AGB

General Terms and Conditions of KIS CONCEPT GmbH (as at 01.01.2017) 

1. General

1.1 The following terms and conditions shall apply exclusively to the offers, deliveries and services of KIS CONCEPT GmbH ("Agency"). They shall apply in particular to all services provided by the Agency to the Client within the framework of the preparation of offers, conception, strategy and other developments, consulting, planning, design, production and other services.

1.2 General terms and conditions of the Client shall only become part of the contract if they are accepted by the Agency in writing. Otherwise, these General Terms and Conditions shall take precedence. Acceptance of the Agency's performance shall in any case be deemed to constitute acceptance of these General Terms and Conditions.

 

2. Conclusion of contract/content of contract

2.1 The Agency's offers are always subject to change. The prices are in EURO plus the legally applicable value added tax, where applicable.

2.2 The agency's expenses for postage, telephone, insurance, customs clearance, etc. shall be compensated with a lump sum of 7.5% of the net invoice amount.

2.3 The Client shall bear all out-of-pocket expenses such as travel and accommodation costs, out-of-pocket expenses and third-party claims for remuneration incurred in the course of the performance of the contract against evidence. The pure travel time shall be reimbursed to the Agency as expenses.

2.4 The Agency shall charge a handling fee to be negotiated on a case-by-case basis for the processing of orders with third parties used by the Agency in consultation with the Client for the execution of the contract (e.g. artists, stand builders, craftsmen, room rental, event costs) if these costs are passed on to the Client.

2.5 The Agency's offers designated as "cost framework", "cost sketch" or "rough cost calculation" are non-binding. Unless otherwise agreed, concepts and designs developed by the Agency on behalf of the Client shall be subject to a charge.

2.6 The contract is regularly concluded with the written order confirmation of the agency.

2.7 If the Agency commissions third parties with parts of the execution of the order, the Client shall indemnify it against claims of such third parties, unless the Client has already paid the Agency for this service.

 

3. Prices and terms of payment

3.1 The Agency shall be entitled to render partial services and to invoice these separately. Furthermore, it may at any time demand advance payments or payments on account for services rendered or commissioned. In the absence of any agreement to the contrary, these shall be payable as follows:

- 40% of the agreed remuneration when the order is placed;

- 40% of the agreed remuneration at the start of production;

- 20% of the price after receipt of the final invoice.

3.2 Services not estimated in the offer which are carried out at the request of the Client or additional expenses which are caused by incorrect or incomplete information provided by the Client, by the Client's failure to cooperate, by transport delays for which the Agency is not responsible or by preliminary services of third parties which are not carried out in a timely or professional manner shall be additionally invoiced to the Client in accordance with the Agency's current rates of remuneration.

3.3 In the absence of a special agreement, payments shall be made by bank transfer and free of charges at the Agency's registered office.

3.4 Invoice amounts shall be paid without deduction within one week, but no later than 4 weeks after the invoice date. If the payment deadline is exceeded, the Agency reserves the right to charge default interest at the statutory rate, at least 8% p.a. above the base rate of the European Central Bank, even without an express reminder.

3.5 In the event of default in payment, the Agency shall be entitled, after setting a deadline with the threat of refusal, to withdraw from the contract and to claim damages for non-performance.

 

4. Cooperation obligations of the client

4.1 The Client shall support the Agency in the fulfilment of its contractually owed services. This shall include, in particular, the timely provision of information, data material as well as hardware and software, advertising materials, other information as well as instructions from the Client to the Agency, insofar as these are expedient and necessary for achieving the order and meeting any deadlines.

4.2 The client shall provide a contact person for the execution of the order.

4.3 The Client shall carry out any acts of cooperation at its own expense.

 

5. Transport/ Packing

5.1 The risk of transport of all goods shipped under the execution of the contract shall be borne by the Client, unless otherwise agreed. In the absence of specific instructions, the Agency shall determine the dispatch at its discretion without responsibility for special packaging or the cheapest and fastest route.

5.2 The Agency shall be entitled, but not obliged, to take out transport insurance, the costs of which shall be borne by the Client.

5.3 Transport damage must be reported to the agency immediately. Any claims against the transport company shall be assigned to the customer upon request.

5.4 Items belonging to the Client that are required for the Agency to provide its services must be delivered free to the Client's premises or to the location specified by the Agency on the agreed date. Return deliveries of such parts shall be made carriage forward from the place of use at the risk of the Client.

5.5 Any loss during transport for which the Agency is not responsible or the loss of the delivered materials at the place of use shall be borne by the Client.

 

6. Acceptance/ Transfer of Risk

6.1 If the contractual relationship between the Agency and the Client is a contract for work and services, the Client shall be obliged to accept the Agency's performance on the completion date specified by the Agency.

