General Terms and Conditions of atelier 522 GmbH

§1 SCOPE OF APPLICATION, APPLICABLE LAW

These terms and conditions apply exclusively in relation to customers who are entrepreneurs within the meaning of § 14 BGB (German Civil Code), even if they are no longer referred to in individual transactions, contracts or orders and unless expressly agreed otherwise in writing.
These terms and conditions apply to all offers, services and deliveries of atelier 522, even if the customer refers to his own or other or supplementary terms and conditions of third parties in his order or order confirmation. Even if atelier 522 refers to a document that contains or refers to the terms and conditions of the customer or a third party, this does not constitute agreement with the inclusion or validity of the terms and conditions of the customer or a third party. The inclusion and interpretation of these terms and conditions of atelier 522 as well as the conclusion and execution of legal transactions with the customer shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules.

§2 CONCLUSION OF CONTRACTS AND ORDERS, DESCRIPTION OF SERVICES

All offers made by atelier 522 are subject to change and non-binding, unless they are expressly labelled as binding or contain a deadline for acceptance. atelier 522 may accept customer orders within two weeks of receipt. A contract shall only come into existence upon confirmation of the order by atelier 522 or upon tacit fulfilment of the order.
The scope of the contractually owed services shall be determined exclusively by atelier 522’s order confirmation. All verbal ancillary agreements and amendments to the order must be confirmed in writing by atelier 522 in order to be valid. The written form requirement is also met by fax and/or e‑mail. In particular, agreements on deadlines and dates shall only be binding if they have been confirmed in writing.
The information provided by atelier 522 for the execution of an order (e.g. design, dimensions, weights, shape, colour, technical data, etc.) as well as pictorial representations, sketches, drafts, plans, etc. of any kind are only approximate, unless the usability of the service for the contractually intended purpose requires exact conformity. They are not warranted characteristics, but descriptions of the services provided by atelier 522. Deviations customary in the industry and in the trade, as well as deviations that occur due to legal, technical or spatial circumstances or represent technical improvements, as well as the replacement of components with equivalent parts, are permitted, provided that they do not significantly impair the usability of the service for the contractually intended purpose.
atelier 522 reserves ownership and all industrial and intellectual property rights to all parts of an offer, in particular to all drawings, designs, illustrations, calculations, models, ideas, concepts and drafts and other documents and aids made available to the customer. The customer undertakes not to pass on, disclose, utilise or reproduce these items as such and their content to third parties without the express and prior consent of atelier 522. At the request of atelier 522, the customer shall return these items in full and destroy all copies made if the negotiations do not lead to the conclusion of a contract or order.

§3 OBLIGATIONS OF THE CLIENT

The client shall provide atelier 522 with all necessary data and information in a timely and punctual manner and shall provide atelier 522 with all data and information necessary for the performance of all tasks and services to be provided by atelier 522. This applies in particular to the general briefing, the maximum budget, the timely and complete realisation of correction/feedback rounds, the notification of delivery times and delivery locations, etc. The client assures that he is authorised to use all documents, data, designs, texts, brands, etc. provided by him. The client is responsible for any errors in the data or information provided. If the client does not specify a maximum budget, he shall compensate atelier 522 for any disadvantages incurred as a result.
The client shall indemnify atelier 522 against all claims asserted by third parties against atelier 522 due to behaviour or actions for which the client is responsible under this contract.
The client is obliged to inform atelier 522 immediately in writing of any factors arising during the course of the project that may lead to a change in the project budget, the calculation on which the budget is based or the financial plan related to the budget.

§4 CANCELLATION COSTS

If the customer cancels or terminates an order before it has been fully executed, all services provided by atelier 522 up to the time of cancellation or termination shall be paid for in full. For services not yet provided at the time of cancellation or termination, atelier 522 may charge a flat rate of 25 % of the net offer price for the services not yet provided, without prejudice to the possibility of claiming higher actual damages. If the customer proves that the damage actually incurred by atelier 522 is less than the lump sum of 25 %, only the actual damage shall be reimbursed.

