially or independently acting contractors (hereinafter referred to as “Contractor“), in particular services and work performances or deliveries of goods (hereinafter referred to as “Order“). Other terms and conditions than these GTC shall expressly not apply. This shall also apply to the extent that the Contractor refers to the applicability of its General Terms and Conditions in offers, in standardized forms or in the context of letters of confirmation and intends to include them in this way. Any general terms and conditions of the contractor shall not become part of the contract even if haeb-mau does not expressly object to them. Rather, they shall only apply if they are expressly acknowledged in writing.

2. Cost estimate, prices, order confirmation, scope of services

2.1 The Contractor warrants the accuracy of its cost estimates. Cost estimates shall not be remunerated separately unless the parties have expressly agreed otherwise in writing.

2.2 The Contractor shall comprehensively offer the rights of use to be transferred by it. Any restrictions, in particular pre-existing intellectual and industrial property rights which are to be incorporated into the work results or rights already transferred to collecting societies, shall be explained. The work fee and the fee for the granting of rights shall be stated separately. If this is not done, both are included in the agreed remuneration. The Contractor is aware and acknowledges that each Order may be subject to intensive use. He declares that he has taken this into account when calculating the remuneration. The Contractor may only claim additional remuneration for the use of the work results in modified or extended form if this has been agreed individually and in writing.

2.3 The agreed price includes all charges, costs and fees of the Contractor (e.g. for transport, packaging, customs duties, charges to exploitation companies or the artists’ social security fund). Presentations, drafts or alternative solution proposals shall be made free of charge unless otherwise agreed in writing.

2.4 The agreed price shall also include all ancillary costs (in particular travel expenses, catering allowances, office and material costs), unless otherwise agreed in writing. Courier and transport costs shall be invoiced within the scope of what is customary in the market after presentation of an original receipt and prior written approval.

2.5 Drafts, including those for alternative solutions, are part of the service. The same shall apply to change loops on drafts submitted. For requests for changes or additions by haebmau that result in additional expenses for the Contractor that were not included in the cost estimate or offer, the Contractor may only demand additional remuneration if it has notified haebmau of this in writing without delay with a supplementary cost estimate and haebmau orders the additional services on this basis.

2.6 The Contractor undertakes to always invoice haebmau for the most favorable purchasing conditions and prices already reduced by benefits such as quantity discounts, bonuses, refunds. Commissions on orders to third parties/broker commissions/AE commissions or so-called handling fees will not be paid by haebmau.

2.7 The information on the scope or quantity contained in the Order shall be binding. Any excess quantities delivered shall not be remunerated, even if they are production related.

2.8 The results of the work must solve the task set, considering any templates and instructions provided, and must correspond to the state of the art as well as the technical and artistic level of any work samples submitted in advance. The Contractor shall hand over the work results in the processable format specified by haebmau in each case – in case of doubt and if possible in a digital format customary in the industry.

3. Obligations of the Contractor – laws, social standards, subcontractors, minimum wage

3.1 The Contractor shall be obliged to comply with the applicable laws. In connection with advertising and marketing services, this applies in particular to provisions of competition or telemedia law (e.g. separation of information and advertising) as well as copyright, trademark, design or data protection law. The Contractor undertakes to comply with any further rules of conduct communicated to it by haebmau regarding compliance or social standards of its customers and to take all necessary precautions against corruption or other criminal acts.

3.2 The Contractor is not entitled to use subcontractors, in particular those whose activities typically give rise to property rights within the meaning of clause 8, without the prior written consent of haebmau. If haebmau agrees to the commissioning of subcontractors or other third parties who provide supplementary services within the scope of the Order, the commissioning shall be carried out in the name and on the account of the Contractor.

3.3 The Contractor shall be obliged to pay its employees at least the statutory minimum wage and to comply with the other provisions of the Minimum Wage Act (Mindestlohngesetz) and, if applicable, the Employee Posting Act (Arbeitnehmerentsendegesetz). He shall also be responsible for any subcontractors commissioned by him. In the event of a violation of the provisions of the above mentioned laws and provisions, the Supplier shall indemnify haebmau from all further obligations in connection therewith and shall compensate haebmau for any damage resulting from such violation.

