General Terms and Conditions of Mo­ni­teurs GmbH

1 Copyright and Rights of Use

1.1 Each order placed with Moniteurs shall be a copyright contract directed to the granting of rights of use to the work performances.

1.2 All drafts and final artwork are subject to copyright law. The provisions of the Copyright Act shall also apply between the parties if the necessary requirements for protection should not be met in individual cases. Thus, Moniteurs shall be entitled in particular to the copyright claims under §§ 97 et seq. Copyright Act.

1.3 The drafts and final artwork may not be changed, neither in the original nor in the reproduction, without the express consent of Moniteurs. Any imitation – even of parts – shall be inadmissible. A violation of this provision shall entitle Moniteurs to claim a contractual penalty in the amount of twice the agreed remuneration. If no remuneration has been agreed upon, the usual remuneration according to the collective agreement for design services SDSt/AGD shall be deemed agreed upon.

1.4 Moniteurs shall transfer to the Principal the rights of use required for the respective purpose. Unless otherwise agreed, only the simple right of use shall be transferred. A transfer of the rights of use to third parties shall require a prior written agreement between Moniteurs and the Principal. In the absence of an explicit agreement, the purpose of the contract shall only be the purpose made recognizable by the principal at the time of placing the order to the corresponding extent.

1.5 The rights of use shall only be transferred to the Principal after full payment of the remuneration by the Principal.

1.6 Moniteurs shall have the right to be named as the author on the reproductions and in publications about the product. A violation of the right to be named shall entitle Moniteurs to damages. Without proof of damage, Moniteurs may claim 100% of the agreed remuneration or the remuneration customary according to the collective agreement for design services SDSt/AGD in addition thereto as damages.

1.7 Suggestions and instructions of the Client or its employees and agents shall not affect the amount of the remuneration. They do not constitute a joint copyright.

2 Remuneration

2.1 The remuneration for drafts, final artwork and the granting of rights of use shall be based on the collective agreement for design services SDSt/AGD, unless other agreements have been made. Even the preparation of drafts is subject to a fee, unless expressly agreed otherwise. The fees are net amounts which are to be paid plus the statutory value added tax.

2.2 If the drafts are used later or to a greater extent than originally intended, Moniteurs shall be entitled to claim the difference between the higher remuneration for the actual use and the remuneration originally received.

2.3 If Moniteurs’ remuneration is agreed upon on the basis of time spent, Moniteurs’ currently valid remuneration rates shall be decisive for the remuneration of time spent, unless otherwise agreed upon. Moniteurs shall be entitled to change or supplement the rates of remuneration on which the agreements are based at its reasonable discretion (§ 315 BGB). Cost estimates or budget plans prepared by Moniteurs shall not be binding.

3 Special Services, Travel and Incidental Expenses

3.1 Special services, such as the reworking or modification of final artwork or approved texts, print monitoring, etc. shall be charged separately according to the time spent in accordance with the collective agreement for design services SDSt/AGD.

3.2 Moniteurs shall be entitled to order external services necessary for the performance of the order in the name and for the account of the Principal. The Principal undertakes to grant Moniteurs the corresponding written power of attorney.

3.3 As far as in individual cases contracts for external services are concluded in the name and for the account of Moniteurs, the Principal undertakes to indemnify Moniteurs internally from all liabilities resulting from the conclusion of the contract. This includes in particular the assumption of costs.

3.4 Expenses for technical incidental costs, in particular for special materials, for the production of models, photos, intermediate shots, reproductions, typesetting and printing, etc., shall be reimbursed by the Principal.

3.5 Travel costs and expenses for trips to be undertaken in connection with the order and agreed upon with the Principal shall be reimbursed by the Principal.

3.6 Insofar as Moniteurs renders services and performances which are not expressly subject matter of the contract and therefore are not charged to the Principal, these may be discontinued at any time and without prior notice. This shall not result in a claim for reduction, reimbursement or damages.

4 Due date for payment, acceptance

4.1 Unless otherwise stated in the order confirmation, the remuneration shall be due upon delivery of the work. It shall be payable without deduction.

4.2 Acceptance may not be refused on artistic grounds. There is freedom of design within the scope of the order.

4.3 If the ordered work is accepted in parts, a corresponding partial payment shall be due upon acceptance of the respective part. If an order extends over a longer period of time or if it requires Moniteurs to make high financial advance payments, appropriate down payments shall be made, namely 1/3 of the total remuneration when the order is placed, 1/3 after completion of 50% of the work, 1/3 after delivery.

4.4 In case of default of payment, Moniteurs may charge default interest in the amount of 8% above the respective base interest rate of the European Central Bank p.a.. The assertion of a proven higher damage shall remain unaffected by this as well as the right of the Principal to prove a lower charge in individual cases.

4.5 Moniteurs shall not be responsible for delays in performance due to force majeure (e.g. strike, lockout, official orders, general disturbances of telecommunication, shortage of raw materials or energy) and circumstances within the responsibility of the Principal (e.g. non-timely provision of cooperation services, delays by third parties attributable to the Principal, etc.) and shall be entitled to postpone the performance of the affected services by the duration of the hindrance plus a reasonable start-up time. Moniteurs shall notify the Principal of delays in performance due to force majeure.

5 Retention of title

5.1 Only rights of use are granted for drafts and final artwork, but no ownership rights are transferred.

5.2 Unless expressly agreed otherwise, the originals must therefore be returned undamaged as soon as the Client no longer urgently requires them for the exercise of rights of use. In the event of damage or loss, the Client shall reimburse the costs necessary to restore the originals. The assertion of further damages remains unaffected.

