General Terms and Conditions of valyu GmbH

1. Scope of application, definitions, general

1.1. These General Terms and Conditions (GTC) shall apply to all services that are or are to be provided by valyu GmbH („valyu“ or „Agency“) to customers („Customer“ or „Client“) in particular, but not limited, to designs, texts, drafts, layouts, photos, templates, graphics, samples, moving images, image, sound, and other works, ideas, as well as IT-related services such as content management, web hosting, etc. (“Services”). The Services may include services, work, or the delivery of goods.

1.2. By placing an order, Customer acknowledges the validity of these GTC for the business relationship between the parties. The GTC shall also apply to any subsequent orders of Customer without needing to be explicitly included again.

1.3. Any provisions deviating from these GTC shall require a separate written agreement between the parties from case to case. Written form also must only be waived based on a written agreement.

1.4. Deviating GTC of Client shall only apply as far as they valyu explicitly acknowledges them in writing. This shall also apply if valyu does not explicitly object to the general terms and conditions or delivery conditions of Customer.

2. Conclusion of contract

2.1. The contractual relationship shall be based on the written offer submitted by valyu from case to case, including the associated service descriptions. The offer shall remain valid for a period of four weeks from receipt of the offer by Customer, provided that no different period is specified in it.

2.2. By accepting the offer, Client accepts the terms in it and the validity of the GTC. Acceptance shall also be possible by email or by phone.

3. Subsequent specification of service content, approvals

3.1. As far as necessary, valyu shall prepare a written report on discussions with Client regarding the process or specification of service contents no later than within 10 working days and submit it to Client in writing or by email. The content of such summary shall be binding upon the contracting parties if Client does not object to it within 5 working days of receipt of the report at the latest.

3.2. valyu shall submit the drafts to Customer for review and approval before publishing the Services. Except if otherwise agreed, Client shall be obligated to review the substance and legal validity of all content. By approving the work, Client shall assume responsibility for the accuracy and completeness of the content, in particular in factual technical and legal respect.

4. Remuneration, amount of remuneration, cost estimates

4.1. Invoicing shall be based on the fees specified in the offer by valyu. The agreed prices shall each be given exclusive of statutory value added tax. The offer shall supersede any estimates or calculations exchanged in advance.

4.2. Preparation of drafts or presentations by Agency at Customer’s request shall be subject to remuneration. Invoicing by valyu shall take place on basis of time and material in accordance with the agreed hourly rates or, in the absence of any explicit agreement, the hourly rates customarily charged by valyu. The payment obligation shall also exist if the submitted drafts or presentation contents are not accepted by Customer.

4.3. In the absence of any agreement to the contrary, invoicing shall be based on the actual expenses incurred by valyu based on the hourly rates customarily charged by valyu. This shall apply accordingly to any Services that exceed the content of the offer.

4.4. If the parties have agreed that a cost estimate must be approved by Customer before work is performed in an individual case, the cost estimate shall be deemed bindingly approved by Customer subject to the following conditions: 1) Customer does not object to the cost estimate in writing within a reasonable period of time following its receipt, under consideration of project urgency, and 2) the cost estimate informs Customer of the consequences of Customer’s failure to object. Objection by Customer after the end of 10 working days following receipt of the cost estimate shall be deemed “not reasonable” within the meaning of the above provision in any case.

4.5. Customer shall be obligated to reimburse reasonable travel expenses incurred by Agency.

4.6. Customer shall not be due any right of retention or set-off against payment claims of Agency, except where these are undisputed or legally final counterclaims of Customer.

5. Invoicing, retention of title

5.1. valyu shall have the right to invoice an advance payment of 50% of the agreed or expected fee after placement of the order. Furthermore, valyu shall have the right to invoice partial payments for partial Services already rendered to Customer.

5.2. Until full payment of the order, valyu reserves all property rights to the work results, products already handed over to Customer, or other Services provided by valyu.

6. Due date, delivery dates, force majeure

6.1. All Services rendered by valyu shall be paid by Customer without deduction of discounts within 8 days of receipt of the invoice. After the end of the above period, valyu shall, without prejudice to any other claims, have the right to claim default interest in the amount of the relevant paragraph of § 288 of the German Civil Code (Bürgerliches Gesetzbuch; BGB).

6.2. Delivery dates and deadlines intended for valyu shall always be subject to change and shall only be binding if explicitly agreed as a fixed date for the specific case in writing.

6.3. valyu’s compliance with a deadline or a period agreed as binding shall require that valyu has received all information, approvals, or other contributions to be procured by Customer, including any advance payments due, in time. Otherwise, or if the failure to meet a deadline is due to circumstances for which valyu is not at fault, the deadline shall be extended at least for the period during which these circumstances existed.

6.4. valyu shall have the right to make partial deliveries and render partial Services, except if the Services are indivisible by nature or condition or partial performance is unreasonable for Customer.

6.5. Delays in performance due to force majeure or due to events that render it significantly more difficult or impossible for valyu to provide its Services – including any operational disruptions, strikes, authority orders, etc. – shall exempt valyu from the obligation to deliver on time for the duration of such events, even if they occur while default has already occurred. The parties shall retain their statutory right of withdrawal if they extend beyond a period of six weeks. Claims for damages by Customer shall be excluded in this case.