4. Deadlines and delivery periods – contractual penalty

4.1 The dates and delivery periods determined for the respective Order shall always be binding. If a delay is imminent, the Contractor shall inform haebmau thereof in writing without delay.

4.2 If the Contractor does not deliver its performance on the agreed date, haebmau shall be entitled to withdraw from the contract in whole or in part, provided that it has first set a reasonable period of grace or if it is foreseeable that the Order will not be executed in due time and that, as a result, a considerable impediment to production at haebmau and/or its customer is to be feared.

4.3 If the Contractor is responsible for the delay, haebmau may also claim damages instead of performance or compensation for futile expenses. This shall apply without prejudice to the right to insist on performance and to claim damages for the delay. The same shall apply if the Contractor finally refuses performance or if haebmau cannot reasonably be expected to wait any longer.

4.4 In cases in which a transaction for delivery by a fixed date has been agreed upon, haebmau may also withdraw from the contract in the event of untimely performance without having set a grace period. If the Contractor is responsible for the delay, haebmau may also demand damages in lieu of performance or reimbursement of futile expenses. haebmau is, however, also entitled to insist on the performance of the respective contract instead and to claim damages for the delay. In this case, haebmau shall notify the Contractor in writing within three days after expiration of the fixed date.

4.5 If the Contractor is in default, haebmau shall have the right to demand a contractual penalty in the amount of 0.1% of the net order amount for each working day, but not more than 5% of the net order amount, unless the Contractor proves that no or only minor damage has occurred. The contractual penalty shall be offset against claims for damages.

4.6 Claims for defects and damages shall become time-barred in accordance with the statutory provisions.

4.7 Any contractual penalty provisions of the Contractor shall not be accepted.

5. Place of performance and transfer of risk

5.1 The place of performance for services shall be the address indicated in the Order in each case. In the absence of such an indication, the place of performance shall be the business location of haebmau indicated on the sender.

5.2 Unless otherwise agreed, the risk shall not pass to haebmau until the delivery item has been handed over at the place of performance or, in the case of work performances, until acceptance of the performance.

6. Invoice, terms of payment, set-off, rights of retention

6.1 The Contractor shall immediately send haebmau a proper invoice in accordance with the requirements of tax law as soon as the Contractor has rendered the services in full. Advance or partial payments shall only be made if this has been agreed in writing and a corresponding invoice has been issued.

6.2 Unless the parties have agreed on other payment terms, invoices shall be due 30 days after proper performance or acceptance and receipt of invoice.

6.3 The payment of invoices does not constitute an acknowledgement that the service is free of defects or complete.

6.4 The Contractor may only offset undisputed or legally established counterclaims.

6.5 The same shall apply to the exercise of rights of retention if the Contractor is an entrepreneur. If this is not the case, he may only assert a right of retention if the counterclaim is based on the same legal relationship.

6.6 If the Contractor’s performance is defective, haebmau may withhold payment in reasonable proportion to the defect until proper performance.

6.7 Any restriction of haebmau’s rights to assert a right of retention against claims of the Contractor or to set off claims against the Contractor shall be ineffective.

7. Acceptance, defects, warranty and liability

7.1 If the Order is a purchase contract or a contract for the delivery of movable goods to be manufactured or produced, obvious defects shall be notified within ten working days after handover of the object of performance at the place of performance, hidden defects immediately after their discovery.

7.2 Acceptance shall be deemed to have taken place only when haebmau has expressly acknowledged the performance to be in accordance with the contract. Acceptance of the work result and payment prior to the determination of defects does not constitute a waiver of haebmau’s right to complain and does not constitute an acknowledgement of defect-free performance.

