Terms & Conditions
WHITE Communications GmbH
Innsbrucker Ring 15, 81673 München, Germany
§ 1 SCOPE OF THE TERMS & CONDITIONS
For all offers, deliveries and supplies of WHITE Communications GmbH (Innsbrucker Ring 15, 81673 München, Germany) exclusively the following terms and conditions shall apply. It shall be agreed upon between WHITE and the client at the time of the first conclusion of a contract that these provisions shall equally apply to all ensuing transactions - even those contracted orally, in particular over the telephone - as well as to contracts for the performance of a continuing obligations (Dauerschuldverhältnisse), which arise from the contractual relation between WHITE and the client (in particular Media Care Agreements (Media-Betreuungsverträge), Media Planning Services and the like).
These standard business conditions shall apply exclusively. Contradictory standard business conditions (Allgemeine Geschäftsbedingungen), in particular any general terms and conditions of the client shall not apply; even if WHITE does not expressly refutes such general terms and conditions or if WHITE delivers the services without reservation regardless of WHITE's knowledge of such client's general terms and conditions.
Particular and ancillary agreements or covenants shall only take effect if confirmed in writing by WHITE.
§ 2 OFFER PLACEMENT OF AN ORDER, CONCLUSIONS OF CONTRACT
Proposal submitted in the draft stage shall not be considered as offers, if not otherwise expressly agreed upon.
A contract shall only be considered as concluded, if not otherwise expressly agreed upon, upon confirmation of the order, performance of the services, delivery or issuing of an invoice by WHITE.
WHITE works as an autonomous, independent enterprise. WHITE unfolds efforts to meet the personal and factual requirements necessary to complete the task according to the task and time-limit specifications by the client, to preserve maximum objectiveness and to represent the interests of the client - in particular in the selection and commissioning of third parties - in any conceivable manner.
WHITE is solely obliged to compile the draft and, respectively, to carry out the project planning. Should other services beyond this become necessary (e.g. passing for press or market research, WHITE is entitled to have these services performed in the name and for the account of the client. Sec. 184 of the German Civil Code (BGB) shall apply.
In the event that the client should desire modifications of the defined development stages, WHITE is entitled to accept these modifications subject to the agreement on additional remuneration. Should a delay in the time-line emerge from such accepted modification (post calculation), WHITE shall inform the client of such delay immediately. Any deadlines shall be extended accordingly. Additional costs in connection with the evaluation of such modifications shall be borne by the client.
It shall be in WHITE's discretion to call upon third parties seemingly fit for the purpose to carry out the contractual services. Before an order with a third party is placed, WHITE shall inform the client of the nature and the price of the third party service, if this is agreed upon between the parties.
WHITE hereby assumes the obligation to keep confidential any and all business or trade secrets with the diligence of a prudent businessman (Sorgfalt eines ordentlichen Kaufmanns) and to treat any and all such information and documents confidentially.
All prices are stated without Value-Added Tax; Value-Added Tax shall fall due on top of the stated price in the amount due according to the legislation applicable on the day of invoicing.
Insofar as not agreed upon differently, of WHITE shall charge its services according to a fee schedule. The charges are determined according to the fee schedule (Preisliste) of WHITE applicable on the day the respective activity is accomplished. If the price determined in this manner is more than 10% higher than the price applicable on the day of the conclusion of the contract, the price shall be reduced insofar as for every 1% the actual price is above the original price by more than 10%, only 0.5% shall fall due. This shall not apply to orders that are fully transacted within 4 months. In the latter event, the remuneration shall be determined according to the fee schedule applicable at the time of the order confirmation.
In the framework of contracts for the performance of continuing obligations (Dauerschuldverhältnisse), WHITE shall be entitled to appropriate modifications (angemessene Anpassungen) of the price in the event of change of the circumstances of the contract.
