General Terms and Conditions of TMC GmbH
1. Validity of the terms and conditions
The services, supply and offers of TMC GmbH (hereinafter: the Agency) to the contractual partner (hereinafter: the Customer) are governed exclusively by these Terms and Conditions, which thus also apply to future business relationships even if they are not expressly agreed again. Exceptions to these Terms and Conditions are only effective when confirmed in writing by the Agency.
2. Rights of ownership, copyright protection
All of the Agency’s services (ideas, event concepts or images, graphics or texts that have been delivered, etc.) and any individual parts thereof remain the property of the Agency and/or are protected by copyright law. By paying the fee the Customer acquires only the right of use for the agreed purpose. Unless an agreement to the contrary is concluded with the Agency, the Customer may only use the Agency’s services itself, exclusively in Germany, and only for the term of the contract. The Customer may not make changes to any Agency services without the express consent of the Agency and – if the services are protected by copyright – the owner of the copyright. The consent of the Agency is required for the use of Agency services which exceed the originally agreed purpose and scope of use, regardless of whether the services are protected by copyright. In this case, the Agency and the owner of the copyright are entitled to separate reasonable compensation. The Agency retains its ownership of the delivered goods until the claims for those goods have been satisfied in full. If the Customer is a legal entity under public law, a special fund under public law or a businessperson exercising his or her commercial or independent professional activity at the time of the contract conclusion, this retention of ownership also applies to Agency claims against the Customer arising from its current business relationship until all of the Agency’s claims against the Customer have been satisfied. As long as ownership is retained, the Customer may not sell the goods (hereinafter: retained goods) or otherwise dispose of the ownership hereof. In the event of access to the retained goods by third parties, particularly bailiffs, the Customer will notify the third party of the Agency’s ownership and inform the Agency immediately so that it can enforce its rights of ownership. In the event of a breach of contract by the Customer, in particular default of payment, the Agency is entitled to demand the retained goods at the Customer’s expense if it withdraws from the contract.
3. Offer prices
Unless otherwise stated, the Agency will adhere to the prices quoted in its offer for 30 (thirty) days from the date of the offer. The quoted prices plus applicable sales tax are authoritative in this respect. Additional supply and services will be charged separately. If not otherwise agreed, prices apply to ex-works shipment from the Agency’s premises, including normal packaging.
Invoices issued by the Agency are payable without deduction within 14 (fourteen) days of the date of the invoice. If the Customer is in default of payment, the Agency is entitled to charge interest at the rate charged by commercial banks for borrowings on current account, plus the applicable sales tax, starting from the time of the default. These interest rates are to be lowered if the Customer produces evidence of a lower rate. The Customer is not entitled to set-offs, retention of payment or price reductions, even in the event of complaints or counterclaims against the Agency, unless the counterclaims are undisputed or have been legally upheld. However, the Customer is entitled to retention of payment in the event of counterclaims arising from the same contractual relationship.
The Customer is entitled to terminate the contractual relationship with the Agency at any time with a period of notice of 3 (three) months. However, in the event of premature termination of the contractual relationship, the Customer is obligated to remit the agreed fee and/or pay for any preliminary services that have already been provided. The parties to the contract expressly agree that savings on expenses by the Agency do not result in reductions in the fee. Each contractual party has the right of an extraordinary termination of the contract. The Agency is entitled in particular to exercise this right if the Customer does not pay the agreed fee by the fixed due date or further, if agency services provided as part of the contractual agreement are not paid despite demands to do so. Notices of termination must be in writing in order to be effective.
6. Delivery times
Delivery deadlines, which may be either binding or non-binding, must be agreed in writing. If a delivery delay is caused by the Agency, the period of grace to be set by the Customer is fixed at 2 (two) weeks beginning with the receipt by the Agency of notification that the grace period has begun.
7. Shipping and transfer of risk
Risk is transferred to the Customer as soon as the shipment has been handed over to the person providing transport or as soon as the shipment has left the Agency’s premises for the purpose of being shipped. If shipment is delayed at the Customer’s request, risk is transferred to the Customer at the time of the notification that the goods are ready to ship.
If the delivered goods are defective or lack warranted qualities, the Agency shall replace the goods or remedy the deficiency at its discretion to the exclusion of any other warranty claims. Multiple remedies shall also be permitted. If, after a reasonable period of time, the remedy or replacement is unsuccessful, the Customer can, at its discretion, demand a reduction in the price or the rescission of the contract.
