General Terms and Conditions of kvell Marketing GmbH
1 Scope of application, validity
- All deliveries, services and offers of kvell Marketing GmbH (hereinafter referred to as kvell) shall exclusively be based on these General Terms and Conditions. These are an integral part of all contracts concluded by kvell with its contractual partners (hereinafter also referred to as “customer”) for the deliveries or services offered by kvell. They shall also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again.
- Terms and conditions of the customer or third parties shall not apply, even if kvell does not separately object to their validity in individual cases. Even if kvell refers to a letter or e-mail that contains or refers to terms and conditions of the customer or a third party, this shall not constitute consent to the validity of those terms and conditions.
2 Conclusion of contracts
- kvell can accept offers from customers within four weeks. Offers from kvell are subject to change unless the parties have agreed otherwise. The contract between kvell and the customer can be concluded by telephone, in writing or in text form.
- If the contract is concluded by telephone, the customer will receive an order confirmation from kvell upon request, which, however, is not constitutive for the conclusion of the contract.
3 Services provided by kvell
- kvell offers services, in particular, in the areas of marketing, process consulting, brand development, communication, production and public relations. The scope of the services arises from the service description created upon order placement. Additional and/or subsequent changes to the service description must be made in writing.
- The customer must always carry out the acts of cooperation incumbent upon it completely and in due time at kvell’s initial request. If the customer fails to cooperate and thus prevents kvell from providing the service, kvell’s claim to remuneration shall remain unaffected. kvell is entitled to terminate the contractual relationship without notice if the customer persistently fails to cooperate. The customer shall bear any disadvantages and additional costs in the event of a breach of its obligations.
- The client is solely responsible for any advertising campaigns (advertisements, websites, legal notice, privacy policies, etc.) being in compliance with the law.
- With regard to the services to be provided by kvell to the customer, kvell has a right to determine the manner of performance in accordance with section 315 of the German Civil Code (BGB).
- kvell decides which employees it uses and reserves the right to replace them at any time. It may also use freelancers and other companies while fulfilling the order; it shall be liable for their culpability as for its own culpability.
- If kvell arranges services of third parties for the customer, a contract is not concluded with kvell, but only between the customer and the third party, unless otherwise agreed.
- The agreed remuneration flat rates charged by kvell do not include a budget for any advertising campaigns. This is to be paid separately and, if necessary, directly to the third-party provider by the customer.
- Insofar as landing pages and (sub-)domains are made available to the customer as part of advertising campaigns, they shall be made available for the duration of the term of the contract, but not beyond, unless otherwise agreed in individual cases.
4 Payments, prices
- All prices and price indications shall be in EURO without statutory taxes and dues and without any other possibly incurred accessory charges under public law, even where there is no such explicit reference. Artists’ social security contributions, fees of GEMA or other copyright collectives, customs duties and other levies, including those arising subsequently, shall be passed on to the customer.
- The offer prices shall only apply in case of an undivided order.
- The offer prices shall be applicable for four months after conclusion of the contract. Where delivery periods exceeding these four months are agreed, kvell shall be entitled to pass on the price increases of manufacturers or suppliers, or wage increases, to the contracting customer. The customer can withdraw from the contract if the price is more than 5% higher than the price at the time of the conclusion of the contract. In this case, kvell is entitled to compensation for the services rendered up to that point, with the services rendered also including claims by third parties that kvell has commissioned in reliance on the performance of the contract. More far-reaching claims of both contracting parties shall be ruled out.
- Where the start or continuation of service provision is delayed because of reasons, for which kvell cannot be held accountable, kvell shall be entitled to invoice the resulting additional expenditure separately. In this event, the prices invoiced by kvell, which are applicable on the day of execution, shall be the relevant rates.
- Services not included in the offer, which are rendered at the request of the customer, or additional expenditures caused by the provision of incorrect information by the customer, or by advance services not rendered in time or in a professional manner by the customer or other third parties, as far as they are not auxiliary persons of kvell, shall be charged additionally to the account of the customer. The obtainment of necessary official permits, licences or other approvals shall only be part of the offer if explicitly stated there. The same shall apply to the customs formalities in case of deliveries abroad.
- Services and purchases carried out for the customer at their request in the framework of planning and executing trade fair participations shall be remunerated separately. kvell is entitled to charge a commitment commission for amounts disbursed in this respect. kvell is further entitled to contract out such services to third-party companies on behalf of the customer.
