Terms and conditions of AMC GmbH & Co. KG
Status: 1st March 2013
I. General Conditions
The General Terms and Conditions of AMC GmbH & Co. KG, represented by AMC GmbH (referred to in the following as “AMC”) are solely applicable. Any conditions of the contractual partner which differ from the General Terms and Conditions of AMC are invalid.
All the offers of AMC and all agreements with AMC are carried out on the basis of these General Terms and Conditions.
Offers are non-binding. In the lack of other agreements, written offers for agency and consultancy services as well as individual web design by AMC are binding for 3 weeks, and subsequently these are also non-binding.
2. Assignment of a mission
With the assignment of a mission the contractual partner acknowledges the General Terms and Conditions of AMC and 50% of the price for the assignment mentioned in the offer is due as a deposit.
All agreements require written confirmation by AMC. This applies similarly for the changes and additions to the contract.
If there are signs of a deterioration in the financial situation of the contractual partner, in the sense of § 321 BGB (German Civil Code), AMC is entitled to retain the service until the agreed price has been paid or surety has been provided for it. In this event AMC is also entitled to withdraw from the con-tract.
3. Subject of the Contract
The subject of the contract is the activity described in the offer or agreed on and precisely described in the contract. With the exception of the web design contract, the focus is on the consultancy service. Only in the case of web design is the successful completion of a contract for work and labour required, in terms of constructing website.
If AMC is assigned with agency or consultancy services, the defined contents of the services are made concrete in the form of service goals desired by the contractual partner before the performance of the service. This generally takes place through a briefing of the parties. The briefing is carried out through discussions of the parties, in which employees of the parties should take place who have the authority to make decisions. AMC will capture the contractually important points in written protocols. Should the contractual partner not contest the content of a protocol within 6 working days, then this would be counted as a confirmation of the protocol.
In the event of pure consultancy tasks being assigned, the services of AMC are provided when the necessary analyses, the conclusions to be drawn from them and the recommendations have been developed and explained to the client. It is irrelevant when and where the conclusions or recommendations are implemented.
The work results to be provided by AMC in the context of the contract are, insofar as they are intended to be published or passed on to third parties, to be presented to the contractual partner for approval. The approval of the work results is to take place without delay – after an examination phase of a maximum of 5 working days.
If no other agreement has been made, AMC can use competent subcontractors to carry out the assignment.
AMC may be assigned with additional services outside of the service described in the contract. Such assignments are noted in writing and are invoiced separately.
4. Modifications in services
AMC is obliged to take into consideration requests for modifications by the client insofar as this is possible in the context of the company’s capacity, particularly with respect to the effort and the time expenditure involved.
If the modification has to do with the contractual conditions, in particular the effort for AMC or the timetable, the parties agree on an appropriate adaptation of the contractual conditions, particularly the increasing of the price and the adaptation of deadlines.
Should comprehensive investigation of the additional effort be necessary before the realisation of the desired modification, AMC may request a separate order for this investigation.
5. Obligation of Confidentiality / Data Protection
AMC is obliged without time limitation to maintain silence about all information described as confidential, as well as business and company secrets, belonging to the contractual partner which become known in the context of the contract. Transmission to third parties who are not involved in the carrying out of the assignment may only take place with the written approval of the contractual partner.
This obligation of confidentiality applies to all the employees of AMC as well as the subcontractors used by AMC.
AMC is entitled, in the context of the purpose of the contract, to process the personal data entrusted to it, under consideration of data protection regulations, or to have third parties process them.
AMC is allowed to reveal to third parties that they have entered into contractual relations with the contractual partner and are carrying out for it the services described in the contract. Details of the contractual conditions are subject to an obligation of confidentiality.
6. Obligation to cooperate for the contractual partner
The contractual partner is obliged to support AMC to the best of its ability, and to provide all the conditions required for proper implementation of the assignment. In particular, it has to provide all of the documents and materials required for carrying out the assignment in a timely manner.
On demand of AMC, the contractual partner is to provide written confirmation of the correctness and completeness of the documents which it has to provide, as well as of the information it gives and its oral statements.6.3 Any particular cooperation obligations for the contractual partner are recorded in a contract.
