Terms and Conditions
1 General
1.1 The following Terms and Conditions apply to all contracts for graphic design services between the graphic designer Arne Winter (hereinafter referred to as “Designer”) and the client exclusively. This applies especially if the client uses General Terms and Conditions that contain conflicting or deviating terms from those listed here.
1.2 These Terms and Conditions also apply if the Designer executes the order without reservation despite knowledge of conflicting or deviating conditions from the client.
1.3 Deviations from the terms listed here are only valid with the explicit written consent of the Designer.
2 Object of Contract, Copyright, and Usage Rights
2.1 Every contract given to the Designer is a copyright contract aimed at granting usage rights to the artistic works. The verification of the legality of the Designer's work in terms of competition law is not part of the contract. It also does not include checking the registrability or usability of the Designer's work under trademark or other protective rights. Such research is the responsibility of the client.
2.2 All drafts and final drawings are subject to copyright law. The provisions of this law apply between the parties even if the necessary protection requirements, such as the so-called “threshold of originality”, should not be met in individual cases. In such a case, in particular, the copyright contract rules of §§ 31 et seq. UrhG apply; furthermore, the parties are entitled to the copyright claims under §§ 97 et seq. UrhG.
2.3 The drafts and final drawings may not be altered or passed on to third parties without the explicit consent of the Designer, neither in their original form nor in reproduction. Any imitation — even of parts — is prohibited. A violation of this clause 2.3, sentences 1 and 2, entitles the Designer to demand a contractual penalty in the amount of 100 percent of the agreed remuneration in addition to the remuneration already due.
2.4 The Designer grants the client the usage rights necessary for the respective purpose. Unless otherwise agreed, only the simple usage rights are granted in each case. The transfer of usage rights to third parties requires written agreement.
2.5 The usage rights only transfer to the client upon full payment of the remuneration.
2.6 Unless otherwise agreed in writing, the Designer must be credited as the author on the reproduction. A violation of this provision entitles the Designer to demand a contractual penalty in the amount of 100 percent of the agreed remuneration in addition to the remuneration already due.
2.7 Suggestions or collaboration from the client or their employees have no influence on the amount of remuneration. They do not establish joint authorship.
2.8 The drafts and final drawings may only be used for the agreed scope of use (temporal, spatial, and content-related). Any use beyond the agreed scope of use (temporal, spatial, and content-related) is not permitted and entitles the Designer to demand a contractual penalty in the amount of 100 percent of the agreed remuneration for this extended use in addition to the remuneration already due.
3 Remuneration
3.1 Drafts and final drawings together with the granting of usage rights constitute a single service.
3.2 If no usage rights are granted and only drafts and/or final drawings are provided, the remuneration for usage is waived.
3.3 The creation of drafts and all other activities performed by the Designer for the client are chargeable unless expressly agreed otherwise.
4 Due Date of Remuneration, Acceptance, Default
4.1 The remuneration is due immediately without deduction, unless otherwise contractually agreed or agreed in writing with the Designer. If the order requires financial advances from the Designer, advance payments in full are to be made.
4.2 Acceptance cannot be refused for reasons of artistic design. There is artistic freedom within the scope of the order.
4.3 In case of default in payment, the Designer may demand default interest of eight percent above the respective base rate of the European Central Bank per annum. The assertion of any higher damages caused by delay remains unaffected.
5 Special Services, Additional and Travel Costs
5.1 The offered design work includes, unless otherwise contractually or otherwise agreed in writing, two rounds of corrections/changes. Any additional rounds will be charged based on the effort. Special services such as the revision or modification of final drawings, manuscript review, or print monitoring are billed separately based on time spent and are charged accordingly in the form of a lump sum.
5.2 Upon prior agreement with the client, the Designer is entitled to order third-party services necessary for the execution of the order in the name and for the account of the client. The client undertakes to grant the Designer appropriate authorization.
5.3 If contracts for third-party services are concluded in the name and for the account of the Designer in individual cases, the client undertakes to indemnify the Designer internally from all liabilities arising from the conclusion of the contract.