Expenses, e.g. for materials, clear drawings, translations, auditory or audio-visual advertising media, courier cost, author's alterations, travel and other expenses, costs of procurement and organisation, transfer of copyright as well as technical cost such as for passing for print, photographs, prints from photographs, tools and production of advertising material and services of contracted third party specialists (i.e. market research) will be - insofar as not expressly stated with a price statement in the order confirmation - separately billed according to the respective expenditure involved. Any flat-rate payment arrangements apply to WHITE's own services only and do not include any third party services. Any agency commission shall be fully at WHITE's disposal.
If a concept drawn up by WHITE and authorised by the client is not carried out for reasons not imputable to WHITE, WHITE's claim for remuneration shall remain unaffected. In this case possible third party costs shall be fully borne by the client.
If a third party order is executed by WHITE upon request of the client, WHITE shall bill 15% of the order value as a handling fee (Bearbeitungspauschale). If, in the course of the handling of a production, third party offers are called, but the order is placed otherwise by the client, WHITE shall bill the cost and expenditure for calling the offers according to time and cost expenditure.
If the fee is financed by the intermediary commission from the advertisement volume, the advertisement volume quoted in the order must be carried out within one year. Otherwise, WHITE shall bill the expenditure according to the remuneration quoted in the fee schedule.
WHITE shall be entitled to demand appropriate advance payments. The amount shall be aligned with the relationship between the services rendered and the aggregate volume of the services due pursuant to contract. A demand for advance payment may not exceed by more than 10%, determined in accordance with the services already completed, such relationship.
§ 5 CO-OPERATION DUTIES AND WARRANTIES BY THE CLIENT
The client shall be obliged to put at WHITE's disposal, any and all information necessary for the appropriate execution of the order at no cost within two weeks after order confirmation. He or she shall be further obliged to point out to the client, at the latest within two weeks after order confirmation unsolicited any circumstances that could be significant for the rendering of the supplies or services by WHITE and of which the client may recognize that they were unknown to WHITE.
Insofar as WHITE and the client define common development stages, the client shall be obliged to conform to all necessary co-operation obligations in keeping with these steps. The acceptance and clearance of the development steps shall be made in writing. The agreed co-operation obligations are not conclusive. The client is obliged to comply with any requests from WHITE for the provision of additional cooperation services to a reasonable extent, as far as these may be reasonably required to fulfil the specific individual order.
The client warrants that he or she holds the rights of use for any material, in particular image, name or buy-out rights, which is delivered by the client and needs to be used by WHITE to the extent necessary for the fulfilment of the contract.
WHITE is entitled to terminate the contract with immediate effect or to withdraw from the contract if the client does not conform to his or her co-operation obligations after appropriate appointment of a deadline. In the event of a termination or withdrawal notice, WHITE shall be entitled to set-off any and all work expense accrued up to this point according to the list of hourly fee rates.
The appointment of a deadline shall be legally superfluous if the client definitely refuses co-operation or if the contractual activity cannot achieve the desired result on the grounds of lacking co-operation.
§ 7 DELEVERY DATE, PARTIAL DELIVERY
Transaction for delivery by a fixed date shall not be contracted.
The compliance with delivery dates agreed upon is subject to the fact that all required co-operative actions and all co-operation obligations have been fulfilled in time. If this does not occur and a punctual delivery of the service is no more possible, at extra expense and extra cost accepted by the client, the time limit for delivery shall be extended by an appropriate period of time. All costs for any additional effort caused by the client shall be borne by the client. The delivery date is considered to be kept if the delivery or the service has left the premises of WHITE or the disposition to dispatch has been communicated.
WHITE is entitled to deliver prematurely as well as to deliver partially. Partial deliveries may be billed by WHITE immediately.
§ 8 DELIVERY, DELIVERY COSTS, TRANSPORT INSURANCE
The handing over shall occur at WHITE's place of business. The client shall be obliged to take on the delivery or service within eight days after communication of disposition to dispatch at the agreed upon place of handing over.
Insofar as the client desired delivery to take place elsewhere, WHITE shall appoint the cheapest and fastest carrier for the transport. Sec. 447 of the German Civil Code (BGB) shall apply.
Transportation insurance shall be contracted by WHITE only upon special written instruction for the account of the client.
