Terms and Conditions
The following terms and conditions apply to legal transactions and services of OhrConsulting GmbH (hereinafter referred to as OhrConsulting) with its clients. Any conflicting terms and conditions or deviating terms and conditions of the client shall not be recognized unless OhrConsulting has agreed to their validity in writing.
These terms and conditions shall also apply in their current version to all future business transactions with the client, even if their validity is not separately pointed out again.
2. SCOPE OF SERVICES/PROCESSING OF ORDERS/OBLIGATIONS OF THE CLIENT
The scope of services results from the product/service description in OhrConsulting’s written offer. Additional and/or subsequent changes to the product/service descriptions require written confirmation by OhrConsulting.
The client shall immediately object to the contents of meeting minutes transmitted by OhrConsulting if he does not wish to accept the contents presented against him.
OhrConsulting shall be entitled to render partial services insofar as these are reasonable for the client.
Without a separate agreement, OhrConsulting is not obligated to hand over interim results, drafts, layouts, source files, etc. that belong to the contractual performance.
In the absence of a separate agreement, OhrConsulting shall not be obligated to protect or register the ideas, suggestions, proposals, concepts, drafts and other services delivered within the scope of the contract under patent, design, copyright and trademark law.
The risk of the admissibility of OhrConsulting’s services under competition and/or trademark law shall be borne by the client. OhrConsulting does not check the services from a legal point of view. Competition, advertising, trademark or other legal reviews are only the responsibility of OhrConsulting if this has been expressly agreed in writing. In this case, the client shall bear the additional costs incurred, e.g. by engaging a law firm. OhrConsulting shall not be liable for the registrability of the designs and services under trademark law.
3. COOPERATION SERVICES OF THE CLIENT
The client shall support OhrConsulting in the fulfillment of its contractually owed services. This includes, in particular, the timely provision of information, materials, data, including all access data as well as hardware and software, insofar as the client’s cooperation services require this. When placing the order, the Customer shall designate by name a technically competent person authorized to make decisions as a contact person for the Contractor.
This person shall provide the Contractor with the documents and information required for the performance of its work.
Content to be provided by the Client shall be made available in a common, immediately usable digital format. The requirements in detail are defined in the service description of the offer. If it is necessary to convert the content provided by the client into another format, the client shall bear the costs incurred for this according to the usual hourly rates of OhrConsulting.
If the client recognizes that his own information, requirements or contents are incorrect, incomplete, ambiguous or not feasible, he shall immediately inform OhrConsulting of this and the consequences he recognizes.
Cooperation services of the client, which are owed within the scope of the contract, shall not be remunerated or credited against the remuneration agreed upon with OhrConsulting, unless expressly agreed otherwise.
4. PLACING OF ORDERS WITH THIRD PARTIES
OhrConsulting is entitled to carry out the assigned work itself or to commission third parties to do so.
OhrConsulting is entitled but not obliged to place orders for the production of advertising material and/or the acquisition of photographs, images or graphics from third parties on behalf and for the account of the client, unless the client expressly declares otherwise when placing the order. In this context, OhrConsulting is entitled to accept business conditions customary in the industry at the expense of the client. The client hereby grants a corresponding power of attorney.
OhrConsulting shall not be liable for services of third parties that have been commissioned on behalf of the client in accordance with the aforementioned item 4.2. or that OhrConsulting has merely arranged. This applies in particular to the services of photographers, models, printers, dispatch service providers and other so-called letter-shop services. Such services are only mediated by OhrConsulting. The contract is concluded directly with the respective third party and the customer. In these cases, the customer has to contact directly the respective third party who provided the services.
5. DELIVERY, DELIVERY PERIODS
Delivery/production deadlines and delivery/production dates are only binding if OhrConsulting confirms the binding nature in writing. In any case, they are only valid if the client has duly fulfilled any obligations to cooperate (e.g. procurement of documents, releases, provision of information, access data, images, films and other content required for the fulfillment of the contract, preparation of service catalogs/ specification sheets). The delivery/production period shall be extended in the event of unforeseen obstacles that are beyond OhrConsulting’s control, insofar as such obstacles can be proven to have a significant influence on the delivery of the delivery item. The delivery period shall be extended in accordance with the duration of such measures and obstacles. OhrConsulting shall inform the client immediately of the beginning and end of such obstacles.
Drafts and designs provided by OhrConsulting shall only be binding in terms of color, picture, line or sound design if OhrConsulting has confirmed in writing that they can be realized.
If OhrConsulting is in default with its services, it shall first be granted an appropriate grace period. After fruitless expiration of the grace period, the client may withdraw from the contract. Compensation for damages caused by delay can only be demanded up to the amount of the order value.
6. CHANGES IN SERVICES
If the client wishes to change the contractually determined scope of services, he shall inform OhrConsulting in writing. OhrConsulting shall examine the client’s change request and its effects on the existing agreement. The examination shall be remunerated at OhrConsulting’s usual hourly rate.