7. Remuneration / Payment conditions / Offsetting
The compensation/fees for the services of AMC are specified in the assignment or the assignment confirmation. If no other agreement has been made, AMC is entitled, to claim reimbursement for expenses, as well as the claim for fees/remuneration. Individual points relating to the mode of payment are stipulated below.
If invoices are made according to effort for longer-term contracts, AMC’s price list for the respective period is otherwise applicable. For contracts which were made in the last quarter of a year, the prices agreed also apply for the following year.
All payments are due at the last 10 days after presentation of the invoice, and should be paid immediately without deductions. Legal value-added tax is to be added to all price quotations, and is to be displayed separately in invoices.
If there are several clients, they are jointly liable.
Offsetting by the contractual partner against claims for payment and reimbursement made by AMC is only possible with uncontested claims or claims legally judged to be final from the respective underlying contractual relationship.
If payment is made after the due date, standard bank debit interest– but at least default interest 5% over the basic interest rate according to § 1 of the German Diskont-Überleitungsgesetz (discount transition law) of 9 July 1998 – must be paid without any further warning being necessary (§§ 284, 288 BGB [German Civil Code]).
Costs caused by business trips are invoiced to the contractual partner in the following amounts: train journeys: 1st class (including supplements); aeroplane: flexible tickets (within the EU: Economy Class / outside of the EU: Business Class); hotel: 4-star category; internet and telephone costs abroad according to costs; food costs: legal flat rates. All other costs (e.g. taxi, parking fees, etc.) and material costs (e.g. colour printing) are invoiced separately, according to costs.
The contractual partner agrees that the costs for business trips which were not yet available at the time of invoicing may also be invoiced to the contractual partner after the end of a project.
8. Rectification of defects
Insofar as the service owed by AMC is rectifiable, AMC will rectify any defects which it agrees on insofar as this is possible with an appropriate amount of effort. The contractual partner must immediately report any defects in writing, at the latest within the guarantee period.
If the defect rectification fails, or if AMC is not ready or not able to carry out the rectification of the defect or provide the replacement, or if this is delayed beyond a reasonable time for reasons given by the AMC, the contractual partner is entitled to withdraw from the contract or demand a reduction of the compensation.
Any further demands of the contractual partner, particularly claims for damage including those for lost profits or other financial damage of the contractual partner, are excluded.
AMC is liable to the client, irrespective for which legal reason, for damage caused to the contractual partner or employees intentionally or by gross negligence.
Liability for slight negligence can only be found if essential contractual duties are infringed. For an individual damage event, the liability is limited to a maximum of the total amount of remuneration for AMC, after deduction of the costs for subcontractors. A single damage event entails the sum of the damage claims of all those entitled to claim which results from a single service which is provided within a certain period of time, which can be delimited and hence is to be seen as a unit.
The above limitation of liability does not apply if the contractual partner makes claims for compensation due to the lack of a guaranteed characteristic.
10. Protection of intellectual property
The contractual partner is responsible for the fact that the reports, plans, designs, diagrams, itemisations, calculations, analyses, articles and publicity materials of all kinds are only used for the contractually agreed purposes. Use of the services provided is permitted for all of the subsidiaries of the contractual partner; for other companies connected with the contractual partner it requires an express written agreement.
As long as work results can be copyrighted, AMC remains the author. The particularities of transmission of rights are regulated in the contract.
11. Duty of loyalty
The parties commit each other to loyalty. They inform each other immediately of all circumstances which occur in the course of the execution of the assignment and which may influence its processing.
The contractual partner undertakes not to hire or otherwise employ employees or former employees of AMC who are or were active in the context of the implementation the assignment, for a period of 12 months after the end of the cooperation.
The contractual partner also undertakes to communicate to AMC immediately any intentions to resign or change which are held by the employees of AMC used for the carrying out of the assignment.
