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1. Area of Application

These terms and conditions apply to all contracts entered into by the Client and the Advertising Agency twins ad (hereinafter referred to as “Agency”) except as otherwise provided in the relevant contract. The Client’s general terms and conditions are excluded, unless expressly agreed by the Agency.

2. Conclusion of Contract

Contracts are based on the Agency’s offer which is not binding and subject to change. Once a Client’s order has been received, the Agency may confirm the acceptance of such order within a period of 2 weeks. The contract is deemed to have been concluded upon receipt of the Agency’s confirmation by the Client.

3. Colours / Images

The Agency expressly points out that screen colours (RGB) deviate from printer’s colours (CMYK) on various media (e.g. paper, fabrics, films, foils, banners etc). These colour deviations are customary in the printing industry and have to be accepted by the Client.

The Client may therefore ask for a binding colour control chart for which additional costs will be charged.

The Agency expressly stresses that any figures or photos in the Agency’s catalogues or the Internet are not binding. No warranties are given as to the actual looks and colours.

4. Delivery Dates / Delays

Confirmed delivery deadlines shall only apply if the Client delivers the required documents/ information as agreed upon and if the Client complies with printing and production release deadlines.

In case of a Force Majeure event, the Agency may postpose the deliveries for as long as such event continues. The term Force Majeure shall include all events that the Agency could not have foreseen or prevented, such as fire, natural disasters, war, terror, strikes, power outages, even if it had taken utmost care.

5. Presentation – Rights in the Agency’s Services and Presentation Material

5.1 Presentation Costs

The Agency reserves the right to charge the Client for presentations in which the Agency participates. Such charges shall at least cover all costs incurred by the Agency with regard to its employees and any expenditure in kind as well as any charges by third party companies.

5.2 Presentation Material

If no order is placed by the Client following a presentation, the presentation material shall remain the Agency’s property. Upon the Agency’s request, the Client shall return immediately all presentation materials supplied.

The Client shall not be entitled to continue to use or, in particular, to edit, pass on to third parties, publish or to make copies of any presentation material prepared by the Agency.

5.3 Services subject to Copyright

If no order is placed by the Client following a presentation, the Client shall not be entitled to continue to use any services delivered as part of the presentation, in particular, to edit, pass on to third parties, publish or to make copies of any such services.

5.4 Other Services

If any of the Agency’s services are not subject to copyright law, the provisions under sub-clause 5.2 shall apply accordingly.

The Client shall, in particular, not be entitled to utilize any of the Agency’s ideas and concepts on which the presentation is based.

5.5 Use of the Presentation by the Agency

If no order is place by the Client following a presentation, the Agency shall be entitled to make use of the services protected under copyright and delivered by it as part of the presentation another way.

If no order is place by the Client following a presentation, the Agency shall be entitled to make use of the ideas and concepts on which the presentation is based and any services not subject to copyright another way.

6. Limitation of Liability

6.1 Legal Responsibility of the Agency

The Agency accepts full responsibility for any wrongful intent or gross negligence.

In the event of ordinary negligence, the Agency accepts responsibility only for breach of its essential contractual obligations, however, limited to any damage typical in connection with contracts or any foreseeable damage.

In case of physical injury and bodily harm, the Agency accepts responsibility even in case of ordinary negligence.

The Agency shall have no liability for any statements in the advertisements made with regard to products or services delivered by the Client.

The Agency does not incur any liability as far as ideas, suggestions, concepts, proposals, conceptual designs etc. and their patentability, copyrightability or eligibility for trademark registration are concerned.

The Agency shall not be liable for any Force Majeure events.

6.2 Vicarious Liability

Insofar as the Agency’s liability is excluded or limited in accordance with sub-clause 6.1 the same shall apply to the personal liability of any of its vicarious agents.

7. The Client’s Duty to cooperate

Once the Client has approved conceptual designs, final artwork or final drawings, he will be responsible for the correctness of texts and pictures.

The Client shall check any material submitted to the Agency for any existing industrial property rights or third party rights. Should the Client not be entitled to use and pass on such material, he will indemnify and hold harmless the Agency against any relevant third party claims.

The Client shall verify the advertising campaign’s admissibility under the law on competition and in case of any doubt as to such admissibility shall inform the Agency in writing.

8. Rights of the Client

8.1 Rights in Services subject to Copyright

Save as may otherwise be agreed between the parties or as may absolutely be required by the purpose of this contract, the Agency grants the Client an ordinary right of use and enjoyment for all types of use under this contract of the services rendered by it in the Federal Republic of Germany.

Said right of use and enjoyment does not include the right to alter or amend any of the services delivered, in particular, the right to further develop or edit such services.

The transfer of these rights of use and enjoyment to third parties requires the consent of the Agency. The rights of use and enjoyment are not granted until such time as full payment of the remuneration agreed is made.

8.2 Rights in any other Services

Insofar as the services delivered by the Agency are not subject to copyright, the provisions under sub-clause 8.1 shall apply accordingly.

9. Rights of the Agency

The Agency reserves an unlimited right – even in case of the granting of an exclusive right of use and enjoyment to the Client – to use any material for its own purposes.

The Agency is entitled to show the name and/or logo of the Client and the service rendered to it and/or refer to the business relation in the press and its advertising contracts, in particular on its homepage.

The Agency shall be entitled to be named as the author on all publicity aids and in all advertising campaigns of the Client if these are subject to the copyright act.

10. Ownership in Material

The Agency reserves the ownership in any material prepared by it such as samples, final drawings, files, layouts etc. The surrender of such material to the Client requires a separate agreement and is subject to payment.

11. Final Provisions

11.1 Partial Invalidity

If a provision of these general terms and conditions is held to be invalid, the enforceability of the remainder of these terms and conditions shall not be affected. The invalid clause shall be replaced by statutory provisions.

11.2 Applicable Law

German law shall apply exclusively to the legal relations between the Agency and the Client.

11.3 Place of Performance and Place of Litigation for Business Relations with Merchants, Public-law Corporations and Special Funds under Public Law

Place of performance for business relations with merchants, public-law corporations and special funds under public law shall be Munich.

Place of litigation for business relations with merchants, public-law corporations and special funds under public law shall be Munich.

Update: 1 March 2006