General Terms and Conditions of Sales for Business Clients
General Terms and Conditions
The following General Terms and Conditions (GTC) apply to clients of WECAUSE GmbH (hereinafter: WECAUSE)
who themselves are businesses and clients of WECAUSE.
- Area of application
Our GTC apply for all orders undertaken by WECAUSE for the client (e.g. conception and design, temporary architecture and technical planning, project management, film / photo production, communication design, online marketing, oversight, production, logistics, leasing, assembly, storage, etc.). In the event of an ongoing business relationship these Terms and Conditions are valid for all future orders including when in subsequent orders there is no specific reference to these GTC.
The following GTC apply exclusively; the GTC of the client do not apply. That applies also for provisions in the GTC of the client which do not directly contradict the following GTC, but which would only supplement them.
- Conclusion of and Additions to the Contract, Written Form
Our offers are subject to final confirmation. A contract is concluded only on written confirmation of the order from WECAUSE or on the beginning of the execution of the order.
The services to be provided by WECAUSE arise solely from the order confirmation; this is particularly applicable to conception, design, execution/production, structural calculations, prices and delivery dates. In the event that the contract arises tacitly from the commencement of work, those conditions are binding which WECAUSE would have confirmed in a written order confirmation. Contract amendments or modifications (e.g. extension of the order or delivery date), subsidiary agreements and reservations are binding only if agreed to in writing by WECAUSE. Within the scope of these GTC an email is deemed to be a written communication. Meeting minutes produced by WECAUSE and forwarded to the client are valid as commercial letters of confirmation; their content becomes legally binding if the client does not object to the content in writing within three working days from receipt of the minutes.
- Information Obligation of the Client
The client is obliged to make available to WECAUSE all necessary information, data, documents, design requirements, rights of use (e.g. licenses, trademark rights) promptly, completely, without cost and truthfully which are required for consultation, conception, preparing the offer, production and completion of the order. He will inform WECAUSE of all facts which are necessary or are likely to be necessary for the execution of a pitch or order; this also applies if circumstances should later change or if this change is likely to be relevant for the execution/ of the pitch or order. The client will bear all costs arising from failure to fulfil promptly or completely or truthfully his obligation to provide information.
By making such information available, the client warrants that the release to WECAUSE of the information, data and documents etc. and the use and processing by WECAUSE do not infringe the intellectual property rights of third parties (e.g. copyright, copyright logos, competition rights and / or individual rights etc.) However, if the rights of third parties should be infringed, the client will hold WECAUSE harmless from all claims which the harmed third party brings against WECAUSE, its employees, freelancers suppliers/subcontractors. The indemnification includes the judicial and defense costs.
- Other Obligations of the Client and Special Liability Rules depending on the Content of the Order.
a. Temporary Architecture
The client guarantees at his expense the lawful accessibility, accessibility and development potential of the development location/ construction site as well as its suitability for installation and use.
If, in the opinion of WECAUSE, the involvement of its own supervisor and of the client’s supplementary personal are required, the client is to bear the costs and, as necessary, to register the supplementary workers with the relevant occupational health and safety insurance agency.
The client is liable for all changes to temporary structures, other structures, objects and services etc. provided by WECAUSE which he makes without the prior written consent of WECAUSE. The same applies in respect of all damage and destruction to the extent that these are not due to normal wear and tear. He is liable also for loss or damage caused by himself or third parties arising from installations (e.g. furnishings, technology, kitchens, stage, etc.). The client is liable for all crop damage arising from the execution of the contract. He is not liable if he is not responsible for loss or damage.
b. Film and Photo Production
The client is obliged to approve the concept and also all drafts and sketches concerning sound and images for the performance of the order within four working days – unless otherwise explicitly agreed. If the client fails to respond within this period, the drafts and sketches are to be considered approved if WECAUSE notifies the client of this presumed approval.
Because of the high production costs of film and photo production, after approval the client has absolutely no claim to a round of editing, i.e., post-production. In exceptional cases a claim of this nature exists if the costs or the costs of the round of corrections / postproduction are very low. WECAUSE assumes no liability if within the framework of film or photo production the rights of persons visible in the images (e.g. uninvolved passers-by), objects (e.g. protected articles of daily use or works of art) or buildings (e.g. illumination of the Eiffel Tower at night) are infringed. Acquisition, payment and, as necessary, the indemnification of rights of use of persons, objects, buildings or other protected objects (e.g. logos) for use in films or photographs is always the responsibility of the client.
c. Online Marketing
Social media providers have their specific usage rights over which WECAUSE has no influence. It is possible that social media providers (e.g. Facebook) permanently or temporarily take down promotional content because of these usage rights or even because of unjustified complaints from a user or social media provider.
d. Communication Design
(Please note the penultimate paragraph of Clause 10)
- Prices, Price Adjustment, Due Date of Payment, Prompt Payment Discount, etc.
