In case of doubt, the German version of the General Terms and Conditions shall apply: https://www.lugo-media.de/agb/
LuGo.media
Owner Luca Max Goldhorn
In Übersehn 9, 51570 Windeck
(in the following called agency)
§1 SUBJECT MATTER OF THE CONTRACT
(1) All services of the Agency are exclusively based on these General Terms and Conditions (hereinafter referred to as GTC). They are an agreed part of all orders placed with us and apply to all services provided by the Agency to the Customer. The GTC also apply to all future orders and do not have to be expressly included again in writing. Conflicting GTC of the customer are only effective if they are expressly accepted by the agency in writing. Agreements deviating from or supplementing these GTC must be in writing to be effective.
(2) All order-related details of the respective order shall be agreed separately.
§2 CONCLUSION OF CONTRACT
(1) The Agency shall submit an offer to the Customer in the form of a cost estimate. This cost estimate will either be handed over to the customer personally, or sent by e-mail or by post. All cost estimates of the agency are subject to change and non-binding. All customers who are not consumers in the sense of the BGB (German Civil Code) will be referred to these GTC in the cost estimate, on request these GTC will be sent to the customer, in addition, the GTC can also be viewed on the website of the agency.
(2) The GTC shall become effective upon placing the order with the Agency. An order can also be placed informally. In case of doubt or in the absence of a written order, § 612 BGB shall apply. In this case, these GTC serve as the basis for the usual remuneration. Upon conclusion of the contract, the customer declares his consent to the inclusion of these GTC in the contractual relationship.
(3) The Customer agrees upon initial commissioning that these GTC shall also apply to subsequent orders without the need for a renewed express inclusion.
(4) The Agency is entitled to change the GTC at any time. The Customer shall be informed of this in writing by e-mail or by post. At the same time, the Customer shall be informed of the possibility of objecting to these within one month after notification of the changes to the GTC. If the customer does not exercise this option, the contractual relationship shall continue to exist under the amended conditions. If the customer objects to the changes, the contractual relationship shall continue, however, the Agency shall be entitled to terminate the contractual relationship with due observance of the relevant notice period.
§3 PRINCIPLES OF SERVICE PROVISION
(1) The scope of the Agency’s service obligation results from the order confirmation sent to the Customer. All agreed services are specified therein.
(2) The remuneration actually owed is based on all services documented and recorded within the framework of time recording on the basis of the currently valid agency price list (see § 4 paragraph 1). Invoicing shall take place on a minute-by-minute basis, usually at the turn of the month or by agreement.
(3) The Agency undertakes to document all services in detail within the framework of time recording. This documentation shall be made available to the Customer upon request and shall contain the following information on the recorded service items:
Date
Employee or freelance partner
associated project
Start and end time
Duration
Name of the activity
(4) The Agency shall prepare a cost estimate for each project or request at the request of the Client.
(5) The aim of the cost estimate is to provide as realistic an estimate as possible of the total cost. The cost estimate is based on empirical values from comparable projects and the information available at the time of the estimate. The total costs depend on the actual scope and course of the project, the type and scope of possible additional services, and the distribution of roles between the customer and the agency. Actual costs will depend primarily on the following factors:
What information was or was not available at the time of the cost estimate?
Was the expected scope precisely defined in advance and communicated to the agency?
What existing documentation is provided to the agency and how helpful is it for implementation?
What is the distribution of roles between client and agency and to what extent does the client participate in the implementation?
How many corrections will be made in the various implementation stages?
If the projected effort within the cost estimate cannot be met, the agency is obliged to inform the customer immediately as soon as the overrun is foreseeable. In this case, the customer has the right to terminate the contractual relationship in due time. If the Customer makes use of his right of termination, he shall not be entitled to any claims against the Agency, unless mandatory statutory provisions or individual provisions of the contractual relationship or individual provisions of these GTC expressly provide for this.
(6) Each project or request for which the Agency prepares a cost estimate requires approval by the Customer.
(7) The planning of the performance of services is determined by the Agency. The Agency may refuse to carry out the performance of the service if it deems the fulfillment of the specifications to be impracticable or if sufficient capacities are not available.
(8) The commissioning of third parties required for the performance of the service, in particular freelance partners of the Agency, shall be carried out in the name and for the account of the Agency, unless otherwise agreed. The costs of the commissioned third parties (third-party costs) will be charged to the Customer. The Agency is not obliged to disclose information about the services of third parties to the Customer, this applies in particular to the settlement between the Agency and third parties.
