3. Correspondence by electronic means
The contract partner authorizes ALPHA POOL to conduct correspondence also by email, unless explicitly instructed otherwise. The contractual partner confirms to be aware of the fact that electronic correspondence by email involves considerable security risks and that emails can, for example, be lost unnoticed or read, intercepted, falsified or forged by third parties. This may result in considerable damages for which ALPHA POOL cannot be held liable.
4. Conclusion of Contract
(4.1) The scope and content of the services owed by ALPHA POOL are defined in each individual contract. The contract concluded in writing between ALPHA POOL and the contractual partner shall be decisive for this, as far as it is signed by both parties, and in the absence of such a contract the offer submitted by ALPHA POOL, as far as it is signed or released in writing by the contractual partner.
(4.2) All offers made by ALPHA POOL are subject to change.
(4.3) The conclusion of the contract takes place with the release of the offer or with the placing of the order by either ALPHA POOL or the contractual partner. The order can be placed in writing, by fax or by e-mail. If internal regulations contradict an offer acceptance based on the GTC of ALPHA POOL, the contractual partner is obliged to inform ALPHA POOL immediately. Otherwise the general terms and conditions of ALPHA POOL apply.
(4.4) Furthermore, all agreements made between ALPHA POOL and the contractual partner for the purpose of executing an order must be agreed upon in writing. Changes, additions and subsidiary agreements must be in writing to be effective.
5. Scope of services
(5.1) ALPHA POOL may act as an agency or merely in an advisory capacity.
(5.2) ALPHA POOL is entitled to commission third parties to fulfill its obligations arising from the contractual relationship. If ALPHA POOL commissions third parties named by the contract partner at his request, liability on the part of ALPHA POOL is excluded.
(5.3) ALPHA POOL is entitled to partial delivery.
(5.4) Events of force majeure shall entitle ALPHA POOL to postpone the project commissioned by the contractual partner for the duration of the hindrance and a reasonable start-up period. The contractual partner is not elegible to claim for damamges resulting from this. This also applies if important dates and/or events for the contractual partner cannot be met and/or do not occur.
(5.5) Each party shall name a project manager to the other party, who is authorized to give and receive information and declarations of intent and who assumes full responsibility for the scheduled performance of the contractual services.
6. Concept
(6.1) At the request of the contractual partner, ALPHA POOL shall develop a rough concept before placing the order, the costs of which shall be reimbursed by the contracting party according to the offer or as agreed. The concept is to be treated confidentially. The contractual partner is only entitled to use the concept outside of the order to ALPHA POOL, in particular by himself or by using other providers, or to pass it on to third parties after explicit written approval by ALPHA POOL. In any case of violation of this obligation ALPHA POOL is entitled to set a contractual penalty in an amount to be determined by ALPHA POOL at its reasonable discretion - but at least €10,000 - and in case of dispute to be reviewed by the competent regional court; the plea of continuation is excluded.
(6.2) Upon request of the contractual partner ALPHA POOL shall present the concept. The costs of the presentation as well as possible travel expenses are to be borne by the contractual partner according to agreement.
7. Dates and delivery periods
(7.1) Dates and delivery periods are generally non-binding guidelines, unless they have been agreed in writing as a fixed part of the contract.
(7.2) ALPHA POOL shall not be liable for delays in delivery due to the contractual partner's failure to cooperate as required.
(7.3) If the contractual partner is in default of acceptance or culpably violates other duties to cooperate, ALPHA POOL shall be entitled to demand compensation for the resulting damage, including any additional expenses. Further claims remain reserved.
8. Duties to cooperate
(8.1) The contractual partner is obligated to provide ALPHA POOL with the information necessary for the provision of services. In case of delays for which the contractual partner is responsible, ALPHA POOL is entitled to extend the continuous services or the scope of services by the fee hours incurred.
(8.2) The information provided by the contractual partner serves as the essential basis for ALPHA POOL's consulting and planning services. Any losses incurred through the provision of incorrect or incomplete information shall be at the expense of the contractual partner.
(8.3) With the acceptance of concepts, texts or other services the information is considered to be given completely and correctly. If a concept or other service has to be modified due to the correction of information already provided or as a result of the subsequent submission of information, this shall always be deemed to be an extension of the scope of services.
