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According to § 5 TMG:
I-AM-STUDIO GmbH
Managing Director: Bernhard Schluga
Schoenleinstraße 11, 10967 Berlin
+49 30 120 845 38
info@i-am-studio.com
www.i-am-studio.com
Sales tax identification no. DE298018579
HRB 164039
Place of jurisdiction: Berlin
Responsible for the content according to § 55 Abs. 2 RStV:
I-Am-Studio GmbH
1. Validity of the General Terms and Conditions
1. By placing an order, the Customer accepts the following General Terms and Conditions. Any general terms and conditions of the Customer that differ from and conflict with our General Terms and Conditions shall not become part of the contract, even where we do not expressly object thereto, including in the event of our delivery or provision of services.
2. In cases of permanent contractual relationships, such as framework agreements for ongoing consulting and agency services, these General Terms and Conditions shall apply to any and all individual orders and service requests during the order relationship, without the need for separate inclusion in the respective individual order.
3. Terms and conditions of the Customer that are contrary to or deviate from these General Terms and Conditions shall only become effective, even where we are aware thereof, if they are expressly acknowledged by us in writing.
2. Conclusion of contracts, Obligations to perform
1. Our offers are subject to change without notice. Cost estimates drawn up by us are non- binding.
2. Contracts and amendments of contracts with us shall only enter into force if and when we have accepted orders that we have received or have provided the services ordered by the Customer.
3. We shall only provide such services that are expressly specified in our offers and/or cost estimates.
4. The subject matter of each contract is the provision of the agreed service by us, but not any specific economic success the Customer hoped for or intended.
5. We shall not owe the protection or registrability under copyright, design, competition, trademark and/or patent law of the delivered ideas, suggestions, proposals, concepts, designs, communication measures and other services.
6. Unless expressly agreed otherwise, we shall not owe the examination of any conflicting rights of third parties when creating our services. We therefore shall not owe the legal admissibility and/or usability, in particular under competition, copyright, design, trademark and/or patent law, of the ideas, suggestions, proposals, concepts, drafts, communication measures and other services provided by us. In particular, we shall conduct design, patent or trademark searches only upon special, chargeable commissioning by the Customer. We shall, however, point out possible legal risks to the Customer where we become aware thereof during the performance of the order.
7. Where we are commissioned to produce digital artwork, we shall deliver the files to the Customer or – upon the Customer’s request – to the printer. Any use or processing of the file at the supplier/printer for other purposes shall requires our consent.
8. We shall be entitled to store raw materials and ancillaries provided to us or produced by us for the creation of the respective service, in particular manuscripts,artwork, film material, photographs and final artwork with reasonable care up to the expiry of the applicable limitation period for defects.
3. Copyright, Rights of use
1. Any work may only be used or exploited for the agreed or commissioned type of use and the agreed purpose to the agreed extent. Any other or additional use shall only be permitted with our consent and, where applicable, upon agreement of an additional usage fee. The granting of rights of use shall not require that the work enjoys legal protection, such as under the German Copyright Act, the Design Patent Act, the Patent Act or the Unfair Competition Act.
2. Upon payment of the usage fee, the Customer shall acquire the right to use and exploit the work within the agreed scope. Where the Customer only pays a presentation fee, we shall retain any and all rights of use and ownership to the work submitted as part of the presentation.
3. The designs, data sets, style sheets, templates, internet programming, application programming, software tools, work drawings, constructions, compositions, music tracks or sound elements created by us, including the copyright designation, may not be changed either in the original or in reproduction without our consent in text form, unless otherwise agreed in text form. Any imitation – including of parts or details – shall not be permitted.
4. Any rights transferred to GEMA or another collecting society for administration shall remain unaffected by the transfer of the rights of use to the Customer. Any rights transferred to the collecting societies for administration shall be duly acquired separately in each case by the Customer from the responsible collecting society. The Customer shall ensure that the actual music use is brought to the attention of GEMA by submitting truthful music registrations without undue delay. Upon request, the Customer shall provide us with copies of such music registrations.
5. Suggestions of the Customer or the Customer’s other cooperation shall have no influence on the amount of the remuneration. In particular, they shall not establish any joint copyright of the Customer, unless such has been expressly agreed in text form.
6. The operating items used by us for the production of the contractual product, in particular data carriers, shall remain our property, even where they are invoiced separately, and shall not be supplied to the Customer. This shall also apply analogously to any and all other data stored in connection with the performance of the order.
7. By placing the respective order, of which these General Terms and Conditions are an integral part, the Customer declares to be entitled to any and all necessary rights to the materials provided to us (slogans, logos, images, videos, texts, etc.). Where claims are asserted against us by third parties in or out of court as a result of the use of materials provided by the Customer, the Customer shall reimburse us for any costs incurred and hold us harmless and indemnify us from and against any and all damage incurred.
