General Terms and Conditions for ORCA Affairs GmbH relating to the provision of agency services.
I. Definition; scope of application
1. The following General Terms and Conditions (GTC) shall apply to all legal transactions conducted by ORCA Affairs GmbH (hereinafter abbreviated as ‘OA’ or ‘the Agency’) with its clients (referred to henceforth as ‘the Client’ or ‘Clients’). The terms ‘Contract’, ‘Agency’ and ‘Client’ are to be understood in the commercial and business sense. ‘Contract’ refers to the order for a service to be rendered by the Agency to the Client and represents the contractual relationship without regard to any specific type of contract, ‘the Agency’ refers to ORCA Affairs GmbH, and ‘the Client’ refers to the party that is to receive the main service and pay the remuneration.
2. Any business-related General Terms and Conditions of the Client that diverge from this Agency’s General Terms and Conditions as set forth here shall only be valid insofar as the Agency has acknowledged their applicability to it in writing.
3. Any change to the agreements between Agency and Client must be in text form (e-mail) or in writing, and confirmed by both parties.
II. Contract and remuneration
1. OA submits a written offer to the Client outlining the intended services and the scope of services as well as the associated costs (the Agency’s fee and estimated third-party costs) and, if necessary, information pertaining to the period required to undertake the service and regarding delivery dates. The offer shall be drawn up based on a briefing by the Client in conjunction with a re-briefing by the Agency or a concept sketch or a comprehensive communication concept.
2. By accepting the offer, the Client shall place the order with the Agency for the provision of the services specified therein in accordance with the stipulations set out in the preceding paragraph (section II, para. 1). Declaration of acceptance shall be made in text form (e-mail) or in writing, insofar as this is required by law for the Client (this relates to contracts agreed with public administration entities). The order for service, or Contract, may be placed within one month of receipt of the offer, after which the Agency shall no longer be bound by the offer.
3. Remuneration paid to the Agency (the agency fee) shall be based on the time required for the satisfactory performance of the service. The Agency’s current hourly rates shall apply. All prices of the Agency are exclusive of the statutory value added tax.
4. The Agency shall notify the Client in advance of any additional work that needs to be carried out by the Agency, in particular due to changes or additions requested by the Client, and shall charge the Client in accordance with agreed hourly rates. The Client shall in particular bear any additional expenses incurred as a result of any part of, or the entirety of, the Agency’s work needing to be repeated or because the Agency’s performance of the contractually agreed services is delayed as a result of incorrect, subsequently amended or incomplete information provided by the Client.
5. If the Client prematurely terminates a Contract which has previously been agreed and approved with the Agency, Section 648 of the German Civil Code (known as the Bundesgesetzbuch, or BGB) shall apply between the contracting parties with regard to the Agency’s fee, which entails that the Agency shall be entitled to demand the remuneration commensurate with that part of the work which has been carried out up to the time of termination.
III. Invoicing; payment; terms of payment
1. As a rule, the agency shall invoice its services after they have been provided.
2. In the case of extensive projects or projects lasting several months, monthly instalment invoices shall be issued. Alternatively, a payment on account can be agreed at the start of the project. In both cases OA will issue a final invoice after the end of the project.
3. Agreed flat-rate agency fees (‘retainers’) will be invoiced monthly. The payment date will be agreed between OA and the Client once the Contract has been awarded.
4. Third-party costs (‘external costs’) – for example, production costs – plus a 10% handling fee will be charged to the Client on presentation of the original invoice. Travel costs incurred by the agency in the course of fulfilling the Contract will also be passed on. Each party shall bear the costs of administration by postage and telephone incurred by it in its business dealings with the other party.
5. Costs for media services incurred by OA shall be invoiced immediately or (by arrangement) in advance.
6. Unless other terms of payment have been previously agreed upon, payment shall be made within 14 days of invoicing without deduction.
7. All prices are net prices and do not include the statutory value added tax. Customs duties, fees and other charges, as well as artists’ social insurance, shall be borne by the Client, which shall apply even in the case that these monies are subsequently reclaimed.
