Terms of Service

Basis: collective wage agreement design (AGD / SDSt) of the Allianz deutscher Designer e.V.
The following terms apply exclusively to all contracts for communication design services between the designer and the client. They also apply if the client uses general terms and conditions and these contain conditions that conflict with or deviate from the AVG listed here. They are considered to be agreed if they are not contradicted before the start of the project. Deviations from the conditions listed here are only valid if the designer expressly agrees to them in writing.
The subject of the contract is based on the individual agreements of the parties. The designer does not owe any services that have not been expressly agreed individually. The handover of the drafts (results) is owed in a manner that enables the manufacture of the products resulting from the purpose of the contract / order; the transfer of so-called “open” files is generally not owed.

1. Copyright and Usage Rights

1.1. Every order placed with the designer is a copyright contract aimed at granting rights of use to the work.

1.2. All drafts and final artwork are subject to copyright law. The provisions of the Copyright Act also apply if the level of creation required according to § 2 UrhG has not been reached. The designer’s performance consists in creating a work in accordance with § 631 BGB. This work is used under copyright law. The right to use is granted as a simple or exclusive right and generally limited in terms of space, time and content (Section 31 UrhG).

1.3. The drafts and final artwork may not be changed either in the original or in the reproduction without the express consent of the designer. Any imitation – even of parts – is not permitted. A violation of this provision entitles the designer to demand a contractual penalty in the amount of 200% of the agreed remuneration. If no remuneration has been agreed, the usual remuneration according to the collective agreement for design services SDSt ⁄ AGD is deemed to have been agreed. The designer remains entitled in any case, even if he has granted the exclusive right of use, to use his drafts and copies thereof in the context of self-promotion.

1.4. The designer transfers the rights of use required for the respective purpose to the client. Unless otherwise agreed, only the simple right of use is granted in case of doubt. A transfer of usage rights to third parties requires a written agreement. The rights of use are only transferred after the remuneration has been paid in full. The designer remains entitled in any case, even if he has granted the exclusive right of use or if the client has acquired the right of use, to use the drafts and reproductions thereof in the context of self-promotion.

1.5. The designer has the right to be named as the author of the copies. A violation of the right to be named entitles the designer to compensation. Without evidence of higher damage, the compensation amounts to 50% of the agreed or according to the collective agreement for design services usual remuneration. The right to assert higher damage upon proof remains unaffected.

1.6. Suggestions of the client or his other cooperation have no influence on the amount of the remuneration. They do not establish a joint copyright.

2. Compensation

2.1. The total remuneration for a design service consists of the remuneration for design work, granting of usage rights (license) and other services as well as ancillary costs. It is calculated by adding. The remuneration is based on the collective agreement for design services, unless other agreements have been made “for a specific project”. The remuneration is net amounts to be paid plus statutory VAT.

2.2. If no rights of use (section 2.1.) Are granted and only drafts and ⁄ or final artwork are delivered, the remuneration for the use (license) does not apply.

2.3. If the designs are used later or to a greater extent than originally planned, the designer is entitled to invoice the remuneration for the use (license) retrospectively or to request the difference between the higher remuneration for the use and the originally paid one.

2.4. The remuneration for design work (section 2.1.) Is calculated by multiplying the hourly rate times the time spent. The hourly rate of a professionally qualified designer is set at a base hourly rate of 76 euros (calculation of the remuneration according to the “Remuneration Collective Agreement Design). The average time required is agreed in advance. The minimum effort (including subsequent changes or the production of drafts from the open data) that will be billed is 0.5 hour.

2.5. The remuneration (license) for the granting of the rights of use is determined by agreeing the scope of use (simple or exclusive) and adding the factors of usage area, usage duration and usage intensity. The resulting overall factor is multiplied by the time required for the design work. These four define the granting of usage rights to be agreed in writing (scope, area, duration, intensity). The granting of usage rights thus documents the different added value for the client.

2.6. The individual factors for the granting of usage rights (section 2.5.) Are determined as follows: 2.6.1. Scope of use simple = 0.2, exclusive = 1.0.

2.6.2. Usage area regional = 0.1, national = 0.3, Europe-wide = 1.0, worldwide = 2.5.

2.6.3. Useful life one year = 0.1, five years = 0.3, 10 years = 0.5, unlimited = 1.5.

2.6.3. Use intensity low = 0.1, medium = 0.3, large = 0.7, extensive = 1.0.

2.7. The remuneration for further services (section 2.1) is calculated by multiplying the hourly rate and the time required. These services are to be contractually fixed and remunerated based on the proven effort at an hourly rate of 76 euros or according to a separate agreement. Additional costs are calculated according to the actual occurrence.

2.8. If the execution of the order is delayed for reasons for which the client is responsible, the designer can demand an appropriate increase in remuneration. In the event of willful intent or gross negligence, he can also assert claims for damages. The assertion of further damage caused by default remains unaffected.