Our prices are net prices in Euros before Value Added Tax. In addition, the statutory Value Added Tax is to be paid by the client in the amount applicable. If in the event of deliveries to foreign countries (e.g. Switzerland) foreign Value Added Tax is due in addition to German Value Added Tax, the foreign Value Added Tax is to be paid by the client. In addition to the net payment, associated costs and public charges, in particular packing/transport costs, insurance premiums, customs duties, installation and storage costs are to be borne by the client. Both parties will provide mutual support in order to avoid or minimize double imposition of Value Added Tax.
If in the course of the execution of the order raw material or purchase prices relevant for the price calculations relating to the order rise by more than 3%, WECAUSE may raise the agreed net price correspondingly. The same applies if the costs rise due to subsequent requests for changes on the part of the client. Additional costs (e.g. customs charges, GEMA-dues, contributions to the Artists’ Social Insurance Scheme, travel costs, logistics, insurance, etc.) will also be invoiced to the client.
If an order is effectively terminated before or during execution due to challenge, withdrawal, or cancellation WECAUSE is due full payment for work already performed and in addition a lump-sum compensation payment in the amount of 20% of the net value of the services not yet performed. A claim for indemnification over and above this sum is not thereby excluded (e.g. lease costs for non-cancellable location). The indemnification is to be adjusted if the client demonstrates that the effective loss or damage to WECAUSE is less than the 20% net value of the services performed.
Agreed prices (e.g. hourly/daily rates) are valid only for the relevant order that was concluded or, as the case may be, the specifically agreed duration of the contract. Estimates of costs or estimates of the time required and of costs are always non-binding. WECAUSE always endeavors to adhere to estimated costs or agreed budgets; however, this cannot be guaranteed in every case. WECAUSE will inform the client without delay as soon as it is foreseeable that the costs of an order will rise by more than 15%.
Every (partial) service of WECAUSE is deemed accepted by the client as soon as it is made available to the client and the client is informed in writing that acceptance will be deemed to be declared following the end of a reasonable period without objection to acceptance. Unless otherwise agreed or arises from the nature of the service, a period of one calendar week is deemed reasonable.
Invoices are payable without discount not later than 14 calendar days following receipt. Following the 15th day, a demand for payment is subject to interest at nine basis points above the base lending rate.
Reasonable advance payments and interim invoices are always permissible – in particular in the case of cost-intensive activities (film / photo production). WECAUSE can require 100% prepayment, revoke payment deferrals and/or interim invoicing agreements or refuse performance wholly or in part if the economic situation of the client and/or his liquidity deteriorates or if other payment delays by the same client for other services of WECAUSE have accumulated.
The client can offset claims against WECAUSE only to the extent that such claims have been judged to be final and absolute or are uncontested. WECAUSE can offset all claims against the client’s receivables.
- Service Dates and Default
Service dates are only binding if they were agreed in writing after WECAUSE was informed of all relevant facts in writing by the client comprehensively, promptly, completely, truthfully in a clearly legibly form in German or English.
In the event of default, the client is obliged to provide WECAUSE with a reasonable extension – generally 14 calendar days. If WECAUSE fails to meet the extension deadline, the client may withdraw from the contract.
WECAUSE is not in default if a delay was caused in whole or in part by implementation requirements or subsequent requests for adjustments on the part of the client, or by force majeure or other unforeseeable or unavoidable circumstances or hindrances. The time limit for adjustments is extended by the period in which the force majeure or the unforeseeable or unavoidable circumstance or hindrance lasts. If WECAUSE is not responsible for a delay, the client is not entitled to withdraw from the contract or demand compensation.
If, despite paragraph 2, there is liability for loss or damage arising from delay, the liability is incurred only for intent or gross negligence and in addition any culpable loss of life, bodily injury or impairment of health. Every liability for delay is limited to (a) foreseeable loss or damage typical of the type of contract and (b) twice the net order total.
- Execution of the Order and Subcontractors
WECAUSE is entitled at all times to have contractually owed services performed by third parties. WECAUSE is obliged to select and instruct these third parties with due care.
Except when otherwise agreed, WECAUSE is entitled to instruct third parties to perform services for the execution of the contract on behalf of and for the account of the customer and with the customer’s authorization.
- Reservation of Title
Deliverables and services remain the property of WECAUSE until all claims against the client arising from the business relationship have been settled. They may be neither pledged to third parties nor assigned as security before payment has been made in full. The client is required to inform WECAUSE immediately in writing when and if attachments are made by third parties to the deliverables and services belonging to WECAUSE.