(9) The Agency shall be entitled to prepare notes on discussions, in particular on changes to contractual circumstances and the subject matter of the contract. The notes shall become binding on both parties if the Agency hands them over to the Customer and the latter does not object in writing within two weeks.
(10) In the provision of the services owed, the Agency reserves the right to make changes or deviations with regard to individual partial services, insofar as this becomes necessary after conclusion of the contract for reasons for which the Agency is not responsible and insofar as the changes or deviations are not so significant for the purposes pursued by the Customer with the services ordered from the Agency that the purpose intended by the Customer can no longer be fulfilled.
§4 AGENCY PRICE LIST
(1) The hourly rates differ depending on the activity. The following is the currently valid price list (net) of the agency:
Price group 01 (30.00 EUR per hour)
Travel time plus any additional expenses arranged by the customer, such as car travel, flight, train, cab, etc.
Price group 02 (50,00 EUR per hour)
Assistance work, e.g. project organization, research, data entry, dispatch service, sorting and making-up work, etc.
Price group 03 (70,00 EUR per hour)
Project work such as project management, creation, final artwork, CMS development, editing, etc.
Price group 04 (80,00 EUR per hour)
Project work such as conception, online marketing measures, Google Ads, Ad-Schlatung, Social Media Ads, Facebook Ads, XING Ads, LinkedIn Ads, film, store development, etc.
Price group 05 (150,00 Euro per hour)
Photo shooting, use of special shooting techniques such as drones, moving camera shots, macro shots, etc.
(2) The agency price list may change over time.
§5 PLACING OF ORDERS WITH THIRD PARTIES
(1) The Agency is entitled to perform commissioned services itself or to commission third parties to do so.
(2) The Agency shall be entitled to place orders for the production of print and advertising materials, in the creation of which it is involved on the basis of an order, on behalf of the Customer. The Customer hereby expressly grants the necessary power of attorney.
(3) Orders to advertising media shall be placed by the Agency in its own name and for its own account. If quantity or multiple discounts are claimed, these will be charged to the Customer accordingly if the discount or scale requirements are not met. The agency is expressly not liable for defective performance of the advertising media.
§6 REMUNERATION AND PAYMENT
(1) Remuneration is based on all services documented and recorded within the framework of time recording on the basis of the currently valid agency price list (see § 4 Paragraph 1). Invoicing shall take place in minute intervals, as a rule at the end of the month or as agreed. The binding nature of the order confirmation shall be deemed to have been accepted unless the Customer raises an objection in writing within two weeks.
(2) The amounts stated in the Agency price list (see § 4 Paragraph 1) and the order confirmation are generally net amounts without the applicable statutory value added tax. The Agency shall be entitled to issue partial invoices to the Customer for up to 50% of the order volume, as well as partial invoices for partial services.
(3) Invoices issued by the Agency shall include the net amount of the remuneration and shall show the statutory value-added tax applicable at the time.
(4) The Customer may only offset undisputed or legally established claims. He may not assign his claims to third parties.
(5) The Agency shall invoice travel costs and expenses on a time and material basis. Flights within Europe are in economy class, intercontinental flights in business class. Rail travel is in 1st class. Trips by car are charged at 30.00 EUR per hour according to the agency price list (see § 4 paragraph 1).
(6) Services not included in the scope of services of the contractual relationship (see § 2 paragraph 1), which either:
are performed at the additional request of the customer or
become necessary due to incorrect prior information provided by the Customer or
are due to reasons for which the Agency is not responsible, or
are necessary due to preliminary services of third parties, which are not vicarious agents of the Agency, which are not carried out on time or in a professional manner.
shall be charged to the Customer on the basis of the Agency price list valid at the time (see § 4 Paragraph 1) according to the time spent.
(7) Any fees, public-law charges and other costs incurred, such as GEMA fees, contributions to artists’ social insurance, liability and other damage insurance, official registrations, energy, water and waste disposal costs, etc., shall be borne by the Customer or shall be reimbursed by the Customer against evidence.
(8) If the execution of an order is delayed for reasons for which the Customer is responsible, the Agency may demand an appropriate increase in its remuneration. In the event of intent or gross negligence on the part of the Customer, the Agency may also assert claims for damages. The assertion of further damage caused by delay remains unaffected.
(9) If the execution of the contract or parts of the agreed services does not come about for reasons for which the Customer is responsible, the Agency shall retain its full claim to remuneration. Excluded from this regulation is the permissible termination.
