General terms and conditions

1. Scope of these terms and conditions

1.1 All services and deliveries by Westenburger & Weigerding GbR, trading as MINDWEBMEDIA (hereinafter the “Agency”), to clients acting as entrepreneurs within the meaning of section 14 of the German Civil Code (BGB) are governed exclusively by the following General Terms and Conditions. Any conflicting terms and conditions of the client shall not form part of the contract unless the Agency has agreed in writing that they apply.

1.2 Any individual provisions agreed by the contracting parties in an order or in another agreement or arrangement that depart from these Terms and Conditions shall take precedence over them.

1.3 These Terms and Conditions also apply to all future orders placed by the Client with the Agency after they have first been incorporated, even if their application is not expressly referred to again in those subsequent orders.

2. Processing of orders

2.1 The Client may accept an offer from the Agency that states prices within three weeks of receiving it, unless a shorter period is specified. Once that period has expired, the Agency is no longer bound by the offer. Any cost estimate prepared by the Agency merely constitutes an invitation for the Client to submit an offer, which must still be accepted by the Agency.

2.2 The scope of the services is set out in the product or service description agreed when the order is placed. Any additional or subsequent changes to that product or service description must be made in writing.

2.3 The Agency and the Client shall consult each other at regular intervals about progress and any obstacles encountered while carrying out the commissioned services. If either party departs from the agreed approach or has doubts about the correctness of the other party’s approach, it shall inform the other without delay.

2.4 Minutes of meetings prepared by the Agency and sent to the Client shall be regarded by the contracting parties as commercial letters of confirmation. Unless the Client objects in writing within three working days, the agreements, instructions, orders and other legally significant declarations recorded in them shall become binding.

2.5 Templates, files and other working materials, such as negatives, models and original illustrations, which the Agency creates or commissions in order to provide the contractually owed service remain the Agency’s property. The Agency is not obliged to hand them over. In the case of software development, this also applies to the source code and the related documentation.

2.6 The Agency reserves the right to withdraw from the Contract if a delay in delivery or performance caused by unforeseen circumstances or obstacles, in particular force majeure, epidemics, government measures, failure to obtain official approvals, industrial disputes of any kind, sabotage, shortages of raw materials or late delivery of materials through no fault of the Agency, continues for more than six weeks and is not attributable to the Agency.

3. Provision of services and engagement of third parties

3.1 Unless the order provides otherwise, the Agency is generally free to determine how, when and where the work is carried out.

3.2 The Agency is entitled either to carry out the work entrusted to it itself or to engage vicarious agents or subcontractors in its own name.

3.3 The Agency is entitled to place orders for the production of advertising materials in which it has participated in accordance with the Contract in the Client’s name and for the Client’s account, provided that the Agency has given the Client the third party’s name and address and the Client has not objected in writing within one week.

3.4 The Agency places orders with advertising media in its own name and for its own account. If volume discounts or frequency discounts are claimed but the applicable discount requirements are not met, the Client shall be charged the resulting shortfall, which is payable immediately. In this respect, the Client shall indemnify the Agency against claims by the media owner upon first demand.

3.5 The Client may accept an offer from the Agency that states prices within three weeks of receiving it. Once that period has expired, the Agency is no longer bound by the offer. A cost estimate prepared by the Agency does not in itself constitute a binding offer.

4. Client’s performance and cooperation obligations

4.1 The Client shall use its best endeavours to support the Agency in delivering the contractually agreed services and, in particular, shall promptly review and approve draft concepts, proposals, design or print templates, logo designs, screen designs and programming proposals. Those approvals shall then form the binding basis for the Agency’s further performance. Where test runs, acceptance tests, presentations or other meetings become necessary or appropriate, the Client shall arrange for suitably qualified staff to attend who are authorised to make all necessary or appropriate decisions on the Client’s behalf.

4.2 If this work process is delayed for reasons attributable to the Client and the timetable consequently has to be changed, the Agency reserves the right to recalculate particular quoted services and request an increase in remuneration. Alternatively, the Agency is entitled to invoice the services provided up to that point.