§5 PRICES, SALES TAX, SUBSEQUENT ORDER CHANGES

The remuneration of atelier 522 shall be based on the type and scope of the services as described and invoiced in the order confirmation. Additional and special services that go beyond the agreed services shall be remunerated additionally. Travelling and ancillary costs (e.g. telecommunication costs, etc.) shall be invoiced separately and documented on request.
All prices are net prices in euros plus VAT at the applicable rate. If more than four months elapse between the placing of the order and the execution of the order and if the purchase prices or the daily rates of atelier 522 have changed during this period, the prices valid at the time of the execution of the order shall apply. The same shall apply irrespective of a time condition if the raw material prices increase by more than 1% during the execution of an order. In this case, atelier 522 may adjust its own remuneration. The client shall not be entitled to an adjustment of the remuneration.
If the customer causes additional costs for atelier 522 due to subsequent changes or additions to the order (e.g. for material, design, size, quantity, production, dispatch, logistics, etc.), these shall be invoiced as special services in addition to the quoted price.

§6 TERMS OF PAYMENT

atelier 522 may demand an appropriate advance payment on the order amount after the order has been placed. The advance payment may not exceed 70 % of the net order amount.
For self-contained parts of the order, atelier 522 shall be entitled to issue interim invoices for partial services rendered.
After completion of the order, atelier 522 shall issue a final invoice showing all services rendered and payments already made by the customer. Unless otherwise agreed, the invoice shall be payable within 14 calendar days of receipt of the invoice by the customer without deduction and without submission of receipts and documents. The date of receipt by atelier 522 shall be decisive for the date of payment. If the customer does not pay within the 14-day payment period, he shall be in default of payment without a reminder and shall pay interest on the outstanding amount from the 15th day at 9 percentage points above the base interest rate. atelier 522 reserves the right to assert further claims for damages caused by default.
The customer may only offset claims against atelier 522 and assert a right of retention due to other claims if these claims or demands are undisputed, legally established or recognised by atelier 522.
atelier 522 shall be entitled to perform outstanding services only against advance payment or provision of security if, after conclusion of the contract or after placing the order, circumstances become known which are likely to significantly reduce the customer’s creditworthiness and which jeopardise the payment of atelier 522’s outstanding claims by the customer arising from the respective contractual relationship, including claims from previous orders.

§7 PERFORMANCE DEADLINES

Performance deadlines and dates are only binding if all documents, information and declarations of the client, in particular corrections and release declarations, are received by atelier 522 in good time, completely and legibly. atelier 522 shall not be liable for delays in performance or delivery if these are caused by late, incomplete or illegible documents, information or declarations from the client, by subsequent change requests from the client or by extensions to the originally agreed scope of the order.
If performance deadlines are exceeded even though atelier 522 is not responsible for the delay (e.g. power failures and all cases of force majeure), the client is not entitled to withdraw from the contract or to hold atelier 522 responsible for the damage incurred.
If an agreed performance deadline is exceeded without there being a case of force majeure or a case of lack of fault, the customer shall be entitled to set atelier 522 a reasonable grace period. If the service is not provided by the end of this grace period, the client shall have the right to withdraw from the order. The cancellation must be declared in writing no later than one week after expiry of the grace period.
atelier 522 may – without prejudice to the customer’s rights arising from default by the debtor – demand an extension of delivery and performance deadlines or a postponement of delivery and performance dates by at least the period during which the customer has not fulfilled its contractual obligations towards atelier 522.