The client is authorized to re-sell deliverables and services of WECAUSE only during the normal course of business. He hereby assigns his claims from the resale together with all subsidiary rights to WECAUSE as a security. The assignment applies only in the amount of the existing unsettled claim against WECAUSE. WECAUSE accepts this assignment. If the realizable value of the securities exceeds WECAUSE’s claims by more than 10%, WECAUSE will, at the client’s request, release securities at its own discretion.
Following authentication of a legitimate interest, the client is obliged without delay to provide WECAUSE with the information required to assert its rights against the client’s customers and immediately to hand over the necessary documents.
In case of processing or transformation of deliverable items or other services which are the property of WECAUSE, WECAUSE is to be considered the manufacturer pursuant to § 950 of the German Civil Code (BGB) and retains ownership of the products at every moment of the transformation. If third parties are involved in the processing or transformation, WECAUSE is limited to a co-ownership share in the amount of the gross invoice value of the deliverables and services. The property so obtained continues to be deemed to be property subject to retention of title.
- Leasing, Transfer of Use
If the client leases objects or structures belonging to WECAUSE, he immediately surrenders to WECAUSE all claims to sub-leasing or other transfer of use to third parties; WECAUSE accepts this assignment. Strict liability on the part of WECAUSE for initial defects pursuant to § 536a of the German Civil Code (BGB) is excluded. The client is required to treat all leased structures or objects with due care and in particular to clear snow immediately from the roofs of tents (snow load) and in the event of force majeure to take all reasonable steps to avoid loss or damage. Any loss or damage incurred must be reported without delay. All subleasing or transfer of use to third parties requires the prior written consent of WECAUSE.
The client himself is responsible for all objects, items of value, documents and data introduced and installed. Objects which have been introduced (e.g. decorations) must be certified (e.g. the appropriate fire protection class). The client is liable for loss or damage caused by all persons he invited and allowed to enter.
The lease period begins with the first day of assembly and ends with the day of the completion of dismantling of the leased item. f no lease period was agreed, the leasing relationship can be terminated by the client and WECAUSE by giving one month’s notice to the end of a calendar month.
The client is required to verify without delay the conformity of the deliverables and services with the contract and also that of the drafts, prototypes, templates and other preliminary and interim products and to approve them in the event of freedom from defects. With the approval the risk of any defects passes to the client.
Visible defects are to be reported in writing within one week from receipt of the deliverables and services; hidden defects are to be reported within one week of discovery, otherwise the deliverables and services are deemed to be free of defects and approved.
In the event of justified complaints about defects, WECAUSE is obliged to rectify and/or replace the items at its discretion. If WECAUSE does not fulfil this obligation within a reasonable period of time or if the rectification fails despite repeated efforts, the client can reduce the payment or withdraw from the contract. This does not apply in the case of insignificant defects. Rectification or replacement can be refused by WECAUSE if these are impossible or entail disproportionally high costs.
Defects in one part of the deliverables or services do not justify a complaint concerning the whole of the deliverables or services unless the defect-free partial delivery is unimportant for the client.
In the case of large production quantities (e.g. flyers, etc.) excess or shortfall in deliveries up to 10% of the ordered quantity cannot be subject to complaint.
WECAUSE is not obliged to verify design guidelines, texts and other data, data carriers or other items provided by the client. Data security is the responsibility of the client. WECAUSE is entitled but not obliged to archive a copy of the designs and data provided.
WECAUSE is obliged only to perform a basic check of legal admissibility; as a result, WECAUSE is liable only for intent or gross negligence. WECAUSE ist nur zu einer Grobprüfung der rechtlichen Zulässigkeit verpflichtet; entsprechend haftet WECAUSE nur bei Vorsatz oder grober Fahrlässigkeit.
The warranty rights of the client become time barred one year after the legal commencement of the statutory limitation period. If the period of the services of WECAUSE is shorter than one year (e.g. Christmas campaign) the guarantee period ends on the day from which the services of WECAUSE are no longer accessible to the public.
These time limits do not apply to compensation claims for loss of life, bodily injury or impairment of health or from deliberate or grossly negligent breaches of obligations by WECAUSE which become time-barred in accordance with statutory provisions.
The totality of deliverables and services of WECAUSE are protected as personal intellectual creations by the German Act on Copyright and Related Intellectual Property Rights (Urheberrechtsgesetz), the provisions of which are agreed even if the required level of originality and creativity should not be attained. This applies to conceptual services, preliminary drafts and scribbles, sketches and negatives, etc. of WECAUSE as part of pitches. Ideas, proposals, design instructions or requirements are irrelevant in terms of copyright or the remuneration of WECAUSE; no joint ownership of the creative work of WECAUSE is created thereby.