7.3 If the performance is defective, haebmau may, without prejudice to any further rights, demand subsequent performance to remedy the defect. Subsequent performance shall be deemed to have finally failed after one unsuccessful attempt. Thereafter, haebmau may, at its option, demand a reduction of the purchase price or withdraw from the contract and demand damages in lieu of performance or reimbursement of futile expenses. The same shall apply if the Contractor refuses subsequent performance or if haebmau cannot reasonably be expected to wait any longer. The statutory right to supplementary performance shall be timed in such a way that haebmau can still award the contract to another party and meet the follow-up deadlines in the event of failure of the supplementary performance.

7.4 In the case of a contract of sale or a contract for work and materials, the supplementary performance shall be performed at the place where the object of performance is located at the time of the determination of the defectiveness, in the case of other services at the place of the original performance of the service.

7.5 The Contractor is responsible for ensuring that any content that it provides to haebmau is correct, legally permissible, suitable for the purpose of the contract and free of third-party rights. The Contractor guarantees that its services do not violate any personal rights of third parties, copyrights, trademarks, designs or utility models, patents, protected know-how or provisions on data protection, telemedia laws or competition law in the intended area of use of the work results. Excluded from the Contractor’s responsibility are such contents that haebmau has delivered. In these cases, however, the Contractor is also obligated to inform haebmau in a timely manner of the risks recognizable to a prudent advertising merchant.

7.6 The Contractor shall indemnify haebmau and reimburse haebmau for any reasonable legal costs it may incur in connection with claims for damages by third parties based on unlawful content or the infringement of third-party rights for which the Contractor is responsible.

7.7 The limitation of claims for defects and the Contractor’s liability in other respects shall be governed by the statutory provisions.

8. Rights of use

8.1 Unless otherwise agreed individually and in writing, haebmau shall be enabled in the most comprehensive manner possible to exploit the work results provided under this contract in modified or unmodified form to the exclusion of the Contractor in every respect, whether in its own company or by passing them on to third parties, in particular to haebmau’s customers.

8.2 For this purpose, the Contractor grants haebmau the exclusive rights of use, unrestricted in terms of time, content and location, for all known and unknown types of use to the work results provided by it, whether or not they are protected by copyright, design, trademark, patent or utility model law, including any rights to its own image (e.g. of models or event participants), and other rights of third parties that it has integrated into its work results.

8.3 The granting includes in particular the authorization of haebmau to (for the first time) publish and use the results of the work in Germany and abroad in any tangible or intangible form, digital or analogue, in particular for PR and marketing purposes, and in particular in print media and print products (e.g., newspapers, magazines, supplements, catalogues, brochures, packaging, advertisements, large printings), in tele- and media services, on the Internet, Intranet, radio, films (TV, cinema, Internet), magnetic tapes (e.g. video, cassette), for online and offline use on electronic storage media (e.g. databases, CD-ROM, CD-I, floppy disks, USB sticks), telecommunications, mobile radio, broadband and data networks, as well as on and from data carriers, regardless of the transmission, carrier or storage technologies. The rights of use extend to the right to reproduce, distribute, perform, exhibit, broadcast, make available to the public, reproduce radio broadcasts, rent, lend, archive, edit, translate, use in electronic press reviews and film, regardless of the exploitation purposes. Reproduction on image and sound carriers as well as making the work publicly perceptible, even outside the event in which a work result is to be publicly reproduced, by means of screens, loudspeakers or similar technical devices, are also included.

8.4 Also included is the right to edit or otherwise transform the work results, taking into account any moral rights, and to exploit the results thus created in the same way as the original versions of the work results, even in part (e.g. excerpts, photo or film composing, retouching, color optimization).

8.5 haebmau may reproduce and archive the work results as part of the work results conceived by it for an unlimited period of time for self-promotion on the websites operated by it, social media and other, digital or analog media as well as in competitions.

8.6 haebmau shall be entitled to transfer the work results in whole or in part to third parties, in particular to its customers.

8.7 If the Contractor programs software within the scope of the Order, it shall also be obliged to hand over the source code, unless the Parties agree otherwise.