7. Involvement of third parties

7.1. valyu shall have the right to charge third parties in its own name for rendering the agreed Services or parts of them without requiring Customer’s separate consent. valyu’s liability for the Services shall not be affected by this.

7.2. As far as this is stated separately in the offer, valyu shall have the right to demand reimbursement of costs incurred by valyu by involvement of third parties (e.g., photographers, stylists, printers, etc.) from Customer upon presentation of suitable evidence. Alternatively, valyu shall have the right to subcontract any external Services required for completion of the order in the name and for the account of Customer at its own discretion in this case.

8. Distribution of advertising material

If Agency is charged with distribution of advertising material subject to collective bargaining agreements, e.g., placement of advertisements or distribution of brochures, such work shall be invoiced based on the list prices of the advertisers; it shall be the subject of a separate invoice.

9. Insertion orders

9.1. Insertion orders shall be placed in the name and for the account of Agency and settled by it with the publishers or other publication bodies. Client shall pay the due amount into one of Agency’s accounts in advance to make the amounts available to the publisher or other publication body at the latest at placement of the order.

9.2 Agency shall have the right to call off the corresponding amounts from Client 14 days before placing the order.

9.3. valyu assumes no warranty if the insertions are not issued or issued in any form other than the form charged by the publisher or other publication organ.

10. Collecting societies and artists’ social security contributions

Customer shall be obligated to meet all claims of collecting societies in connection with the business relationship with valyu. If such claims are met by valyu directly, Customer shall be obligated to reimburse any payments made. Customer is informed that a contribution to artists’ social security fund must be made when awarding a contract to anyone who is not a legal entity in the artistic, conceptual, and advertising consulting area. Customer must not deduct this charge from the agreed invoice price.

11. Presentation

11.1. valyu reserves all rights to the Services offered within the scope of presentations.

11.2. All property rights and rights of use shall remain with valyu for Services offered within the scope of a presentation that are not the subject of an order placed with valyu by Customer. valyu shall not be prevented from offering such Services to third parties or using them for its own purposes. Customer shall not be entitled to use such Services in any form, to process them, or to use them as a basis for production of its own material. If and as far as no order is placed, Customer shall be obligated to returning all presentation documents submitted by valyu or deleting them from any data carriers without undue delay. The above provisions shall also apply if remuneration for valyu has been agreed for the presentation or if settlement is based on item 4.2 of these GTC.

11.3. Unauthorised disclosure of presentation documents to any third parties, their publication, distribution, duplication, or other use by Customer or any third parties charged by Customer shall obligated Customer to paying the fee stipulated for the documents in question, without prejudice to any other claims of valyu. This shall be based on valyu’s offer or, in the absence of such offer, on terms customary in the market.

12. Intellectual property rights in valyu’s Services, scope of mutual granting of rights

12.1 valyu reserves all intellectual property rights in the Services rendered by valyu or any third parties charged by valyu. Processing, reproduction, transmission, or other use shall require the explicit and written consent of valyu.

12.2. valyu shall grant Customer the rights of use of the intellectual property rights regarding the Services rendered by valyu for the specifically agreed use as far as is necessary for compliance with the contractual relationship. The scope of such granting of rights regarding space, time, and subject matter shall be subject exclusively to the contractual agreement and the purpose of the contract. § 31 (5) of the Copyright Act (Urheberrechtsgesetz; UrhG) shall also apply accordingly to any non-copyrighted Services. Rights shall only be transferred if this has been explicitly agreed in writing. Customer shall acquire the contractually agreed rights only upon full payment of all claims arising from the order.

12.3. Agency shall retain title of the final artwork, programming, lithographs, and digital data carriers created for execution of the advertising order.

12.4. Customer shall be obligated to provide valyu with information on the scope of use of the Services upon valyu’s request.

12.5. In case of publications, Customer shall name Agency as the author in the form customary in the industry. Agency shall have the right to label the Services developed by it appropriately and as customary in the industry, and to publish Customer’s order using Customer’s business designations within the scope of self-advertising, also online.

12.6. Transfer of the rights granted to Customer to any third parties or use for any other purposes than those contractually agreed shall require valyu’s separate written consent from case to case.

13. Liability for content provided by Customer

13.1. Customer shall be exclusively responsible for any content provided by it to Agency, in particular but not limited to any information, data, images, product descriptions, trademark rights, etc., or any content linked by it directly to Agency’s Services. valyu shall not be obligated to verify compliance with any statutory provisions or other rules. This shall also apply in particular to compliance with requirements regarding data protection.

13.2. Customer shall be obligated to inform valyu about any changes to the content mentioned in item 13.1 without undue delay, as far as this is necessary for the provision of the Services by valyu.

13.3. Any liability of valyu for the content provided by Customer shall be excluded. Customer shall indemnify valyu against any liability, including the costs of necessary legal defence against any third parties, for such content.