4. Customers’ duty to cooperate
1. The Customer shall support us in the performance of the service by providing the required number of competent employees, in particular by providing information, drafts, data material as well as hardware and software in a timely manner, where such this is necessary for the performance of the service by us.
2. Where the Customer has to provide us with images, sound, text or other materials for the provision of services, such shall be transmitted to us in a common, directly usable, preferably digital, format. Where it is necessary to convert the material provided by the Customer into another format, any additional costs and expenses incurred shall be borne by the Customer. Such costs shall be communicated by us in advance. The Customer shall ensure that we are entitled to use the materials provided to us to the extent necessary for the performance of the contract.
3. The Customer shall perform all acts of cooperation on its own responsibility, at its own risk and at its own expense. Data and data carriers provided by the Customer must be free of viruses, Trojans and other malware; otherwise, the Customer shall be obligated to compensate us for any resulting damage.
4. The Customer must keep backup copies of any and all data provided to us.
5. Approvals, Print approvals
1. The Customer shall approve our drafts upon our request. Upon approval by the Customer of proofs, drafts, final designs, final layouts, texts, electronic media and concepts, which we provide to the Customer for checking/correction, the Customer shall assume responsibility for the correctness of words and images (including content).
2. The Customer must give print approval prior to each print. The Customer shall check the conformity of the files supplied by us with respect to the results desired by the Customer on the basis of separated printouts and/or proofs prior to the print approval. The risk of any defects shall pass to the Customer upon approval for printing unless such are defects that could only be detected in the subsequent production process. The same shall apply in the event of uncontrolled print approval, forwarding or processing of files or templates by the Customer.
6. Subcontractors, External services
1. We shall be entitled to use third parties as subcontractors to meet our contractual obligations.
2. We shall be authorized to order the external services necessary for the performance of the order on behalf and for the account of the Customer. In the event of an order value of up to EUR 3,000 net, such may also be done without prior consultation with the Customer, unless otherwise agreed in text form. In the event of orders exceeding a net value of goods or services of EUR 3,000, the order shall be placed after consultation with the Customer. Orders shall also be deemed to have been placed on behalf and for the account of the Customer where we are invoiced by the supplier (contractor). Upon the supplier’s request, the Customer shall confirm the placing of the order in text form. Where an order is placed in the name of and on behalf of the Customer, the special features customary in the industry, for example in the printing sector, shall be observed and the general terms and conditions of the suppliers, which we shall provide to the Customer upon request, shall regularly apply.
3. Where contracts for external services are entered into on our behalf and for our account for the performance of the order, we shall charge the costs to the Customer. The Customer shall hold us harmless and indemnify us internally from and against any and all liabilities arising therefrom.
4. Where taking over production services of any kind in our own name, we shall be entitled to make the necessary decisions and issue the corresponding instructions at our own discretion.
5. For orders placed with third parties on behalf of and for the account of the Customer, we shall not assume any liability or responsibility towards the Customer for defects in the work, unless we are at fault in the selection of the third party. In such events, we shall merely act as an intermediary. Where we ourselves are the client of subcontractors, we hereby assign to the Customer any and all claims to which we are entitled for defects in the work, claims for damages and other claims arising from defective delivery, delayed delivery or non-delivery. The Customer shall be obligated to first attempt to enforce the assigned claims against the subcontractor prior to asserting a claim against us.
7. acceptance and fictitious acceptance
1. In the event of contracts for work and services, the Customer shall be obligated to accept the work. In the event of significant deviations from the work owed, we shall remedy such within a reasonable period and resubmit the work for acceptance.
2. Where we notify the Customer of the completion of a work performance in text form and the Customer fails to report any more than insignificant defects within a period of four weeks after notification of completion, the work performance shall be deemed accepted. Acceptance shall be deemed to have taken place at the latest upon unconditional payment or use of the work.
8. Remuneration, Payment and default of payment, Retention of title
1. The remuneration to be paid by the Customer shall arise from the contract entered into with the Customer. Where no remuneration is specified for a service, our price lists effective at the time of the order shall apply. Additional expenses incurred due to the Customer’s requests for changes and additions or due to the Customer’s breach of the Customer’s duty to cooperate shall be charged as additional expenses according to the agreed hourly rates or, in the absence of such, according to the remuneration rates of our price lists effective at the time of the order.
2. In the event of print orders, the quantity actually delivered shall be invoiced. No objections shall be possible for excess or missing quantities of up to 10%.
3. We shall be entitled to demand reasonable payments on account: one third of the total remuneration when the order is placed and another third of the total remuneration when half of the work is completed.
4. The Customer shall assume the travel expenses incurred in connection with the provision of the services owed under this contract. We shall agree the travel costs with the Customer in advance.
