General Contractual Principles for Communication Design (AVG)
1. GENERAL CONTRACTUAL PRINCIPLES OF COMMUNICATION DESIGN (AVG) OF MVS CONSULTING GMBH.
1.1 The following GTC shall apply exclusively to all contracts for communication design services between MVS Consulting GmbH and the customer, who is not a consumer within the meaning of Section 13 of the German Civil Code (BGB). This shall also apply in particular if the customer uses general terms and conditions and these contain conflicting terms and conditions or terms and conditions that deviate from the GTCs listed here.
1.2 The AVG listed here shall also apply if MVS Consulting GmbH executes the order without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from the terms and conditions listed here.
1.3 Deviations from the conditions listed here shall only be valid if MVS Consulting GmbH expressly agrees to them in writing.
2. SUBJECT MATTER OF THE CONTRACT; COPYRIGHT AND RIGHTS OF USE
2.1 Every order placed with MVS Consulting GmbH is a copyright contract that is aimed at granting rights of use to the work services ordered. The object of the contract is not to check the admissibility of the work of MVS Consulting GmbH under competition law. It also does not include checking whether the work of MVS Consulting GmbH is registrable or usable under trademark or other protection law. The customer is responsible for carrying out his own research.
2.2 All drafts and final artwork are subject to copyright law. The provisions of this Act shall apply between the parties even if the necessary requirements for protection, e.g. the so-called level of creation, are not met in individual cases. In such a case, the rules of copyright contract law of §§ 31 ff. UrhG apply in such a case; in addition, the parties in such a case are entitled in particular to the copyright claims under Sections 97 et seq. UrhG.
2.3 The drafts and final artwork may not be changed or passed on to third parties either in the original or in reproduction without the express consent of MVS Consulting GmbH. Any imitation – even of parts – is not permitted. A breach of section 2.3 sentences 1 and 2 shall entitle MVS Consulting GmbH to demand a contractual penalty amounting to 100% of the agreed remuneration or the usual remuneration according to the AGD collective agreement for design services (latest version) in addition to the remuneration payable in any case.
2.4 MVS Consulting GmbH shall grant the client the rights of use required for the respective purpose. Unless otherwise agreed, only the simple right of use shall be granted in each case. Any transfer of the rights of use to third parties shall require a written agreement.
2.5 The rights of use shall not pass to the client until the remuneration has been paid in full.
2.6 MVS Consulting GmbH shall be named as the author on the reproductions. Any breach of this provision shall entitle MVS Consulting GmbH to demand a contractual penalty amounting to 100% of the agreed remuneration or the usual remuneration in accordance with the AGD collective agreement for design services (latest version) in addition to the remuneration payable in any case.
2.7 Suggestions made by the Client or its employees or its or their other cooperation shall have no influence on the amount of the remuneration. They do not constitute a joint copyright.
2.8 The drafts and final artwork may only be used for the agreed scope of use (in terms of time, space and content). Any use beyond the agreed scope of use (in terms of time, space and content) shall not be permitted and shall entitle MVS Consulting GmbH to demand a contractual penalty amounting to 100% of the agreed remuneration or the usual remuneration according to the AGD collective agreement for design services (latest version) for this extended use in addition to the remuneration to be paid in any case.
3. REMUNERATION
3.1 Drafts and final artwork, together with the granting of rights of use, form a single service. Remuneration shall be based on the AGD collective agreement for design services, unless otherwise agreed. The fees are net amounts which are to be paid plus the statutory value added tax.
3.2 If no rights of use are granted and only drafts and/or final artwork are supplied, the remuneration for use shall not apply.
3.3 The production of drafts and all other activities performed by MVS Consulting GmbH for the client shall be subject to a charge, unless expressly agreed otherwise.
4. DUE DATE OF PAYMENT, ACCEPTANCE, DEFAULT
4.1 Payment is due upon delivery of the work. It is payable without deduction. If the ordered work is accepted in parts, a corresponding partial payment shall be due upon such partial acceptance. If an order extends over a longer period of time or requires MVS Consulting GmbH to make large financial advance payments, appropriate payments on account shall be made, namely 1/3 of the total remuneration when the order is placed, 1/3 after completion of 50% of the work and 1/3 after delivery.
4.2 Acceptance may not be refused for creative-artistic reasons. There is freedom of design within the scope of the order.
4.3 In the event of default in payment, MVS Consulting GmbH may demand default interest of 9 percentage points above the respective prime rate of the European Central Bank per annum. The right to claim proven higher damages shall remain reserved.
5. SPECIAL SERVICES, INCIDENTAL AND TRAVEL EXPENSES
5.1 Special services such as the reworking or modification of final artwork, manuscript study or print monitoring shall be invoiced separately according to the time required in accordance with the AGD collective agreement for design services (latest version).
5.2 After prior consultation with the customer, MVS Consulting GmbH shall be entitled to order the external services required to fulfill the order in the name and for the account of the customer. The customer undertakes to grant MVS Consulting GmbH corresponding authorization.
5.3 Insofar as contracts for third-party services are concluded in the name and for the account of MVS Consulting GmbH in individual cases, the customer undertakes to indemnify MVS Consulting GmbH internally against all liabilities arising from the conclusion of the contract.
5.4 Expenses for ancillary technical costs, in particular for special materials, for the production of models, photos, intermediate shots, reproductions, typesetting and printing etc. shall be reimbursed by the customer.
5.5 Travel costs and expenses for trips to be undertaken in connection with the order and agreed with the client shall be reimbursed by the client.
