General Terms and Conditions
1. General, scope, subject of the contract
1.1 Die Allgemeinen Geschäftsbedingungen (AGB) gelten für alle Geschäftsbeziehungen bzw. Aufträge über Agenturleistungen, welche zwischen der Studio 2038 GmbH (nachfolgend „Studio 2038“) und ihren Kunden (nachfolgend „Kunde“) geschlossen werden. Sie gelten nur, wenn der Kunde Unternehmer (§ 14 BGB), eine juristische Person des öffentlichen Rechts oder ein öffentlich-rechtliches Sondervermögen ist.
1.2. Unless otherwise agreed, the GTC shall apply in the version valid at the time of commissioning or at least in the version last communicated to the customer in text form as a framework agreement also for similar future transactions, without reference being made to them in each individual case.
1.3. The terms and conditions apply exclusively. Divergent, conflicting or supplementary General Terms and Conditions of the customer shall only be part of the contract if and insofar as Studio 2038 has expressly agreed to their validity in writing. This approval requirement applies in any case, for example even if Studio 2038, knowing the terms and conditions of the customer, carries out the order to him unconditionally.
1.4. In individual cases, individual agreements with the customer (including side agreements, additions and changes) have priority over these terms and conditions. For proof of the content of an individual agreement, subject to proof to the contrary, a written contract or our written confirmation is required.
1.5. Declarations to be made by the customer to Studio 2038 after the conclusion of the contract (eg deadlines, notification of defects, declaration of withdrawal) must be in writing to be effective.
2. Conclusion of contracts, parts of the contract and changes to the contract
2.1. Offers from Studio 2038 are non-binding and without obligation, unless they are expressly designated as binding.
2.2. The Client may submit to Studio 2038 in writing by email or orally (e.g., by telephone) a Request for Proposal (hereinafter "Request for Proposal"). The customer's quote request is not an offer. Studio 2038 then makes an offer to the customer by e-mail in writing (hereinafter referred to as the "Offer"). The customer may accept the offer by e-mail in writing within 14 days of receipt. An oral agreement (for example by telephone) is not enough.
2.3. The basis for the agency work and part of the contract, in addition to the project contract and its annexes, is the briefing to be delivered by the customer to Studio 2038. If the briefing is communicated verbally or by telephone by the customer Studio 2038, Studio 2038 will prepare a re-briefing on the content of the briefing, which will be handed over to the customer within 3 working days after the verbal or telephone communication. This re-briefing becomes a binding part of the contract if the customer does not object to this re-briefing within 3 working days.
2.4. Any change and / or supplement to the contract and / or its components and / or the scope of services must be in writing. The customer has to bear the resulting additional costs.
2.5. Events of force majeure authorize Studio 2038 to postpone the project commissioned by the customer by the duration of the disability and a reasonable start-up time. A claim for damages by the customer against Studio 2038 does not result from this. This also applies if important dates and / or events for the customer can not be met and / or do not occur.
3. Copyright and rights of use | archiving
3.1. With the full payment of the invoice for the contractually agreed duration and in the contractually agreed scope, the customer acquires the right to use all of the final works produced by Studio 2038 as part of this order. This transfer of rights of use applies, as far as a transfer under German law is possible and applies to the agreed use in the territory of the Federal Republic of Germany. Uses beyond this area require a written agreement within the scope of the order or a separate written sub-agreement.
3.2. Rights of use for works that have not yet been paid upon termination of the contract remain subject to other arrangements made by Studio 2038.
3.3. The services developed in the context of the order are protected as intellectual creations by the copyright law. These are in particular concepts, designs, graphics, drawings, texts and other documents.
3.4. Studio 2038 may, if not subject to a valid NDA between Studio 2038 and the customer, sign the final developed visualizations and projects appropriately and in line with industry standards and publish the order for self-promotion. The publication includes the websites www.studio2038.de and www.studio2038.com, Facebook, Instagram, YouTube, LinkedIn, Xing, Pinterest and Behance as well as electronically generated portfolios. This signing and promotional use may be excluded by a separate separate written agreement between Studio 2038 and Customer prior to project start.
3.5. The transfer of rights of use granted to third parties and / or multiple uses are, if not regulated in the first order, subject to a fee and require the consent of Studio 2038.
3.6. About the scope of use Studio 2038 is entitled to information.
3.7. All working documents, electronic data and records made in the context of the order processing on the side of Studio 2038 remain with Studio 2038. The publication of these documents and data can not be requested by the customer. Studio 2038 owes the agreed performance with the payment of the invoice, but not the intermediate steps leading to this result in the form of sketches, drafts, raw data, production data, 3D data, versionings etc.
3.8. Studio 2038 reserves the right to delete production data and intermediate steps in the form of sketches, drafts, raw data, production data, 3D data, versioning etc. three months after completion of the project (deadline starting from the day of the customer's written approval) without further archiving , A long-term archiving requires a separate written agreement between Studio 2038 and the customer before the project starts.