5. The remuneration to which we are entitled shall be due within 14 days after invoicing without deduction.
6. All prices are net prices and are subject to the applicable statutory value-added tax. Any customs duties, fees and other charges, such as the artists’ social security contribution shall be borne by the Customer, even where they are subsequently levied.
7. We accept checks and bills of exchange only upon prior agreement and bills of exchange only subject to their discountability. All discount charges and other ancillary costs shall be borne by the Customer and shall be reimbursed to us without undue delay. Bills of exchange or check amounts shall only be credited after their countervalue has been made available to us without reservation.
8. The Customer may pay by credit card or PayPal only upon prior agreement with us in text form.
9. Drafts, data sets, style sheets, templates and other software tools as well as work drawings, together with the granting of the rights of use, shall constitute a single service, the remuneration for which, unless otherwise agreed in text form, is composed of: a) the design fee. b) the fee for the granting of rights of use (usage fee). c) the preparation or final artwork fee. Where no rights of use are granted, the remuneration for such shall not apply. Only rights of use shall be granted for drafts and compositions/final artwork, but no property rights shall be transferred. The claim to remuneration for the usage fee shall exist irrespective of whether or not the material protection requirements of the right granted are met.
10. Conceptual and/or design proposals in the preparation to the conclusion of a contract shall be developed – irrespective of deviating provisions in text form in individual cases – against payment of the remuneration agreed with the Customer (presentation fee). Where no remuneration is agreed, the usual local prices shall apply.
11. The services and deliveries provided by us shall remain our property until full payment of any and all claims arising from an order. The granting of rights of use and exploitation shall also be dependent on the full payment of our claims. Where we allow the Customer to use or tolerate the use of the service(s) rendered prior to full payment and where the Customer defaults on payment of the remuneration, the Customer undertakes to cease use of the service(s) and to refrain from their exploitation (reproduction, distribution, making available to the public, broadcasting, public reproduction, processing, modification, etc.) without undue delay at our request.
12. Where the Customer fails to accept the design proposals presented by us, we shall retain the copyrights to the design proposals. The same shall apply to the ownership of the relevant templates.
9. Deadlines, Dates, Transfer of risk for deliveries
1. Deadlines and dates specified by us shall only be binding where they have been expressly agreed with our Customer as binding deadlines/dates in text form.
2. Agreed delivery times can only be met where the Customer has met the obligations incumbent upon the Customer (for example, timely payment of an agreed down payment, full and complete provision of any documents to be made available in due time, timely fulfillment of the duties to cooperate, etc.). In the event of subsequent requests for changes or additions by the Customer, the delivery period shall be extended accordingly. Where we fail to meet delivery dates, the Customer shall set us a reasonable grace period in text form, which shall commence upon our receipt of the grace period notice. The Customer shall only be entitled to withdraw from the contract after the fruitless expiry of the grace period.
3. A withdrawal of the Customer from the entire contract due to partial delay or partial impossibility shall only be permissible where the partial performance already rendered is demonstrably of no interest to the Customer.
4. Even in the case of agreed deadlines and dates, we shall not be responsible for delays in delivery and performance due to force majeure. Force majeure shall be deemed to include, in particular, war, riots, pandemics, interventions by higher authorities, measures within the scope of industrial disputes, strikes or lockouts, shortages of raw materials or energy as well as unavoidable operational or transport disruptions such as disruptions in the external data network including house connection at network operators, internet access and/or service providers, power failures, fire, water ingress or weather conditions affecting transport. This shall also apply where the aforementioned conditions occur at our upstream suppliers or where we are not supplied by them through no fault of our own, despite corresponding contracts which would have covered the requirements arising from the agreement with the Customer. In such event, we shall be entitled to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the part not yet fulfilled.
5. We shall be entitled to make partial deliveries and render partial services at any time, provided that such may be reasonable expected from the Customer.
6. The shipment of the work, services, products and templates shall be at the risk and for the account of the Customer. The risk shall pass to the Customer as soon as the shipment has been delivered or handed over to the person carrying out the transport. The transport risk shall also be borne by the Customer in the case of partial deliveries or in the case of returns. Any possible transport damage may only be claimed from the assigned transport company (post office, railroad, forwarding agent, etc.).
10. Defects, Claims due to defects, Limitation period
1. The files produced by us have been created with an optimal output quality on our output devices. Files may in general not be output on any device with the same quality. Depending on the type and calibration of the output device, there may be differences in quality. Colors and image impressions may change significantly, fonts may take on a different width, etc. In the event of color reproductions, minor deviations between proofs and the production print as well as within the production print up to a tolerance of +/- 15% of the full-tone density value are considered agreed. Proofs, wax prints, chromalines, colored laser prints and other simulations of the printed image are never binding in terms of color. Orders with such templates shall be processed according to company-standard printing standards.