§7 DUE DATE OF REMUNERATION AND DEFAULT
(1) Payments are due within 10 days of the invoice date. Invoice amounts are payable without deduction. If partial services are invoiced, a corresponding partial payment shall be due in each case after the partial service has been rendered. The Agency reserves the right to invoice unknown customers against advance payment less 3% discount.
(2) If the customer is in arrears with the payment of the remuneration, the Agency may demand interest on arrears in the amount of 5 percentage points for commercial customers above the respective valid prime rate p.a.. The assertion of a proven higher damage caused by default remains reserved.
(3) With regard to the due remuneration claim of the Agency, the Customer shall have neither a right of retention nor the right of set-off. A set-off against the remuneration claim is only permitted with an undisputed or legally established claim of the Customer.
§8 DATES
(1) Dates are non-binding unless they are expressly designated as binding.
(2) The Agency shall not be liable for disruptions due to strikes, lockouts, force majeure, absence of employees through no fault of their own, default on the part of the upstream supplier, official intervention and similar circumstances. If the Agency is hindered in the execution of the order by such circumstances or by the fact that cooperation or information of the Customer is outstanding, deadlines shall be deemed to be extended by the duration of the hindrance and by a reasonable start-up time after the end of the hindrance. The Agency shall notify the Customer of this impediment without delay.
§9 COPYRIGHTS AND RIGHTS OF USE
(1) All trades, which the Agency creates or changes for the Customer according to the order, are protected by copyright. All rights, in particular the copyright with all powers to all trades and information provided within the framework of the execution of the contract are the exclusive property of the Agency, even if these objects have been created by specifications or cooperation of the customer. After written approval by the Agency, the Customer shall be entitled to use them in his own company as well as to pass them on to companies with which the Customer is affiliated in accordance with § 15 of the German Stock Corporation Act (AktG).
(2) The Agency shall transfer to the Customer, against payment of a remuneration to be agreed upon, the rights of use required for the respective purpose underlying the contractual relationship. The right of use shall not pass to the Customer until the agreed remuneration has been paid in full. In any case, even if the Agency has granted the exclusive right of use, the Agency shall remain entitled to use all trades within the scope of its own advertising.
(3) Unless otherwise agreed, only the simple right of use shall be transferred in each case. The processing, utilization, reproduction and commercial distribution of the Agency’s trades by the Customer or by third parties require an express prior written agreement and the prior consent of the Agency. If the customer wants to transfer rights of use granted to him to third parties, it also requires the prior written agreement and the prior consent of the agency. The agency is to participate appropriately in the usage fees collected by the customer. The Agency shall be entitled to information from the Customer regarding the scope of the rights of use granted and the amount of the agreed fees for use.
(4) Repetitions or reuse or multiple uses or further utilization of the Agency’s trades by the Customer or by third parties associated with the Customer are subject to remuneration and require the prior written consent of the Agency.
(5) Within the scope of its own advertising communication, the Agency may advertise both with the Customer itself and with the trades commissioned by the Customer.
(6) If a contract is not concluded after the Agency has submitted a cost estimate, the Customer is prohibited from using, exploiting or making available to third parties the content presented by the Agency in the course of the presentation. If the Agency agrees in individual cases that the Customer uses, exploits or makes available to third parties trades of the Agency, it requires a prior written agreement, including the remuneration to be paid by the Customer.
(7) If the Customer provides the Agency with content for the performance of its services, the Customer shall ensure and assure upon conclusion of the contract that it is the owner of the rights of use and ownership of the content provided by it for the performance of the services by the Agency. This content includes in particular, but is not limited to, address data, image data, video and audio data, texts, logos, etc.
(8) The data and files created in the course of the performance of the Agency’s service obligations shall remain the property of the Agency. The Agency is not obliged to hand over data and files to the Customer. If the customer wishes the provision of data and files, this must be agreed in writing in advance and paid for separately by the customer. If the Agency has provided the Customer with data carriers, files or data, these may only be changed with the prior consent of the Agency.
(9) The Agency shall not be liable for defects in data carriers, files or data except in cases of intent and gross negligence. The Agency shall also not be liable for defects in data carriers, files or data that occur on the data carriers, files or data during data import to the Customer’s system or cause damage in the Customer’s system.
(10) The rights of use of third parties, such as artists, photo, audio and film archives, etc., may differ from the terms of use of the Agency and are subject to the rights of use of the respective authors.