4.1. The remuneration agreed in the contract or in the offer applies. Unless otherwise agreed by contract, payments are due without deduction within 14 days of invoicing and performance. However, as part of ongoing business relationships Studio 2038 is entitled at any time to perform a service in whole or in part only against advance payment. A corresponding reservation explains Studio 2038 at the latest with the order confirmation.
4.2. If the development of the agreed services extends over a period of more than one month, Studio 2038 can bill the customer for advance payments for the partial services already provided. These partial services do not have to be available in a form usable for the customer and can also be available as a pure working basis on the part of Studio 2038. Also, Studio 2038 is entitled to assert advances, if this is necessary to cover their expenses.
4.3. Upon expiry of the above payment period, the customer is in default. The price shall be charged during the default at the applicable statutory default interest rate. Studio 2038 reserves the right to assert further damages caused by delay. The claim to the commercial maturity interest (§ 353 HGB) to merchants remains unaffected.
4.4. All prices quoted in offers and orders and the resulting amounts to be paid are exclusive of statutory value added tax at the applicable rate.
4.5. Studio 2038 is also entitled to refuse performance under § 321 BGB if the financial circumstances of the customer worsen significantly before conclusion of the contract and Studio 2038 recognizes this despite careful examination only after conclusion of the contract (for example, by a petition for opening insolvency proceedings).
4.6. The customer is only entitled to set-off or retention rights insofar as his claim has been legally established, is undisputed or acknowledged by us. A right of retention can only be exercised by the customer if his counterclaim is based on the same contractual relationship.
5. Change and cancellation of orders
5.1. In the event of post-contractual changes to written orders, projects, work and the like by the customer and / or if the conditions for service provision change, the customer will be reimbursed for all costs incurred by Studio 2038 and will release Studio 2038 from any liabilities to third parties.
5.2. In the event of a cancellation of an order after the conclusion of the contract or after immediate approval of the offer, the customer undertakes to pay 35% of the agreed total gross remuneration as compensation.
5.3. In the event of cancellation or cancellation of orders, projects, works and the like, Studio 2038 is not obliged to deliver the services incurred up to that date to the customer.
5.4. The cancellation of an order requires the text form.
6. Additional services
Unforeseeable additional expenditure (for example, the number of agreed correction loops increases) requires mutual agreement and, if necessary, final costing. For this purpose, Studio 2038 will submit a supplementary written offer.
7.1. Studio 2038 and the Client will treat each other's business and company secrets confidential and any information received from the other party that is not publicly available. Studio 2038 undertakes to oblige both its employees and third parties called upon to do so in the same way to absolute silence.
7.2. If necessary, Studio 2038 signs a privacy statement (NDA) of the customer. Studio 2038 also reserves the right not to sign, provided that the provision of services can not be guaranteed by agreements.
8. Services and duties of cooperation of the customer
8.1. Customer is required to provide Studio 2038 with the data, records, materials, samples, product information and templates that are essential and necessary for the provision of the Services in a strictly confidential manner. All work documents are handled carefully by Studio 2038, protected from access by unauthorized third parties, used only for the preparation of the respective order and will be returned to the customer after completion of the order, if the latter expressly desired. The costs of the return transport (return) are to be borne by the customer.
8.2. To the extent that Customer provides Studio 2038 with templates for use in advertising design, Customer warrants that it has the right to submit and use these templates.
8.3. The customer shall ensure that all required and / or all agreed upon the assignment of the contract by the customer or his vicarious agents in time, to the extent necessary and for Studio 2038 are provided free of charge.
8.4. Within a reasonable period of time, usually not more than 3 working days, the client must notify the Agency if it accepts or rejects a proposal submitted by the Agency to design and implement the action, with or without modification.
9. Warranty and Liability Studio 2038
9.1. The risk of legal admissibility of the measures developed and carried out by Studio 2038 is borne by the customer. This applies in particular in the event that the actions and measures violate the requirements of competition law, copyright law and special advertising laws. However, Studio 2038 is required to indicate legal risks if they become aware of them in their activities.
9.2. The Client indemnifies Studio 2038 against third-party claims if Studio 2038 has acted at the Customer's express request, even though it has notified the Customer of concerns about the admissibility of the measures. The registration of such concerns by Studio 2038 with the customer must be made known immediately in writing. If in the opinion of Studio 2038 an antitrust examination by a particularly knowledgeable person or institution is necessary for a measure to be carried out, the costs shall be borne by the customer in accordance with Studio 2038.
9.3. Studio 2038 is in no case liable for the statements contained in the advertising statements about products and services of the customer. Studio 2038 is also not liable for the patent, copyright and trademark protection or registration of the ideas, suggestions, suggestions, concepts and designs provided in the context of the order.
9.4. For damages is liable Studio 2038 - for whatever legal reason - in case of intent and gross negligence. The term gross negligence does not include damage caused by computer breakdowns or transmission errors caused by e-mail or viruses.