8. With respect to claims of the Agency, the Client shall only be entitled to an offset or a right of retention if its counter-claims have been legally established or are undisputed, unless claims and counterclaims originate from the same Contract.
IV. ‘Good faith’ relationship; duty to cooperate; duty to inform
1. In the context of a relationship conducted in good faith (in German, Treuebindung), the Agency undertakes to provide the Client with disinterested advice geared to the Client’s objectives. This applies in particular to issues pertaining to the selection of outside (‘third’) companies and persons, for instance when it comes to the generating of advertising material, in the area of multimedia production or in online marketing. In the event that the Client has not expressly reserved the right to have a say in the selection of outside parties, the selection of third parties shall be made in accordance with the principle of a balanced relationship between financial feasibility and an optimally successful completion of the project in question.
2. The Client shall undertake all cooperation-related measures necessary for the implementation of this contractual arrangement and shall support the Agency. This obligation to cooperate applies in particular to schedule-bound projects where the Client’s cooperation is indispensable in order for particular deadlines to be met. The Client shall ensure that all documents necessary for the accomplishing of the Contract are submitted to OA in good time and without special request, and that the Agency (OA) is informed in a timely manner of all matters and occurrences that may have a bearing on the implementation of the agreement.
3. The Agency is entitled to terminate a Contract after setting an appropriate deadline and informing the Client of the risk of termination if the Client is deemed by the Agency not to be cooperating adequately or defaults on his or her acceptance of the agreed service. Services provided by the Agency up until the point in time when the termination takes effect shall be invoiced in accordance with the Contract. This shall not affect compensation for additional expenses and damages incurred as a result of the delay.
V. Minutes/meeting report
1. All information and alterations relevant to the organizing and course of a project and/or pertaining to a project’s content must be recorded in writing and made available to both the Agency and the Client. This is generally takes the form of notes taken during meetings or minutes of meetings.
2. In general, the Agency shall draw up notes from a discussion or a record of a meeting’s results within three working days of a discussion with the Client taking place. Both the Client or the Agency may raise objections to any part of the minutes within one week of the date on which meeting took place, otherwise the specifications and commitments as recorded in the minutes shall be deemed as binding on both parties.
VI. Liability; warranty coverage
1. The agency shall be liable in the event of deliberate acts and gross negligence in accordance with the statutory provisions. However, liability for warranty claims shall be limited to 12 months from delivery.
2. In the event of minor negligence, the Agency and its third-party agents shall only be liable if a key contractual obligation (a so-called ‘cardinal obligation’: that is, an obligation whose fulfilment enables the proper execution of the contract in the first place and, furthermore, whose fulfilment the Client justifiably relies on and ought to rely on) is breached or a case of default or impossibility exists. In the event of a breach of a cardinal obligation, the amount of liability shall be limited to the foreseeable damage typical for the type of Contract.
3. The aforementioned limitations of liability as well as the time-limited warranty obligation shall not apply in the event of the absence of warranted characteristics, to cases of fraudulent intent, to injuries to life, limb or health or to legal deficiencies, as well as in the event of liability having been deemed to occur pursuant to the provisions of the Product Liability Act (in German, the Produkthaftungsgesetz) or other legally stipulated liabilities.
If the Agency is obliged to provide the Client with a certain piece of completed work, i.e. a customizable work (such as a draft), the Client is obliged to accept it. Acceptance shall be deemed to have taken place in the event that the Client has not refused acceptance within seven days of delivery. If the Client refuses to accept the work, he or she must draw the Agency’s attention to at least one significant defect. This defect may, in particular, be a notable divergence from the contractual agreements made with the Agency. Insignificant defects shall not constitute grounds for entitling the Client to refuse to accept the work. If the defect is deemed significant, the Agency shall remedy this shortcoming within a reasonable period of time and shall resubmit the modified piece of completed work for acceptance by the Client. Acceptance shall be deemed to have taken place at the latest upon payment or eventual use of the work.