Where services are rendered in the context of trade fairs, the offer prices shall not comprise the expenses and costs of deliveries and services, which are to be utilised exclusively by trade fair companies or third parties commissioned by such trade fair companies, such as forwarding services on the trade fair premises (e.g. transportation on the trade fair premises, provision of fork-lift trucks and elevating trucks, handling of empties, waste disposal etc.) unless these services are explicitly referred to in the offer.
5 Time of performance / default
- Deadlines are non-binding unless they have been expressly designated as binding by kvell in writing. The implementation obligation shall only commence upon acceptance of the offer or acceptance or approval of the contractual service concept by the customer.
- Deadlines for the provision of services by kvell shall not begin before the data necessary for the services are completely in kvell’s possession as agreed or the necessary cooperation of the customer has completely been provided.
- If the customer is in arrears with payments due, kvell reserves the right not to perform further services until the outstanding amount has been settled.
6 Force majeure
- kvell shall not be liable for delays in its services if this is due to force majeure. Force majeure shall include, but not be limited to, fire damage, floods, strikes, lawful lockouts, riots, armed conflict, terrorism or war (or imminent threat thereof), quarantines, disease outbreaks (including epidemics and pandemics) where the Robert Koch Institute has determined the level of risk to be at least “moderate” or other events beyond kvell’s reasonable control.
- If the force majeure event lasts longer than 90 days, either party may withdraw from the contract. If the customer withdraws from the contract, it shall compensate kvell for the services rendered prior to the withdrawal and reimburse all costs incurred by kvell as a result of the withdrawal.
- In the event of delays in performance caused by force majeure or the customer, the performance date shall be extended by the period of time that kvell is actually late or that is mutually agreed. Claims for damages by the customer, for whatever legal reason, are excluded.
- kvell shall carry out the agreed services according to the offer with the necessary care. kvell is entitled to use the help of third parties for this without restrictions.
- The customer is aware that, unless otherwise explicitly agreed in writing, kvell owes the provision of services and not the production of work products. At the customer’s request, kvell shall provide information about the services provided under the contract within a reasonable period of time.
- If kvell is prevented from providing the agreed services and the reasons for the hindrance originate from the side of the customer, kvell’s claim to remuneration shall remain unaffected.
8 Third party property rights
The customer warrants that working materials (e.g. photos) provided to kvell are free of third-party rights or that the necessary approvals for the purposes of the main contract have been obtained. In this respect, the customer indemnifies kvell from any claims by third parties.
9 Rights of use
- Unless otherwise agreed, the customer shall receive a simple right of use with regard to the work and service results created and made available by kvell. Performance and work results in the sense of the underlying contract are all work or services or parts thereof that were created by kvell for the customer (e.g. all information, documents, concepts, evaluations, videos, photos, advertisements, drawings, materials, specifications, programme drafts, (electronic) files, data collections, individual software including associated documentation). As long as work results have not been completed, the corresponding partial results shall be deemed to be work results within the meaning of this contract.
- Subsection 1 applies exclusively subject to the reservation that the customer has fully paid the remuneration to which kvell is contractually entitled.
- If payment by instalments has been agreed, the right of use designated in accordance with subsection 1 shall not devolve until the last instalment has been paid in full, subject to any individual agreement to the contrary.
- Unless otherwise agreed, the transfer of the work and service results to third parties (including affiliated companies) is excluded. The same applies to an adaptation or transformation pursuant to section 23 of the German Copyright Act (UrhG).
10 Warranty for services
The client has to give written notice of obvious errors and incompleteness of kvell’s service / consulting service immediately, in case of hidden errors within two weeks after the completion of the service / consulting service. A written notice of defects must also contain a description of the error.
11 Warranty and approval for work services
- If kvell exceptionally provides work services for a customer, the product description of the work in the service description shall basically be agreed upon as a quality between the parties. Public statements, promotions or advertising by kvell do not constitute a contractual description of the quality of the work, unless kvell and the customer have agreed on these descriptions as being in accordance with the contract.
- The customer has to check the performance result within a period set by kvell or after five working days at the latest and either declare approval in writing through the contact person or communicate the detected defects with a precise description in writing within two weeks of their discovery. If the customer does not make a declaration within this period or uses the service without giving notice of defects, the service shall be deemed to have been approved. Insignificant defects do not entitle the customer to refuse approval. In the case of live productions, approval must be declared immediately, and any defects found must be reported immediately.
- kvell shall initially provide a warranty for defects of work by rectification or new production at its discretion.
- In case of an only minor lack of conformity, especially in the case of only minor defects, however, the customer shall not be entitled to the right of withdrawal.
