GENERAL TERMS AND CONDITIONS OF BUSINESS
1. These General Terms and Conditions of Business (“T&Cs”) supersede all earlier T&Cs. The Customer’s terms and conditions shall only be binding upon young promotion GmbH if young promotion GmbH has recognised them in writing. Amendments of and supplements to the T&Cs are subject to an additional written agreement.
2. In the event that provisions in these T&Cs contradict those in the main contract, that latter shall prevail.
Offers / Presentations
3. An initial discussion as well as straight- forward price offers shall be free of charge for the Customer. The other work of young promotion GmbH, that also includes working out project proposals or the preparation of detailed offers shall be invoiced in the absence of an express agreement to the contrary. The use of project proposals by the Customer shall be subject to the written consent of young promotion GmbH.
4. The price calculations in the offers prepared by young promotion GmbH are based on the documents and data submitted being complete and suitable as well as information on company concepts, the market, contents and volume being binding and clearly defined. Offers made on the basis of imprecise documents or documents not yet submitted shall in all cases be non-binding and the price for an offer based on such information shall be nothing more than a guide price.
5. Work and services carried out by young promotion GmbH shall be invoiced at cost. The offer prices or confirmed prices shall be net prices exclusive of VAT unless an agreement is made to the contrary. The following are not included in offers submitted by young promotion GmbH:
a) Exceptional cash expenditure, out-of-pocket expenses and remuneration in connection with travelling and events;
b) Logistics, storage etc;
c) All third party services carried out with the express consent of the Customer.
6. If an order is amended by the Customer and the offer has already been made, or budgets already submitted by young promotion GmbH shall be rendered invalid, and shall be amended to
take the amendment into account. If the order is cancelled or slashed in value young promotion GmbH shall be entitled to receive commensurate compensation for its loss of fee and for the capacity it has put aside in expectation of receiving the order.
The Customer’s obligation to co-operate
7. The Customer shall provide the allocated staff in good time to implement the order, taker delivery of it and for training purposes. The Customer is obliged to select the staff to be assigned carefully so that they will work in a professional manner.
The Customer shall notify young promotion GmbH of how his project team is organised and pass over the names and responsibilities of the persons involved.
The Customer shall have to draw the attention of young promotion GmbH in good time to special technical preconditions as well as legal, official or other regulations in so far as these are important for fulfilling the contract from the perspective of young promotion GmbH. The Customer shall hand over to young promotion GmbH all the necessary documents, information and documents in good time and shall grant the staff of young promotion GmbH access as necessary to its own plant and premises.
Review and test documents
8. The Customer is obliged to check the review and test documents, (assignment schedules, systems, copies, files and such like)handed over to him prior to completion for mistakes and to mark them with «OK for production» and any instructions for corrections and return them within the agreed period of time and in the absence of such a period, within 5 working days. As long as young promotion GmbH has not been granted the OK for production by the Customer young promotion GmbH shall be entitled, but not obliged, to stop progress on the work. In this case it shall not be liable for a specific completion date or for any substantiated third party costs which may be incurred as a result of the delay or other damages. If, after 30 days have elapsed from the delivery of to young promotion GmbH still no goods for carrying out the work have been received, young promotion GmbH shall be entitled to terminate the order and invoiced the Customer for the work it has carried out to date.
young promotion GmbH shall not be liable for mistakes overlooked by the Customer and for
work and corrections carried out by the Customer himself. If the submission of review and test documents is waived by agreement, or if the party placing the order calls off films, files or ordered material directly without the review and test documents, he shall consequently bear the entire risk.
9. We shall undertake to carry out the order placed with us to the best of our knowledge on the basis of the documents, figures and information with which we are provided. It is not our task to review the documents, figures and information with which we are provided to confirm that they are complete and correct. The registered offices of young promotion GmbH shall be regarded as being the place of jurisdiction. Part deliveries are allowed.