8.8 Insofar as the Contractor uses employees and/or subcontractors and/or other third parties (e.g. authors, models, performing artists) in the execution of its Order, it shall be obligated to acquire and transfer to haebmau the property rights arising from these to the same extent as agreed for the Contractor’s own performance. Unless otherwise agreed in writing, the Contractor shall grant any pre-existing property rights, the inclusion of which in the work results was agreed without an exclusive granting of rights being possible (e.g. fonts, pre-existing software), non-exclusively, but with the right of transfer to third parties, irrevocably as well as unrestricted in terms of time, content and place in accordance with Sections 8.1 to 8.7. Upon haebmau’s request, the Contractor shall provide haebmau with suitable proof of the transfer of rights at any time. If pre-existing software is used, haebmau may not be obligated to publish the source code.

8.9 Insofar as this is customary in the industry, the Contractor acknowledges that there is no obligation to name the author/Contractor. haebmau is nevertheless entitled to name the author/Contractor.

8.10 If inventions, designs or comparable industrial property rights capable of being patented or registered as utility models are created with the work results, the Contractor shall grant haebmau the right to register these in its own name and to use them exclusively or to transfer these rights to its customers. The Contractor shall not have the right of joint use. Insofar as the aforementioned inventions were made by employees of the Contractor and these are subject to a remuneration obligation pursuant to the Employee Invention Act (Arbeitnehmererfindergesetz – ArbNErfG), the Contractor shall notify haebmau thereof in writing immediately after notification by the employee. If haebmau declares within the statutory period that it also intends to claim such invention, the Contractor shall claim the invention accordingly and grant the rights thereto to haebmau in accordance with the aforementioned rules. In this case, haebmau shall assume the remuneration in the amount stipulated by the ArbNErfG.

8.11 The Contractor is obligated to immediately notify haebmau in writing of any changes to its address to which notification of the intended inclusion of a new type of advertising use is to be made. In the event that not all rights of use have been transferred due to other agreements or for other reasons, haebmau shall have the right to demand the transfer of further rights against payment of an appropriate remuneration. The remuneration is based – as far as possible – on what has already been agreed upon with the Contractor, otherwise on the common remuneration rules (§ 36 Urheberrechtsgesetz – Copyright Act); as far as these do not intervene, haebmau will determine the remuneration according to equitable, judicially verifiable discretion.

8.12 The Contractor acknowledges that the enforcement of claims through the ordinary legal process for the review of the authorization of use by haebmau or its customers as well as for the review of the discretionary decision of haebmau in accordance with the preceding paragraph constitutes sufficient procedural legal protection. In the event that haebmau has determined the remuneration and has made payment in the corresponding amount to the Contractor, the Contractor hereby waives the recourse to interim relief (interim injunctions, arrest).

8.13 The Contractor warrants that there are no rights of third parties to its contractually owed performance that could impair the transfer of rights and/or the agreed use of its performance (e.g. personal rights of depicted persons). In the event that third parties assert claims against haebmau or one of its customers with regard to the Contractor’s work results due to the infringement of their rights for which the Contractor is responsible, the Contractor undertakes to modify the work results within a reasonable period of time set by haebmau or to provide new work in such a way that these rights are no longer infringed or to obtain the necessary rights from the third parties at its expense. After expiration of the deadline, haebmau may (have) the modification carried out by itself or by third parties at the expense of the Contractor or obtain permission from the respective entitled parties. The Contractor shall indemnify haebmau against claims of third parties arising from any infringements of property rights for which the Contractor is responsible. He shall also bear the costs for the necessary legal defense for which he is responsible. The parties shall notify each other in writing without delay if claims are asserted against them for infringement of property rights.

8.14 Termination, rescission or other termination or dissolution of an Order shall not affect the granting of rights to the rights granted until the end of the contract.

8.15 The Contractor shall not be entitled to register any industrial property rights, in particular trademarks, designs, domains in its name or in the name of third parties or to have them protected in any other way with regard to the work results or parts thereof.

9. Backup copies, transfer of ownership of work results, return of documents

9.1 The Contractor shall make a backup copy of each electronic file on a separate data carrier and keep it separate from the original.