OhrConsulting shall inform the client of the result of the examination. OhrConsulting will either submit a detailed proposal for the implementation of the change request or explain why the change request is not feasible. If the change is feasible, the contracting parties will agree on the content of the proposal for the implementation of the change request. If agreement is reached, the contract shall be amended to that extent. If no agreement is reached, the original scope of services shall remain unchanged.
Agreed deadlines shall be postponed, if and insofar as they are affected by the change procedure, taking into account the duration of the examination, the vote on the change proposal and, if applicable, the change requests to be implemented plus a reasonable start-up period. OhrConsulting shall inform the client of the new dates.
7. ACCEPTANCE OF WORK PERFORMANCES
If OhrConsulting renders work performances, the client shall be obliged to accept the performances immediately.
If the client does not expressly accept OhrConsulting’s services, they shall be deemed accepted 14 days after handover.
Upon request by OhrConsulting, the client shall be obligated to release drafts and interim results as well, provided that these can be judged sensibly in themselves.
Requests for changes after release shall constitute a change in performance (cf. item 6).
8. RIGHTS OF USE
Upon settlement of all invoices relating to the order, OhrConsulting shall grant the client all rights of use necessary for the use to the extent agreed upon for the order. In case of doubt, OhrConsulting fulfills this obligation by granting non-exclusive rights of use in the territory of the Federal Republic of Germany for the duration of the use of the advertising material and/or the design or programming. Any use beyond this, in particular editing and modification, requires the prior written consent of OhrConsulting. OhrConsulting is not obligated to grant this consent.
Rights of use to work that has not been fully paid for at the end of the contract shall remain with OhrConsulting, subject to any other agreements made.
If photos, pictures or graphics of third parties are acquired for the fulfillment of the contract (e.g. via picture agencies), the acquisition of related rights shall be carried out via OhrConsulting in the absence of any other agreement. The license fees incurred for this will be charged to the client.
The transfer of the rights of use from the client to third parties requires the prior written consent of OhrConsulting.
The above regulations shall also apply to any, even partial, use of the work and services (presentations) presented or handed over by OhrConsulting with the aim of concluding the contract, whether they are protected by copyright or not. This also applies to the use in modified or edited form and to the use of the ideas underlying OhrConsulting’s work and services, provided that these have not been reflected in the client’s previous advertising material. Rights of use shall only be acquired in this case if a separate contract on the use is concluded. The acceptance of a presentation fee shall not constitute consent to the use of OhrConsulting’s work and services.
Templates, files and other working materials (in particular negatives, models, original illustrations, etc.), which OhrConsulting creates or has created in order to provide the service owed according to the contract, shall remain the property of OhrConsulting. OhrConsulting shall not be obligated to surrender such materials. OhrConsulting shall not be obligated to store the data.
OhrConsulting has the right to use all works produced for the client in the context of self-advertising in all media. If the order includes the production of advertising material, OhrConsulting shall be provided with an appropriate quantity of the advertising material for these purposes free of charge. OhrConsulting is entitled to name the client as a reference.
9. PRICES, TERMS OF PAYMENT, DEFAULT OF PAYMENT
OhrConsulting shall invoice on a monthly basis. Invoices are issued at the end of each month. Payment terms are 14 days after receipt of invoice by the customer. The monthly invoicing will be done on an hourly basis and on the basis of a provided activity report (Excel file). A final invoice will be issued at the end of the respective order. OhrConsulting is also entitled to invoice partial services.
All prices are subject to the applicable statutory value added tax.
The agreed prices do not include packaging, freight, postage, insurance or other shipping costs. These costs will be charged to the client. Contributions to the artists’ social insurance, fees for collecting societies (e.g. GEMA), customs duties, or other levies or fees, including those arising subsequently, shall also be charged to the Client.
OhrConsulting has freedom of design within the scope of the order. Warranty claims with regard to the artistic design exist only if OhrConsulting has not observed the recognized rules of the trade.
Insofar as OhrConsulting provides services on the basis of the client’s requirements and specifications (specifications and/or service description), the client shall be responsible for verifying that the requirements meet the client’s wishes and needs. OhrConsulting shall not be obliged to check the requirements included in a specification sheet or a service description with regard to the purpose of use.
OhrConsulting’s warranty obligation is limited to the rectification of a defect within a reasonable period of time. The client reserves the right to demand a reduction of payment or cancellation of the contract if the rectification fails.
The right to claim damages on the basis of provisions other than those under warranty law shall remain unaffected.
The limitation period for claims for defects is 1 year.
The contracts concluded between the parties may be terminated with 6 weeks’ notice to the end of the quarter, unless otherwise agreed in the order. Cancellations must be made in writing.
OhrConsulting shall be liable without limitation according to the statutory provisions in case of intent and gross negligence, as well as for damages resulting from injury to life, body or health, on the basis of the mandatory provisions of the Product Liability Act, as well as for the infringement of copyrights of third parties by the contractually used services.