10. In so far as a period of time for fulfilment has been agreed, it shall consequently begin on the date of the order confirmation (Date of postmark), but not however, before the Customer has furnished the documents, licences, clearances etc, as required, hascompleted necessary preparatory work and if necessary, paid the advance payment agreed.
If deadlines or timetables have been agreed, these shall consequently be extended as appropriate in so far as the Customer is in default within the meaning of the above section.
11. For contracts to prepare printed products, assignment schedules, sales promotion outfits and accessories, PR material, equipment etc., young promotion GmbH is entitled, provided that the Customer has not delivered the necessary logos and texts within 8 working days, to design the logos and texts at its own discretion and to invoice an agreed price.
12. If young promotion GmbH should be to blame for being in default, the Customer shall have to set young promotion GmbH an appropriate period of time to render subsequent fulfilment.
Terms and Conditions of Payment
13. Generally new Customers shall render a payment on account to young promotion GmbH amounting to 100% of the respective price quoted when young promotion GmbH accepts an order. Existing customers shall generally render a payment on account to young promotion GmbH amounting to 50% of the respective quoted price. The remainder of the price shall be paid after the service has been rendered. The invoices of young promotion GmbH are payable net, that is, within 21 days without a discount being allowed for prompt payment. A discount for prompt payment may be agreed for payments made within shorter periods of time. The place of fulfilment for payment shall be the business premises of young
promotion GmbH. Payments shall always be counted towards the oldest invoice payable.
14. young promotion GmbH may demand payment guarantees even after accepting an order. If these are not furnished, work may be stopped on handling the order whereby the costs already incurred will become payable without delay.
15. If an order is cancelled within 4 weeks of the start of a campaign, young promotion GmbH is entitled to invoice the Customer for cancellation costs amounting to 50% of the value of the order. For orders placed less than 4 weeks prior to the intended campaign start, young promotion GmbH is entitled to invoice the Customer a short-notice surcharge amounting to 25% of the order value.
16. If the Customer is in default with a payment or if there is a significant deterioration in his financial status, young promotion GmbH may consequently demand immediate payment in cash for all his accounts based on the business relationship, even if he has already granted a payment respite. This shall also apply if young promotion GmbH has accepted drafts or bills.
17. If a period of time allowed for payment is exceeded, young promotion GmbH shall reserve the right to invoice default interest amounting to 5% above the respective bank rate of the European Central Bank irrespective of any other rights it may have.
Further in that respect young promotion shall reserve the right to withdraw short notice all promotional staff working within the scope of the Customer’s project.
18. The Customer is not allowed to withhold payments or offset with any counter claims there may be of any type, unless the counter claims are undisputed or have been declared final and absolute in a court of law.
Complaints and notifications of defects
19. The Customer shall have to check every performance rendered by young promotion GmbH (Services or performance in kind) and to be more precise, even in those cases in which he has given the go-ahead for production. Complaints about incomplete, incorrect, or defective fulfilment can only be taken into consideration by young promotion GmbH if they are received by young promotion GmbH within no later than 8 days from the performance being rendered in writing with the necessary confirmations enclosed.
If there are complaints about goods provided (Advertising products etc.) the Customer shall have to send in the goods about which he has made a complaint himself or render other proof of the defectiveness of the goods upon request.
Warranty / Liability
20. When services are rendered young promotion GmbH shall vouch that the assigned work will be carried out by it or by the assistants called in by it with the necessary care.
As a matter of principle, only young promotion GmbH shall be entitled to issue instructions to staff assigned by young promotion GmbH to work on a Customer’s order
If the Customer issues staff assigned to work on his order by young promotion GmbH direct instructions contrary to those instructions issued to the same staff by young promotion GmbH, the Customer shall consequently be liable for damage incurred as a result of the Customer’s instructions being carried out properly.
21. young promotion GmbH shall furnish a guarantee for the warranted qualities of its products for services it renders in kind. Minor discrepancies from stipulated original submissions shall not be regarded as quality defects. Damage incurred as a result of improper storage or the use of the products supplied by young promotion GmbH not in accordance with instructions shall exempt young promotion GmbH from all liability.