Unless otherwise provided for in individual contractual agreements, WECAUSE grants the client simple right of use of all deliverables and services to the extent that they are required for the fulfilment of the purpose of the contract. The grant is subject to the condition precedent of satisfaction of all claims due to WECAUSE against the client arising from the entirety of the business relationship. If the customer uses the deliverables and services of WECAUSE beyond the purpose agreed in the contract, or beyond the acquired right of use, this use must be remunerated separately and appropriately; this applies particularly in the event of second use or publication, reprints, data replication, tracing, repeat production and also includes all internal repurposing on the part of the client.
The right to edit and all other known or unknown types of use remain with WECAUSE. Editing includes even the partial use of services, e.g. use of a film clip or still taken from an advertising film is considered to be editing.
In so far as services provided by WECAUSE are edited to create in whole or in part a new work protected by copyright by means of Image/sound/ film composing, or of image /sound/ film montage or collage, this is permissible only after the prior written consent of WECAUSE. In so far as the creative services of WECAUSE which are used significantly contribute to the new work, WECAUSE reserves the right to make its approval dependent on a reasonable remuneration.
Excluded from the transfer of rights is the know-how held by WECAUSE, in particular software, source codes, planning or flow of production processes, coordination or flow of creative processes, conception methods, methods of image development and editing, etc.
A further transfer of a usage right to third parties is permissible with the prior written consent of WECAUSE.
WECAUSE is authorized to make its collaboration with the client publicly known and specifically the deliverables and services created within a project, and to use this in its advertising (Internet, press, etc.) together with the logo of the client. The client hereby grants his consent. Except as provided in other agreements, WECAUSE is entitled to be named in all advertising material, films, images etc. as the author.
WECAUSE is liable for claims for compensation by the client arising from culpable loss of life, bodily injury and impairment of health and for other loss or damage arising from deliberate or grossly negligent acts in so far as these are its own fault and for the faults of its legal representatives or vicarious agents.
If substantial contractual obligations are infringed, WECAUSE is liable also in the event of minor negligence on the part of its legal representatives and vicarious agents. In the event of infringement of major contractual obligations resulting from ordinary negligence, WECAUSE is not liable for indirect loss or damage, consequential loss or damage and lost profits.
The same applies to an assumed warranty of quality or fraudulent concealment of defects and also to claims under the German Product Liability Act (Produkthaftungsgesetz).
The liability of WECAUSE is limited to the foreseeable loss or damage typical of the contract. All claims for compensation, including those for delay and fault on conclusion of the contract, become time barred within one year from receipt of the receivables and services, with the exception of intent and willful deceit.
If the client intends to use the deliverables and services of WECAUSE (including) outside the territory of the Federal Republic of Germany, WECAUSE is liable only for the maintenance of German standards in legal (e.g. product liability, copyright and right of personality, competition law, etc.) and technical respects (e.g. structural demands, fire protection of installed materials, electrical connections/amperage, German Technical Inspection Association (TÜV) and similar inspection procedures, etc.).
Liability on the part of WECAUSE is excluded in all other matters.
- Mutual Confidentiality
WECAUSE and the client are mutually bound to confidentiality concerning confidential information, company secrets and business secrets which became known during the cooperation.
The client warrants that a corresponding confidentiality agreement has been concluded with its employees.
- Data Protection
The client agrees that his personal data (e.g. name, business, profession, date of birth (as appropriate), profession, address and contact information (telephone, fax, email) entry in the companies’ register, bank accounts, credit cards, legal and authorized representatives, contact partners and their contact details, social media accounts with login details and website with login details are collected, saved and processed by WECAUSE for the purpose of the performance of the contract and are also retained for business and publicity purposes. WECAUSE undertakes to protect all data from access by unauthorized third parties and to disclose data to third parties only and to the extent that this is necessary for the performance of the contract. The client can revoke this agreement in writing at any time.
The client warrants that all data collected, saved, processed and / or transmitted by himself or at his request by third parties were handled in compliance with the GDPR, that all the required agreements of the data subjects are available, and that the use of this data by WECAUSE within the context of producing the services from the pitch to the performance of the contract does not breach any data protection provisions.
- Applicable Law, Place of Jurisdiction, Final Provisions
German law is applicable to all orders which WECAUSE accepts under exclusion of the United Nations Convention on Contracts for the International Sale of Goods and international private law. This applies also to any review of the inclusion and validity of these GTC.
For all disputes arising from the business relationship with the client the courts in the Stuttgart District have exclusive local and international jurisdiction.
- Separability Clause
If individual provisions of these General Terms and Conditions should be or become invalid, this does not affect the validity of the remaining provisions. The invalid provision is to be replaced by a valid provision which comes closest to the legal and economic sense of the invalid provision.