6.2 Acceptance can take place in particular on the occasion of dress rehearsals or trial runs, at the latest with the conclusion of the event, if applicable. This shall not apply to planning services, which shall be deemed completed and ready for acceptance upon receipt by the customer.

6.3 Insofar as defects do not significantly impair the function of the object of performance, they do not entitle the customer to refuse acceptance.

6.4 If the Agency's performance cannot be made available to the Client for reasons for which the Client is responsible, the risk shall pass to the Client on the date of receipt of the notification of completion. The Agency's performance shall then be deemed to have been fulfilled.

7. Cancellation

7.1 In the event of termination by the Client without good cause and for more than 30 days, the Agency shall receive the agreed remuneration for the services commissioned and provided.

7.2 Claims for remuneration or damages which the Agency has to fulfil from obligations entered into vis-à-vis third parties (service providers, subcontractors, landlords, etc.) shall be paid by the Client in accordance with the individual cancellation conditions of the respective service providers, regardless of whether these have already been paid.

7.3 With regard to services not yet rendered, 40% of the fee agreed for services not yet rendered shall be deducted as a lump sum as saved expenses; the remaining amount shall be due for payment immediately.

7.4 If, despite a declaration of completion, the Client does not accept the Agency's services without good cause or if the Client fails to meet its payment obligations or fails to do so properly, the Agency shall be released from its obligation to perform after setting a reasonable grace period and may claim damages.

7.5 As compensation for damages, the Agency may demand the value of the services rendered up to the termination of the contract as well as 60 % of the value of the services not yet rendered as lump-sum compensation. The Agency reserves the right to claim higher proven damages.

7.6 The Agency shall have the right to terminate the contract for good cause. An important reason is in particular the Client's failure to cooperate, so that the Agency is unable to fulfil the order properly or on time despite setting a reasonable deadline. In the event of termination by the Agency, 7.1 to 7.5 shall apply accordingly.

 

8. Warranty

8.1 The Client shall be obliged to inspect the Agency's services upon acceptance and to give notice of any defects without delay. If, despite careful inspection, a defect only becomes apparent later, this must be reported immediately. In any case, notifications of defects must be received by the Agency no later than 5 working days after the end of the event or handover of the agreed service.

8.2 As a warranty, the Client can initially only demand supplementary performance in the form of rectification. The manner of appropriate rectification shall be at the discretion of the Agency, which shall also be entitled to make a replacement delivery at any time.

8.3 The client may withdraw from the contract or demand a reduction in price if at least two attempts to remedy the defect have failed due to the same defect.

8.4 The warranty shall be excluded if the Client further processes the Agency's goods or services or sells them.

8.5 If rectification is excluded or impossible due to the passage of time (end of the event), the customer shall only be entitled to reduction rights in the event of a defect.

8.6 The Agency may refuse to remedy defects as long as the Client has not fulfilled its contractual obligations, in particular its payment obligations (e.g. down payment, payment on account) in due time.

8.7 If the notification of defects is made late or if reservations were not made at the time of acceptance/handover due to known defects, the warranty claims shall lapse entirely. The same shall apply if the Client makes changes himself or makes it difficult for the Agency to determine the defects.

8.8 Claims for damages arising from a breach of the obligation to rectify defects are excluded, unless they are based on gross negligence or intent.

 

9. Liability

9.1 Claims for damages against the Agency, its employees and/or vicarious agents which are based on slight negligence and which do not involve damages for injury to life, body and/or health shall be excluded - as far as legally possible. It is irrelevant whether they arise from breach of contract or the breach of secondary contractual obligations (e.g. §§ 280, 241 para. 2 BGB), from tort, also from the producer's liability (due to design, production and information errors as well as errors in product monitoring e.g. § 823 BGB).

9.2 In the event of culpable breach of material contractual obligations (cardinal obligations), liability shall also be assumed for negligence on the part of an organ or executive employee, but limited to the reasonably foreseeable damage typical for the contract. This limitation does not apply in the event of injury to life, limb and/or health.

9.3 In cases of the permissible limitation of liability for simple negligence, the extent of the damage shall in no case exceed the lower of either 50% of the order value or Euro 500,000.00.

9.4 The risk of the legal admissibility of the advertising and content shall be borne solely by the Client. This applies in particular in the event that content violates the Unfair Competition Act (UWG), the Copyright Act (UrhG) and special advertising laws.

9.5 Unless otherwise agreed, the Agency shall not be liable for items brought in by the Client, unless the Agency has caused the damage or destruction of the items through intentional or grossly negligent action.

9.6 Liability for (consequential) damage not typical for the contract is excluded. This also applies to gross negligence.

