Standard Terms of Trade of Louisa Maciejewski, maciloou
1. Scope
1.1. These standard terms of trade shall govern all contracts made between the DESIGNER and the Client to the exclusion of any differing terms. Any terms contradicting or differing from these terms shall not apply unless expressly agreed to by the DESIGNER in writing.
1.2. No supplementary terms have been agreed orally between the DESIGNER and the Client.
2. Copyright Protection; Rights of Use; Advertising
2.1. The order placed with the DESIGNER is for a contract to create works protected by copyright. The main objects of the agreement are the creation of a copyright protected work ordered by the Client and a license to use the work. The statutory provisions governing works contracts and copyright works shall apply.
2.2. All works created by the DESIGNER, in particular preparatory drafts, final drafts and the commissioned work itself, are protected by copyright as original works pursuant to the provisions of the German Copyright Act and this shall be so even where the ordinary requirement for protection is not met because the work falls short of the minimum degree of originality provided by Para. 2 (2) of the German Copyright Act.
2.3. Works created by the DESIGNER, including the final work commissioned and the designation of authorship may not be altered in respect of either the original work or any reproduction thereof without the consent of the DESIGNER. Any unauthorised copying of the works or any preparatory works in full or in part shall not be permitted.
2.4. Works created by the DESIGNER may only be used as agreed, for the agreed purpose and to the extent agreed. In the absence of an express written agreement otherwise, only the purpose apparent from the order placed by the Client shall be deemed the contractual purpose.
2.5. The DESIGNER licenses to the Client all rights of use needed for the contractual purpose (clause 2.4). This means the simple right of use unless expressly agreed otherwise between the DESIGNER and the Client. The licence will be granted only after full payment of the agreed remuneration.
2.6. Any sub-licence of the rights by the Client to third parties requires the DESIGNER’S prior written consent.
2.7. In the absence of an agreement to the contrary, the DESIGNER must be named as the author in any copying, distribution, exhibition or publication of the works and/or their preparatory or final drafts. For any event of breach of the duty to name the author, the DESIGNER may claim, in addition to the agreed remuneration, a contractual penalty of 100% of that remuneration in the absence of an agreement of the appropriate usual remuneration for the consent to such sub-licence. The DESIGNER’S right to proof and claim damages in excess of that amount remains thereby unaffected.
2.8. Proposals, instructions and suggestions made or given by the Client for technical, design or other reasons and his/her co-operation and assistance have no impact on the agreed remuneration and do not lead to co-authorship unless expressly agreed otherwise in writing.
2.9. The Client may not without the DESIGNER’s prior written consent seek registration of industrial or intellectual property rights such as design rights, community design rights or trademarks in respect of the preparatory or final designs or other works created by the DESIGNER.
2.10. The DESIGNER reserves the right to use the works or any part of the works and any preparatory designs and other contributions for his/her own advertising and other promotional purposes in whatever medium (e.g. internet website, sample album and such like) and make mention of his work for the Client.
2.11. The assignment of the rights of use does not affect the right of the DESIGNER to pursue remedy in his/her own name against the unauthorised use of the works in particular on the internet and on social media platforms. The DESIGNER retains the right to seek restraint, damages or remedy for unjust enrichment and ask for disclosure of information to establish the extent of infringement of his/her copyrights against any liable third party and, in particular, any platform provider responsible, in the event of infringement.
3. Remuneration; Due Date
3.1. Where no fixed amount of remuneration has been agreed between the Client and the DESIGNER, the DESIGNER shall be entitled to claim the reasonable and usual amount of remuneration.
3.2. The preparation of drafts must be paid for unless expressly agreed otherwise in writing.
3.3. Remuneration is payable upon delivery of the works. Where preparation and delivery of works is in parts, a proportionate fraction of the agreed total remuneration shall become due upon delivery/completion of each part. Unless expressly agreed otherwise in writing, at least one half of the total remuneration shall be payable on delivery /completion of any first part of a commissioned work. Where performance of the order extends over a longer period of time, the DESIGNER may ask for part payment in stages proportionate to the time and cost expended by him/her.
3.4. Remuneration is quoted/stated net of VAT and payable plus VAT at the rate applicable under the relevant law without deduction within two weeks of becoming due.
4. Additional Services; Ancillary and Travel Expenses; Artists Social Security Contributions
4.1. Unless agreed otherwise in writing, additional services such as research, changes to or amendments of drafts, the preparation and submission of additional drafts, changes to work drawings and other additional services (such as corrections by authors, supervision of production) will be charged separately on a time-spent basis.