With its approval of the work, the Customer assumes liability for the correctness of the images and text. The Agency is liable for the legal feasibility of the concept only to the extent of observing general provisions of competition law and taking account of any existing personal rights as well as rights of third parties known to the Agency. The Agency is not obligated to undertake any more extensive examination, for example of the proprietary rights of third parties. The Customer shall be solely liable if legal infringements, in particular of third-party copyrights, arise through the execution of its order. The Customer must indemnify the Agency against all claims by third parties for any such legal infringements. If the Agency commissions third-party services at the Customer’s request and on its account, the Agency is not liable for the services and work results of the supplier of the service. The Customer is responsible for production and publication releases. If, in exceptional cases, the customer delegates this release to the Agency in whole or in part, it indemnifies the Agency against all liability. Claims against the Agency for damages for whatever legal reasons, in particular arising from impossibility, delay, defective or incorrect delivery, the positive breach of an obligation, fault in conclusion of the contract and tortious acts, are excluded – insofar as the Agency is at fault in such cases – as long as the Agency did not act intentionally or with gross negligence. Any liability is limited to damage that was foreseeable at the time the contract was concluded. In the event of liability for simple negligence, the obligation of replacement is limited to the sum of EUR 5,000,000 per damaging event (corresponding to the current cover of its product liability insurance or liability insurance). The aforementioned exclusions and limitations of liability apply to the same extent to the bodies, legal representatives, employees and other vicarious agents of the Agency. These limitations do not apply to the Agency’s liability in cases of willful conduct, warranted characteristics, injury to life, limb or health, or claims arising from product liability laws. Further, liability for breaches of obligation whose fulfillment enables the correct execution of the contract in the first place, and on the fulfillment of which the customer may regularly rely, likewise remains unaffected.
10. Statute of limitations
The statute of limitations for claims and rights owing to defects, regardless of the legal reason for them, amounts to one year. This statute of limitations also applies to any other claims for damages against the Agency independently of their legal foundation, and applies insofar as these claims are not connected with defects. The statute of limitations applies with the following proviso: in general, it does not apply in cases of intent, if the Agency maliciously concealed a defect, or if it has warranted the nature or condition of the supplied item. The statute of limitations on claims for damages also does not apply in cases of injury to life, body or health, claims under product liability law, grossly negligent breach of duty, or culpable breaches of essential contractual obligations. The period of limitations for all claims for damages begins with the acceptance of the product. To the degree that claims for damages are considered in this provision, this also covers claims for damages for futile expenditures. If not otherwise expressly agreed, the statutory provisions for the start of the period of limitations, the suspension of the statute of limitations, suspension and the beginning of new time limits shall remain unaffected by this. The above provisions do not entail any change in the burden of proof to the detriment of the Customer.
11. Proofs and production monitoring
Proofs must be submitted to the Agency before the beginning of production. The Agency will monitor production only on the basis of a special agreement. Should such an agreement exist, the Agency is empowered to make any necessary decisions and issue instructions. Up to five flawless copies (or a reasonable number, in the case of valuable items) of all reproduced work shall be provided to the Agency free of charge. The Agency is entitled to use these copies for the purpose of advertising its own services.
12. Advance payment
The Agency regularly issues commissions to subcontractors (printers/lithographers). Commissioning shall take place on behalf of and on the account of the Agency, which, in return, can demand advance payment from the Customer in the amount of 50% of the value of the commission.
13. Additional services
Changes to drafts, the creation and presentation of additional drafts, changes to printing templates and other additional services (manuscript revisions, production monitoring, etc.) will be charged separately based on time. If the Agency commissions third-party services in its own name at the Customer’s request, the Customer must release the Agency from any liabilities resulting from such commissions.
Without prejudice to any divergent provisions agreed in individual cases, the development of concept and design proposals by the Agency with the goal of concluding a contract with the Customer shall take place against payment of a presentation fee to be agreed separately. Despite the charge of this presentation fee, any copyrights, rights of use or ownership rights in the work presented by the Agency shall remain with the Agency. If the Agency does not receive a commission following its participation in the presentation, all services of the Agency, in particular their content, remain the property of the Agency. The Customer is not entitled to use them further, regardless of the form of use. Rather, the documents must be returned to the Agency immediately at its request.
15. Obligation to maintain confidentiality
The Agency is obligated to maintain confidentiality as regards all of the Customer’s business secrets that become known to the Agency as a result of its work with the Customer.
16. Applicable law.
The law of the Federal Republic of Germany shall apply to these General Terms and Conditions and the entire legal relationship between the Agency and the Customer. If the Customer is a registered trader within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special asset under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Paderborn. If a provision in these Terms and Conditions or within the scope of any other contractual agreements is or becomes invalid, the validity of the other provisions in the agreement shall not be affected thereby. In such a case, the contractual parties are obligated, in mutual agreement and in the spirit of the contract, to replace the invalid provision with a provision that will enable the intended purpose of the contract to be achieved as far as possible and in a legally permissible fashion.