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General Terms and Conditions of the Agencies of the Hirschen Group

  1. Subject Matter and Scope
    1. These General Terms and Conditions (hereinafter “GTC”) apply, subject to any deviating agreements, to all goods and services provided by Hirschen Group GmbH (hereinafter “Agency”) to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law (hereinafter “Client”; the Agency and the Client together hereinafter referred to as “the Parties”) in particular for services or works in the fields of advertising, communication, digital, social media, influencer placement, content marketing, editorial work, production, PR, and strategic and political consultancy.
    2. These General Terms and Conditions shall also apply to all future business relationships between the Agency and the Client without the need for further express inclusion.
    3. The Client’s terms and conditions are hereby rejected. They shall only apply if the Agency expressly agrees to their validity in writing.
  2. Presentations and Pitches
    1. Where the Agency presents drafts, concepts or designs to the client prior to the award of a contract, either on its own initiative or as part of pitches, presentations or similar formats (hereinafter referred to as ‘presentations’), this is for the sole purpose of establishing business relations.
    2. Any reproduction or disclosure of such presentations requires the Agency’s consent. The Agency does not transfer ownership of any documents, samples, etc. handed over in the course of presentations to the client, nor does it grant the client any rights of use to the protectable content (such as works, trademarks, designs) contained or embodied in the presentation. In particular, the client shall not use the drafts, concepts and designs presented in the presentations as a basis for producing its own material without the Agency’s consent, nor shall it pass them on to third parties. If the client decides against placing a corresponding order with the Agency or fails to commission the Agency within three months at the latest, it shall, at the Agency’s request, delete all copies of the presentations in its possession.
  3. Quotations and Commissioning
    1. At the request of the client, the agency shall provide the client with a cost estimate or quotation setting out the services to be provided by the agency, the remuneration and the other terms and conditions of the commission (hereinafter referred to as the “cost estimate”). Unless otherwise stated, where the Agency’s remuneration set out in the cost estimate is calculated on a time-and-materials basis, this constitutes a non-binding estimate of the expected effort.
    2. The client shall commission the Agency by approving the cost estimate within the period specified therein or, in the absence of such a period, within one week of receipt.
  4. Services provided by the Agency
    1. The Agency shall provide its services during its normal business hours (Monday to Friday, 9.00 am to 6.00 pm). For services provided by the Agency outside normal business hours in consultation with the client, it shall receive a surcharge amounting to 10% of the agreed remuneration for the relevant services.
    2. The Agency shall provide the services covered by this contract in accordance with the generally accepted principles of agency work and with the customary degree of care.
    3. The examination of legal issues, in particular the conduct of trade mark searches, the evaluation of such searches, an assessment of potential conflicts with existing industrial property rights (e.g. trade marks, designs or utility models), as well as an examination under competition law (e.g. comparative advertising, advertising claiming market leadership, advertising restrictions under specific legislation), copyright or data protection checks are not part of the Agency’s services. The client shall decide independently on the conduct of such legal checks and shall carry these out at its own expense. However, the Agency shall draw the client’s attention to any legal risks regarding the content or design of planned advertising measures that are apparent to it. In such cases, the client shall decide (where appropriate, following a review) whether the advertising measure should nevertheless be carried out or amended.
    4. Where the Agency’s services involve the development of distinctive signs (trademarks, logos, corporate identities, slogans, etc.), the Agency warrants that, at the time of presentation of the first draft, it is not aware of any third-party rights applicable within the territory of the Federal Republic of Germany which would, to the Agency’s knowledge, be infringed by the use of the developed distinctive signs in the course of trade. The Agency does not guarantee the protectability and/or registrability of the developed trademarks. It is the responsibility of the client company to carry out a trademark search in the territory concerned by the commencement of use, at the latest before such use commences, so that potential conflicts and infringements can be identified and, where necessary, avoided prior to the commencement of use.
    5. Where agency services include rounds of corrections, the following applies: Rounds of corrections allow for changes to agency services provided in accordance with the contract, which are submitted by the agency to the client as final or interim results. Revision cycles generally concern requests for changes that constitute an optimisation or fine-tuning of agency services not yet approved. Changes to the commissioned services in the sense of a change or extension of the contract (see Section V.5) are not possible within the scope of revision cycles. Revision cycles included in the remuneration are specified in the relevant individual contract. If no such specification is made in the relevant individual contract, included revision cycles are covered by the agreed remuneration only up to a total value of 5% of the agency fee quoted for the overall service. Any additional work shall be remunerated in accordance with the Agency’s hourly rates applicable at the time of commissioning.
