General Terms and Conditions of Trade
ITMS Marketing GmbH, Frankfurter Landstr. 15, 61231 Bad Nauheim
These “General Terms and Conditions” apply to all orders placed with us. If not objected to within two working days, they shall be deemed agreed upon.
All business transactions between the client and ITMS Marketing GmbH (referred to as “the agency” hereafter) are exclusively governed by these “General Terms and Conditions”.
Conflicting terms and conditions of the client shall only be effective if explicitly recognized by the agency. Any deviations from or additions to these “General Terms and Conditions” must be made in writing.
If any individual provisions of these “General Terms and Conditions” are invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded based on them. The invalid provision shall be replaced by a valid provision that comes closest to its purpose.
2. Contract Formation
The basis of the business relationship is the respective offer that records all agreed services (scope of services) and payment terms. The agency’s offers are subject to change. The client is bound by their order for a period of two weeks after it has been received by the agency.
Orders shall only be deemed accepted upon the agency’s written confirmation of the order, unless the agency indicates its acceptance, for example, by taking action based on the order.
3. Performance and Fees
Unless otherwise agreed, the agency’s fee claim arises for each individual service as soon as it has been rendered. The agency is entitled to demand advance payments, in the form of partial payments amounting to at least half of the total sum, to cover its expenses.
All services provided by the agency that are not expressly covered by the agreed fee shall be remunerated separately. This particularly applies to all ancillary services. The client shall reimburse all cash expenses incurred by the agency, such as fees for cab and messenger services.
A 15 percent agency commission will be charged on third-party fees for organization and processing.
Estimated fees provided by the agency are non-binding. Deviations of up to 10% more or less than the actual fees compared to the estimate shall be deemed approved. In case of deviations exceeding 10%, the agency shall notify the client of the higher fees. The client shall be deemed to have approved this fee increase if no written objection is received within two days of notification, along with the disclosure of more cost-effective alternatives.
For any work of the agency that remains unperformed due to unknown reasons, the agency shall be entitled to compensation (distance fee) amounting to two-thirds of the fees incurred. Payment of this remuneration does not grant the client any rights to the unperformed work, unrealized concepts, drafts, or similar materials. Instead, they shall be returned immediately to the agency.
The agency is entitled to an appropriate fee for participation in pitches, which shall cover at least the agency’s entire personnel and material expenses for the pitch, as well as the fees of all external services. If the agency does not receive an order after the pitch, all agency services, particularly the pitch documents and their contents, shall remain the property of the agency. The client is not entitled to further use them in any form; instead, the documents shall be returned to the agency immediately upon request.
If the pitch results in an order, the presentation fee shall be charged. If ideas and concepts expressed during the pitch for the communication task are not used for the specific client, the agency shall be entitled to use them elsewhere.
Forwarding presentation documents used for the pitch to third parties, as well as their publication, duplication, or other distribution without the explicit agreement of the agency, is not permitted.
5. Obligation to Confidentiality
The agency, its employees, and any third parties involved undertake to maintain confidentiality about all matters that become known to them in connection with their activities for the client. This obligation to maintain confidentiality applies to both the client and the business relationship.
6. Ownership and Copyright
All agency services (e.g., proposals, ideas, concepts, sketches, preliminary drafts, layouts, final drawings, data files, measurements, etc.) and parts thereof shall remain the property of the agency. The client acquires the right of use (including duplication) for the agreed purpose and scope through the payment of the fee. In the absence of any agreement to the contrary with the agency, the client is only allowed to use the services itself and only for the contractually agreed duration.
Changes to agency services by the client are only permitted with the express consent of the agency and, if the services are protected by copyright, the author.
For the use of agency services that extend beyond the originally agreed purpose and scope, the consent of the agency is required, regardless of copyright protection. The agency and the author shall be entitled to separate, appropriate remuneration. The fee specified in the contract is appropriate but shall be at least 10% of the remuneration paid by the client to third parties commissioned with production, distribution, or publication.
7. Print Data
After receipt of payment, files created for printing purposes shall become the property of the client and, provided that the rights of use have been transferred, can be used for reproduction. The open file shall remain the property of the agency.
The agency is entitled to refer to the agency and, if applicable, to the author on all informative materials and measures, without the client being entitled to any remuneration for such references.
All services and measures proposed or to be performed by the agency must be verified and approved in writing by the client within two working days. If they are not approved in time, they shall be deemed approved by the client.
If services and measures to be performed are brought to attention during meetings, conversations, or phone calls, the release of the services by the client shall be based on the agency’s meeting minutes.
The client shall have the legality of these services checked, particularly with regard to competition and trademark law (see also section 13 Liability). The agency will only arrange for an external legal review upon the client’s written request, and the associated fees shall be borne by the client.
The agency endeavors to meet the deadlines. However, failure to meet the deadlines does not entitle the client to assert their legal rights until a grace period of at least 14 days has been granted to the agency.
This grace period begins with the receipt of a reminder letter by the agency. An obligation to pay damages for delay exists only in case of intent or gross negligence on the part of the agency. Unavoidable or unforeseeable events, particularly delays caused by third parties commissioned by the agency, release the agency from complying with the agreed delivery date.
Invoices from the agency are due immediately upon receipt without any deductions. Delayed payments shall include reminder fees of 5 euros for the first reminder, 8 euros for the second reminder, and 15 euros for the third reminder, as well as penalty interest in the amount of four times the agreed general base interest rate. Delivered goods shall remain the property of the agency until full payment has been received.
The client is only allowed to offset or assert a right of retention against undisputed or legally valid claims.
12. Warranty and Compensation
The client must raise any complaints in writing and provide justification within three working days after the agency’s performance.
In case of justified and timely complaints, the client has the right to request improvement of the performance by the agency.
Claims for damages by the client, particularly due to delay, impossibility of performance, positive breach of contract, culpa in contrahendo, defective or incomplete performance, consequential harm caused by a defect, or tortious acts are excluded, unless they are based on intent or gross negligence on the part of the agency.
The agency shall perform the assigned work in compliance with generally accepted legal principles and shall inform the client in a timely manner of any significant risks that are recognizable to the agency. The client is expressly responsible for compliance with legal regulations, particularly competition law regulations, for services and measures proposed by the agency. The client shall only approve a proposed service or measure by the agency if it has ensured that it is unobjectionable under competition law (trademark law) or is willing to bear the associated risk of implementation itself.
Any liability of the agency for claims made against the client based on proposed services and measures of the agency is expressly excluded if the agency has fulfilled its duty to inform. In particular, the agency shall not be liable for legal fees, the client’s own legal fees, fees for publishing judgments, or any claims for damages or similar claims by third parties.
In the event that a claim is made against the agency itself due to the implementation of a service or measure proposed by the agency, the client shall indemnify and hold the agency harmless. The client shall compensate the agency for all financial and other disadvantages, including immaterial damages, incurred by the agency as a result of a claim by a third party.
14. Applicable Law
Unless agreed otherwise, German law shall apply to contractual relationships with both national and international clients.
15. Place of Performance and Jurisdiction
The place of performance is Bad Nauheim, Germany. The place of jurisdiction for all disputes arising directly or indirectly between the agency and the client shall be the German court with local and subject-matter jurisdiction over the agency’s registered office. The agency is also entitled to appeal to another court having jurisdiction over the client.
Bad Nauheim, January 1, 2009