4.3 The Client shall provide the Agency, free of charge, with all data and documents required to carry out the project. The Agency shall handle all working documents with care, protect them against access by third parties and use them solely to carry out the relevant order. If the Client wishes the data to be returned, it must notify the Agency in writing when handing it over. Otherwise, the data shall be archived or destroyed once the agreed remuneration has been paid. At the Agency’s request, the Client shall provide in digital form all text and materials required for production. Within reasonable limits, the Client is also obliged to cooperate appropriately in the development, production and maintenance of a website covered by the Contract. In particular, it must provide the information required for that development, production and maintenance.

4.4 The Client is responsible for setting up and maintaining its IT infrastructure and for any hosting provision for an online shop or website. The Agency shall never assume system responsibility in this respect; that responsibility always lies with the Client’s relevant third-party service provider. Accordingly, the Agency is not responsible for publishing the website on the World Wide Web or for its availability over the Internet. Nor is the Agency obliged to procure an Internet domain. Providing Internet access is likewise not one of the Agency’s obligations. However, upon conclusion of the Contract, the Agency assigns to the Client in advance all related claims under the subcontract against the relevant third-party service provider. The Client accepts that assignment.

4.5 In connection with a commissioned project, the Client shall engage other agencies or service providers only after consulting and reaching agreement with the Agency.

5. Remuneration for the Agency’s services

5.1 Unless otherwise agreed in the individual order, the services provided by the Agency shall be charged at hourly rates according to the time spent. Technical costs shall be charged at the Agency’s then-current rates for technical costs. Remuneration for rights of use is governed by sections 8.6 to 8.7 below.

5.2 Unless otherwise agreed, the Agency is entitled to invoice its services monthly at the end of each month. It is also entitled to invoice the Client for reasonable advance payments at any stage of the project.

5.3 A handling fee may be charged for services supplied by third parties whom the Agency is permitted to use in performing the Contract or order, provided that the amount of the fee is expressly agreed in the relevant offer or individual order.

5.4 The Agency shall charge the Client at cost for internal expenses incurred in providing the contractual services, such as communication, postage, reproduction and travel costs.

5.5 If the Client is in default of payment, the Agency may require advance payment for services to be provided in future. In that event, the Agency may also suspend further work on the project until payment is made without itself falling into default in performance.

6. Payment terms

6.1 Agreed prices are net prices and are subject to statutory value added tax (VAT) at the applicable rate. The artists’ social security levy, fees charged by GEMA or other collecting societies, customs duties and any other charges, including those arising subsequently, shall be passed on to the Client.

6.2 Unless otherwise agreed, the Agency’s invoices are due for payment in full within 14 days of receipt.

6.3 Payments may be withheld or set off against counterclaims only where those claims have been acknowledged by the Agency or finally determined by a court. This restriction does not apply if the Client is not a company or entrepreneur within the meaning of section 14 BGB.

6.4 Until all invoices relating to the order have been paid in full, the Agency retains ownership of all services and rights, in particular copyright-related rights of use, as well as of any files, documents and items supplied.

7. Retention of title

7.1 The goods delivered remain the Agency’s property until all claims arising from the Contract have been satisfied. If the Client is a legal person governed by public law, a special fund under public law or an entrepreneur acting in the course of its commercial or self-employed professional activity, title is also retained beyond that point within the ongoing business relationship until all claims to which the Agency is entitled in connection with the Contract have been settled.

7.2 If the Client defaults on payment, including payment for other or future deliveries or services by the Agency, or if the Client’s financial position deteriorates, the Agency may withdraw from the Contract and enter the Client’s business premises to repossess the goods subject to retention of title. If an allowance is made following repossession, the Agency and the Client agree that it shall be based on the item’s ordinary market value at the time of repossession. The Client shall bear all costs of repossession and realisation. Without further evidence, realisation costs are agreed at 5% of the ordinary sale value; the amount may be increased or reduced if substantiated by the Agency or the Client.

7.3 The Agency’s assertion of its retention of title or seizure of the item delivered shall not constitute withdrawal from the Contract, provided that the Client is a merchant.

7.4 Items supplied for testing or demonstration purposes remain the Agency’s property. The Client may use them beyond those purposes only under a separate written agreement.

8. Rights of use, scope and remuneration

8.1 All copyright and other rights of use in the Agency’s work products that the Client has approved and paid for advertising use shall pass to the Client to the extent required by the purpose of the relevant order. The Client acknowledges any restrictions arising under section 9 below. The Agency fulfils its obligations by granting exclusive rights of use in the contractual territory for the media and duration of the advertising campaign specified by the contracting parties in the relevant order. The rights transferred include the right to edit the work product in any way and to combine it with other works. The Client may transfer those rights of use, in whole or in part, to subsidiaries or affiliated companies within a group. Any use beyond the scope set out above requires the Agency’s separate consent.