  5. Order Fulfilment
    1. Delivery dates or deadlines are only binding if they are expressly designated or confirmed in writing by the parties as binding; otherwise, they are to be regarded as target dates. Once a target date has been reached, the client may, in writing and setting a reasonable deadline, request the agency to provide the outstanding services; upon expiry of this deadline, the client’s claim for the service becomes due.
    2. Once the contract has been awarded, any initial setting, shortening or bringing forward of delivery periods and dates requires the Agency’s consent. In particular, the Agency may make its consent conditional upon the payment of a reasonable surcharge of up to 100% of the agreed remuneration for the service affected by the setting or shortening of the deadline.
    3. The parties shall cancel appointments (meetings, etc.) with at least 3 working days’ notice. If the client fails to comply with this notice period, the Agency shall be entitled to charge 25% of the fee estimated for that appointment. The parties shall cancel production dates with at least 10 working days’ notice. If the client fails to meet this deadline, the agency shall be entitled to invoice 50% of the fee quoted for that production date. In the event of cancellation with 5 working days’ notice or less, the full fee quoted for that production date shall be payable. The client and the agency each reserve the right to prove that the actual loss incurred by the agency as a result of the cancellation was lower or higher. In this case, the agency may demand compensation for the lower or higher proven loss. The agency’s claims under Clause VII.4 remain unaffected by the provisions of this paragraph.
    4. Minutes of meetings drawn up by the Agency and sent to the client become binding in terms of their content if the client confirms them in writing (e.g. by email) or does not object to them in the same form within five working days of receipt.
    5. Subsequent requests for changes to the commissioned services (hereinafter “Change Requests”) must be communicated to the Agency by the client as early as possible and in sufficiently specific terms. They shall only take effect upon the Agency’s express confirmation. If, as a result of a Change Request, the service originally commissioned cannot be performed, or can only be performed in part, the Agency shall inform the client of this and agree with the client whether the provision of the service should be suspended until the Change Request has been clarified, or whether the original provision of the service should continue. Deadlines and time limits shall be postponed or extended by the duration of the suspension. Should the change request result in additional costs, the Agency shall inform the client. The client shall then decide whether the change request is to be implemented upon payment of the additional costs or whether the original scope of services is to remain unchanged.
    6. Drafts, templates, files and other working materials such as negatives, models, original illustrations and the like, which the Agency creates or commissions to be created in order to perform the services owed under the contract, remain the property of the Agency. There is no obligation to surrender them.
    7. If, in the course of fulfilling this contract, technical know-how is developed – such as programming, the structure and functioning of programmes and software, as well as the linking of programmes, data, databases and systems, in each case including the source code, a claim for the handover of the source code shall only exist if this has been expressly agreed or is necessary for the exercise of the rights of use granted to the client. If the source code is to be handed over and the software contains third-party standard software or other software subject to licence restrictions, the source code shall be handed over in accordance with such licence restrictions.
    8. The agency is authorised to use or integrate open-source software or components when creating software. It must notify the client of this, specifying the open-source components used. The use of open-source components subject to a licence that would cause a so-called ‘copy-left’ effect is only permitted with the express consent of the client.
  6. Cooperation by the client
    1. The client shall provide the agency with appropriate support in the performance of its services and, in particular, shall make information and data available to the agency in good time and grant approvals or authorisations in good time so that the agency’s work processes and the fulfilment of the contract are not impeded. If the Agency is unable to provide the services, or can do so only at additional expense, due to a lack of or insufficient cooperation or provision of materials, it shall be entitled to claim from the client any necessary additional expenses approved by the client. Deadlines and time limits shall be extended by the duration of the delay caused by the client, plus a reasonable lead time of at least three working days.
    2. The client shall inform the agency of any specific restrictions applicable to the client or its sector (e.g. statutory advertising bans or restrictions) or any requirements regarding advertising measures that must be observed (e.g. consumer information under the Motor Vehicle Energy Labelling Regulation (PKW-EnVKV), Food Information Regulation) without being asked, and shall provide the Agency with the information and documents necessary to fulfil such requirements in good time.
    3. The client shall ensure that any materials or content provided to or proposed for the Agency (e.g. brand logos, texts, images) are free from third-party rights and that their use does not contravene applicable law. Should the Agency face claims from third parties as a result of such content, the client shall indemnify the Agency against these claims (including the necessary legal costs) upon first request.