9.2 haebmau acquires ownership of the work results and materials created within the scope of the Order (in particular reproduction material, such as print documents, photos, films, electronic files, etc., as well as drafts and backup copies) upon payment of the fee (if applicable, pro rata based on the value of the material). From this point on, the Contractor shall keep the work results and materials in safe custody.

9.3 The Contractor undertakes to return all documents and materials received from haebmau within the scope of the cooperation at any time upon haebmau’s request without delay, but no later than after termination of the Order or the business relationship, free of charge. The Contractor shall store digital data free of charge on data carriers provided by haebmau or procured at the expense of haebmau and shall subsequently delete them on its own devices.

10. Confidentiality, contractual penalty, reference applications

10.1 The Contractor undertakes to keep haebmau’s Orders and all related economic and content-related details, all findings resulting from the cooperation of the parties, in particular all work results and the documents received from haebmau as well as all information which haebmau has expressly designated in writing as confidential or which, according to other circumstances, is clearly recognizable as a business or trade secret of haebmau or its customers, confidential for an unlimited period of time and not to record or pass them on or to utilize them for itself or for third parties, unless this is necessary to achieve the purpose of the contract. The Contractor shall oblige its employees and any subcontractors accordingly and prove this to haebmau upon request. If the Contractor stores, processes or handles the information and data in its data processing systems, it shall ensure that unauthorized third parties cannot access this data.

10.2 The Contractor shall protect the information received with the same care of a prudent businessman with which it protects its own business and trade secrets.

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

– which is already publicly known at the time of the transfer or – through no fault of the Contractor – becomes publicly known at a later date;

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

– which must be published by the Contractor due to mandatory legal provisions – in this case, the Contractor shall immediately inform haebmau thereof and coordinate the further procedure;

– the disclosure of which to third parties haebmau has previously agreed to in writing;

– which have been or will be developed by the contractor independently of the transfer.

10.4 The Contractor shall oblige its employees and any subcontractors accordingly and prove this to haebmau upon request. The confidentiality obligation shall continue to apply after termination of the contract.

10.5 Contractual penalty

The Contractor agrees to pay haebmau a contractual penalty for each individual case in which the Contractor violates the obligations standardized in Sections 10.1 to 10.4, the amount of which can be determined by haebmau at its reasonable discretion and is reviewable by the competent court. Claims for damages by haebmau against the Contractor shall remain unaffected by this, however, a contractual penalty shall be credited against the damages.

10.2 Advertising with the name, logo, work results of haebmau or one of its customers or comparable reference information is only permitted with the prior written consent of haebmau.

11. Competition and customer protection

11.1 The Contractor undertakes to inform haebmau in writing upon commencement of the business relationship and at any time thereafter, if and as soon as it performs or intends to perform services that are the subject matter of this agreement also for competitors of haebmau or, in the case of project-specific orders, of that haebmau customer for whose project the Contractor’s service is intended according to the Contractor’s knowledge, in the contractual territory.

11.2 For the duration of the respective Order, the Contractor is prohibited from entering into business contact with haebmau´s customers and/or to take up a direct business activity for them without the approval of haebmau. If the haebmau customer contacts the Contractor, the Contractor shall refer the customer to haebmau as the contact person.

11.3 The Order shall also be processed via haebmau if haebmau has placed the Order in the name of a third party. In this case, haebmau shall not be liable for the performance of the contract by the haebmau customer, nor for the customer’s creditworthiness, which it does not check, unless haebmau can be attributed with intentional or grossly negligent conduct.

12. Data protection

12.1 haebmau processes data in compliance with the provisions of the relevant data protection laws, in particular the General Data Protection Regulation (Datenschutzgrundverordnung – DSGVO) and the German Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG). The protection and confidential treatment of data are given high priority. The Contractor undertakes to process any data transmitted by haebmau in accordance with the applicable data protection laws and to adapt its entire work organization to data protection requirements. For this purpose, the parties shall conclude any necessary data processing agreements. In particular, the Contractor undertakes to oblige the employees entrusted with the data collection to observe data secrecy and not to store, process or use data transmitted to it by haebmau outside a member state of the European Union or a contracting state of the Agreement on the European Economic Area without the prior written consent of haebmau.