8.2 If the Agency engages third parties to perform the Contract, it shall acquire rights of use in their services to the extent described above and transfer those rights to the Client accordingly. If, in an individual case, rights of that scope are unavailable or can be acquired only at disproportionately high cost, the Agency shall inform the Client and follow its instructions. The Client shall bear any resulting additional costs.

8.3 Even where exclusive rights of use are transferred to the Client, the Agency is entitled to use the work products and the Client’s name free of charge for its own promotional purposes, including after the Contract ends, in all media including the Internet and in competitions and presentations.

8.4 Where the Agency creates electronic programs or parts of programs as part of its contractual services, the relevant source code and accompanying documentation are not included in the rights granted to the Client.

8.5 The transfer of rights to the Client does not include Agency services, such as concepts, ideas or drafts, that the Client rejects, discontinues or does not use within six months after delivery. The rights of use and ownership in those services remain with the Agency.

8.6 The rights of use referred to in sections 8.1 and 8.2 above are covered by payment of the remuneration agreed in the order. If use is extended beyond the end date for the advertising campaign stated in the order, beyond the contractual territory or to media or advertising channels other than those named in the order, the Agency shall receive a usage fee for a period of no more than three years.

8.7 The Agency accepts no liability for authors’ statutory claims to a subsequent increase in remuneration under sections 32 and 32a UrhG; the Client shall indemnify the Agency against such claims upon first demand.

9. Use of AI: consent, objection, rights and liability

9.1 The Agency is entitled to use AI applications when providing its services. Information shall be disclosed to the relevant provider only to the extent necessary for the agreed service and permitted under data protection, confidentiality and contract law. Personal data or content marked as confidential shall not be entered into an AI system solely on the basis of this clause; a separate legal basis or agreement is required.

9.2 If the Client objects to the use of AI applications before or when placing an order, the Agency shall consider whether and to what extent those applications can be omitted from the provision of the services. Omitting them may affect pricing, timings and the feasibility of the services. In that event, the Agency is entitled to submit a revised offer or decline the order.

9.3 The Agency grants intellectual-property rights of use in AI-generated content and elements to the extent that such rights arise and can be granted. The Agency’s use of AI applications is subject to the applicable terms of use. Statutory liability rules and the liability provisions of these Terms and Conditions remain unaffected; there is no blanket exclusion of liability solely because AI is used.

9.4 Whether, and to what extent, protective rights and rights of use arise in AI-generated or AI-assisted content depends in particular on the human creative contribution, the system used, its terms of use and the applicable law. The Agency therefore grants its own or validly acquired rights only to the extent that they actually exist and are transferable; it gives no guarantee of exclusive copyright protection. Unless otherwise agreed, the Agency shall not use the specifically approved final version as a deliverable for another client.

9.5 The parties shall agree on the intended publication context for AI-generated or AI-manipulated content. The Agency shall take account of identifiable statutory transparency and labelling requirements and alert the Client to any approvals required. Realistic-looking artificial or manipulated depictions shall be clearly labelled as such on publication where legally required. A final legal review is owed only if expressly agreed.

10. Warranty

10.1 Information provided by the Agency in type lists, brochures, printed materials or on its website does not constitute a guarantee of quality within the meaning of section 443 BGB.

10.2 Any special technical requirements and intended uses must be specified conclusively in writing when the order is placed and confirmed in writing by the Agency. In that event, the Client is obliged to accept the work.

10.3 The Client must inspect the Agency’s work and services immediately upon receipt and, in any event, before using them, and must notify the Agency of defects immediately after discovering them. If the Client fails to inspect the work or notify the Agency without delay, it shall have no warranty claims in respect of obvious defects, known defects or consequential defects.

10.4 If there is a defect for which the Agency is responsible, it may choose either to remedy the defect or provide a replacement. Where it chooses to remedy the defect, it is entitled to make two attempts, each within a reasonable period. In all other respects, the statutory provisions on contracts for work and services under the BGB apply.