§8 PLACE OF FULFILMENT, PACKAGING, SHIPPING, TRANSFER OF RISK, ACCEPTANCE

Unless otherwise stated in the respective order, the place of fulfilment for all obligations of atelier 522 arising from an order shall be the registered office of atelier 522 in Markdorf, Germany.
Unless otherwise agreed, atelier 522 alone shall decide on packaging and dispatch. If atelier 522 incurs additional costs for packaging and dispatch due to special requests by the customer, these may be charged to the customer additionally.
The risk of accidental destruction or accidental loss shall pass to the customer at the latest when the goods to be delivered are handed over to the forwarding agent, the carrier or the third party otherwise appointed to carry out the shipment.
Insofar as acceptance of the services provided by atelier 522 is required despite § 650 BGB, the services provided shall be deemed to have been accepted at the latest when the customer uses the services without expressly notifying atelier 522 of any defects in writing and in concrete terms. If the customer merely reserves the right to inspect the deliveries and services for defects, this reservation shall not prevent acceptance of the deliveries and services in accordance with sentence 1. The customer and atelier 522 agree that the customer shall be requested to declare acceptance of all deliveries and services within three calendar days in accordance with Section 640 (2) BGB.

§9 NO RETENTION OBLIGATION

After completion of the order, atelier 522 shall be free to store or destroy all ideas, templates, drafts, work materials, products, equipment, software and all other documents created by atelier 522 or provided by the customer at its own discretion. atelier 522 shall be under no obligation to the customer to archive, store or retain the aforementioned ideas, objects, documents or information.

§10 INTELLECTUAL PROPERTY RIGHTS

All services provided by atelier 522 are protected as personal intellectual creations by the German Copyright Act (UrhG). The provisions of the Copyright Act shall be deemed to have been agreed even if the level of creation required in Section 2 of the Copyright Act cannot be achieved in individual cases.
With the exception of the right of reproduction, all known types of use listed in § 15 UrhG for the services provided by atelier 522 shall be transferred to the client as a simple right of use, unless otherwise agreed. The purpose of an order shall only be the purpose stated when the order is placed at the time atelier 522 is commissioned. atelier 522’s rights to its own planning procedures, software, media purchasing methods, methods of information procurement and/or dissemination and the like, which represent atelier 522’s company-specific expertise, shall be excluded from this transfer obligation.
The customer may only use the (creative) services of atelier 522 for the purposes for which the services were expressly ordered. The transfer of granted rights of use to third parties shall require the prior written consent of atelier 522. atelier 522 shall be entitled to information about the scope of use by the customer.
Without the consent of atelier 522, the drafts, ideas, designs, installations, software and other creative services and works etc., including the designation of atelier 522 as the author and rights holder, may not be changed. Any imitation – even of parts of the works and workpieces – is prohibited.
The aforementioned transfer of rights shall be settled with the other payments to atelier 522 in accordance with § 6 of these terms and conditions. However, the client shall only acquire the right to use the services to the agreed extent upon full payment of the remuneration in accordance with § 6 of these terms and conditions.
atelier 522 shall be entitled to use the drafts, ideas, designs, installations, software and other creative services and works etc. created by atelier 522 for its own advertising purposes. Likewise, atelier 522 shall be entitled to reproduce any number of the communication materials, designs, etc. created for the customer at its own expense and to use them for its own advertising purposes. Finally, atelier 522 shall be entitled to mention the work for the customer as part of its own advertising measures or campaigns and to publish it in the press, social media and online.

§11 WARRANTY

The warranty period shall be one year from delivery or acceptance of the services of atelier 522. If the contractually agreed period of use by the client or the advertising campaign is shorter than one year, the warranty period for defects in the service shall end on the day on which the intended use ends or the advertising campaign has expired. These periods shall not apply to claims for damages by the client arising from injury to life, limb or health or from an intentional or grossly negligent breach of duty by atelier 522 or its vicarious agents, which shall become time-barred in accordance with the statutory provisions.
The customer must carefully inspect all deliveries and services immediately after delivery. They shall be deemed to have been approved by the customer with regard to recognisable defects or other defects that would have been recognisable during an immediate, careful inspection if the customer does not notify atelier 522 of the defects in writing within seven calendar days of delivery. If atelier 522’s services are delivered or provided directly to POS, event locations or other locations specified by the customer, the customer’s employees shall be obliged to inspect the services for defects on site. With regard to other defects, the deliveries and services of atelier 522 shall be deemed to have been approved if the written notification of defects is not received by ATELIER 522 within seven calendar days of the time at which the defect becomes apparent; if the defect was already recognisable at an earlier time during normal use, this earlier time shall be decisive for the start of the seven-day period.
If a defect is due to the fault of atelier 522, the customer may demand compensation in accordance with § 13 of these terms and conditions.