12.2 If the Contractor 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 data protection provisions or that it may dispose of the data in accordance with the law. The Contractor shall indemnify haebmau against all claims of third parties with respect to violations of data protection regulations for which the Contractor is responsible. This indemnification shall apply including any reasonable and necessary legal costs. If necessary, the parties shall conclude the required data processing agreements.

13. Termination

13.1 Both parties may terminate an order for good cause. Good cause shall be deemed to exist in particular if

13.1.1 the financial circumstances of the other contracting party deteriorate significantly, in particular in the event of enforcement measures, the initiation or opening of insolvency proceedings, rejection for lack of assets or in the event of a check or bill protest;

13.1.2 the other party, for reasons for which it is responsible, fails to fulfill a contractual obligation or a material obligation assumed in the execution of the order within a reasonable period of time despite having been warned and having set a deadline, or fails to cease any conduct in breach of the contract within such period of time;

13.1.3 a party is responsible for a repeated violation of a relevant provision of these GTC, even without a warning;

13.1.4 a party is prevented from providing a contractually owed service for longer than three weeks due to force majeure. If further waiting is unreasonable, haebmau may also terminate the contract before the end of this period in individual cases.

13.2 If there is no continuing obligation between the parties, the parties shall have a right of rescission as an alternative to the right of termination in the event of the reasons listed in Clauses 13.1.1 to 13.1.4.

13.3 haebmau may terminate any Order at any time, in whole or in part, with due notice. The termination of a service contract or any other continuing obligation shall be subject to the statutory periods, unless the parties have expressly agreed otherwise in writing. In the case of a fixed-term contract, the deadlines for ordinary termination shall apply. In the event of termination of a contract for work and services, haebmau shall pay for the deliveries and services rendered up to the termination of the contract and shall reimburse procured material, costs from non-solvable liabilities as well as work performed. In all other respects, the provisions of the law governing contracts for work and services shall apply. The Contractor shall not be entitled to any further claims for performance or damages due to a termination.

13.4 If a project (e.g. an event) cannot be carried out due to a circumstance for which haebmau is not responsible, e.g. for reasons of force majeure, and if an Order is therefore unusable, the parties shall endeavour to find an alternative date. If an alternative date is not possible or if the project and the Order are finally cancelled for the above-mentioned reasons, both contracting parties shall be released from their performance obligations under the respective Order; the Contractor shall, however, be entitled to compensation for any proven costs already incurred and which can no longer be cancelled, including any work already performed.

The parties define force majeure in particular as natural disasters, sabotage, strikes, traffic accidents, war, terrorism, including the cancellation of an event or a production ordered or recommended by the authorities/police or decided by haebmau at its due discretion due to terrorist threats or suspicions or due to the spread of diseases, plagues or epidemics or also for reasons of reverence, namely, if at least also at the place of the project fulfillment (event) mourning flagging is ordered or carried out or it is imminent, or if a serious accident or misfortune occurs within 24 hours before the start of production, about which is reported at the place of the project fulfillment in the predominant number of the media, or if the incident occurred more than 24 hours ago, but the reporting is still present in the predominant number of the media through special broadcasts, or if comparable events/orders are cancelled due to the same incident.

13.5 Due to the current Corona (Covid19) pandemic, the project planning may be subject to changes at any time, which may lead to postponements, changes or cancellations of individual Orders either due to official requirements, due to factual obstructions or due to haebmau’s dutiful discretion. However, since the development cannot be predicted, haebmau must reserve the right to cancel any Order, even partially, if the Corona (Covid19) pandemic leads to further restrictions for which it is not responsible. Any services already rendered shall be refunded in the event of withdrawal. Any further claims of the Contractor shall be excluded.

13.6 In the event of an early termination of the respective Order, all rights of use to the work results that may have arisen up to that point as well as ownership of their embodiments shall be transferred to haebmau against payment in the amount of the value of the work results.

14. Miscellaneous

14.1 Should certain provisions of these GTC 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.

14.2 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 Contractor 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 invoke any other competent court.

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