General Terms and Conditions

§1. Scope and conclusion of contract

1.1. fjnland GmbH (Contractor) carries out orders exclusively on the basis of the following General Terms and Conditions. Deviating provisions require written form in order to be effective.

1.2. Unless expressly agreed otherwise, and provided the offer is submitted by a Client, a contract is formed by written confirmation from the Contractor or by performance of the service in accordance with the order. If the offer is made by the Contractor, the contract is formed by the Client's declaration of acceptance, subject to these General Terms and Conditions.

§2 Protection of concepts and ideas

2.1. Every order placed with the Contractor that includes the creation of drafts is a copyright work contract aimed at granting usage rights in the work performed.

2.2. Upon the Client's invitation and the Contractor's acceptance of that invitation, the prospective customer and the agency enter into a contractual relationship (a so-called "pitching agreement") to which these General Terms and Conditions apply. Concepts and ideas shared in this context stand at the beginning of every creative process and can be defined as the spark of everything later produced, and thus as the origin of a marketing strategy. Those elements of the concept are therefore protected that are distinctive and that give the marketing strategy its characteristic shape. Ideas within the meaning of this agreement include in particular advertising slogans, advertising copy, graphics and illustrations, advertising materials and identity-forming elements, even where they do not reach the threshold of a copyrighted work.

2.3. Work created by the Contractor may only be used for the agreed type of use, the agreed purpose and the agreed scope. Any transfer of usage rights by the Client to third parties requires a prior written agreement between Client and Contractor. The provisions of the German Copyright Act and of the law on contracts for work and services apply. The provisions of the German Copyright Act also apply where the level of originality required under § 2 UrhG is not reached.

2.4. Drafts may not be altered, either in the original or in reproduction, without the Contractor's consent. Any imitation, including of parts or details, is prohibited. A breach of this provision entitles the Contractor to demand a contractual penalty amounting to twice the fee. If no such fee has been agreed, the fee recommendations under the AGD collective agreement for design services (latest version) are deemed agreed.

2.5. Suggestions by the Client or other involvement on the Client's part do not confer co-authorship, unless this has been expressly agreed.

§3 Remuneration

3.1. The amount of the fee claim follows from the cost estimate or the agreed hourly rates. Agreed prices are exclusive of statutory VAT. If drafts are used to a greater extent than originally intended, the Contractor is entitled to subsequently demand the difference between the higher fee for the actual use and the fee already received. Remuneration may not be refused for design or artistic reasons.

3.2. If an order is placed without a fee having been agreed, the Contractor is entitled, when invoicing, to apply the fee recommendations under the AGD collective agreement for design services (latest version). The same applies to changes or additions initiated by the Client after the order has been placed.

3.3. If an order extends over a longer period or requires substantial financial outlay in advance by the Contractor, reasonable instalment payments are to be made.

§4 Cooperation of the Client

4.1. The Client shall provide the data and information required to carry out the order in a suitable form.

4.2. The Client is also obliged to check materials provided for the order for third-party rights (rights clearance) and guarantees that the materials may be used for the intended purpose. If a third-party claim is nevertheless made against the Contractor as a result of such an infringement, the Client shall indemnify the Contractor and hold it harmless.

4.2. The Client is obliged to compensate for all damage arising from the use of data and data carriers that were not supplied in proper form or that are non-functional and/or infected with malware.

4.3. The Client undertakes to hand over to the Contractor only templates such as photographs, models or other working materials that have been cleared for publication or reproduction. In no event is the Contractor liable for factual statements contained therein about the Client's products and services.

§5 Third-party services

5.1. Outlays for technical incidental costs (e.g. materials, photographs, print) as well as travel and shipping costs are, unless otherwise agreed, to be reimbursed by the Client.

5.2. The Client authorises the Contractor, as intermediary, to commission the third-party services required to fulfil the order from suppliers in the name and for the account of the Client. Where the Contractor commissions third-party services in its own name and for its own account, the Client shall release the Contractor from the resulting liabilities.

5.3. Where commissioned to do so, the Contractor prepares legal texts such as a privacy policy and legal notice for the Client's website with the help of generators. The Contractor owes only the preparation of the texts using generators. Legal and substantive review is the Client's own responsibility. The Client is also obliged to provide the Contractor with all information required for the preparation in good time, correctly and in full. Changes affecting the details of the legal notice or the privacy policy are to be communicated by the Client independently and without delay. An update of the legal notice or the privacy policy after completion and acceptance of the website is to be commissioned separately, unless otherwise agreed in the individual contract.