2. Complaints due to defects – irrespective of their nature – are to be made to us in text form within 5 working days after delivery of the work or notification/transmission/performance of a service. Thereafter, the work/service shall be deemed accepted as free of defects. We may reject complaints after such period, in particular in the event of an obvious defect. Until clarification, the defective goods may only be used after express release by us in text form.
3. In the event of a justified complaint, we shall be entitled to rectification or replacement delivery at our discretion. Color-binding originals shall require the use of edition paper and edition machines. In any event, the Customer shall check the contractual conformity of the delivered goods as well as preliminary and intermediate products sent for correction without undue delay.
4. The period for the limitation of claims due to any material defects or defects of title of works produced by us shall be one year. The period shall commence upon the acceptance of the work
11. Liability
1. We shall be liable without limitation in the event of injury to body, life and health as well as in the event of intent and gross negligence. In the event of a breach of material contractual obligations and in the event of impossibility, we shall also be liable in the event of slight negligence, but then limited to compensation for the foreseeable damage typical for the contract. Otherwise, we shall not be liable in the event of slight negligence. Material contractual obligations (cardinal obligations) are contractual obligations the fulfillment of which makes the proper performance of the contract possible in the first place and on the observance of which the Customer regularly relies and may rely. Typical, foreseeable damage is such damage which is subject to the protective purpose of the contractual provision violated in each case. The above limitations of liability shall also apply to our vicarious agents and assistants.
2. Where the Customer makes corrections, in particular to the files or other work results supplied by us, or has them made by third parties, any liability for any material defects or defects of title on our part shall lapse, unless the Customer proves that such manipulations were without influence on any error.
3. In the event of the uncontrolled release for printing, forwarding or processing of files or templates by the Customer, we shall furthermore not be liable for damage and quality defects that occur during further processing (in particular during printing), unless the errors could not have been detected even during a proper inspection of the files or templates.
4. We shall not be liable for damage, theft or destruction of equipment of any kind provided to us by the Customer, unless the gross negligence in handling by us can be proven. In any event, the burden of proof shall lie with the Customer.
12. Retention, Set-off
1. The Customer may not assert any right of retention against us from other orders.
2. The Customer shall only be allowed to offset claims if the Customer’s own claim is legally binding or recognized or if it entitles the Customer to refuse performance.
3. Such restrictions shall not apply to additional costs for completion and/or costs for the removal of defects to which the Customer is entitled against us.
13. References, Free copies
1. We shall be entitled to attach a copyright designation/signature to the service results created by us in a suitable place (e.g., in the Legal Notice of a website), provided that the Customer’s presentation interest is not impaired thereby.
2. We shall be entitled to use the concepts, content, strategies and designs created for the Customer for our own presentation and reference purposes – in particular in print and online media such as brochures and websites – after their publication by the Customer and to link them to the Customer’s website. Where the designs are linked to content provided by the Customer (e.g., images supplied by the Customer), the Customer shall grant us a corresponding simple right of use to present such content as well.
3. Until revoked in writing by the Customer, we shall be entitled to refer to the existing business relationship with the Customer using the Customer’s name and company logo.
4. The Customer shall provide us with up to ten perfect copies of all work reproduced and produced by us free of charge at our discretion.
14. Non-solicitation, Liquidated damages
1. In the performance of the projects by our employees, we trust that the Customer will not take advantage of the knowledge and insights of our employees from the performance of the contract by poaching employees from us. The Customer therefore undertakes not to poach any employees from us for the duration of the contractual relationship with us and for a period of 12 months after termination of the contractual relationship with us.
2. In the event of any breach of the obligation under clause 14.1 hereinabove, the Customer undertakes to pay to us liquidated damages in the amount of the last six months’ salary of the employee poached or employed by the Customer.
3. Additional claims for damages shall not be excluded by the agreed liquidated damages; the liquidated damages shall, however, be offset against the claims for damages.
15. Final provisions
1. Place of performance for any and all performance obligations – including those of our Customer – is Berlin.
2. Governing law shall be the law of the Federal Republic of Germany excluding the application of conflict of laws provisions and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
3. The Place of Jurisdiction, provided that Customer is a merchant, a legal person under public law or a special fund under public law, shall be Berlin, Germany. In case of jurisdiction of the Local Courts [Amtsgerichte], the Local Court [Amtsgericht] Tempelhof-Kreuzberg is responsible. Each contractual partner shall, however, also be entitled to take legal action against the other contractual partner at the other contractual partner’s general place of jurisdiction.
4. Any amendments of or supplements to the contract, including these General Terms and Conditions, must be made in text form to be effective. This shall also apply to the cancellation of this text form requirement.
5. Should one or more provisions of these General Terms and Conditions be or become ineffective, the effectiveness of the remaining provisions shall remain unaffected. In such event, the contracting parties shall replace the ineffective provisions by effective provisions most closely resembling the economic intent of the ineffective provisions.