| 1. | General Conditions |
|---|---|
| 1.1 | The following terms and conditions apply to legal transactions and services of 2HM Business Services GmbH (hereinafter “2HM BS”) with its purchasers. Conflicting terms and conditions or contrary terms of the purchaser are not recognized, unless 2HM BS has consented in writing. |
| 1.2 | The respective current version of these terms and conditions also applies to all future transactions with the purchaser even if its validity is not reiterated specifically. |
| 2. | Scope of services /handling of purchaser assignments/duties |
| 2.1 | The scope of services is based on the product/service description in 2HM BS’ written offer. Additional and/or subsequent changes in the product/service descriptions require 2HM BS’ written confirmation. |
| 2.2 | The purchaser has to object immediately to the content of meeting minutes generated by 2HM BS if it does not want to be held to their content. |
| 2.3 | 2HM BS is entitled to partial performances as long as they don’t constitute an unreasonable burden on the purchaser. |
| 2.4 | Without prior agreement, 2HM BS is not obliged to hand over intermediate results, designs, layout, source files, etc. pertaining to contractual performance. |
| 2.5 | Without prior agreement, the patent, copyright and trademark protection or registrability of the ideas, suggestions, concepts, designs and other services supplied under the contract will not be extended. |
| 2.6 | The risk of whether the services provided by 2HM BS are permissible under competition and/or protection law is borne by the client. 2HM BS does not confirm the legal validity of the services. Competition, advertising, trademark or other legal rules need only be examined by 2HM BS if expressly agreed so in writing, in which case the additional costs, e.g. retaining a law firm, are borne by the purchaser. 2HM BS assumes no liability for registrability of designs and services under trademark law. |
| 3. | Purchaser’s contributory performances |
| 3.1 | The purchaser supports 2HM BS in fulfilling its contractual services. In particular, this includes the provision of timely information, materials, data, including any access data, as well as hardware and software to the extent required by the purchaser’s contributory performances. When the assignment is commissioned, the purchaser will select a technically competent and authorized decision maker as contact for the contractor. |
| 3.2 | The contact will provide the contractor with the documents and information required to carry out the work. |
| 3.3 | Information to be provided by the purchaser is to be made available in a standard, directly usable digital format. The detailed requirements are defined in the offer’s performance specifications. If the content provided by the purchaser needs to be converted to a different format, the purchaser bears the costs being incurred at 2HM BS’s customary hourly rate. |
| 3.4 | If the purchaser recognizes that his own requirements or informational content provided are incorrect, incomplete, ambiguous or not feasible, he will immediately inform and notify 2HM BS of the identifiable consequences. |
| 3.5 | Performance contributions owed by the purchaser under the contract will not be refunded or credited against the remuneration agreed with 2HM BS, unless expressly agreed otherwise. |
| 4. | Award of a contract to a third party |
| 4.1 | 2HM BS is authorized to either perform the work assigned or outsource it to third parties. |
| 4.2 | 2HM BS is entitled but not obliged to outsource the production of promotional materials and/or purchase of photos, images or graphics in the name of and on behalf of the purchaser unless the purchaser explicitly gives other instructions when placing the order. 2HM BS is entitled to accept industry-standard terms and conditions for assignments that will be billed to the purchaser. The purchaser hereby grants the appropriate authorization. |
| 4.3 | 2HM BS assumes no liability for third-party services that were commissioned on behalf of the client under the above item 4.2 or brokered by 2HM BS. This is especially true for the services of photographers, models, print shops, shipping companies and other so-called letter shop services. As a rule, those services are only brokered by 2HM BS. The contract is concluded directly between the third parties and the customer. In those cases, the customer is advised to contact the third party providing the services directly. |
| 5. | Shipment and shipping deadlines |
| 5.1 | Shipping/manufacturing times and shipping/manufacture dates are only binding if 2HM BS confirms the commitment in writing. They are only valid if the purchaser has properly fulfilled any contributory obligations (e.g. procurement of documents, approvals, provision of information, access data, images, films and other content required to carry out the contract, preparation of service catalogs/requirement specifications). In the event of unforeseen impediments outside of 2HM BS’s control, shipping/manufacturing time will be extended if such obstacles are shown to have a significant impact on the time periods within which the items can be shipped. The delivery period will be extended in proportion to the duration of such measures and impediments. 2HM BS will immediately notify the client of the start and end of such impediments. |
| 5.2 | Templates and designs provided by 2HM BS are only binding with regard to color, image, line or sound design if the corresponding implementation option has been confirmed in writing by 2HM BS. |
| 5.3 | If 2HM BS falls behind with its performance targets, it will first be granted a reasonable grace period. After the grace period expires, the customer may withdraw from the contract. Compensation for damages caused by the delay can only be claimed up to the amount of the contract value. |
| 6. | Performance amendments |
| 6.1 | If the purchaser wants to amend the contractually defined scope of services, 2HM BS will be informed in writing. 2HM BS will examine the desired purchaser amendment and its impact on the existing agreement. The examination will be compensated at 2HM BS’s usual hourly rate. |