    4. The client shall back up data and programmes prior to handing them over to the Agency to enable recovery in the event of data loss.
  7. Remuneration and Terms of Payment
    1. Unless otherwise agreed, the Agency shall be remunerated on a time-and-materials basis in accordance with the Agency’s hourly rates applicable at the time the assignment is commissioned. The Agency shall generally conclude individual contracts for agency services relating to the development of brands, corporate logos, brand claims or similar identifiers for comprehensive use in the commissioning company’s corporate communications only in return for separate remuneration for the use of the work results, the amount of which shall be determined by the scope of the rights of use requested by the commissioning company.
    2. Any increase in costs of up to 10% over the amount stated in approved quotations is covered by the client’s approval.
    3. The Agency is entitled, upon full performance of the services and, prior to that, on a monthly basis at the end of each month, to invoice for services rendered (in whole or in part) on a time-and-materials basis or according to project progress.
    4. GEMA fees, artists’ social security contributions, customs duties and similar costs are to be borne by the client company and will be passed on by the agency if paid by the agency, even if they are only levied retrospectively.
    5. Expenses and incidental costs, such as travel expenses, accommodation costs, courier services and the like, shall be reimbursed separately upon presentation of receipts. Travel time shall be invoiced at 50%.
    6. If the client terminates a contract before the service has been fully performed, without good cause, the agency is entitled to claim the agreed remuneration. However, it must allow a deduction for any expenses saved as a result of the termination of the contract, or any income earned or maliciously failed to earn through the alternative use of its workforce. It is presumed that the Agency is then entitled to 60% of the agreed remuneration attributable to the part of its services not yet rendered.
    7. All remuneration and expenses of the Agency are subject to value added tax at the rate applicable under the law.
    8. Remuneration and expenses are payable 10 days after invoicing; advance invoices are payable immediately.
    9. The assertion of rights of retention and set-off against counterclaims is permitted only in respect of claims or counterclaims arising from the same contractual relationship or in respect of claims or counterclaims recognised by the Agency or established by a final and binding court decision.

  8. Subcontractors and External Services

      1. Subcontractors
        The Agency is entitled to carry out the work entrusted to it itself or to commission subcontractors – in particular other companies affiliated with Hirschen Group GmbH within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG) – to carry out such work.

      2. External Services
        1. The Agency is also entitled to commission external services. External services are services provided by third parties who, as is apparent to the client company, are not intended to act as vicarious agents of the Agency (typically, for example, film productions, photo shoots, the supply of stock photos, testimonials, influencers, performers and models, the production of advertising materials, printing, proofreading, translations, market research, legal advice and stand construction) .
        2. External services are always recognisable as such to the client if the agency lists them separately in a quotation or if the client can recognise their nature as external services based on their own expertise.
        3. If, as part of its activities, the agency handles contracts for external services (e.g. selection, obtaining quotations, negotiations, coordination, invoicing or payment processing), it shall receive additional remuneration for this based on time spent in accordance with Clause VII.1.
        4. The Agency shall obtain the client company’s approval in each case before commissioning external services. Separate approval is not required if the costs, the key terms of the contract and the identity of the third party are already set out in the quotation approved by the client company, in particular where third-party quotations are already attached to the quotation. Furthermore, such approval is not required if the contract is not expected to exceed a net amount of EUR 10,000.00 or if the services in question are follow-up services provided by suppliers with whom an agreement has already been reached.
        5. The client for external services is the commissioning company. Subject to the conditions set out in Clause VIII.2.4, the Agency is authorised to commission the external services in the name and on behalf of the commissioning company.
        6. If, by way of exception and in deviation from Clause VIII.2.5, the Agency commissions third parties in its own name and for its own account, this shall be at the expense and risk of the commissioning company. In this case, the provisions governing agency on behalf of another (Sections 675 et seq. of the German Civil Code (BGB), including the corresponding reference to the provisions of contract law) shall apply. In particular, the Agency is entitled to demand an advance payment and, without prejudice to its own claims for remuneration (see Clause VIII.2.3), to pass on to the client any remuneration paid or advanced by it to third parties, plus a risk surcharge of 5%. Claims by the client arising from defects in third-party services are limited in content and scope to the rights to which the agency is entitled vis-à-vis the third parties.
