General Terms and Conditions of Löhr & Partner GmbH (Status 02/2021)
Löhr & Partner GmbH
Rüdiger Löhr, Doris Löhr,
Dr.-Ing. Mark-Oliver Löhr
Munich Local Court HRB 52 487
USt IdNr.: DE 129 40 39 84
Phone: +49 89 451046-0
Fax: +49 89 451046-93
1. Scope of applicability
The following General Terms and Conditions (GTCs) apply to all legal transactions of Löhr & Partner GmbH, hereinafter referred to in short as “L&P”, with its contractual partners, hereinafter referred to in short as “client”. The nature of the services and works in detail results from the concept, the offer, the proposals for action or the individual orders developed by L&P.
These GTCs are an essential part of each finalized contract, unless otherwise agreed in detail. They are also valid for future business relations with the client, without the necessity of his renewed explicit confirmation.
Deviating terms and conditions of the client as well as changes and additions to these GTCs are only valid if they have been accepted in writing by the agency. This also applies if the client’s business and/or delivery conditions have not been expressly objected to.
If no order is placed after a presentation/pitch, all services, in particular the presentation documents and the drafts, works, ideas etc. contained therein shall remain property of L&P. The client is not entitled to use or process this material, in any form whatsoever, or to use it as a basis for the production of his own material. If no order has been placed, the client must immediately return all presentation documents in his possession to L&P.
If no order is placed, L&P is at liberty to use the presented ideas, works, drafts etc. for other projects and clients.
The passing on of presentation documents and offers to third parties, as well as their publication, duplication, distribution or other use by the client or his authorized representatives obligates the client to pay a fee in the amount of the respective service. This fee is calculated according to the offer of the agency or, if such an offer is not yet available, according to the usual market conditions.
3. Cost estimates (quotations) and contract conclusion
Our offers are always subject to change and non-binding and only become valid after written confirmation of the order by the client. We shall be bound to our offer prices for a maximum period of 4 weeks until the order is placed.
Offers and attachments may not be made available to third parties without our consent.
L&P’s fee claims also arise if the respective services have not been previously estimated through a quotation by L&P. Deviating regulations must be in writing (e-mail is not sufficient).
4. Scope of the order
The subject of the order is the agreed activity described in the contract/offer, but not the achievement of a specific economic success. Data supplied by third parties or by the client will only be checked by us for plausibility. Unless otherwise agreed, we may make use of expert subcontractors to carry out the order. Orders of the client must be submitted to us in written form.
5. Changes in the scope of services and associated costs
In order to become effective, any verbal agreements and additional arrangements as well as subsequent changes to the agreed contractual content must be made in writing and, in principle, require our written confirmation. For all additional services ordered by the client, we charge the appropriate fee according to our current price list or prepare an additional offer.
Insofar as costs are continuous items which are charged to L&P by third parties (external services), we are entitled to pass on to our clients price increases charged to us by third parties. The prices are net prices without freight and without discounts excluding VAT. L&P charges a fee for the processing and coordination of external services amounting to at least 15% of the order sum of the assigned external services.
Travel costs and expenses for trips to be undertaken in connection with the order and which have been agreed with the client or are deemed necessary are to be reimbursed by the client.
The client agrees to pay any fees to collecting societies such as GEMA. If these fees are advanced by L&P, the client agrees to reimburse L&P against proof. This can also be done after termination of the contractual relationship.
The client is informed that, when placing an order in the artistic, conceptual and advertising consulting field with a non-legal person, a social security contribution for artists has to be paid to the artists’ social security fund (“Künstlersozialkasse”). The client may not deduct this contribution from the agency invoice. The client is responsible and liable for compliance with the obligation to register and pay the contribution.
6. Obligations of the client to cooperate
The client is obliged to support L&P to the best of his ability and to create all necessary conditions for the proper execution of the order. In particular, the client must provide L&P in a timely manner with all information, materials and documents (briefing) necessary or significant for the execution of the order. Proposals of or further contributions by the client have no influence on the calculation of the fee.
The client authorizes us to conclude contracts for services which we ourselves obtain from third parties in the name and for the account of the client.
At our request, the client must provide us with the appropriate authorizations for corrections, printing, online placement etc.
7. Copyright and rights of use
All drafts, drawings, layouts, artwork, concepts, ideas, program code etc. produced by L&P are copyrighted works within the terms of § 2 UrhG, even if they do not meet the requirements of § 2 UrhG. Therefore, none of L&P’s services may be used, edited, changed or passed on without our consent. Any imitation, even of parts of drafts, drawings, layouts, artwork, concepts, ideas, program code etc. is not permitted. In case of infringement, the client is obliged to pay an immediately payable contractual penalty to L&P amounting to 2 times the originally agreed fee.