| 6.2 | 2HM BS informs the purchaser about the result of the test. 2HM BS will either present a detailed proposal for the implementation of the requested amendment or explain why the requested amendment is not feasible. If the change is feasible, the parties will take a vote on the content of the proposal for the implementation of the request for amendment. If an agreement is reached, the contract will be changed accordingly. If no agreement is reached, the scope of the performances previously agreed to remain in place. |
| 6.3 | If and to the extent they are affected by any amendment procedure, deadlines will be moved taking into account the duration of the examination, the vote on the proposed amendment and, where appropriate, amendment requests to be implemented plus a reasonable start-up period. 2HM BS will notify the purchaser of the new deadlines. |
| 7. | Acceptance of Services |
| 7.1 | If 2HM BS provides services, the client is obligated to accept the services immediately. |
| 7.2 | If the purchaser doesn’t explicitly accept the performances rendered by 2HM BS, they are deemed accepted on the 14th day following shipment. |
| 7.3 | At the request of the purchaser, 2HM BS is obligated to release drafts and intermediate results if they can be meaningfully assessed on their own. |
| 7.4 | Amendment requests following release constitute a change in performance (cf., item 6). |
| 8. | Rights of use |
| 8.1 | Upon settlement of all bills relating to the contract, 2HM BS grants the purchaser all necessary rights of use to the extent agreed for the assignment. If in doubt, 2HM BS fulfills this obligation by granting non-exclusive usage rights in the territory of the Federal Republic of Germany for the duration of the use of the advertising material, design or programming. Any other uses beyond that, especially edits and amendments, require the prior written consent of 2HM BS. 2HM BS is not obligated to grant such consent. |
| 8.2 | Rights to use on work products that have not been fully paid for upon termination of the contract remain subject to other agreements with 2HM BS. |
| 8.3 | If photos, images or graphics of third parties have been acquired (e.g. via photo agencies) to fulfill the contract, 2HM BS will acquire the related rights in the absence of any other agreements. Related royalties will be charged to the purchaser. |
| 8.4 | If the purchaser transfers the rights of use to a third party, this requires the prior written consent of 2HM BS. |
| 8.5 | The foregoing provisions also apply to any, even partial, use of the work and services (presentations) presented by 2HM BS with the purpose of concluding a contract whether protected by copyright or not. This also applies to any use in modified or edited form, and to the use of the ideas underlying the work and achievements of 2HM BS as long as they have not been reflected in previous promotional materials used by the purchaser. Rights of use are only acquired here if a separate contract on use has been concluded. The acceptance of a presentation fee does not yet constitute consent to the use of 2HM BS’s work and accomplishments. |
| 8.6 | Templates, files, and other means of production (especially negatives, models, original illustrations, etc.) created or commissioned by 2HM BS in order to supply the outstanding performance under the contract will remain the property of 2HM BS. 2HM BS is not required to surrender or retain them. |
| 8.7 | 2HM BS has the right to use in any media any work product made for the purchaser in the context of his own advertising purposes. Insofar as the contract includes the creation of advertising material, 2HM BS must be provided with an adequate amount of advertising resources for this purpose free of charge. 2HM BS has the right to use the purchaser as a reference. |
| 9. | Prices, payment terms, late payment |
| 9.1 | 2HM BS settles bills on a monthly basis. Invoices will be issued at the end of each month. Payment is expected 14 days after the invoice has been received. All bills are settled monthly based on hourly services provided and proof of service submitted (Excel file). At the end of each assignment, a final invoice will be issued. 2HM BS is also entitled to bill for partial services. |
| 9.2 | All prices are exclusive of applicable VAT. |
| 9.3 | The agreed prices do not include packaging, freight, postage, insurance or other shipping costs. Those costs will be charged to the purchaser. Contributions to social insurance for artists, fees for collecting societies (e.g. GEMA), customs duties, or other resulting post factum charges or fees will also be charged to the purchaser. |
| 9.4 | If the parties have not agreed on remuneration, the purchaser has to pay 2HM BS’ normal rate of compensation. |
| 9.5 | As for advertising materials, the list prices published by the advertising media on the release date apply. |
| 9.6 | For each dishonored or returned debit, the purchaser has to fully compensate 2HM BS for the costs incurred. 2HM BS is entitled to charge a flat rate of EUR 2.50 without having to document any damage or expenses. If the purchaser granted direct debit authorization, 2HM BS is obliged to communicate any changes to its bank account info immediately. |
| 9.7 | Objections to bills issued by 2HM BS will be raised within two weeks from receipt of invoice. This will not affect the due date of the invoice. Failure to submit timely objections is considered an approval. |
| 9.8 | Any claims asserted by 2HM BS can only be offset by the purchaser against undisputed or legally enforceable claims. |
| 9.9 | If the purchaser is in arrears with bill payment, 2HM BS is entitled to suspend further work, even on different orders, until full payment has been received. |
| 9.10 | Any proposals made by the purchaser or the nature of his cooperation do not affect the level of remuneration. |
| 10. | Legal Warranty |
| 10.1 | With regard to the assignment in question, 2HM BS has contractual flexibility. Warranty claims regarding artistic content only apply if 2HM BS has disregarded recognized rules of the trade. |