13.4. If Agency’s Services are partly or completely unusable due to the content provided by Customer, Agency’s claim to remuneration shall not be affected by this.

14. Supplementary special regulations regarding contracts for work

14.1. As far as any work is owed by Agency, acceptance of the Service by Customer shall take place by notification to valyu. If Customer does not explicitly inform valyu within 5 working days after receipt of the Service, the Service shall be deemed accepted. Outstanding parts of the remuneration shall be due after acceptance or within 14 days of expiry of the period specified in sentence 1.

14.2. Agency offers a warranty for recognisable and concealed defects or for the absence of warranted characteristics based on the statutory provisions, with the proviso that it may repair the Service free of charge or deliver a defect-free Service subsequently, at its discretion. Customer shall be due the statutory claims if replacement delivery cannot be made.

14.4. The Service of Agency subject to a complaint of Customer due to defect shall be provided for inspection and testing by Agency in the condition in which it is at discovery of the defect.

14.5. If only parts of the Service are defective, Customer shall not have the right to refuse acceptance of the remaining, defect-free parts of the Service, except if acceptance of the defect-free parts is unreasonable for Customer.

14.6. Reproductions deviating slightly from the original (photo, graphic, design, etc.) shall not be a defect in any manufacturing process. This shall also apply to correspondence between press proof and production run.

14.7. Customer shall be obligated to inspect the Service for any defects or complaints without undue delay upon receipt. Complaints of defects must be made in writing, no later than within 8 days after the Service has been provided to Customer; any hidden defects must be reported to Agency no later than within 8 days after the defect has been discovered. Warranty on the side of Agency shall be excluded if Client exceeds this this deadline.

14.8. Customer shall not have the right to refuse or withhold the agreed remuneration due to any defects in the performance, except if existence of such a defect is undisputed or has been established by a court of law.

15. Agency’s liability

15.1. valyu shall be liable towards Customer for damages only in instances of intent or gross negligence, except in cases of injury to life, limb, or health and if any main performance obligations are breached.

15.2. Agency’s liability shall be limited to the foreseeable damage typical for the contract. Liability for indirect damage shall be excluded.

15.3. Colours shall be selected by Customer upon presentation of a colour fan, and substrates (paper, etc.) based on presentation of adequate samples. Minimal colour deviations in the printing/production process cannot be avoided. Because of this, the parties agree that minor colour deviations shall not constitute any defect of material within the meaning of § 434 BGB.

15.4. Unless explicitly agreed in writing in the order, review of any legal issues with regard to valyu’s Services, in particular but not limited to the areas of copyright, design, trademark, or competition law, shall be Customer’s sole responsibility rather than the task of valyu. valyu shall, therefore, not be liable in particular for the legal admissibility of the content or design of the Services as well as for any content-related information on products, customers’ services, or Customer’s business operations.

15.5. If any third parties raise a claim against Agency for injunctive relief or damages due to the design or content of the Services, Client shall indemnify valyu against such liability and reimburse valyu for any expenses incurred for legal defence. valyu’s claim to remuneration shall not be affected by this.

16. Exclusion of competition, non-solicitation

16.1. valyu shall not deliver any identical designs as agency services to any third parties operating in the same industry as Customer following full payment by Customer. Granting of an exclusion of competition by Agency shall correspond with Client’s obligation to not commission any other agency with consulting, planning, design, and implementation of the Services in the area of the subject of the order at the same time while the present contractual relationship with valyu is not terminated.

16.2. Customer commits to not enticing away Agency’s employees deployed for performance of the order during the cooperation and for a period of up to twelve months after its termination, i.e. by recruiting them for permanent or freelance employment directly with Customer, or to attempt thus, without Agency’s explicit written consent.

17. Confidentiality, data storage, retention

17.1. The parties commit to maintaining secrecy towards third parties regarding any details of the organisation, production, and distribution of the respective contractual partner that become known to them, as well as any other business and trade secrets, including all information regarding the other party that is not publicly known.

17.2. Client data shall be stored in accordance with § 33 of the Federal Data Protection Act (Bundesdatenschutzgesetz; BDSG).

17.3. Agency shall not have any contractual obligation to store Services or parts of them.

18. Contacts

Customer shall name one or several contacts to valyu upon conclusion of the contract. They must be authorised signatories for approval of budgets, estimates, texts, and other coordination processes. Any restrictions or changes to the signature authority must be communicated to valyu in writing without undue delay.

19. Place of performance

19.1. The place of performance for delivery and payment as well as the place of jurisdiction for any disputes between the contracting parties shall be Düsseldorf if Customer is a merchant, a legal entity under public law, or a public-law special fund.

19.2. Dispatch of valyu’s documents or work results shall be at Customer’s own risk. Agency shall have the right, but not the obligation, to insure any deliveries on behalf of and for the account of Customer.

20. Miscellaneous

20.1. The law of the Federal Republic of Germany shall apply.

20.2. If any one or several provisions of these GTC are or become invalid, this shall not affect the remaining content of these GTC or the contractual relationship with Customer. Any ineffective provisions in individual agreements with customers shall be replaced by such provisions that are effective and that come closest to the purpose of the agreement.