(8.4) If the contractual partner does not comply with his duty to provide information, ALPHA POOL shall request him in writing to do so within a reasonable period of time. If the contractual partner does not comply with his duty to inform despite the setting of a deadline, ALPHA POOL is entitled to provide its service on the basis of the information already available or to withdraw from the contract. ALPHA POOL can also demand compensation for all expenses which ALPHA POOL has made within the framework of the contractual relationship and which were in vain or had to be made additionally as a result of the breach of duty by the contractual partner. A further claim for damages due to breach of duty or from § 642 BGB remains unaffected.
(8.5) If ALPHA POOL recognizes during production that the object of performance must be modified with regard to requirements and properties that have been worked out in the meantime, the contractual partner shall be informed of this and, if possible, alternative proposals shall be submitted to him.
(8.6) The same obligation to inform shall apply if ALPHA POOL recognizes that information or requirements of the contractual partner are incorrect, incomplete, ambiguous or objectively not suitable for execution.
9. Remuneration and terms of payment
(9.1) The remuneration agreed in the respective offer shall apply. If no remuneration is specified for a service, the ALPHA POOL price list valid at the time of the order shall apply.
(9.2) All prices are net plus the statutory VAT rate applicable at the time of performance and excluding travel and other incidental expenses.
(9.3) Unless otherwise agreed in writing, ALPHA POOL shall be reimbursed for travel costs and expenses incurred in connection with the execution of the order in addition to the agreed remuneration. Travel expenses shall be charged to the contract partner as follows: Third-party costs (cab, rental car, flight, train, meals, etc.): according to receipts. Travel costs in own car: 0,50 Euro/km. ALPHA POOL is entitled to use business class for air travel and 1st class for train travel. All other costs such as lawyer's fees, courier costs, transport costs, translation costs, telecommunication as well as color copies and color printouts ordered by the contractual partner will be charged to the contractual partner according to receipts.
(9.4) Additional expenses incurred by ALPHA POOL, in particular due to requests for changes and additions by the contractual partner, for the acquisition of third party rights, for the involvement of subcontractors, for costs incurred by artists and by other third parties, for contributions to the artists' social insurance as well as fees for the use of copyright services, shall be invoiced additionally. Any customs, shipping and packaging costs incurred shall also be borne by the contractual partner.
(9.5) If the development of the agreed services extends over a longer period of time or if high external costs are incurred in advance, ALPHA POOL may invoice the contractual partner for partial payments for the partial services to be rendered or already rendered. These partial services do not have to be available in a usable form for the contractual partner and can also be available as a pure working basis on the part of ALPHA POOL. The percentage remuneration shall be determined per contractual partner and project order.
(9.6) Payments are due within 10 days after invoicing without any deductions, unless otherwise contractually agreed. If the payment dates are exceeded, ALPHA POOL shall be entitled to interest on arrears in the amount of 8% above the base interest rate according to § 288 paragraph 2 BGB (German Civil Code) without further reminder. The right to claim further damages remains unaffected by this regulation.
(9.7) If the contractual partner cancels or cancels his project in whole or in part after commissioning, ALPHA POOL shall be entitled to a fee proportionate to the degree of order fulfillment - but at least 80 percent of the contractually agreed total fee. The total fee includes all internal costs and all external costs including travel expenses. The contractual partner exempts ALPHA POOL from any obligations towards third parties.
10. Warranty and liability
(10.1) For the purpose of review and approval ALPHA POOL shall submit all drafts to the contractual partner - as far as this is possible - prior to publication. With the approval the contractual partner assumes the responsibility for the correctness of content, image, sound and text.
(10.2) The contractual partner must immediately report any defects of the service in writing. As far as a rectification of defects is possible and feasible with a reasonable effort, ALPHA POOL has the right to rectify defects for which it is responsible.
(10.3) Warranty claims of the contractual partner shall become time-barred within a period of six months after completion of the services concerned.
(10.4) In principle, both the Agency and the contractual partner shall bear the respective risk of the legal admissibility of the measures developed and implemented. This applies in particular to the case that the actions and measures violate regulations of competition law, copyright law and special advertising laws. ALPHA POOL and contractual partners are obliged to point out legal risks which become known during their activities. If ALPHA POOL considers a legal examination by an expert person or institution necessary for one of the measures to be carried out, the contractual partner shall bear the costs for this after consultation with ALPHA POOL.