In case of culpable violation of essential contractual obligations, OhrConsulting’s liability shall be limited to the amount of the typically foreseeable damage. This is limited to the respective order value, in the case of continuing obligations to the remuneration to be paid in the respective calendar year. Should the order value in an individual case not correspond to the typically foreseeable damage, OhrConsulting’s liability shall be limited to the amount covered by OhrConsulting’s business liability insurance.
OhrConsulting shall not be liable for any further damages. In particular, OhrConsulting shall not be liable for damages to third parties, loss of profit or loss of data.
The foregoing limitation of liability shall apply mutatis mutandis to OhrConsulting’s legal representatives as well as employees and vicarious agents.
If no remuneration has been agreed between the parties, the client shall pay OhrConsulting’s usual rates for this service.
In case of advertising, the respective valid list prices of the advertising media on the day of publication are binding.
The client shall reimburse OhrConsulting in full for the costs incurred for each debit note that is not honored or returned. OhrConsulting can demand a lump sum of EUR 2.50 for the costs incurred without any presentation of damages/expenses. If a direct debit authorization has been granted by the client, the client undertakes to inform OhrConsulting immediately of any change in its bank details.
Objections to invoices from OhrConsulting must be raised within two weeks of receipt of the invoice. This shall not affect the due date of the invoice. Failure to raise objections in due time shall be deemed as approval.
The client may only offset claims of OhrConsulting with undisputed or legally established claims.
If the client is in arrears with the payment of an invoice, OhrConsulting is entitled to suspend further work, even if it concerns another order, until full payment has been made.
Proposals made by the client or his other cooperation shall have no influence on the amount of remuneration.
12. THIRD PARTY CONTENT
OhrConsulting is not responsible for materials and contents, especially pictures and graphics, provided by the client. OhrConsulting is not obliged to check the materials and contents for possible legal violations. In particular, OhrConsulting shall not be liable for any image or film material provided.
In the event that OhrConsulting itself is held liable on the basis of the materials and contents, pictures, graphics or film material provided by the client, the client shall indemnify and hold OhrConsulting harmless.
13. RESERVATION OF OWNERSHIP
All delivered physical services remain the property (reserved goods) of OhrConsulting until all monetary claims of OhrConsulting arising from its business relationship with the client have been fulfilled, even if payments have been made for the specific service.
The contracting parties agree to maintain confidentiality regarding the content and conditions of this contract and regarding the knowledge gained during its execution.
OhrConsulting shall ensure that only those employees have access to confidential information who are involved in the respective project. The confidential documents made accessible to OhrConsulting by the client shall be destroyed by OhrConsulting after completion of the order (according to DIN 32757-1 security level 3 – upon request and for an additional charge also security level 4 or 5) or returned to the client upon request. Evaluation data and calculations will be deleted 6 months after the end of the project at the latest.
The client shall only use an offer received from OhrConsulting for his own purposes. All rights to it are reserved by OhrConsulting. The offer or parts of the offer may not be copied, reproduced or processed, duplicated or distributed using electronic systems without OhrConsulting’s prior written consent.
The confidentiality shall also apply beyond the termination of the contractual relationship.
Upon request, the documents handed over in each case are to be returned after termination of the contractual relationship, unless the other contracting party asserts a justified interest in these documents.
15. DATA PROTECTION
The client is informed that the personal data required for the processing of the usage relationship will be stored by OhrConsulting on data carriers. The client expressly agrees to the collection, processing and use of his personal data.
The client agrees that personal data (inventory data) and other information concerning his usage behavior (connection data), such as the time, number and duration of connections, access passwords, uploads and downloads, will be stored by OhrConsulting for the duration of the contract, insofar as this is necessary to fulfill the purpose of the contract. With the collection and storage, the client declares his consent. OhrConsulting also processes and uses the collected inventory data for the purpose of advising its clients, for self-advertising and for market research for its own purposes and for the demand-oriented design of its services. The client may object to such use of his data. OhrConsulting will not forward this data to third parties without the client’s consent. This shall only not apply insofar as the data is publicly accessible anyway or OhrConsulting is legally obliged to disclose such data to third parties, in particular law enforcement agencies, or insofar as internationally recognized technical standards provide for this and the client does not object.
16. NAMING OF REFERENCES
OhrConsulting is entitled to use the client as a reference including logo insertion on the website.
17. FINAL PROVISIONS
Should a provision be or become void, the validity of the other provisions shall remain unaffected. Furthermore, the parties undertake to replace the void provision by a valid provision that comes closest to the economic sense of the invalid one.
The place of performance and jurisdiction for all claims and legal disputes arising from the contractual relationship shall be the registered office of OhrConsulting if the purchaser is a merchant or a legal entity under public law.
German law shall apply exclusively, even if the purchaser has its registered office abroad.