WHITE reserves title in deliveries or work results until the complete payment, vis-à-vis merchants (Kaufleuten) until the complete payment of any and all claims from the business relationship. Should any copyrights or other usage rights/licenses be withing the scope of services, the grant or transfer of such rights shall be subject to payment of all claims from the business relationship.
The client shall be entitled to resale, pledge and transfer by way of security, lease or transportation of goods subject to this retention of title clause abroad only after previous written approval by WHITE. If it is part of the buyer's ordinary course of business to resell the goods to third persons, the buyer shall be, by way of an exception, entitle to resell the delivered goods in the ordinary course of business.
The client hereby assigns and transfers to WHITE any and all claims and accounts receivable for remuneration (e.g. arising from tortuous activity, insurance claims) already now in the amount of the invoice of the goods subject to this retention of title-clause.
In the event of third parties acceding to the goods subject to this retention of title-clause, the client is obliged to indicate WHITE's title and communicate such fact to WHITE in writing immediately. Insofar as the third party is unable to reimburse the cost of a legal proceeding pursuant to Section 771 of the German Civil Procedure Code (ZPO), the client shall be liable for any shortfall.
If the client is in default with payment, WHITE shall be entitled, after unsuccessful appointment of a deadline, to withdraw from the contract. In this event, WHITE is entitled to pick the goods subject to this retention of title-clause and to enter the premises where the goods are kept or in use. The client waives the rights which would arise from the writ of unlawful interference with the possession of another and affords WHITE access to the premises where the goods subject to this retention of title-clause are located. Any distrait of the goods by WHITE shall constitute a withdrawal from the contract.
Insofar as WHITE is unable, due to force majeure or other circumstances not imputable to WHITE, to execute delivery, the delivery term shall be extended for the duration of the event. In this case, a possible default of WHITE shall be deemed inexistent.
In the event of hindrance to performance in the sense of para. 1 of more than 3 months, both WHITE and the client, in case of non-compliance with the delivery date on grounds other than specified in para. 1 only the client, shall be entitled to withdraw from the contract with regard to the outstanding delivery. For the withdrawal of the client, it shall be a condition that WHITE has appointed a further deadline (Nachfrist) of at least three weeks.
In the event of unavailability of a promised supply which was unforeseeable at the time of conclusion of the contract, WHITE shall be entitled to withdraw from the contract. WHITE shall be obliged to communicate to the client such unavailability without undue delay and to reimburse any payments or other performances made by the client.
§ 11 DUE DATE, PAYMENT, DEFAULT IN PAYMENT
Insofar as not differently agreed upon, invoices are payable immediately without discount. A hold-back for warrantees shall be excluded. The claim for payment shall become due with handing-over of the object, or with the default of acceptance of the client. In case of project costs, payment in instalments may be covenanted. In this event, the aggregate amount shall become due for payment as follows: one half upon acceptance of the order, a quarter upon delivery of first drafts resp. upon the completion of the concept stage, a quarter upon handing-over of the delivery or the work product.
Payments must be made at no cost and no expense to the bank accounts of WHITE stated on the invoice. Bills of exchange or checks are only accepted as an additional means for fulfilment of the payment obligation.
Vis-à-vis claims of WHITE, the client may only declare the setting-off if his counterclaim is undisputed or confirmed by final court decision. The client may assert a right to refuse or to retain performance only if the claim for payment of WHITE and the counterclaim of the client arise from the same contractual relationship.
If the client is in default in payment, partially or in full, for more than 30 days, if he or she has a bill of exchange or a check protested or if an application of insolvency over his or her assets is filed, WHITE shall be entitled, without prejudice to other rights, to demand immediate payment of any and all claims against the client, to retain any and all deliveries or performances and to assert any and all rights arising from the retention of title.
WHITE shall be entitled, beyond this, to claim as damages for default interest payments in an amount of 9 percentage points, insofar as the client is not a consumer (Verbraucher) in the sense of Sec. 13 of the German Civil Code (BGB), above the respective basic interest rate (Basiszinssatz) of the European Central Bank (Sec. 247 of the German Civil Code). The assertion of damages for a greater loss by WHITE shall remain unaffected. The client shall be entitled to prove that WHITE has not suffered any or lower damage or loss.
