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in Agreements on Communication Design Services
Any commission I am awarded is subject to the following General Basic Contractual Terms which shall be deemed to have been accepted by the Principal unless immediate notification to the contrary is given.
1.1 Any commission awarded to the Designer shall be deemed to be a commission for copyright work to be used under licence.
1.2 All designs and final artwork are subject to the German Copyright Act (Urhebergesetz). The provisions of the Copyright Act shall apply even if the level of creative content required by section 2 Copyright Act [52 UrhG] is not attained.
1.3 The designs and final artwork must not be changed either in the original or in reproduction without the express consent of the Designer. Any imitation in whole or in part is prohibited. Any infringement of this rule shall entitle the Designer to demand payment of a penalty amounting to double the agreed tee for the work. If no fee has been agreed on, the usual fee in accordance with the collective agreement for design services SDSt/AGD shall apply.
1.4 The Designer shall grant the Principal the necessary rights of use for the envisaged purpose. Unless otherwise explicitly agreed, only a non-exclusive right of use shall be granted. Any transfer of any rights of use to third parties shall require an agreement in writing. The rights of use shall not be deemed granted until the fee has been paid in full.
1.5 The Designer is entitled to be credited as author of the work on all reproductions of the work. Any infringement of this right shall entitle the Designer to compensation. In the absence of evidence substantiating a higher claim, the amount of the compensation shall be 100% of the agreed fee or the usual fee in accordance with the collective agreement for design services SDSt/AGD. The Designer's right to claim higher compensation on production of suitable evidence remains unaffected. Should the Principal provide evidence that invalidates a claim or gives grounds for a substantially lower claim, the amount of compensation shall be adjusted accordingly.
1.6 Any recommendations or any other contribution made by the Principal shall have no influence on the amount of the fee nor shall it substantiate any claim to joint copyright.
2. Fee
2.1 Designs and final artwork together with the granting of right of use constitute a single service. In the absence of any other agreement, the fee shall be in accordance with the collective agreement for design services SDSt/AGD. Fees are billed net and are subject to statutory VAT.
2.2 If only designs and/or final artwork are supplied without right of use being granted no licence fee shall be charged.
2.3 If the designs are used at a later date or to a greater extent than originally envisaged, the Designer shall be entitled to retrospectively charge a fee for such additional use or demand payment of the difference between the originally paid fee for the right of use and the fee for the right of use that applies under more extensive use.
2.4 The production of designs as well as any additional service performed by the Designer for the Principal shall be subject to billing unless otherwise explicitly agreed.
3. Due date for payment
3.1 Payment of the fee shall be due on delivery of the work. The fee is payable without any deductions whatsoever. In the event of the work being accepted in parts, a payment for each part shall be due on acceptance of such part. In the event of a commission extending over a lengthy period or requiring high financial outlay on the part of the Designer, payment of the fee shall be in appropriate instalments of 1/3 of the total fee on award of the commission, 1/3 on completion of 50% of the work and 1/3 on final completion and delivery.
4. Additional services, ancillary and travel expenses
4.1 Additional services such as the revision or alteration of final artwork, review of manuscripts or supervision of printing shall be invoiced separately on an hourly basis in accordance with the collective agreement for design services SDSt/AGD.
4.2 The Designer shall be entitled to subcontract any work necessary to fulfilment of the commission on behalf and for account of the Principal. The Principal undertakes to authorise the Designer to do so.
4.3 In the event of subcontracts being awarded on behalf and for account of the Designer, the Principal undertakes to hold the Designer free of any liabilities arising from such contracts, including in particular the costs arising therefrom.
4.4 Outlay for ancillary technical costs, in particular for special materials, the production of models, photographs, progress records, reproductions, typesetting and printing etc., shall be refunded by the Principal.
4.5 Travel expenses and other expenses incurred with the prior approval of the Principal in connection with a commission shall be refunded by the Principal.
5. Reservation of title
5.1 Rights of use may be granted for designs and final artwork but no rights of ownership are granted.
5.2 Originals must accordingly be returned undamaged after an appropriate period of time, unless otherwise explicitly agreed. In the event of loss or damage, the Principal must pay the cost of restoring the originals. Claims for further compensation remain unaffected.
5.3 The dispatch of finished work and master copies shall be at the expense and risk of the Principal.
5.4 The Designer is not obliged to surrender computer files or layouts to the Principal. If the Principal requires the surrender of computer data, this shall be subject to a separate agreement and fee. In the event of the Designer providing the Principal with computer files, these may only be altered with the prior consent of the Designer.
6. Checking, supervision of production and free copies
6.1 Samples for checking must be submitted to the Designer prior to reproduction.
6.2 Any supervision of production by the Designer shall be subject of a separate agreement. If the Designer undertakes to supervise production he or she shall be entitled to make all necessary decisions and issue the appropriate instructions at his or her own discretion. He or she bears liability only for intent or gross negligence on his or her own part.
6.3 The Principal shall provide the Designer with 10 to 20 perfect, unfolded copies of any reproduced work free of charge. The Designer shall be entitled to use these copies for his or her own advertising purposes.
7. Liability
7.1 The Designer shall only be liable for damage to master copies, films, displays and layouts etc., placed in the Designer's care, in the event of intent or gross negligence.
7.2 The Designer undertakes to select and supervise the persons he or she employs for the performance of his or her obliqation liability for such persons.
7.3 The Designer's sub-contractors for necessary outside work shall not be deemed persons employed by the Designer for the performance of his or her obligation (Erfüllungsgehilfen). The Designer bears liability only for intent or gross negligence on his or her own part.
7.4 The Principal's approval of master copies, final versions or any final artwork shall constitute the Principal's acceptance of responsibility for the correctness of the texts and graphics.
7.5 The Designer bears no liability whatsoever for master copies, texts, final versions or final artwork approved by the Principal.
7.6 The Designer shall not be liable for admissibility under competition and trademark law or for the entitlement of his or her work to be registered.
7.7 Complaints regarding obvious defects shall be made in writing and brought to the notice of the Designer no later than 14 days after delivery of the work. All other defects shall become statute-barred one year after acceptance of the work.
8. Creative freedom and original documents
8.1 The Designer shall have creative freedom in the execution of all commissions. Any complaints regarding artistic execution shall be disallowed. The Principal must bear the extra costs of any changes it requires to be made during or after production. The Designer reserves the right to charge a fee for work started.
8.2 In the event of the execution of the commission being delayed for reasons for which the Principal is responsible, the Designer shall be entitled to demand an appropriate increase of the fee. He or she shall also be entitled to claim compensation in the event of intent or gross negligence. Further claims for compensation for delay shall remain unaffected.
8.3 The Principal gives its assurance that it is authorised to use all the original documents it supplies to the Designer. In the event of the Principal not possessing such authorisation, it shall hold the Designer free of any claims for compensation by third parties.
9. Final provisions
9.1 The place of performance of the contract is the domicile of the Designer.
9.2 Should any one of the above provisions be unenforceable, the enforceability of the remaining provisions shall not be affected thereby.
9.3 The contract shall be qoverned by the laws of the Federal Republic of Germany.