4.2. The Client will reimburse disbursements incurred by the DESIGNER in connection with the preparation or implementation of design drafts (e.g. models, interim reproductions, layouts) and all costs of acquiring/licensing rights that may subsist in pictures or texts used including payments that may have to be made in accordance with the German Artists Social Insurance Act (KSVG) or to GEMA.
4.3. The Client will pay all travel expenses incurred by the DESIGNER for travel agreed in advance as necessary for the preparation, completion or use of the commissioned works.
4.4. Payment for any additional service will become due after its performance. Disbursements shall be paid forthwith once they have been incurred. Payment for additional services and disbursements are net amounts and have to be reimbursed together with any value added tax that may become payable.
4.5. The remuneration payable to the DESIGNER may, under certain circumstances, give rise to a liability of the Client to payment of contributions under the German Artists Social Insurance Act (KSVG). Where this is so, the DESIGNER will advise the Client of the Client’s duty to register with the Artists Social Insurance Fund.
5. Third Party Contributions
5.1. Any third party contributions necessary for the performance of the contract or proper use of the works shall be procured by the DESIGNER acting for and on behalf and at the expense of the Client. The Client shall give the DESIGNER any written authority required therefor.
5.2. Where the DESIGNER at the Client’s request obtains third party contributions in his/her own name and on his/her own account, the Client shall pay a reasonable sum on account of the expected costs. The Client shall indemnify the DESIGNER in respect of all costs and expenses arising from any such third party contribution.
6. Client’s Duty to Co-operate; Design Freedom; Design Proposals
6.1. The Client shall provide the DESIGNER with all materials necessary for the performance of his contractual duties in good time and to the extent agreed. These include texts, photographs, logos, graphics, films and musical works. Delays in the performance of the contract caused by late or incomplete supply of such materials shall not be deemed the DESIGNER’S fault.
6.2. The Client warrants that he has the right to use all materials he/she makes available to the DESIGNER. The Client shall be solely responsible for the correctness and completeness of such materials. In the event of the Client not having the right to use such materials free of third party rights, the Client will indemnify the DESIGNER against third party claims.
6.3. The DESIGNER has freedom of expression in the performance of the contract. To this extent no objections may be raised as to the artistic design and quality of the drafts and the works. The Client will bear all additional costs of changes and amendments caused or requested by him/her during and after the completion of the works.
7. Supply and Handling of Data
7.1. The DESIGNER is under no duty to surrender to the Client design or other data (e.g. of content, screen design or drawings) or data carriers created in the performance of the contract. Any such surrender must be agreed between the parties and paid for by the Client separately.
7.2. Where the DESIGNER makes data available to the Client, these may only be used to the agreed extent. Modifications of and changes to such data may only be made with the DESIGNER’S consent.
7.3. The transport or transmission of data, data carriers and files by whatever means or method are at the Client’s expense and risk.
7.4. The DESIGNER shall not be liable for any defects caused to data, data carriers and files by transmission to the Client’s systems.
8. Ownership and Duty to Return
8.1. Intellectual and industrial property rights subsisting in all preparatory and final designs, conceptual services and data provided are only licensed and not transferred irrespective of whether or not they become part of or are incorporated in the final works. Unless otherwise agreed, all originals must be returned to the DESIGNER free of defects not less than three months after delivery.
8.2. Delivery and return are at the Client’s risk and expense. In the event of damage or loss, the Client will pay all necessary costs of repairing or recreating the originals. The DESIGNER may make claim for any additional damage or loss.
9. Corrections; Supervision of Production; Samples
9.1. Prior to publication/production of the works (commencement of production) samples shall be submitted to the DESIGNER for approval.
9.2. The production will be supervised by the DESIGNER only if agreed with the Client by a separate written agreement. In such a case the DESIGNER has full discretion in all decisions and instructions given to the producer. The DESIGNER shall be liable only for own negligence and in accordance with clause 10.
9.3. Of all works or parts thereof, whether or not published or reproduced, the DESIGNER shall be given free of charge a reasonable number of, but not less than 10, sample copies free of any defects which the DESIGNER may use in his own advertising.
10. Warranties; Liability
10.1. DESIGNER shall be liable only for deliberate breach or gross negligence. This does not apply to loss or damage caused by breach of any duty the performance of which is essential for reaching the main objects of the agreement (cardinal duty) or breaches resulting in loss of life, personal injury or other damage to health for which the DESIGNER shall remain liable even in cases of minor negligence.
10.2. The limitation period for any claims by the Client against the DESIGNER for breach of contract shall be one year from its statutory commencement date. This does not apply to claims described in clause 10.1 to which the statutory limitation periods shall remain applicable.
10.3. The Client shall inspect the works immediately after delivery and notify any defects forthwith. Obvious defects must be notified in writing not later than two weeks after delivery. The despatch of the notification within that period shall suffice. In the absence of timely proper notice as prescribed above, the works shall be deemed accepted as free of defect.