3. Due date of remuneration

3.1. The remuneration is due upon delivery of the work. It is payable without deduction. If the ordered work is accepted in parts, a corresponding partial remuneration is due when the part is accepted. If an order extends over a long period of time or if it requires high financial advance payments from the designer, reasonable payments on account must be made, namely 1/3 of the total remuneration when the order is placed, 1/3 after completion of 50% of the work, 1/3 after delivery.

3.2. The acceptance may not be refused for creative or artistic reasons. There is freedom of design within the scope of the order. Claims for defects with regard to the artistic design are excluded.

3.3. In the event of default in payment, the designer can charge default interest in the amount of 8% above the respective base rate of the European Central Bank pa for legal transactions in which a consumer is not involved, and in the case of legal transactions in which a consumer is involved in the amount of 5% above the respective base rate from the European Central Bank. The right to assert proven higher damage is reserved.

4. Special services and travel expenses

4.1. Special services such as reworking or changing final artwork, studying manuscripts or printing monitoring are charged separately according to the time required in accordance with the collective agreement for design services.

4.2. The designer is entitled to order the external services necessary to fulfill the order in the name of and for the account of the client. The client undertakes to give the designer appropriate power of attorney.

4.3. If, in individual cases, contracts for third-party services are concluded in the name and for the account of the designer, the client undertakes to release the designer internally from all liabilities that result from the conclusion of the contract. This includes, in particular, assuming the costs.

4.4. Expenses for technical ancillary costs, in particular for special materials, for the production of models, photos, intermediate shots, reproductions, typesetting and printing, etc. are to be reimbursed by the client.

4.5. Travel costs and expenses for trips to be undertaken in connection with the order and agreed with the client are to be reimbursed by the client.

5. Retention of title and obligation to return the results

5.1. Only rights of use are granted to drafts and final artwork (results), but not ownership rights.

5.2. The originals are therefore to be returned undamaged after a reasonable period of time, unless expressly agreed otherwise. In the event of damage or loss, the client has to reimburse the costs that are necessary to restore the originals. The assertion of further damage remains unaffected.

5.3. The dispatch of the work and of templates takes place at the risk and for the account of the client.

6. Publication of open data and computer data

6.1. The designer is not obliged to give open data and computer data that were created in the computer to the client. If the client wishes the designer to provide him with data carriers, files and data, this must be agreed in writing and paid for separately.

6.2. If the designer has made data media, open data and computer data available to the client for storage, these may only be changed with the consent of the designer. This must be agreed in writing and paid for separately.

6.3. The customer bears the risk and costs of transporting data carriers, files and data online and offline.

6.4. Except in the case of willful intent and gross negligence, the designer is not liable for defects in data carriers, files and data. The designer’s liability is excluded in the event of errors in data carriers, files and data that arise when data is imported into the client’s system.

7. Correction, production monitoring and document samples

7.1. Correction samples must be submitted to the designer before the reproduction is carried out.

7.2. Production monitoring by the designer only takes place on the basis of a special agreement. When taking over production monitoring, the designer is entitled to make the necessary decisions and give appropriate instructions at his own discretion. He is only liable for errors if he is to blame and only for intent and gross negligence.

7.3. The client provides the designer with 10 to 20 flawless, unfolded receipts free of charge from all duplicated work. The designer is entitled to use these samples for self-promotion.

8. Liability

8.1. The designer undertakes to carry out the order with the greatest possible care, in particular to carefully handle templates, films, displays, layouts, etc. He is only liable for damages incurred in the event of willful intent and gross negligence. Compensation beyond the material value is excluded.

8.2. The designer undertakes to carefully select and guide his vicarious agents. In addition, he is not liable for his vicarious agents.

8.3. If the designer commissions necessary external services, the respective contractors are not vicarious agents of the designer. The designer is only liable for his own fault and only for willful intent and gross negligence.

8.4. With the approval of drafts, final versions or final drawings by the client, the client assumes responsibility for the correctness of text and images.

8.5. The designer is not liable for the drafts, texts, final designs and final drawings approved by the client.

8.6. The client is obliged to check the legal admissibility of the drafts and other work independently
and to have them checked conscientiously before using the drafts and other work in business dealings. Except in cases of willful intent and gross negligence, the designer is not liable for the legal admissibility of his designs and other work. He will inform the client of any legal concerns as far as he is aware of them. Any further liability of the designer does not apply to the work to be reproduced and released by the client.

8.7. Complaints of any kind must be submitted in writing to the designer within 14 days of delivery of the work. Thereafter, the work is deemed to be accepted free of defects.

9. Freedom of design and templates

9.1. There is freedom of design within the scope of the order. Complaints regarding the artistic design are excluded. If the client wishes changes during or after production, he has to bear the additional costs. The designer retains the right to remuneration for work that has already started.

9.2. If the execution of the order is delayed for reasons for which the client is responsible, the designer can demand an appropriate increase in remuneration. In the event of willful intent or gross negligence, he can also assert claims for damages. The assertion of further damage caused by default remains unaffected.

9.3. The client assures that he is authorized to use all templates given to the designer. If, contrary to this insurance, he is not entitled to use it, the client releases the designer from all third-party claims for compensation.