The warranty shall be rendered either by the repair or replacement of goods showing a defect, as young promotion GmbH sees fit. Replaced goods shall become the property of young promotion GmbH. The warranty obligation shall expire if the delivered goods are modified by a third party, if instructions for handling and use are not followed or if the goods are used improperly by the Customer or by a third party, unless the default is not in connection with the causal modification.
The warranty shall not cover defects based on manufacturing defects or the choice of unsuitable material, provided that the Customer has specified the method of manufacture or material. Natural wear and tear is not covered by the warranty.
22. The Customer shall have to allow young promotion GmbH or a third party under an obligation to young promotion GmbH to render the warranty sufficient time and opportunity to carry out the work under warranty. The Customer shall only be allowed to carry out such work himself with the permission of young promotion GmbH.
23. young promotion GmbH shall be liable for any damage sustained by the Customer in the event of a breach in its duty to exercise care up to a maximum of twenty percent of the value of the performance rendered by young promotion GmbH. This limitation shall not apply for damage caused by gross negligence or intent.
24. All warranty-based claims shall become time- barred once six months have expired from the performance being rendered and / or the goods have been delivered to the Customer. Warranty periods and statutory periods of limitation shall not be interrupted by the recognition or elimination of a defect.
Approval of work by young promotion GmbH
25. If young promotion GmbH enters into obligations towards a third party in connection with fulfilment in the Customer’s name or for the Customer, the Customer shall exempt young promotion GmbH from obligations and third party claims created as a result.
If young promotion GmbH itself enters into a tenancy agreement for the Customer in connection and /or in connection with the fulfilment of an order, the Customer shall consequently undertake irrevocably to be responsible in full for all losses arising from the tenancy agreement, for example, to the rented premises. The Customer takes note that young promotion GmbH shall not be taking out an insurance policy for the rented premises to cover itself.
If when using the Customer’s proprietary rights, (Trade marks, patents, copyrights etc.) third party proprietary rights are breached, the Customer shall consequently be obliged to indemnify young promotion GmbH from any damages.
Prohibition of poaching staff
26. For the period in which young promotion GmbH works together with the Customer as well as within two years after their work together has ended, the Customer shall not poach, employ or commission to carry out work any promotional staff or other employees of young promotion GmbH either directly or indirectly without the express consent of young promotion GmbH. As a contractual penalty for non- compliance of this agreement we shall invoice EUR 5,000.00 for each individual breach. By “poaching” we also mean even an attempt to make direct contact for the purposes of setting up a business arrangement.
For the purposes of these provisions an employee shall mean all persons who are have entered into a regular contract of employment or sub-contract arrangements with young promotion GmbH during the period in which the Customer is working together with young promotion GmbH.
Safekeeping of working documents and files
27. young promotion GmbH shall keep the working documents (Data, files, negatives, colour arrangements and such like) in safekeeping for a period of 2 years after the goods have been delivered or after the contract with the Customer has ended. A separate agreement will have to be made is such materials are to be kept in safekeeping for a longer period of time. The Customer will be charged for this service. The materials shall always, that is during the above named period of 3 years and afterwards, be kept at the Customer’s risk. In particular the risks of being able to provide such materials in perfect condition subsequently as a result of changing processing technology shall be reserved. The costs incurred for archiving, being prepared once more, formatted and handed out as a result of an agreement being made for the materials to be
kept in safe-keeping, shall be invoiced in addition. The data and submissions (originals, photographs and such like) handed over to young promotion GmbH shall be treated with the normal care. The customer shall have to bear and insure risks over and above this.
28. young promotion GmbH shall reserve the title and copyright to cost estimates, concepts and other documents as well as to creative and design work, project proposals, the results of work expertise etc. They must not be passed on to third parties and third parties must not be allowed access to them. young promotion GmbH shall be entitled to rights to trade marks, patents, samples and models, unless they have been explicitly registered in the Customer’s name and young promotion GmbH has received a payment for them. young promotion GmbH shall be entitled to be named in a manner normal in the industry in connection with the advertising materials it has produced.