It is noted once more in this connection that the Contractor, in its capacity as a communications agency, is not legally permitted to provide legal advisory services to the Client. 

§6 Deadlines

6.1. Stated delivery or performance periods are, unless expressly agreed as binding, approximate and non-binding only. Binding deadline arrangements are to be recorded in writing or confirmed in writing by the agency. If the Contractor falls into delay with its services, a reasonable additional period is to be granted first. After fruitless expiry of that additional period, the Client may withdraw from the contract. § 361 of the German Civil Code (BGB) remains unaffected. Compensation for delay damage may only be demanded up to the amount of the order value (own performance excluding outlays for technical incidental costs).

6.2. If the provision of information or material required from the Client is delayed, subsequent delivery dates, including those firmly promised, are postponed accordingly.

§7 Complaints and liability

7.1. The Client shall in any event inspect products delivered by the Contractor or by third parties, as well as preliminary and intermediate results sent for correction. Complaints of any kind are to be notified to the Contractor in writing without delay, and at the latest within seven days. If this is not done, the products delivered or the preliminary and intermediate results sent for correction are deemed accepted, and the risk of any errors in further processing passes to the Client.

7.2. Upon approval of drafts or final artwork by the Client, the Client assumes responsibility for the technical and functional correctness of product, text and image. Any liability of the Contractor ceases.

7.3 In the event of uncontrolled approval, forwarding or processing of the templates, the Contractor is not liable for damage arising in further processing, unless the errors could not have been discovered even upon a proper inspection of the preliminary and intermediate results by the Client. Where errors only arose or could only be recognised after approval in the subsequent production process, the Contractor's liability remains limited to the order value of the print template.

7.4. The Contractor is liable only for intent and gross negligence. Liability for indirect damage, consequential damage and lost profit is excluded. Liability is limited to compensation for typical, foreseeable damage.

7.5. The Contractor is not liable for patent, design, copyright or trademark protectability or registrability, or for the legal unobjectionability of the design services created.

7.6. For orders placed with third parties in the name and for the account of the Client, the Contractor assumes no liability or warranty whatsoever.

§8 Ownership of drafts and data

In drafts and final artwork, only usage rights are granted; ownership is not transferred. The Contractor is not obliged to hand over files or layouts created digitally to the Client. If the Client wishes digital data to be handed over, this is to be agreed and remunerated separately. Data made available may only be altered with the Contractor's prior consent. Data is sent at the Client's risk and expense.

§9 Payments

9.1. Payment is due immediately upon receipt of invoice, without deduction. In the event of late payment, the Contractor may demand default interest at the rate defined in § 288 of the German Civil Code (BGB). This does not exclude the assertion of further damage caused by delay.

9.2. The grant of usage rights is dependent on full payment of amounts due. The Contractor has a right of retention over all working materials, manuscripts and other items supplied by the Client until all claims have been satisfied in full.

9.3. The Client may not assert a right of retention against the Contractor arising from other orders. Set-off is permitted only with claims that have been established by final judgment or acknowledged.

9.4. If fulfilment of a payment claim is at risk, the Contractor may demand advance payment and immediate payment of all outstanding invoices, withhold goods or other services not yet delivered, and stop further work on orders still in progress. These rights also apply if the Client fails to pay despite a reminder that puts the Client in default.

§10 Duty of loyalty and confidentiality

10.1. The Contractor undertakes vis-à-vis the Client to work objectively and solely in line with the Client's aims. All business secrets that come to the Contractor's knowledge in the course of working with the Client will be kept with the care of a prudent businessperson, and all related information and documents will be treated as confidential.

10.2. The duties of care and confidentiality continue beyond the end of the contract and also apply if a collaboration does not come about.

§11 Other provisions

11.1 Place of performance and venue for all claims and disputes arising from the contractual relationship is Würzburg.

11.2 Unless otherwise agreed, German law also applies to contractual relationships with Clients abroad.

11.3 Should any of the foregoing provisions be or become invalid, the validity of the remaining provisions shall not be affected.