The risk passes at the moment of handing-over of an object to the client. It shall be considered constructive handing-over if the client is in default of acceptance.
If the client is an entrepreneur (Unternehmer) in the sense of Sec. 14 of the German Civil Code (BGB), the risk shall pass to the client as soon as WHITE has delivered the object to the carrier or any other person otherwise charged with the execution of the transport.
§ 13 DUTY OF EXAMINATION AND NOTICED IN CASE OF NON-COMFORMITY
Insofar as the client is a merchant (Kaufmann) in the sense of the German Commercial Code (HGB), he shall examine the goods immediately after handing-over by WHITE insofar as this is in keeping with the ordinary course of business. If any non-conformity is detected, he shall have to communicate this fact to WHITE immediately. If such non-conformity is detected later, such communication must be made without undue delay after detection.
The rights of warranty of the client who is a merchant (Kaufmann) shall be dispended with insofar as the merchant is not in compliance with the responsibilities set out in para. 1 or as the client has not observed the instructions for installation, hardware and software environment and employment and employment conditions.
WHITE warrants in the framework of the following provisions that the deliveries and supplies are free of defects. The statements contained in catalogues, brochures, circulars, advertisements, illustrations and in price lists and the like are without obligation insofar as the client is not a consumer in the sense of Sec. 13 German Civil Code (BGB) and insofar as they are not expressly agreed upon as contained in the contract.
WHITE warrants only that the computer data provided to the client shall be tested for viruses with virus scanning software as usual in the market.
WHITE assumes no liability whatsoever for the compliance of an advertisement with the legal rules of unfair competition. WHITE is not obliged, in particular, to have drafts, be they WHITE's own or drafts of the client or of third parties engaged by the client, legally verified or to research opposing third party rights. The client shall be obliged to the client's own verification of such compliance.
Insofar as the client is not a consumer in the sense of Sec. 13 of the German Civil Code (BGB), WHITE shall be entitled in its own discretion to rectify any defects or to deliver a substitute. WHITE shall be entitled to multiple attempts of rectification insofar as this just and reasonable with respect to the interests of the client.
If WHITE refuses to subsequent performance (Nacherfüllung) or if the modus of subsequent performance due to the client has failed or is reasonably unacceptable to the client, the client may withdraw from the contract or demand a corresponding reduction of the remuneration. Withdrawal on the grounds of an immaterial defect shall be excluded.
If the client unjustifiably asserts claims for warranty protection against WHITE without having a warranty claim (e.g. user errors, improper handling of the object of the purchase, non-existence of a defect), the client shall reimburse and hold harmless WHITE of any and all costs arising from the verification of the object of the purchase, insofar as the assertion of claims against WHITE is imputable to the client for frivolous, grossly negligent or intentional or wilful behaviour.
§ 15 LIABILLITY, LIMITATION OF LIABILLITY, INDEMNIFICATION CLAUSE
WHITE shall be liable towards the client for intent, gross negligence, in case of damage to life, body or health, in case of violation of a guarantee or the German Product Liability Act for all damages caused by WHITE, WHITE's legal representatives or WHITE's vicarious agents without limitation. In case of slight negligence WHITE is liable only for breaches of material contractual obligations (an obligation whose fulfilment is required for enabling the proper fulfilment of the contract in the first place and in which the client may usually trust); in such cases WHITE's liability is limited to the typical foreseeable damage. All other liability of WHITE is excluded.
The permission to print accorded by the client shall disengage WHITE from the liability of the correctness of the presented documents. If the client has corrections carried out on its own accord, WHITE shall not incur any liability whatsoever.
Insofar as hard- or software is sold by WHITE alongside with the actual performance, WHITE shall, if required, to assign and transfer any claims of WHITE against the producer and distributor of such hard- or software to the client.
Insofar as WHITE hands over hardware in connection with the actual performance for temporary use, this shall occur at the client's risk.