9.7 The limitation period for claims for defects (in particular § 438 para. 1 no. 3 BGB) shall be limited to one year to the extent permitted by law. Cases of fraudulent misrepresentation, intent and §§ 478, 479 BGB are excluded from this.

9.8 The Client's right to assert claims arising from notified defects shall become statute-barred in all cases six months from the time of the timely notification of the defect, but no earlier than the expiry of the warranty period.

 

10. Property rights

10.1 The Agency shall grant the Client the rights of use for publication, duplication, exploitation, modification, editing, translation and, if applicable, synchronisation, unlimited in terms of time, content and territory, for work commissioned by the Client and paid for in full. Rights of use to works that have not yet been paid for at the end of the cooperation between the Agency and the Client shall remain with the Agency. The Agency shall be entitled to affix copyright designations to the advertising materials developed and/or produced by it.

10.2 All industrial property rights (copyrights and ancillary copyrights, trademark rights, ancillary copyrights under competition law, patent rights) arising in connection with the services to be rendered at the Agency or its employees or third parties commissioned by it - also on behalf of the Client - shall remain exclusively with the Agency, unless expressly agreed otherwise. The transfer of rights of use and exploitation shall require written agreement. The same shall apply to concepts and drafts. Only the Agency or a person expressly commissioned by the Agency may make changes to the service results. All performance results, concepts and drafts shall be deemed entrusted and may not be used or passed on to third parties without the Agency's consent. This also applies to offer documents, illustrations, drawings, concepts and strategy proposals as well as calculations.

10.3 The Client shall be entitled to use the Agency's concepts, designs, etc. only for its own purposes as provided for in the contract; reproductions shall only be permitted with the Agency's express prior consent. Artwork, working films and negatives produced by the Agency or on its behalf shall remain the property of the Agency, even if they are charged to the Client.

10.4 With regard to the execution of orders according to information or documents provided by the Client, the Client shall guarantee that the production and delivery of the services executed according to the Client's information and documents do not infringe the property rights of third parties. The Agency shall not be obliged to check whether the information or documents handed over by the Client for the performance of services infringe or could infringe the property rights of third parties. In this respect, the Client shall be obliged to immediately indemnify the Agency against all possible claims for damages by third parties and to pay for all damages arising from the infringement of property rights and, if requested, to make advance payments.

10.5 The Agency is entitled to record the event and to use the recordings together with background information about the project for the purpose of documentation as well as for its own PR.

10.6 The Agency may name the Client as a reference client on its website or in other media and publicly reproduce or refer to the services provided for demonstration purposes, unless the Client objects to this.

 

11. Secrecy obligation

11.1 The Agency and the Client undertake to treat as confidential all business secrets disclosed to them in the course of their cooperation with the Client. Insofar as third parties are called in to fulfil tasks, the Agency or the Client shall oblige these persons to exercise the same care. The obligation to maintain confidentiality shall also apply beyond the duration of the cooperation.

11.2 The Client undertakes not to directly contact and commission subcontractors or suppliers, in particular artists and specialised service providers, who become known to him through the business relationship with the Agency, even after the conclusion of the contractual relationship, for a period of 3 years after the termination of the business relationship. If the Client violates this obligation, the Agency shall be entitled to claim damages from the Client in the amount of 50% of the remuneration paid to the respective contractor.

 

12. Retention of title

12.1 All services, service results and delivery items shall remain the property of the Agency until complete fulfilment of all obligations arising from the contractual relationship between the Parties.

12.2 Any transfer of rights of use and exploitation shall only become effective upon full performance of all obligations arising from the contractual relationship between the Parties.

 

13. Retention of documents

13.1 The Agency shall keep the documents relating to the order for a period of 6 months. If original documents are provided, the Client undertakes to produce duplicates. The Agency shall not be liable for originals of the Client that are not reclaimed within one month after completion of the order.

14. Set-off and assignment

14.1 The Client may only set off claims of the Agency against undisputed or legally established counterclaims.

14.2 The Client's claims and rights of use arising from this contractual relationship shall only be transferable with the prior written consent of the Agency.

 

15. Place of performance and jurisdiction

15.1 The place of performance and exclusive place of jurisdiction for all disputes between the parties arising from the contractual relationship shall be Munich (Munich Regional Court I), insofar as the Client is an entrepreneur, a registered trader, a legal entity under public law or a special fund under public law.

15.2 The contractual relationship shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG), also in the case of foreign clients.

 

16. Final provisions

16.1 Should any provision of these General Terms and Conditions be invalid or void, this shall not affect the validity of the remaining provisions.

16.2 Amendments and supplements to these General Terms and Conditions as well as to the contract and any ancillary agreements must be made in writing. This also applies to the amendment or waiver of this requirement for the written form.