(10.5) ALPHA POOL is not obligated to check the accuracy of the factual statements about products and services of the contractual partner contained in the generated branded material as well as material pre-approved or approved by the contractual partner. ALPHA POOL is not liable in any case for the contained factual statements about products and services of the contractual partner. ALPHA POOL is also not liable for the patent, copyright and trademark protection or registrability of the ideas, suggestions, proposals, concepts and drafts delivered within the scope of the order.
(10.6) ALPHA POOL shall ensure that the necessary declarations of granting rights for content creation are obtained from the persons depicted in the photographic and moving image material and shall indemnify the contractual partner against any liability in this respect.
(10.7) If the contractual partner provides ALPHA POOL with materials for the execution of the contract, he guarantees that these materials are free of property rights or other rights of third parties, which restrict or exclude the contractual use. The contract partner indemnifies ALPHA POOL from all claims of third parties asserted against ALPHA POOL due to existing rights on the provided materials. In particular, the contractual partner shall assume all obligations towards copyright collecting societies.
(10.8) The parties shall notify each other in writing without delay if claims are asserted against them for infringement of intellectual property rights.
(10.9) ALPHA POOL shall only be obliged to check the legal admissibility of the advertising (in particular competition, trademark, food and drug law) if this is expressly the subject of the contract. If the contractual partner commissions ALPHA POOL with these services, he shall bear the resulting fees and costs of ALPHA POOL and third parties (lawyer, authorities, etc.) at standard market conditions, unless otherwise agreed.
(10.10) ALPHA POOL is only liable for damages caused intentionally or by gross negligence by ALPHA POOL or its vicarious agents. The liability of ALPHA POOL is limited to the one-time earnings of ALPHA POOL (invoice amount to customers minus all external and own services), which result from the respective order. ALPHA POOL's liability for consequential harm caused by a defect on the legal ground of positive breach of contract is excluded, if and to the extent that ALPHA POOL's liability does not result from a breach of duties essential for the fulfillment of the purpose of the contract.
(10.11) As far as the execution of communication measures becomes completely or partially impossible due to the influence of third parties, force majeure or due to other reasons beyond the responsibility of ALPHA POOL (vehicle damage, accidents, illness - against medical certificate), the claim for remuneration of ALPHA POOL remains valid.
11. Rights to the produced material (moving image, photo, text, audio)
(11.1) All produced material (moving image, photo, text, audio) is at all times the property of ALPHA POOL, even in the event that damages are paid for it.
(11.2) Any use of the material requires a prior written release declaration by ALPHA POOL and is subject to a fee. A use of the material is only permitted to the extent determined by the release declaration. Any use beyond the agreed scope requires a new release. In case of usage contrary to the agreement, the user of the material is obliged to pay ALPHA POOL a usage license in the amount of at least 100% of the recording fee and/or the accruing and usual costs of the copyrights.
(11.3) The use of the produced material as a working template for sketches or for layout purposes, as well as the presentation to contractual partners, already constitutes a use subject to a fee.
(11.4) Generally, only simple rights of use are granted for the materials released for use. Thus, among other things, the right of use of the material shall only be granted for one-time use for the purpose specified by the contractual partner and/or in the publication and in the medium or data carrier which the user has specified or which results from the circumstances of the placing of the order. Further licensing of the photographic material by the contractual partner/user to third parties is also prohibited in this context. The acquisition of exclusive rights of use (exclusive rights) and the granting of blocking periods must be expressly agreed and shall be remunerated separately. This applies in particular to:
- a second use or second publication in advertising measures or in other reprints
- any editing, alteration or redesign of the photographic material
- the digitalization, storage or duplication of the photographic material on data carriers of any kind (e.g. magnetic, optical, magneto-optical or electronic carrier media such as CD-ROM, CD, floppy disks, hard disks, RAM, microfilm, etc.), insofar as this does not only serve the technical processing of the photographic material
- any reproduction or use of the image data on the Internet or in online databases or in other electronic archives (also insofar as these are internal electronic archives of the contractual partner)
- the transfer of the digitized produced (material by way of remote data transmission or on data carriers suitable for public reproduction on screens or for the production of hard copies
(11.5) Any granting of rights of use is subject to the condition precedent that the fee for use is paid in full to ALPHA POOL.