9.5. The liability for slight negligence is limited to the breach of a material contractual obligation, limited to compensation for the foreseeable, typically occurring damage, which regularly does not exceed twice the invoice amount of the relevant service, but not more than € 10,000.00.
9.6. The exclusion and / or limitation of liability shall not apply to damage resulting from injury to life, limb or health.
9.7. The limitations of liability according to section 9.1. - 9.3. shall not apply if Studio 2038 has fraudulently concealed a defect or the customer has claims under the Product Liability Act.
9.8. Liability is also excluded in cases of force majeure and in the event of technical difficulties beyond the control and responsibility of Studio 2038.
9.9. Insofar as the liability of Studio 2038 is excluded or limited, this also applies to the personal liability of employees, employees, employees, representatives and vicarious agents of Studio 2038.
10.1. Studio 2038 does not act as organizer, unless otherwise agreed in writing. As the organizer, the customer assumes responsibility for all liability-related matters vis-à-vis everyone.
10.2. The customer (organizer) is obliged to comply with all conditions imposed by the Ordinance on the Construction and Operation of Meeting Places (Ordnungsstättenverordnung -VstättVO-) of 28 April 2004.
10.3. The customer (organizer) undertakes to conclude a tour operator liability insurance for personal injury and property damage related to the day of the event or to submit a corresponding policy.
10.4. Studio 2038 reserves the right to set up conditions of participation for booked events in individual cases and to make the admission of a participant dependent on an explicit declaration of consent with such conditions of participation.
11. Collecting societies
The customer undertakes to pay any applicable fees to collecting societies such as Gema. If these fees are charged by Studio 2038, then the customer agrees to refund this Studio 2038 against proof. This can also be done after termination of the contract.
12. Services of third parties
12.1. Studio 2038 is entitled without the express consent of the customer to commission third parties to perform all services. Freelancers, freelancers, or third parties engaged by Studio 2038 are agents or agents of Studio 2038.
12.2. The customer is informed that an artist's social contribution to the Künstlersozialkasse must be paid to a non-legal person when placing an order in the artistic, conceptual and advertising consultancy sector. This charge may not be deducted by the customer from the agency bill. The customer is responsible and responsible for the compliance with the obligation to register and pay.
13. Media planning and media implementation
13.1. Commissioned projects in the field of media planning are provided by Studio 2038 to the best of its knowledge and belief on the basis of the media and generally accessible market research data available to it. A certain advertising success owes Studio 2038 the customer through these services.
13.2. Studio 2038 is committed to consider all benefits, special conditions and discounts in the sense of the client in the media circuit and pass them on to the customer.
13.3. In the case of extensive media services, Studio 2038 is entitled, upon agreement, to charge the customer for a certain proportion of the third-party costs and only make the booking with the corresponding media after receipt of payment. For a possible non-compliance of a switching date by a late payment receipt Studio 2038 is not liable. A claim for damages by the customer against Studio 2038 does not arise.
14. Term of contract, notice periods
14.1. The contract is concluded for the contract period specified in the contract, but the longest until completion of the project.
14.2. If the contract is concluded for an indefinite period, it can be terminated by both parties properly with a notice period of three months to the end of the month. Ordinary termination of an order already placed is not possible for either party.
14.3. The right to termination without notice for good cause remains unaffected by this provision.
14.4. Every cancellation requires the text form.
The customer may assign claims under the contract only with the prior written consent of Studio 2038 and only, as far as the interests of Studio 2038 are not unreasonably affected by this.
16. Information required acc. Consumer dispute resolution law
Studio 2038 is neither willing nor obliged to participate in a dispute resolution procedure before a consumer arbitration board within the meaning of § 36 Abs. 1 Verbraucherstreitbeilegungsgesetz (VSBG). This does not affect the possibility of dispute resolution by a consumer arbitration board in the context of a specific dispute with the consent of both contracting parties (§ 37 VSBG).
17. Applicable law, place of jurisdiction, final provisions
17.1. These terms and conditions and all relationships between Studio 2038 and the customer are exclusively subject to the laws of the Federal Republic of Germany to the exclusion of all international and supranational (contract) legal systems, in particular the UN sales law.
17.2. If the customer is a businessman i.S.d. 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 is the court having jurisdiction over the registered office of Studio 2038. The same applies if the buyer is an entrepreneur i.S.d. § 14 BGB is. However, Studio 2038 is in all cases entitled to raise its claims against the customer at the customer's general place of jurisdiction.
17.3. Priority laws, especially exclusive jurisdiction, remain unaffected.
17.4. If a regulation of these general terms and conditions does not become or become part of the contract in whole or in part, or becomes ineffective, the contract remains otherwise valid.
17.5. The European Commission provides a platform for out-of-court online dispute resolution (the so-called OS platform) at https://ec.europa.eu/consumers/odr/.
Studio 2038 GmbH