§12 COMPENSATION FOR DAMAGES

The obligation of atelier 522 to pay damages, irrespective of the legal grounds, in particular due to impossibility, delay, warranty, breach of contract, breach of obligations during contract negotiations and unauthorised action, shall be governed by the following provisions, insofar as fault exists in each case.
atelier 522 shall submit the drafts, artwork, production templates, designs etc. created by it to the client so that the client can check the essential information contained therein. If the client approves the templates, he shall assume sole liability for the accuracy of the factual information. Changes or additions made by telephone require written confirmation by atelier 522.
atelier 522 shall only be liable to the customer for damages, regardless of the legal grounds, in the event of wilful intent or gross negligence. This exclusion of liability for simple negligence shall not apply to the breach of material contractual obligations, unless liability for insignificant material defects is involved. In the event of a breach of material contractual obligations, liability shall be limited to the typical damage foreseeable by atelier 522. Sentence 1 shall not apply to liability for damages resulting from injury to life, limb or health that are based on an intentional or negligent breach of duty by atelier 522 or an intentional or negligent breach of duty by a legal representative or vicarious agent of atelier 522.
atelier 522 shall not be liable for the patent, design, copyright and trade mark protection or the registrability of the ideas, suggestions, proposals, concepts, designs, trade marks etc. supplied.
The client bears the risk of the legal admissibility of an advertising measure. This applies in particular in the event that measures violate the provisions of competition law, copyright law, special advertising laws, the general personal rights of third parties, data protection or regulatory provisions.
These limitations and exclusions of liability shall apply to the same extent in favour of the bodies, legal representatives, employees and other vicarious agents of atelier 522.
Claims for damages arising from contractual liability expire – except in cases of wilful intent – one year after performance of the service. This shall also apply to congruent, competing claims arising from non-contractual liability. Any liability for damages based on a guarantee expressly assumed by atelier 522 shall remain unaffected by the above provisions.

§13 CONFIDENTIALITY

The client is obliged to maintain confidentiality vis-à-vis third parties about all details that become known to him, e.g. the organisation, production or distribution of atelier 522 as well as the associated or related companies, suppliers, designers and artists. This confidentiality obligation shall apply beyond the duration of the business co-operation between the parties.
The client must ensure that a corresponding confidentiality obligation is agreed with its employees and vicarious agents.
If the customer or one of his vicarious agents breaches the duty of confidentiality, he shall owe atelier 522 a contractual penalty of 50% of the net order volume, but at least €25,000. The contractual penalty shall not apply if the customer is not responsible for the breach of the duty of confidentiality.

§14 DATA PROTECTION

The customer agrees that his personal data (e.g. name/company, profession, date of birth, occupation, address and contact details such as telephone, fax, e‑mail, commercial register entry, bank details, credit cards, legal and honorary representatives, contact persons with contact details, social media accounts with access data and website with access data) may be collected, stored and processed by atelier 522 for the purpose of executing the contract and for its own business and advertising purposes. atelier 522 undertakes to protect all data from access by unauthorised third parties and to pass on data to third parties only to the extent necessary for the execution of the contract. The customer may revoke this consent in writing at any time.
The customer assures that all data collected, stored, processed and/or transmitted by him or on his behalf by third parties has been treated in accordance with the provisions of the statutory data protection regulations, that all necessary consents have been obtained from the data subjects and that the use of this data by atelier 522 from the pitch to the complete execution of an order does not violate data protection regulations.

§15 FINAL PROVISIONS

Collateral agreements, reservations, amendments or additions within the scope of an order shall only be effective if they are confirmed in writing by atelier 522.
The courts at the registered office of atelier 522 GmbH shall have exclusive international and local jurisdiction for disputes arising from contracts with customers.

§16 SEVERABILITY CLAUSE

Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining clauses. The invalid clause shall be replaced by a valid clause that comes as close as possible to the economic purpose of the invalid clause.