5.3 The dispatch of the works and originals shall be at the risk and for the account of the Client.

6 Release of Data

6.1 Moniteurs shall not be obliged to surrender data carriers, files and data. If the principal wishes the designer to provide him with data carriers, files and data, this must be agreed upon in writing and paid for separately.

6.2 If the Designer has provided the Client with data carriers, files and data, these may only be modified with the Designer’s consent. The content of html files is expressly excluded from this provision, but not the program code.

6.3 The client shall bear the risk and costs of transporting data carriers, files and data online and offline.

6.4 The Designer shall not be liable for defects in data carriers, files and data except in cases of intent and gross negligence. The Designer shall not be liable for defects in data carriers, files and data that occur during data import to the Client’s system.

7 Correction, sample and monitoring

7.1 Production supervision by Moniteurs shall only take place on the basis of a special agreement. When Moniteurs takes over the production supervision, it shall be entitled to make the necessary decisions and give the corresponding instructions at its own discretion. It shall be liable for errors only in case of its own fault and only for intent and gross negligence.

7.2 Moniteurs shall not be liable for the correct representation of images, repros and photos provided and used by the Principal in printed form. Should the Principal wish to have binding colors, the pictures shall be corrected and agreed upon with a proof before printing. Any costs incurred for this shall be borne by the Client.

7.3 The Customer shall provide Moniteurs with 10 to 20 perfect, unfolded samples of all reproduced Work free of charge. Moniteurs shall be entitled to use these samples for its own advertising purposes.

8 Liability

8.1 Moniteurs undertakes to execute the order with the greatest possible care, in particular also to handle with care templates, films, displays, layouts etc. provided to it.
Moniteurs shall only be liable for damages caused intentionally or by gross negligence. This also applies to damages resulting from a positive breach of contract or tort.
Moniteurs shall only be liable for slight negligence in the event of a breach of a material contractual obligation (cardinal obligation) and in the event of damage resulting from injury to life, body or health.
In case of slight negligence, the liability is limited to the amount of the foreseeable damage, the occurrence of which must typically be expected. In any case, liability is limited to € 25,000. Any compensation for damages exceeding the material value shall be excluded.

8.2 Moniteurs undertakes to carefully select and instruct its vicarious agents. Beyond that, he shall not be liable for his vicarious agents.

8.3 If Moniteurs commissions necessary external services, the respective contractors shall not be vicarious agents of Moniteurs. It shall only be liable for its own fault and only for intent and gross negligence.
Any liability of Moniteurs for the services and work results of the commissioned service providers shall be excluded.

8.4 Moniteurs shall not be liable in case of non-performance, deficiency in performance or default of advertising media or other third party agents who are not its vicarious agents.

8.5 With the approval of drafts or final artwork by the Principal, the latter shall assume responsibility for the correctness of text and images.

8.6 Moniteurs shall not be liable for drafts, texts and final artwork approved by the Principal. After the print approval by the Principal, Moniteurs shall be released from any responsibility for the correctness of the submitted documents.

8.7 Moniteurs shall not be liable for the admissibility and registrability of the work under competition and trademark law.

8.8 Moniteurs shall not be liable for the legal harmlessness of an advertisement, in particular Moniteurs shall not be obliged to have every design legally examined beforehand.

8.9 Moniteurs shall only assume liability for the registrability and protectability of designs upon agreement.

8.10. Complaints of any kind must be made in writing to the designer within 7 days after delivery of the work. Thereafter, the work shall be deemed accepted as free of defects.

8.11. The limitations of liability shall also apply to Moniteurs’ vicarious agents.

9 Freedom of design and templates

9.1 There shall be freedom of design within the scope of the order. Complaints regarding the artistic design are excluded. If the customer wishes to make changes during or after production, he shall bear the additional costs. Moniteurs retains the right to remuneration for work already begun.

9.2 If the execution of the order is delayed for reasons for which the Principal is responsible, Moniteurs may demand an appropriate increase of the remuneration. In case of intent or gross negligence, he may also claim damages. The assertion of further damage caused by delay shall remain unaffected.

9.3 The Principal assures that he is entitled to use all templates handed over to Moniteurs and that these templates are free of third party rights. If, contrary to this assurance, he is not entitled to use them or if the originals are not free of third party rights, the Principal shall indemnify Moniteurs internally against all third party claims for compensation.

10 Miscellaneous

10.1 The assignment of claims shall only be permissible with the prior written consent of the other contracting party. Such consent may not be unreasonably withheld. The provision of § 354a of the German Commercial Code (HGB) shall remain unaffected.

10.2 A right of retention may only be asserted on the basis of counterclaims arising from the respective contractual relationship.

10.3 It is agreed that offsets may only be made with legally established or undisputed claims.

10.4 Moniteurs may name the Principal as reference customer on its website or in other media. Furthermore, Moniteurs may publicly reproduce or refer to the services rendered for demonstration purposes, unless the Principal can prove a contrary, legitimate interest.

11 Final Provisions

11.1 Place of performance shall be the registered office of Moniteurs, unless otherwise stated in the order confirmation.

11.2 The parties shall replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same shall apply to any loopholes in the agreement.

11.3 All amendments and additions to contractual agreements must be recorded in writing for proof. Notices of termination shall be made in writing. Notifications that must be made in writing may also be made by e-mail.

11.4 General terms and conditions of the Client shall not become part of the contract.

11.5 The law of the Federal Republic of Germany shall apply to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.

11.6 The exclusive place of jurisdiction for all legal disputes arising from or in connection with this contract shall be Moniteurs’ registered office.
In case the Customer does not have a general place of jurisdiction in the Federal Republic of Germany or moves its registered office or habitual residence abroad after conclusion of the contract, the registered office of Moniteurs shall be agreed upon as place of jurisdiction.