VIII. Copyright usage rights/service protection rights
1. Unless otherwise stipulated in the description of the service, upon payment in full, the Client shall acquire rights of use (‘usage rights’) to any advertising materials generated by the Agency which are required to fulfil the purposes of the Contract for the term of the Contract drawn up by the Agency, but in any case for at least 6 months after acceptance of the completed work. The applicability of these usage rights is limited to the territory of the Federal Republic of Germany. Editing or alteration of the content of the advertising material designed by the Agency shall only be permitted with the Agency’s prior consent. Further transfer or licensing of the usage rights by the Client to third parties shall require the prior written consent of the Agency in order to be deemed valid in law. If the Agency creates software within the scope of its contractual services, the respective source code and the corresponding documentation shall not be included in the granting of rights to the Client. If the Client nevertheless wishes the source code to be transferred, any transfer or licensing of usage rights must be agreed separately with the Agency.
2. If usage rights or rights to utilise or reasonably exploit material (for example, photographic, film, or copyrighted material, as well as music rights protected by Germany’s association for performance and mechanical reproduction rights, known as ‘GEMA’) or the consent of third parties (pertaining to, for instance, personal rights) are required for the realizing or implementing of the Agency’s piece of completed work, the Agency shall obtain the rights and consents of third parties on behalf of the Client. As a matter of principle, this shall only be done to the extent required for the foreseen advertising activities in terms of duration (time), area subject to the advertising (space) and content, unless otherwise expressly agreed in text form beforehand. Subsequent claims pursuant to Sections 32 and 32a of the German Copyright Act (known as the Urheberrechtsgesetz, or ‘UrhG’) shall be at the expense of the Client.
3. Furthermore, the Agency shall not assume any liability in the event that no third-party rights exist with regard to the advertising materials and completed work provided by it.
4. In the event that the Client furnishes the Agency with pictorial material, documents or other materials that are subject to third-party copyright, the Client guarantees that he or she has the appropriate usage rights, including with regard to the Agency’s use of these materials for the purposes of realizing the Contract. OA is entitled to request the necessary proof of this from the Client. In the event of claims being made against the Agency due to the use of legally protected third-party content, the Client shall indemnify the Agency against all third-party claims in this regard and shall, where necessary, compensate the Agency for any damages that the Agency may incur as a result of a claim.
5. The Agency shall be entitled to use the communications services and advertising materials generated by it for an unlimited period of time as reference material, for example in presentations and for self-promotion on its online sites, platforms and channels as well as on appropriately devised data carriers (like USB sticks) for self-promotion purposes. To this end, the Client shall grant the Agency the right to display brand logos or other protected trademarks and signs.
6. Usage rights for designs rejected or not implemented by the Client shall remain the property of the Agency. This shall also and especially apply to services provided by the Agency which are not subject to particular statutory rights, especially copyright.
IX. Confidentiality and data protection
1. OA (‘the Agency’) obligates itself to maintain confidentiality in its dealings with third parties with respect to all operational, business and private matters of the Client that become known during the course of the Agency’s activities, even after termination of the Contract. The Agency shall ensure that a corresponding confidentiality obligation is arranged and agreed with its employees and with the external companies it commissions as part of the fulfilment of the Contract between Agency and Client.
2. The storing and processing of data provided by the Client to the Agency and generated by the Agency in the course of the necessary fulfilment of the Contract shall be carried out in accordance with the applicable data protection laws. Further details on our data protection policies can be found in our data protection declaration, available on the website https://www.orca-affairs.de/datenschutz/.
X. Final provisions
1. Should any particular stipulations in the above provisions be or become invalid or inapplicable, the remaining provisions shall nevertheless remain valid and applicable. The parties (Agent and Client) shall agree on any changes to a particular provision and replace the invalid provision with a valid one that reflects as realistically as possible the financial objectives of the parties.
2. Amendments, extensions and other ancillary or supplementary agreements as well as terminations must be made in text form.
3. The place of jurisdiction for all disputes between the Client – recognized as a business entity within the terms of these provisions – and the Agency shall be determined by the location of the Agency’s registered office.
4. For the provisions of this agreement, only the law of the Federal Republic of Germany shall be applicable, without the possibility of recourse to provisions on conflicts of law in an international context.