(11.6) A transfer of the produced material to third parties, also to other editorial departments of the publishing house or to subcontractors, is not permitted, unless it has been approved or confirmed in writing by ALPHA POOL. If in individual cases a transfer is permitted or if at the instigation of the contracting partner/media partner the material is sent to a third party, the contracting partner/media partner shall be liable for the complete return of the material in perfect condition and for the payment of the costs, contractual penalties and usage fees incurred. The contractual partner/media partner shall be responsible for any fault on the part of the third party to the same extent as for its own fault.
(11.7) Use of the material is generally only permitted in the original version. Any modification or alteration (e.g. montage, photo-technical or other alienation, coloring) and any change in the image reproduction (e.g. publication in excerpts) requires the prior consent of ALPHA POOL. Also, the material may not be copied, reproduced or otherwise used as a motif. The only exception to this is the removal of unwanted blurring or color weaknesses by means of electronic retouching.
(11.8) ALPHA POOL may use the material designed by it for self-promotion on its internet website, its social media channels as well as on presentations and advertising material created by it for self-promotion purposes for an unlimited period of time.
(11.9) Rights of use for designs rejected or not executed by the contracting partner shall remain with ALPHA POOL. This shall also and especially apply to services of ALPHA POOL which are not subject to special statutory rights, in particular copyright.
12. Collecting societies
(12.1) The contracting party undertakes to pay any fees to collecting societies such as Gema. If these fees are paid by ALPHA POOL, the contractual partner undertakes to reimburse ALPHA POOL against proof. This can also be done after termination of the contractual relationship.
(12.2) The contractual partner is informed that in case of awarding a contract in the artistic, conceptual and advertising consulting area to a non-legal person an artists' social security contribution has to be paid to the artists' social security fund. This levy may not be deducted from the agency invoice by the contractual partner. Unless otherwise agreed, the contractual partner shall be responsible and liable for compliance with the obligation to register and pay the levy, insofar as the assignment has been made in the name and on behalf of the contractual partner.
13. Term of contract, notice periods
(13.1) The contractual relationship shall be valid for the period for which it has been concluded. Termination in accordance with § 627 BGB is excluded.
(13.2) If the contractual relationship is concluded for an indefinite period of time, it may be terminated by either party with three months' notice to the end of the month. The right to terminate without notice for good cause shall remain unaffected by this provision. An important reason exists in particular if insolvency proceedings are opened against one of the contractual partners or are rejected due to lack of assets or if ALPHA POOL or contractual partner is in default with a substantial part of the respective service obligation or with more than 20% of the respective payment obligation. In any case ALPHA POOL as well as the contracting partner has to be given the opportunity to correct his breach of contract by setting a deadline. Any termination must be in written form.
14. Obligation of secrecy of the agency
ALPHA POOL is obligated to treat all information it receives from the contractual partner due to an order strictly confidential for an unlimited period of time and to obligate its employees as well as third parties used by it in the same way to absolute secrecy.
15. Disputes
(15.1) If a dispute arises in the course of or after the completion of an order with regard to the commissioned project, an out-of-court mediation procedure shall - as far as possible - be followed before legal proceedings are initiated.
(15.2) In the event of disputes regarding quality assessment or the amount of fees, external expert opinions shall be prepared by a neutral expert to be appointed by the Chamber of Industry and Commerce at the place of performance in order to reach an out-of-court settlement if possible. The costs for this shall be borne by the party complaining about the quality or the amount of the fee.
16. Final Provisions
(16.1) The contractual partner is not entitled to hand over claims arising from the contract.
(16.2) Should any provision of these General Terms and Conditions of Business be wholly or partially invalid or lose its legal validity at a later date, this shall not affect the validity of the remaining provisions. Instead of the invalid provision, another appropriate provision shall apply by way of contract adjustment which comes closest in economic terms to what the contracting parties would have wanted if they had been aware of the invalidity of the provision.
(16.3) Any deviating agreements which amend these General Terms and Conditions in whole or in part must be in writing in order to be effective.
(16.4) The place of performance and jurisdiction for all disputes in connection with the contractual relationship shall be Berlin. The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of German private international law.