  9. Rights of Use, Retention of Rights and Title
    1. Rights of Use
      1. Subject to any agreement to the contrary, upon full payment of the remuneration due for the respective assignment, the Agency shall grant the client all copyright usage rights necessary for the use of the work results owed by it (hereinafter referred to as ‘Agency services’) to the extent required to achieve the contractual purpose envisaged by the parties. In case of doubt, the Agency shall fulfil its obligation by granting simple rights of use for the territory of the Federal Republic of Germany and the planned duration of use of the work results. Any use beyond this, in particular adaptation and modification, requires the prior written consent of the Agency. The same applies to the transfer of rights of use from the client to third parties and the granting of sub-licences.
      2. Insofar as the Agency engages subcontractors to fulfil the contract, it shall acquire rights of use from them to the agreed extent and transfer them to the client company or arrange for them to be transferred.
      3. Where external services are commissioned (see Section VIII.2), the rights of use shall be governed by the agreement between the client company and the third parties. Where the Agency commissions external services, it shall agree on rights of use to the same extent as for its own agency services. If this is not possible, or is only possible at a disproportionately high cost, the Agency shall inform the client company of this and consult with it regarding possible alternatives (e.g. commissioning other service providers, acquiring limited rights of use, etc.). A corresponding reference to restrictions on the rights of use in the Agency’s or the third party’s quotation shall suffice.
      4. If, by way of exception and in deviation from Clause VIII.2.5, the Agency commissions third-party services in its own name and at its own expense, the provisions of sentences 2 et seq. of the above clause IX.1.3 shall apply mutatis mutandis, provided that the Agency, at its discretion, either acquires the rights of use from the third parties and grants them to the client company to the agreed extent, or arranges for the rights to be granted directly to the client company.
      5. The Agency shall not use work results delivered to the client (subject to clause IX.2.2) in the same form or in a form that has been only insignificantly modified for other clients.
      6. In producing deliverables, the Agency will make use of AI-powered software solutions such as ChatGPT, Adobe Firefly, Midjourney or Co-Pilot, and other applications. The parties agree that services generated via such systems are generally not subject to copyright or related rights protection and, accordingly, no intellectual property rights of use can be granted that would allow the client company to exclude third parties from use. The Agency grants the client company rights of use under intellectual property law to the extent that it itself obtains such rights of use to the services generated and, where applicable, edited in this manner. The client company is aware of, and agrees that, providers of AI-supported software solutions may, where applicable, grant themselves simple rights of use to the generated services, e.g. for training purposes. The client company alone is responsible for assessing whether the work products produced in this way are suitable for the contractually intended use and may be used. The agency will provide the client company with appropriate support in this regard.
    2. Reservation of Rights and Title
      1. The granting of rights of use by the Agency is subject to the condition precedent that the client pays the full remuneration due for the commission. Until full payment has been made, the use of work products already delivered, to the extent specified in Clause IX.1.1, is permitted only on a revocable basis at any time. This permission shall lapse if the client falls into arrears and fails to pay even after the expiry of a reasonable grace period.
      2. Rights of use for agency services (ideas, drafts, etc.) rejected by the client or not approved for execution shall remain with the agency and may be freely used by the agency.
      3. Until full payment of the remuneration due for the assignment has been made, the Agency reserves ownership of all work results from the respective assignment handed over to the client.
    3. Testimonial advertising
      1. The Agency, Hirschen Group GmbH and other companies affiliated with it within the meaning of Section 15 et seq. of the German Stock Corporation Act (AktG) are – even in the event of the transfer of exclusive rights of use to the client company – to publicise the commission and, in a factually accurate manner as part of their own advertising, to use the work results, the name and the trademarks of the client company free of charge in all media (including the internet and social media channels (e.g. Instagram, Facebook, YouTube)) as well as in the context of competitions and presentations, even after the contract has ended.
      2. Reference advertising is excluded if it conflicts with the commissioning company’s manifest legitimate interests. The commissioning company also has the option to object in writing to such self-promotion with future effect, provided this is justified in light of the interests of both parties. In this case, the agency shall remove the promotional material within a reasonable period. Physical media already produced (in particular printed material) may be used up.
  10. Warranty and Third-Party Rights
    1. Where the Agency’s services are subject to statutory warranty, the following applies:
      1. The client must inspect the work and services provided by the Agency immediately upon receipt, and in any event before using them, and must give notice of any defects immediately upon discovery. If the defect is not reported immediately, no warranty claims shall exist in respect of obvious defects, known defects or consequential defects.
