General Terms and Conditions of BARON Trademarketing Sales GmbH
§ 1 General
All business relations between BARON Trademarketing Sales GmbH and the respective client are subject to the following General Terms and Conditions in the version valid at the time of conclusion of the contract. They are deemed to be agreed upon acceptance of the order, also for future business relations. Regulations that amend or cancel these terms and conditions are only valid if this is confirmed in writing by BARON. Any deviating terms and conditions of the customer shall not be recognized unless these terms and conditions are expressly agreed to in writing by BARON.
BARON draws your attention to the fact that we process and store necessary data within the scope of the business transaction by means of an EDP system in accordance with § 33 BDSG (German Federal Data Protection Act); as far as possible, the confidential treatment of personal data is assured.
§ 2 Offer and conclusion of contract
Unless a written, binding assurance is expressly given, our offers are always subject to change. We shall be bound by the offer prices for a maximum period of four weeks. In case of doubt, an effective contract shall only be concluded in accordance with the terms and content of our written order confirmation, if such a confirmation is issued. Services shall be rendered on the basis of these General Terms and Conditions. Subsidiary agreements must be made in writing.
§ 3 Scope of services
The object of the order is the activity agreed in the contract, but not the achievement of a specific economic success. We may use competent subcontractors for the execution of the order, unless otherwise agreed. Verbal agreements as well as subsequent changes to the agreed content of the contract must be made in writing and confirmed by us in writing in order to be valid. We shall charge an appropriate fee for all additional services commissioned. If costs of third parties are invoiced, we are entitled, insofar as costs of continuous items are concerned, to pass on to the client price increases charged to us by third parties.
§ 4 Duty of Cooperation of the Client
The client must create all the necessary conditions for the proper execution of the order and is obliged to support us to the best of his ability. He shall provide all necessary and significant information, materials and documents in good time, i.e. within the request deadlines set by the contractor. The contractor shall be authorized to conclude contracts for third-party services in the name and for the account of the client.
§ 5 Services and Delay in Services
Insofar as the nature of the matter permits, we are entitled to fulfil our performance obligation in partial performances or partial deliveries. Claims for damages in the event of delays in performance or delivery shall be governed by the liability agreed in these terms and conditions. In the event of culpable failure to meet an agreed performance or delivery deadline, default shall only be deemed to have occurred after a reasonable period of grace has been set. As a matter of principle, agreed deadlines shall be observed with the general diligence of a prudent businessman.
§ 6 Liability
In the event of a breach of non-contractual or contractual obligations, in particular in the event of impossibility of performance of the contract or default, we shall only be liable for ourselves and our vicarious agents in the event of intent and gross negligence. In this case, liability is limited to the damage typical for the contract foreseeable at the time of conclusion of the contract, i.e. in the case of deliveries and services, to the order amount. Insofar as services are procured from third parties, we shall not be liable for their fault.
§ 7 Prices and terms of payment
The fee for the contractor’s services shall be calculated according to the time spent on the activity or agreed in writing as a fixed price. In addition to the fee, we are entitled to reimbursement of expenses incurred. Details of the method of payment and the amount of payment shall be regulated in the contract. We are entitled to issue invoices at reasonable intervals according to the work performed and expenses incurred, unless otherwise agreed in the contract. Our prices are net prices in euros excluding value added tax. The granting of discounts or other deductions is excluded, unless otherwise contractually agreed. Payment for our services must be made by bank transfer or direct debit at the latest within two weeks after invoicing and receipt of invoice. In the event of default in payment, we shall be entitled to charge default interest in the amount of 3 per cent (in words: three per cent) above the respective statutory interest rate as of the occurrence of the default. The client may only offset undisputed or legally established claims.
§ 8 Copyright protection and retention of title
Insofar as our services are copyrightable, we as the producer shall remain the copyright owner. In these cases, the client shall only receive the revocable, exclusive and non-transferable right of use to the work results, which is restricted by us and otherwise limited in time and place, unless otherwise agreed in the contract. If the use by the client goes beyond the agreed scope and purpose, a new agreement and additional remuneration shall be required. We reserve the right to archive work and drafts and to use them as reference.
The contractor is not entitled to use proposals submitted by us at the tender stage, regardless of whether they are protected by copyright or not. This also applies to the use of our proposals in modified form or by third parties.
The Client declares that it is in possession of the copyright and/or trademark rights required for the services it has commissioned or, if it is not itself the copyright and/or trademark owner, that it has obtained permission from the copyright and/or trademark owner to use the illustrations, trademarks and/or brand names. The Contractor shall not check whether the Client is in possession of the rights required for the services to be provided. Liability towards third parties with regard to the infringement of copyright and/or trademark claims is excluded for the commissioned services as a whole. If commissioned services infringe copyright and/or trademark rights, the Client shall be responsible for this and shall release the Contractor from any liability in this respect.
§ 9 Warranty
We assume warranty for our services only in accordance with the following provisions and only vis-à-vis the client as contractual partner. The assignment of warranty claims to third parties is excluded.
In the event of defects for which we are responsible, the client is obliged to notify us in writing within 14 days of receipt of the service.
A precise description of the defect must be provided. In the event of a justified notice of defect, we shall, at our discretion, rectify the defect free of charge. Further claims of the client are excluded altogether, with the exception of intent and gross negligence, unless otherwise regulated by law. Contractual penalties shall not be recognised.
§ 10 Secrecy
We undertake to maintain confidentiality about all operational matters of the client of which we become aware in the course of the performance of the contract and not to pass on confidential information to third parties. If the client provides address data, the provisions of data protection law shall apply.
§ 11 Place of Performance and Jurisdiction
The place of performance and jurisdiction for all claims arising from the contract for both contracting parties, insofar as they are merchants, is the registered office of BARON Trademarketing Sales Gesellschaft mbH in 28217 Bremen. It is agreed that the laws of the Federal Republic of Germany shall apply to the exclusion of foreign law and to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The German version of the contract text is authoritative.
§ 12 Severability clause
If individual or several provisions of a contract including these GTC are or become invalid, this shall not affect the validity of all other provisions or agreements in case of doubt. Instead of the ineffective provisions, a provision shall apply which comes closest to the economic sense and purpose of the ineffective provision in a legally permissible manner.