In the absence of specific agreements the Customer shall be entitled to use the named documents etc. subject to the restrictions of the intended scope and for as long as the Customer is working together with young promotion GmbH, as well as subject to the precondition that the Customer fulfils his payment obligations.
The reproduction of all the pictorial and text submissions, samples and such like provided by the Customer to young promotion GmbH shall be subject to the precondition and the assumption that the Customer is in possession of the relevant reproduction rights. This shall also apply for saved archive data and its reuse. The agency shall obtain third party rights and consents required to fulfil the contract at the Customer’s expense.
29. young promotion GmbH is entitled to save and process data it obtains in the course of the business relationship with the Customer or from third parties.
Obligation to maintain secrecy
30. The business and operational secrets of the other party are to be kept secret by the other party and may only be passed on to third parties with the written consent of the holder of the secret. The obligation to maintain secrecy shall apply even after the parties are no longer working with one another, for as long as one party has an interest in the secret information being kept secret.
Termination of the contract
31. If a Customer which has appointed young promotion GmbH to carry out a sales promotion, an event, a PR occasion or similar cancels this
occasion / project early before it is carried out, the Customer shall consequently have to pay the following proportion of the price:
a) Notice of termination 1 month before the event: 50%
b) Notice of termination 14 days before the event: 75%
c) Notice of termination less than 14 days before the event: young promotion GmbH is in this case entitled to demand the agreed remuneration; however it would have to allow those costs it has saved as a result of the contract being cancelled to be offset against the sum it demands from the Customer. The costs saved will include for example the printing, travelling and cleaning costs etc.
32. The Customer shall have to notify young promotion GmbH straight away if
– the owner of the company he works for is in liquidation, bankrupt or he passes away and his company is assigned to his estate or an unsuccessful attempt has been made to take his goods in execution,
– as a result of a sale of a holding in his business he is subject to a new controlling influence whereby in the event of a sale of 50 percent or more of his Company such a controlling influence is in any case to be assumed,
– it is intended to assign the business divisions receiving the contractual products to a third person or to merge the business with a third person.
If one of these sets of circumstances exists or within 60 days from the receipt of notification young promotion GmbH shall be entitled to withdraw from the contract prematurely with immediate; in the event that the spheres of business receiving the contractual products are assigned to a third party, young promotion GmbH may as it chooses demand that the third party expressly confirms this contract as being valid with effect to the third party.
Under no circumstances is young promotion GmbH obliged to hand back to the Customer payments received under this contract.
This contract shall automatically be terminated as a result of the Customer’s legal entity being deleted in the commercial register.
33. Verbal agreements between the parties to this contract shall be subject to written confirmation to be valid. If young promotion GmbH takes minutes of meetings with the Customer they shall consequently be regarded as having been approved if the Customer does not object to them in writing within three working days
from being delivered to the Customer. An email shall be accepted as writing.
34. The Customer may only assign rights and duties from this contract to third parties with the prior written consent of young promotion GmbH. If young promotion GmbH agrees to an assignment or to sub- contracting, the Customer shall consequently have to ensure that this provision also applies for the third party and that this provision is likewise contained within his contracts with other persons.
35. Should individual provisions of this contract be invalid or impractical, they are consequently to be replaced by valid provisions coming closest to the presumed intention of the parties. This means that the validity of the contract is not questioned.
36. Any appendices there may be are to be listed and shall apply as integral parts of the agreement reached between the parties.
Applicable law and Place of jurisdiction
37. The order and its execution shall be governed by German law. If young promotion GmbH provides staff for an occasion, this shall not constitute staff-hire within the meaning of the law, nor is such staff-hire intended.
38. The place of jurisdiction and place of fulfillment shall be where young promotion GmbH has its registered offices. young promotion GmbH is however entitled to specify the place of jurisdiction as being the courts having jurisdiction where the Customer has his place of residence, his registered office or branch office.