In the case of a transfer of rights, their scope in terms of space, time and content is exclusively based on the contractual agreements or the purpose of the contract; § 31 para. 5 UrhG applies accordingly. The rights are only transferred to the client after full payment of the entire order. The transfer of granted rights of use to third parties and/or multiple uses are, if not regulated in the initial order, subject to a fee and require the consent of L&P. Rights of use for work which has not been paid for by the end of the contract remain with L&P unless otherwise agreed.
L&P is entitled to information about the scope of use. In case of publications, L&P will be named as author in the usual form.
L&P may sign the developed advertising material in an appropriate and customary manner and publish the placed order for its own advertising.
8. Work documents and electronic data
All work documents, electronic data and records which are produced by the agency in the course of the order processing remain with L&P. The client cannot demand the return of these documents and data. Upon payment of the agreed fee, L&P owes the agreed service, but not the intermediate steps leading to this result in the form of sketches, drafts, production data etc.
The compensation agreed in the contract or in the confirmed offer shall apply. Unless otherwise contractually agreed, payments are due within 14 days of invoicing without any deductions. If the payment dates are exceeded, L&P is entitled to default interest of 5% above the prime rate according to § 1 of the German Discount Rate Transition Act (“Diskontsatz-Überleitungsgesetz”) without further reminder. The right to claim further damages remains unaffected by this regulation.
If the development of the agreed services extends over a longer period of time or if costs of service providers (external costs) are to be paid in advance by L&P, L&P can invoice the client for partial payments for the partial services already rendered. These partial services do not have to be available in a form usable for the client and can also be available simply as a working basis for L&P.
In case of changes or cancellation of orders, work and the like by the client and/or if conditions for the provision of services change, L&P will be reimbursed by the client for any costs thereby incurred and L&P will be released from any liabilities to third parties.
If the client withdraws from the contract before the start of the service of a placed order, L&P can demand 15% of the sales price for the costs incurred by the processing of the order and for lost profit, irrespective of the possibility to claim actually higher damages. The client reserves the right to prove a lower damage.
All prices quoted in offers and orders and the resulting amounts to be paid are subject to the legally applicable value added tax at the current rate.
10. Duty of confidentiality and care
L&P agrees to treat all knowledge received from the client on the basis of an order as strictly confidential for an unlimited period of time and to obligate both the employees and third parties involved to absolute non-disclosure in the same manner.
L&P will safeguard the interests of the client within the scope of the contract with the diligence of a prudent businessman in a fiduciary capacity. This includes that when L&P awards a contract to a third party, the interests of the client will always have priority.
L&P commits itself to assign only qualified employees to carry out the orders and tasks in due time. In this sense, L&P is also liable for any colaborating freelancers used by L&P.
11. Warranty and liability
The risk of legal admissibility of the measures developed and implemented by L&P is borne by the client. This applies in particular if the actions and measures violate regulations of competition law, copyright law and special advertising law. However, L&P is obliged to point out legal risks if they become known during the activity. The client shall indemnify L&P against claims of third parties if L&P has acted upon the explicit request of the client although L&P has informed the client of concerns regarding the permissibility of the measures. The notification of such concerns by L&P to the client must be made in writing immediately after they have become known. If, for a measure to be carried out, L&P considers a competition law examination by a particularly competent person or institution to be necessary, the costs for this shall be borne by the client after prior consultation.
L&P is in no case liable for the factual statements contained in the advertising activities about the products and services of the client. L&P is also not liable for the patent, copyright and trademark protection or registrability of the ideas, suggestions, proposals, concepts and drafts delivered within the scope of the order.
L&P is only liable for damages which they or their vicarious agents or subcontractors have caused intentionally or by gross negligence. The extent of L&P’s liability is limited to the one-time profit of L&P from the respective order. The liability of L&P for consequential harm caused by a defect on the legal ground of positive breach of contract is excluded if and to the extent that the liability of L&P does not result from a breach of duties essential for the fulfilment of the purpose of the contract.
12. Data protection
Information on data protection is available on our website at: www.loehr-partner.de/de/datenschutz
If, in the course of or after completion of an order, a dispute arises with regard to the commissioned project, an out-of-court mediation procedure must be conducted before legal proceedings are initiated. In the event of disputes regarding quality assessment or the amount of the fee, external assessments will be prepared in order to reach an out-of-court settlement if possible. The costs for this will be shared by the client and L&P.
14. Final provisions
The client is not entitled to assign claims from the contract.
A set-off or the assertion of a right of retention by the client is only permissible with recognized or legally binding counterclaims.
The law of the Federal Republic of Germany shall apply exclusively, even if the client has his registered office abroad.
Place of fulfillment and jurisdiction is the registered office of L&P.
Should any provision of these General Terms and Conditions be wholly or partially invalid or lose its legal validity at a later date, the validity of the remaining provisions shall not be affected. In place of the invalid provision, another appropriate provision shall apply by way of contract adjustment, which comes closest to what the parties to the contract would have wanted in economic terms if they had been aware of the invalidity of the provision.