12. Force majeure
Force majeure events which make the services considerably more difficult or impossible to provide for a period of time entitle the respective party, to postpone the accomplishment of its service for the duration of the hindrance and an appropriate preparatory period. Industrial disputes and similar circumstances are equivalent to force majeure in the sense that they are unforeseeable, serious and not caused by the party. The parties inform each other immediately as soon as such circumstances start.
13. Right of retention / storage of documents
Until the full payment of all claims, AMC has the right to retain documents given to it. However, the use of this right is disloyal if the retention of the documents would cause the contractual partner excessively great damage which cannot be justified when the interests of both parties are weighed up.
After the settling of all the claims from the contract, AMC is to provide all documents which the contractual partner or a third party has transmitted to it for the purpose of carrying out the assignment. This does not apply to written correspondence between the parties and to simple transcripts of the reports, organisational plans etc. created in the context of the assignment, as long as the contractual partner has received the originals.
The obligation of AMC to store the documents disappears 6 months after delivery of a written request for the documents to be collected, or 3 years in the case of documents retained in accordance with point 13.1, and at the latest 5 years after the end of the contractual relations.
Rights resulting from the contractual relation with AMC may be transferred by the contractual partner only after prior written approval from AMC.
For all claims resulting from this contract, the applicable law is solely the law of the Federal Republic of Germany. The UN convention on contracts for the international sale of goods is excluded.
Modifications and additions to these terms and conditions or the contract must be made in written form. The same applies for any waiver of the need for written form.
For all legal disputes arising from the contractual relation with registered traders or a legal entity in public law, solely the Amtsgericht (local court) or the Landgericht (district court) of Frankfurt am Main is responsible.
In the case of non-registered traders, jurisdiction is determined according to the legal regulations.
II. Particular conditions for the conclusion of an agency contract
1. The subject of the following terms and conditions is the contract on the activity of AMC as an agency which is active in the areas of marketing consultancy, advertisement planning, advertisement design, and advertising media placement for the contractual partner.
The development of conceptual and design-related propositions by AMC with the goal of concluding a contract with the contractual partner is carried out, notwithstanding regulations stipulating otherwise, in return for payment of the remuneration agreed with the contractual partner for this (presentation fee). In the event of the mission being assigned, the presentation fee is combined with the agency fee.
The use of copyright and property rights to the works prepared by AMC in the context of the works presented in the presentation remain with AMC even when the presentation fee is charged. Only in the event of an agency contract being concluded with AMC on the basis of the presentation are the copyright-related usage rights and ownership rights to the presentation transferred to the contractual partner in accordance with Point II. 6.
3. Tie of loyalty to the contractual partner
The tie of loyalty to the contractual partner obliges AMC to provide an objective consultation which is solely aligned with the goals of the contractual partner. This relates in particular to the question of the media use and the choice of third-party companies and individuals by AMC, e.g. in the area of advertising media production. As long as the contractual partner has not expressly reserved its right to participate in the decision, the selection of third parties is carried out by AMC under consideration of the principle of a balance between economy and the best possible success, in the interest of the contractual partner which wishes to advertise.
4. Media assignments
Assignments to advertising media are given by AMC in its own name and on its own account, at the pricing conditions which are the most favourable for the contractual partner.
5. Competition exclusion
AMC undertakes to inform its contractual partners about any possible competitive conflicts and in individual cases a separate fee will guarantee competition exclusion for the individually determined products and services.
When competition exclusion is granted by AMC, this also entails the obligation of the contractual partner, while the agency contract is running and is not terminated, to refrain from simultaneously assigning any other advertising agency with the task of consultation, planning, design and execution of advertising in the area which is the subject of the contract.
6. Copyright and usage rights
AMC transfers all the copyright-related usage rights associated with the work delivered by AMC to the contractual partner and also in the context of the purpose of the contract, which means that the spatial, temporal and content-related scope of the usage rights, as well as the type of usage granted, are determined by the purpose of the contract. Further details are stipulated in the agency contract.
Usage rights for work which has not yet been paid for at the termination of the contract, or, in the event of invoicing on the basis of commissions, have not yet been published, remain the property of AMC, subject to other agreements made.
The tasks of AMC include informing the contractual partner of the legal objections which it can discern against the contractual partner’s planned Advertising.