- If the customer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, it shall not be entitled to any additional claim for damages due to the defect. The warranty period shall be one year from delivery of the work.
- If it turns out that the work sent in by the customer for rectification is free of defects, kvell can charge the customer for the expenses it has incurred in the course of evaluating the defectiveness of the work.
kvell is liable for damages – regardless of the legal grounds – only for intent and gross negligence. In the event of simple negligence, kvell shall only be liable
a.for damage arising from injury to life, limb or health,
b.for damage arising from the breach of a material contractual obligation (obligation, the fulfilment of which makes the proper performance of the contract possible in the first place and on which compliance the contractual partner regularly relies and may rely); in this case, however, liability is limited to compensation for the foreseeable, typically occurring damage.
- Within the limits set out in subsection 1, kvell shall not be liable for data and programme losses. The liability for loss of data is limited to the amount of the typical restoration costs that would have been incurred if back-up copies had been made regularly and in accordance with the risk. Liability under the German Product Liability Act shall always remain unaffected, as shall liability for the assumption of a guarantee.
13 Termination, term
- The customer is entitled to terminate the contract at any time.
- Should the customer terminate the contract without kvell having given good cause for this, kvell shall have a claim for remuneration in respect of the services provided until this point in time, with the services provided also including the claims of third parties with which kvell has placed orders in reliance on the performance of the contract. With regard to services not yet rendered, 40% of the remuneration agreed for them shall be agreed as saved expenses. This rate must be credited to kvell’s claim for remuneration, unless kvell can prove that only lower expenses were actually saved. Conversely, the customer is at liberty to prove that kvell has been spared higher expenses.
- The right to termination for an important reason shall remain unaffected. The prerequisite is that a corresponding written request for the elimination of the good cause has been made within a reasonable period of time and that the period elapsed without success. Good cause shall be deemed to exist in particular if the customer has persistently or grossly breached its contractual obligations and in particular has not duly met its payment obligations despite being requested to do so.
- In the event of termination for good cause by kvell or withdrawal for reasons for which the customer is responsible, the above provision of subsection 2 shall apply accordingly. The customer shall be at liberty to prove that the damage incurred is zero or not the stated amount. This does not preclude the assertion of further damage.
14 Objects and property rights transferred
- Items provided by kvell to the customer in advance of the contract (e.g. concepts, scripts, drafts, drawings, artwork) are the physical and intellectual property of kvell; they may not be reproduced and made accessible to third parties. If no contract is concluded between the parties, they shall be returned, deleted or destroyed and may not be reproduced, used or exploited.
- kvell assumes no liability for the protectability and registrability of the ideas, suggestions, proposals, concepts, drafts and works delivered within the scope of the order. The same applies to other property rights.
- The registration of industrial property rights arising from the commissioned services is the sole responsibility of the customer. kvell shall only register industrial property rights in its own name or in the name of the customer with the bodies designated for this purpose if this has been expressly agreed. Any costs and other claims by third parties arising as a result shall be borne by the customer. If the application for property rights by the customer depends on an act of cooperation by kvell, kvell shall carry this out. In this case, kvell is entitled to impose any additional costs arising from the act of cooperation on the customer.
- The contractual partners undertake to treat all knowledge of confidential information and trade secrets of kvell obtained during the fulfilment of the order as confidential for an unlimited period of time and to use it only during the fulfilment of the order. Trade secrets include in particular the services and prices provided in accordance with these terms and conditions.
- The customer may only make contractually relevant information accessible to employees and other third parties to the extent that this is necessary to exercise the right of use it has been granted. Otherwise, it shall keep all information secret. It shall inform in writing all persons to whom it grants access to contractually relevant information about kvell’s rights to contractual performance and the duty of confidentiality and oblige them in writing to comply with the duty of confidentiality.
- The customer shall store the contractual objects – in particular any concepts, documentation and drafts handed over to it – carefully in order to preclude misuse.
kvell may name the customer as a reference customer on its website or in other media. kvell may also publicly reproduce or refer to the services provided for demonstration purposes, unless the customer can claim a legitimate interest to the contrary.
17 Final provisions
- Deviations from these GTC are only effective if they have been agreed in writing. Individual agreements made with the customer in individual cases, including ancillary agreements, supplements and amendments, shall in all cases take precedence over these GTC.
- The law of the Federal Republic of Germany shall exclusively apply. The place of performance shall be kvell’s domicile. The exclusive commercial legal venue shall be kvell’s domicile.
(As of January 2021)