10.4. Release for production and publication is determined by the Client. Upon release the Client will be liable for the technical and functional adequacy and correctness of text, depiction, presentation and product.
10.5. Except for any culpable fault in its selection, the DESIGNER is not liable for the acts of any third party to whom services have been sub-contracted.
10.6. Where the DESIGNER at the Client’s request sub-contracts works or services acting in the DESIGNER’S own name and for his/her own account, the DESIGNER hereby assigns to the Client all claims he/she may have against the third party for defective or late performance or failure to perform arising under warranty, for breach of contract or otherwise. The Client will first seek remedy against the third party prior to making a claim against the DESIGNER.
10.7. The DESIGNER does not warrant that his/her works or any part thereof or any drafts or designs provided to the Client for use are protected or capable of being registered for protection by copyright, design right or trademark. The DESIGNER is under no duty to search or have searched any official registers of design rights, copyrights and other registrable intellectual and industrial property rights. Any such research and seeking of legal advice relating to it shall be carried out by the Client at his/her own expense.
10.8. The DESIGNER does not warrant that the intended use of his/her works or parts thereof or any of his/her draft designs will be permitted by law and in particular copyright, design right, competition or trade mark legislation. The DESIGNER shall only be obliged to notify the Client of any legal risks and issues of which he/she may become aware in the course of the performance of the contract.
11. Special Provisions for Web Design
Where the contracted work is the design of a website, the following additional provisions shall apply:
11.1. The DESIGNER shall design the website in accordance with the design concept released by the Client in the agreed program and data format. This shall be done using third party software which the DESIGNER does not warrant to be functional, free of defects or supported by future maintenance (updates). The future maintenance of the website (regular maintenance, back-ups, obtaining and renewing SSL certificates) does not form part of this contract and requires separate agreement.
11.2. The DESIGNER designs the website. The Client shall be solely liable for its contents. This includes contents provided by the Client such as pictures, acoustics and video content and texts and logos and extends to compliance with legal requirements (e.g. the wording of the impressum, other mandatory content prescribed by the Tele Media Act and compliance with all applicable data protection legislation).
11.3. Where it is agreed that the DESIGNER shall take care of measures for search engine optimisation (SEO, e.g. the wording of titles, keywords and descriptions), the DESIGNER will take this into account when designing and programming/engineering the web site. The DESIGNER does not warrant any particular success/functionality of SEO measures.
11.4. After completion, the DESIGNER transfers the website and its control to the Client by loading the relevant data unto the server made accessible by the Client or physical delivery of a data carrier or by any other means specifically agreed between the parties. The time for inspection and notification of obvious defects (clause 10.3) shall start running with transfer of the website into the control of the Client. The Client shall confirm acceptance of the compliant website by text in any form permitted by Para. 126b of the German Civil Code.
11.5. The DESIGNER is under no obligation to surrender to the Client the source code or the original project data files of the tools used by the DESIGNER in the design of the web site elements created by him/her where these are not immediately obvious or capable of reconstruction from the web site. If the Client wishes surrender of the source codes or the original project data files, this has to be agreed with the DESIGNER and paid for separately and in addition.
12. Collection of Data – Notice pursuant to DSGVO, Art. 13
The DESIGNER collects data of the Client for the performance of the contract and the discharge of his contractual and pre-contractual duties. Collection and processing of such data is necessary for the performance of the agreement and is made in accordance with DSGVO Art 6 (1) (b). The data will not be disclosed to third parties. Data will be deleted as soon as they are no longer required for the purpose of their contractual use. The Client may require disclosure of all data stored about him/her and ask for rectification/amendment of any data which are incorrect and deletion of all data stored illegally. Where there is any such issue, the Client may contact the DESIGNER at either ….[julia.musterfrau@designer.de]…. or …[Musterstraße 1, 12345 Musterstadt]. The Client also has the right to make formal complaint to the appropriate public authority.
13. Place of Performance
Place of performance for both, the Client’s and the DESIGNER’S obligations, shall be Bottrop, Germany.
14. Final Provisions
14.1. Judicial venue is the principal place of business/residence of the DESIGNER where the Client either is a business and the contract relates to his/her business or a public body or trust or has no presence within the German jurisdiction. The DESIGNER may choose to bring proceedings at the Client’s domicile instead.
14.2. German law applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
14.3. Where written form is required under these standard terms, Para. 126 b of the German Civil Code applies and e-mail and fax will suffice.
14.4. Should any provision of these standard terms be invalid as a whole or in part, the validity of the remaining terms shall remain thereby unaffected.
Date: 22/07/06