| 10.2 | If 2HM BS provides services based on standards and specifications (technical specifications and/or specifications) provided by the purchaser, it is up to the client to verify that the requirements set forth match his wishes and needs. 2HM BS has no obligation to verify that the standards included in the requirement specifications or terms of reference match the purpose for which they’re designed. |
| 10.3 | 2HM BS’s warranty obligation is limited to the repair of a defect within a reasonable time. If it fails to carry out repair within those parameters, the purchaser reserves the right to demand a price reduction or cancellation of the contract. |
| 10.4 | The right to claim damages under rules other than warranty rules remains unaffected. |
| 10.5 | The statute of limitations expires after one year. |
| 10.6 | The contracts concluded between the parties are subject to a cancellation period of 6 weeks at the end of the quarter, unless otherwise stipulated in the contract. Cancellations must be made in writing. |
| 11. | Liability |
| 11.1 | 2HM BS is fully liable under the statutory provisions in cases of intent or gross negligence or for any damage arising from injury to life, body or health, due to the mandatory provisions of the Product Liability Act, as well as for breach of copyright by third parties under the contractual services used. |
| 11.2 | In the case of culpable violation of essential contractual obligations, 2HM BS’s liability will be limited in proportion to the typically foreseeable damage to the respective contract value, and in the event of a continuing obligation to the remuneration to be paid in the respective calendar year. If, in individual cases, the order value does not match typically foreseeable damage, the liability of 2HM BS will be limited to the sum of the liability insurance of 2HM BS. |
| 11.3 | No further liability exists on the part of 2HM BS. 2HM BS is not liable for damages to third parties, loss of profit or loss of data. |
| 11.4 | The preceding limitation of liability also applies mutatis mutandis to the legal representatives, employees and agents of 2HM BS. |
| 12. | Third-Party Content |
| 12.1 | 2HM BS is not responsible for materials and content, including images and graphics provided by the purchaser. 2HM BS is not obliged to review the materials and contents for possible legal violations. Particularly, 2HM BS is not liable for images or footage provided. |
| 12.2 | The purchaser will hold 2HM BS harmless in the event that 2HM BS itself is sued on the basis of the materials and contents, images, graphics or footage provided. |
| 13. | Retention of title |
| All physical services provided remain property (reserved goods) of 2HM BS until all of 2HM BS’s monetary claims from its business relationship with the purchaser – even if payments for specific performances were already furnished – have been settled in full. | |
| 14. | Confidentiality |
| 14.1 | The parties agree to maintain confidentiality about the contents and conditions of this contract and the insights obtained during its execution. |
| 14.2 | 2HM BS ensures that only employees involved in a specific project will receive access to confidential information pertaining to this project. The confidential documents the client makes available to 2HM BS will be destroyed by 2HM BS once the assignment has been completed (DIN 32757-1 security level 3 – also security level 4 or 5 at additional cost, if requested) or returned to the client upon request. Evaluation data and calculations are deleted no later than six months after the project ends. |
| 14.3 | The purchaser will use any offer obtained by 2HM BS only for its own purposes. All rights to it are reserved to 2HM BS. The offer or parts of the offer may not be copied, reproduced or processed electronically, nor reproduced or distributed without the prior written consent of 2HM BS. |
| 14.4 | Confidentiality applies even after termination of contractual relations. |
| 14.5 | Upon request, any documents provided will be returned to their originator upon termination of the contract, unless the other party has a legitimate claim to those documents. |
| 15. | Privacy Policy |
| 15.1 | The purchaser is advised that the personal information required to facilitate the contractual relationship will be stored on data carriers by 2HM BS. The purchaser expressly agrees to the collection, processing and use of personal data. |
| 15.2 | The purchaser agrees that personal data (master data) and other information concerning his usage behavior (connection data), e.g. timing, number and duration of connections, access passwords, uploads and downloads will be stored by 2HM BS during the duration of the contract to the extent required to carry out the contract. The purchaser consents to the collection and storage of the data described above. The continuance data collected is also processed and used by 2HM BS for purposes of advising its clients, its own advertising and market research and for tailoring its services to client needs. The purchaser is entitled to object to such use of his data. 2HM BS will not forward the data to third parties without his consent. This does not apply only if the data are already available to the public or 2HM BS is required by law to disclose such data to third parties, including law enforcement authorities or to the extent prescribed by internationally accepted standards not objected to by the client. |
| 16. | Designation of reference |
| 2HM BS is entitled to use the purchaser as a reference, including logo display on the site. | |
| 17. | Final Provisions |
| 17.1 | Should a provision become invalid, the validity of the other provisions shall remain unaffected. In addition, the parties undertake to replace the invalid provision with a valid provision that most closely approximates the economic purpose of the invalid provision. |
| 17.2 | Place of performance and venue for all claims arising from the contractual relationship and legal disputes is 2HM BS’ headquarters, provided the client is a merchant or a legal entity under public law. |
| 17.3 | German law has exclusive jurisdiction, even if the purchaser’s headquarters are abroad. |
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