      2. If a defect exists, the Agency may, at its discretion, either remedy the defect or provide a replacement (subsequent performance).
      3. The Agency’s warranty obligation shall expire one year after receipt or – where applicable – acceptance of the Agency’s service by the client.
    2. If third parties assert rights against the client in relation to the agency’s services, the client shall be obliged to notify the agency of this without delay, not to acknowledge the alleged infringement without the agency’s consent, and to conduct or reach any settlement, including any out-of-court settlements, only in agreement with the agency. If the client ceases to use the agency’s services for the purpose of mitigating damage or for other important reasons, it shall also be obliged to inform the third parties that the cessation of use does not constitute an acknowledgement of the infringement of intellectual property rights.
  11. Liability
    1. The Agency shall be liable without limitation in accordance with statutory provisions for claims for damages brought by the client arising from: a) injury to life, limb or health; b) a breach of duty committed with gross negligence or wilfully by the Agency, its legal representatives or vicarious agents; c) breach of a warranty given, d) fraudulently concealed defects, e) under the Product Liability Act, or f) under Sections 44 and 44a of the Telecommunications Act (TKG).
    2. In all cases not covered by Clause XI.1, the Agency shall be liable for damages arising from a breach of duty due to slight or simple negligence on the part of the Agency, its legal representatives or its vicarious agents only insofar as such breach constitutes a breach of essential contractual obligations (cardinal obligations). Cardinal obligations are those whose fulfilment characterises the contract, which make the proper performance of the contract possible in the first place, and on whose observance the client may regularly rely. In this case, liability is limited to damage that is typical for the contract and foreseeable. Otherwise, the Agency’s liability for damage caused by slight or simple negligence is excluded.
    3. Where the Agency is liable in accordance with clause XI.2 above, such liability shall be limited to EUR 250,000.00. Should the risk of greater damage arise, the client shall notify the Agency of this so that the parties may adjust the limit and the Agency may take out insurance against such damage.
    4. The Agency shall not be liable if and to the extent that the Agency has drawn the client’s attention to concerns in accordance with clause IV.3 and the client decides, despite such notification, against amending the relevant contractual services. In such cases, the client shall indemnify the Agency against any third-party claims upon first request. This shall also include the necessary legal costs.
    5. The Agency shall ensure that employees and subcontractors who use AI-based software solutions (AI systems) in the course of providing services are adequately familiar with the specific risks associated with the respective AI system and use these AI systems in accordance with the contract. Employees are trained to avoid potential infringements of intellectual property rights. However, the Agency accepts no liability for infringements of intellectual property rights arising from the fact that the underlying AI models may have been trained using third-party intellectual property. The Agency shall not be liable for ensuring that the contractual use of AI-generated products is permissible under competition or personality rights law, or that the exploitation of such AI-generated services does not infringe the intellectual property rights of third parties, if and to the extent that such infringements are based on AI-generated elements and the Agency has otherwise fulfilled its obligations under this contract. Unless otherwise agreed, the Agency’s liability is excluded in this respect.
  12. Confidentiality
    1. The parties hereby mutually undertake to keep confidential all information and documents of the other party to which they have access or which have been provided to them in connection with the conclusion of this contract, which are marked as confidential or which, in the light of the circumstances, are recognisable as trade or business secrets of the respective contracting party, and not to record, store, disclose, exploit or make available to unauthorised persons. Disclosure by the Agency to Hirschen Group GmbH or other companies affiliated with it within the meaning of Section 15 et seq. of the German Stock Corporation Act (AktG) is always permitted, provided that such parties undertake to comply with this confidentiality provision.
    2. If the parties have concluded a separate agreement regarding confidential information, the provisions thereof shall apply exclusively in this respect.
  13. Data Protection
    1. The parties shall comply with the statutory provisions on data protection, in particular the provisions of the GDPR and the BDSG-neu, and shall require their employees to do the same.
    2. Where the performance of the contractual services involves the transfer or processing of personal data, the parties shall conclude a separate data processing agreement (DPA).
  14. Final Provisions
    1. The place of performance for services and payment, as well as the place of jurisdiction for all disputes between the contracting parties, shall be the registered office of the Agency. The Agency shall also be entitled to bring legal proceedings against the client company at its general place of jurisdiction.
    2. The law of the Federal Republic of Germany shall apply, to the exclusion of the provisions of private international law and the UN Convention on Contracts for the International Sale of Goods (CISG).