6. OWNERSHIP OF DESIGNS AND DATA
6.1 Only rights of use shall be granted to drafts and final artwork, but ownership shall not be transferred.
6.2 The originals shall be returned to MVS Consulting GmbH undamaged after a reasonable period of time, unless otherwise agreed in writing. In the event of damage or loss, the customer shall reimburse the costs necessary to restore the originals. The right to claim further damages shall remain unaffected.
6.3 The data and files created in fulfillment of the contract shall also remain the property of MVS Consulting GmbH. MVS Consulting GmbH shall not be obliged to return data and files to the customer. If the customer wishes them to be handed over, this shall be agreed and remunerated separately.
6.4 If MVS Consulting GmbH has made data and files available to the customer, these may only be changed with the prior consent of the designer.
6.5 The shipment of all items mentioned in clauses 6.1 to 6.4 shall be at the risk and for the account of the client.
7. PROOFREADING, PRODUCTION SUPERVISION,
SPECIMEN COPIES AND SELF-PROMOTION
7.1 Correction samples must be submitted to MVS Consulting GmbH before duplication is carried out.
7.2 Production supervision by MVS Consulting GmbH shall only take place on the basis of a special agreement. If MVS Consulting GmbH assumes responsibility for production monitoring, it shall be entitled to make the necessary decisions and issue corresponding instructions at its own discretion.
7.3 The customer shall provide MVS Consulting GmbH with 10 perfect specimen copies of all reproduced work free of charge. MVS Consulting GmbH shall be entitled to use these samples and all work produced in fulfillment of the contract for the purpose of self-promotion in all media and otherwise to draw attention to its work for the customer.
8 LIABILITY
8.1 MVS Consulting GmbH shall only be liable for damage incurred, e.g. to templates, films, displays, layouts etc. provided to it, in the event of intent and gross negligence. In the event of damage resulting from injury to life, limb or health, MVS Consulting GmbH shall also be liable for slight negligence. Otherwise, it shall only be liable for slight negligence if an obligation is breached, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligation).
8.2 MVS Consulting GmbH shall not assume any liability towards the customer for orders placed with third parties in the name and for the account of the customer, unless MVS Consulting GmbH is at fault in the selection process. In such cases, MVS Consulting GmbH shall only act as an intermediary.
8.3 With the approval of drafts or final artwork by the customer, the customer shall assume responsibility for the technical and functional accuracy of the product, text and image.
8.4 MVS Consulting GmbH shall not be liable for any drafts or final artwork approved by the client in this way.
9. WARRANTY
9.1 Complaints about obvious defects must be made in writing to MVS Consulting GmbH within 6 months of delivery of the work. Timely dispatch of the complaint shall suffice to meet the deadline.
9.2 The customer shall inform MVS Consulting GmbH immediately of any defects. The customer shall identify the defect within reasonable limits, narrow it down and document it in writing. In the event of significant defects, the customer shall have a claim against MVS Consulting GmbH for subsequent performance / rectification.
9.3 As long as MVS Consulting GmbH fulfills its obligations to rectify the defects, the customer shall not have the right to demand a reduction in payment or rescission of the contract, unless the rectification of defects has definitively failed. The customer shall be obliged to support MVS Consulting GmbH to the best of its ability in the event of a possible rectification of defects. The right to rectification shall also apply to defects in any content provided by MVS Consulting GmbH as part of the performance of the contract and previously purchased and/or licensed by MVS Consulting GmbH (e.g. texts, photographs, illustrations from third parties, etc.).
10. FREEDOM OF DESIGN, EXECUTION OF THE ORDER AND TEMPLATES
10.1 There is freedom of design within the scope of the order. Complaints regarding the artistic design are excluded. If the client wishes to make changes during or after production, he shall bear the additional costs incurred as a result.
10.2 If the execution of the order is delayed for reasons for which the client is responsible, MVS Consulting GmbH may demand an appropriate increase in remuneration. In the event of intent or gross negligence, it may also assert claims for damages. The assertion of further damages caused by delay shall remain unaffected by this.
10.3 The customer warrants that it is authorized to use all templates provided to MVS Consulting GmbH. If, contrary to this assurance, it is not authorized to use them, the customer shall indemnify MVS Consulting GmbH against all third-party claims for compensation.
11. TERMINATION OF CONTRACT
Should the client terminate the contract prematurely, MVS Consulting GmbH shall receive the agreed remuneration, but must allow any expenses saved or replacement orders carried out or maliciously omitted to be offset (§ 649 BGB). However, the parties agree on a lump sum for the services and expenses incurred up to the termination as follows: In the event of termination before the start of work: 10% of the agreed remuneration or, if no such remuneration has been agreed, 10% of the usual remuneration in accordance with the AGD collective agreement for design services (latest version). Individual agreements deviating from this are of course possible. The client reserves the right to provide evidence of lower actual services or expenses.
12. FINAL PROVISIONS
12.1 If the customer is a registered trader within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of performance and jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of MVS Consulting GmbH. MVS Consulting GmbH shall also be entitled to take legal action at the customer’s headquarters.
12.2 The law of the Federal Republic of Germany shall apply. The application of the United Nations Vienna Convention on Contracts for the International Sale of Goods of April 11, 1980 (UN Sales Convention or CISG) shall be excluded.
12.3 MVS Consulting GmbH shall be entitled to record and store the data about the customer of which it becomes aware in an electronic data processing system and to utilize it for its business purposes.
Status: 05.2024