10.5 The Agency’s warranty obligation expires one year after the Client receives the Agency’s delivery or service.

11. Limitation of liability

11.1 Claims for damages on any legal ground are, where the Agency, its legal representatives or its vicarious agents act negligently, limited to the loss typical of the Contract and foreseeable when it was concluded. Liability for slight negligence is excluded unless a duty so fundamental that its breach jeopardises achievement of the Contract’s purpose is breached (a cardinal obligation). This limitation and the preceding exclusion of liability do not apply to intentional conduct by the Agency, claims under a guarantee, injury to life, limb or health, or claims under the German Product Liability Act.

11.2 The Client is expressly advised that the Agency does not itself conduct a legal review of the services it provides at any time. If the Agency considers a legal review by third parties, in particular lawyers or other institutions, necessary to realise or implement the commissioned services, for example under trade mark, commercial or competition law, the Client shall bear the cost following prior consultation. The Agency shall not be liable if and to the extent that it has notified the Client in writing, giving reasons, of concerns about a service’s compliance with applicable law and the Client nevertheless decides not to change the relevant contractual service. In such cases, the Client shall indemnify the Agency against all third-party claims upon first demand. This includes, in particular, the necessary legal enforcement and defence costs.

11.3 For media placement orders, the Agency is not liable for defective performance by the media owner or advertising channel. In such cases, however, it shall assign its damages or warranty claims to the Client.

11.4 Claims for damages against the Agency become time-barred one year after the statutory limitation period begins, without prejudice to section 202 BGB.

11.5 The Agency shall under no circumstances be liable for factual claims about the Client’s products or services contained in advertising materials. Nor shall it be liable for whether ideas, suggestions, proposals, concepts, designs or similar materials supplied under the Contract qualify for protection or registration under patent, copyright or trade mark law.

12. Confidentiality obligation

The Agency and the Client each undertake to keep confidential all information and documents made available or transmitted to them in connection with the conclusion of the Contract that are marked confidential or are otherwise recognisable as the other party’s trade or business secrets. Except where necessary to achieve the Contract’s purpose, neither party may record, store, disclose or exploit such material or make it accessible to unauthorised persons. This also applies to ideas, concepts and designs in text or image form presented by the Agency until and unless the Client has commissioned and paid for those services.

13. Data protection and data backup

13.1 When processing personal data, both parties shall comply with the applicable data protection legislation, in particular the GDPR and BDSG. The Client shall ensure that data transmitted to the Agency may lawfully be processed to the agreed extent. The parties’ respective roles under data protection law and any information or consent required depend on the specific order.

13.2 The Agency processes customer, communication and project data only to the extent necessary to initiate or perform the Contract, maintain security or safeguard legitimate interests, provided that these are not overridden by the data subject’s interests. Access credentials are processed only where the order requires it, are appropriately protected and are deleted or returned once the purpose no longer applies. Further details are set out in the privacy policy and, where applicable, a separate agreement.

13.3 The Client shall back up data and programs before handing them over to the Agency so that they can be restored in the event of data loss.

13.4 Consent may be withdrawn at any time with effect for the future. Withdrawal does not affect the lawfulness of processing carried out before that point. Data shall be deleted once the relevant purpose and any other legal basis no longer apply, unless statutory retention obligations or legitimate grounds, such as establishing, exercising or defending legal claims, require otherwise.

13.5 Where the Agency processes personal data on the Client’s behalf, the parties shall, where required, enter into a data processing agreement that meets the requirements of Art. 28 GDPR before processing begins.

14. Written form

Where these Terms and Conditions, the order or Contract, or any other contractual document refers to ‘written’ or ‘written form’, text form within the meaning of section 126b BGB may also be used (email, SMS or fax).

15. Place of performance, assignment, governing law and contract language

15.1 The place of performance is the Agency’s registered office. To the extent legally permissible, the Agency’s registered office shall be the place of jurisdiction for all disputes arising from the Contract or in connection with the business relationship.

15.2 The Client may transfer or assign claims against the Agency arising from this Contract to a third party only with the Agency’s written consent.

15.3 The law of the Federal Republic of Germany applies, excluding the United Nations Convention on Contracts for the International Sale of Goods and German private international law.

15.4 The contract language is German. Where agreements, quotations or similar documents are translated, the original German text is legally binding.

15.5 If any provision of these General Terms and Conditions is or becomes wholly or partly invalid, the validity of the remaining provisions shall not be affected. The parties undertake to agree a provision that comes as close as possible to the intended economic purpose.