5.4 Expenses for technical ancillary costs, especially for special materials, for the production of models, photos, interim shots, reproductions, typesetting, and printing, etc., are to be reimbursed by the client.
5.5 Travel costs and expenses for trips agreed upon with the client in connection with the order are to be reimbursed by the client.
6 Ownership of Drafts and Data
6.1 Only usage rights, not ownership, are granted for drafts and final drawings.
6.2 The originals must be returned to the Designer undamaged after a reasonable period unless otherwise agreed in writing. In case of damage or loss, the client must reimburse the costs necessary for the restoration of the originals. The assertion of further damages remains unaffected.
6.3 Data and files created in fulfillment of the contract also remain the property of the Designer. The Designer is not obligated to hand over data and files to the client. If the client wishes to have them handed over, this must be agreed upon separately and remunerated.
6.4 If the Designer has provided data and files to the client, they may only be altered with the prior consent of the Designer.
6.5 The dispatch of all items mentioned in clauses 6.1 to 6.4 above is at the client’s risk and expense.
7 Corrections, Production Monitoring, Sample Copies, and Self-Promotion
7.1 Before reproduction, the Designer must be presented with proof samples.
7.2 Production monitoring by the Designer only takes place by special agreement. If production monitoring is undertaken, the Designer is entitled to make necessary decisions at their discretion and to give appropriate instructions.
7.3 The client shall provide the Designer with ten flawless sample copies of all reproduced works free of charge. The Designer is entitled to use these samples and all works created in fulfillment of the contract for self-promotion in all media and to refer to the work carried out for the client unless otherwise contractually stipulated.
8 Liability
8.1 The Designer is only liable for damages caused, e.g., to templates, films, displays, layouts, etc., in cases of intent and gross negligence, except for damages resulting from injury to life, body, or health; the Designer is also liable for such damages in cases of slight negligence. Otherwise, the Designer is only liable for slight negligence if a duty is violated, the fulfillment of which is of particular importance for achieving the purpose of the contract (cardinal duty).
8.2 For orders placed with third parties in the name and on behalf of the client, the Designer assumes no liability towards the client. In these cases, the Designer only acts as an intermediary.
8.3 With the approval of drafts or final drawings by the client, the client assumes responsibility for the technical and functional correctness of the product, text, and image.
8.4 Any liability of the Designer for drafts or final drawings approved by the client is excluded.
8.5 Obvious defects must be reported to the Designer in writing within 14 days after delivery of the work. Timely dispatch of the notice of such defects is sufficient to meet the deadline.
8.6 The Designer assumes no liability for data loss due to force majeure or file damage. This also applies to source files of a website. In the event of data loss, the Designer may refuse updates to an existing file or, in consultation with the client, bill for reproduction based on effort.
8.7 In the case of photo shoots, the Designer assumes that the photographed individuals have transferred their rights to the image to the client. The client undertakes to check the provided photos for their legally unobjectionable use. The client is liable for any claims for recourse.
9 Artistic Freedom, Execution of the Order, and Templates
9.1 There is artistic freedom within the scope of the order. Complaints regarding artistic design are excluded. If the client wishes changes during or after production, they must bear the additional costs incurred.
9.2 If the execution of the order is delayed for reasons attributable to the client, the Designer may demand a reasonable increase in remuneration. In cases of intent or gross negligence, claims for damages may also be asserted. This does not affect the assertion of further damages for delay.
9.3 The client warrants that they are authorized to use all templates provided to the Designer. If contrary to this assurance, the client is not authorized to use the templates, the client indemnifies the Designer from all third-party claims for damages.
10 Contract Termination
10.1 If the client terminates the contract prematurely, the Designer is entitled to the agreed remuneration but must credit themselves with saved expenses or any alternative orders carried out or maliciously omitted (§ 649 BGB). The parties agree on a lump sum for the services and expenses provided up to the termination as follows: in case of termination before work commencement, 10 percent of the agreed remuneration. Deviating individual agreements are possible. The client reserves the right to prove actually lower services or higher expenses.
11 Final Provisions
11.1 If the client is a merchant, the place of performance and jurisdiction is the Designer’s place of business.
11.2 German law applies.
Status: 1/2020