If and insofar as the liability of WHITE is excluded, this shall apply for the personal liability of the managing directors, the employees, the representatives and persons employed by WHITE in the performance of WHITE'S obligations.
The client hereby holds WHITE harmless of any and all claims that are asserted against WHITE by third parties for the alteration, transfer or other exploitation of programmes, data, information, images, sounds, photographs etc, as far as such claims result from culpable acts of the client.
The responsibility for content that WHITE makes accessible online by order of the client shall, in any and every case, lie with the client. If claims are asserted against WHITE, on whatever grounds, as a responsible (Störer oder Verantwortlicher) in the sense of applicable legal provisions, WHITE shall be held harmless and be released by the client from any and all claims of third parties, as far as such claims result from culpable acts of the client.
Insofar as no consumer in the sense of Sec. 13 of the German Civil Code (BGB) participates and there is no case of a Sale of Consumer Goods (Verbrauchsgüterkauf), the time limitation of actions for defects shall amount to one year from the passing of risk.
§ 17 RIGHTS IN WORK RESULTS/SERVICES OF WHITE
Title of property and Industrial and intellectual property rights, in particular the rights to application for registrable rights in connection with the documents handed over alongside with the draft, shall remain with WHITE. The proposals of WHITE handed in in their draft state shall not be used by the client, even though these do may not enjoy copyright protection. These documents may not be made accessible to third parties.
The transfer of licensed rights to use in copyrights or other protected or protectable rights is only made for the type of use (Nutzungsart) as made out by the order confirmation, for the stated purpose of use (Nutzungszweck) as well as, if any, the stated distribution area as well as publication media, to the stated extent and volume/editions in the stated time frames.
Only upon complete payment of the remuneration including the licence fee for the transfer of the right of reproduction and distribution, the client shall receive the right to reproduce and distribute the work in volume/extent agreed upon. If the use exceed the volume/extent, time horizon and purpose, a new agreement as well as additional remuneration is required. Foreign rights or rights for further editions or publication or reproduction rights for other media not stated/contained in the order confirmation shall not be transferred nor granted. §§ 9 and 11 of the Standard Business Conditions shall remain unaffected.
Limitations apply, as the case may be, for performances that WHITE bought for the client, in particular words, music, images or artistic performances. These shall be communicated to the client in each single case. The client hereby assumes the obligation to observe these limitations.
The client shall not be entitled to work on the delivery or the performance in part or in whole, process it or to distribute it, save for if it is expressly included in the performance or delivery performance or delivery agreed upon.
The client is not entitled to reproduce delivered software partially or as a whole on hard disk or other storage medie or to feed it to publicly accessible networks, save for if this is expressly included in the performance or delivery agreed upon or by statutory law.
The originals used for the production of the employed presentation documents (exposés, treatments, drawings, plans, graphical images, prototypes etc.) as well as all such objects in stages preliminary to the final delivery or performance shall remain property of WHITE.
WHITE shall be entitled to withdraw from the granting of license if the client is in default of payment.
§ 18 PLACE OF PERFORMANCE, VENUE
For any and all claims arising form the contract concluded between the client and WHITE, the place of performance of these obligations shall be WHITE's place of business.
In the event that the client is a merchant (Kaufmann) in the sense of the German Commercial Code (HGB), Munich shall be the exclusive venue.
The laws of the federal republic of Germany shall apply. The application of the uniform international laws on sale (CISG) shall be excluded. However, this choice of law is only valid with regard to consumers to the extent that they are not deprived of the protection granted by mandatory provisions of the law of the country in which the consumer has their customary residence.
Modifications and amendments of the conditions set forth in these provisions including this provision shall need written form to be effective.
Should one or several provisions prove to be invalid, the effectiveness of the other provisions shall remain unaffected. In such case, the parties shall replace the invalid provision with a provision that provides for a corresponding commercial purpose as the invalid provision.
Where, in the text of this agreement, reference is made to German legal terms, and the English terms should lead to a conflict in meaning and/or a conflict should arise between the meaning of the translation into English, the German legal term and/or the German language version shall take precedence.