§10 CUSTOMER OBLIGATIONS
(1) The Customer shall provide the Agency with comprehensive support in the provision of services, in particular by setting out the specifications precisely and in writing, answering questions immediately, cooperating appropriately, carrying out interim checks on the results of the work, etc.
(2) The Customer shall name a contact person who will be available to the Agency for necessary information, make decisions or bring about decisions without delay.
(3) The Agency shall receive from the Customer all documents and information necessary for the proper performance of the scope of services on the part of the Agency and the implementation of the project commissioned by the Customer. If the Customer provides areas and premises for the implementation of a project, the Customer shall be responsible for ensuring that the areas and premises provided for the implementation of the project are suitable for the purpose of the project and are officially approved. The customer is obligated to obtain any necessary official approvals in due time before the agency begins to provide services, to secure routes and areas against general hazards and to exclude possible sources of danger. The customer shall bear the duty to ensure traffic safety with regard to the areas and premises made available by him. The Customer shall indemnify the Agency against any liability that may arise from the absence of an official permit, from a breach of the duty to ensure traffic safety or from the nature or location of the areas and/or premises provided.
(4) The Agency is entitled to demand from the Customer the conclusion and proof of suitable and sufficient insurance policies covering liability and damage risks.
(5) Insofar as the Agency rents or lends items of any kind to the Customer, the Customer shall be liable for loss of or damage to the rented or lent items. For compensation claims of the agency the replacement value is to be taken as a basis.
§11 LIABILITY
(1) The agency assumes no warranty and liability, both to the customer and to third parties. This includes liability for the admissibility of its work under competition, trademark and name law. The same applies to the protectability of the services rendered.
(2) The Agency undertakes to perform the services owed by it with the greatest possible care. It shall only be liable for damages incurred in the event of intent and gross negligence. The Agency shall also be liable for damages resulting from injury to life, body or health in the event of slight negligence. In all other respects, it shall only be liable for slight negligence if it breaches obligations, compliance with which is of particular importance for the achievement of the purpose of the contract. The same shall apply to breaches of duty by vicarious agents of the Agency.
(3) Insofar as the Agency commissions external services at the instigation of the Customer in the Customer’s name and on the Customer’s account, the Agency shall not be liable for the services and work results of the commissioned service providers. In these cases, the Agency acts merely as an intermediary. The respective contractors are not vicarious agents of the agency. The agency is only responsible for the selection. Otherwise, it shall only be liable for its own fault and for intent and gross negligence.
(4) The use of equipment and objects provided by the Agency to the Customer shall be at the Customer’s own risk.
(5) Events of force majeure, in particular, but not conclusively, rain, hail, wind, storm, earthquake, etc. or public-law obstacles, in particular, but not conclusively, missing or withdrawn public-law permits and authorizations, shall entitle the Agency to interrupt the performance of its services for the duration of the obstacle. The same shall apply if there are indications that further performance of the contract leads or could lead to a risk to the life or health of people. In this case the agency is obliged to contact the customer immediately and to agree on the further procedure. Claims for damages of the customer are not triggered by this. However, the Customer shall have the right to terminate the contractual relationship.
(6) In areas of market research and other analyses, the Agency does not guarantee the accuracy, as the analysis is based on interpretation of the information or data. The customer is obliged to check the analysis immediately after receipt, but in any case before further processing, and to report any defects immediately after discovery. If the immediate inspection or notification of defects is omitted, the customer shall have no claims.
(7) Claims for damages of any kind are excluded if the Agency, its legal representatives, or its vicarious agents have acted with slight negligence. This does not apply in case of violation of essential contractual obligations. In this case, liability is limited to typical and foreseeable damages. Claims for damages of any kind are limited to the compensation of typical and foreseeable damages.
(8) The Agency shall not be liable for any legal consequences arising from the trades developed.
§12 LIABILITY FOR DEFECTS
(1) In the event of deficiencies in performance, the Agency shall first have the option of rectifying the deficiency or submitting alternative solutions. The customer will describe any defects as detailed as possible. The Customer’s duty to cooperate in accordance with § 10 shall also apply to the rework.
(2) For damages, § 11 shall apply. Other claims are excluded, e.g. for reimbursement of expenses in the event of defect rectification by third parties.
(3) No liability for defects shall be assumed for any success, customer approval, publicity, media resonance, etc. intended by the Customer with regard to a project.
(4) The Agency shall not be liable for the novelty, feasibility and economic usability of its trades. Nor does it assume any guarantee that its trades do not conflict with the rights of third parties.
(5) Claims for liability for defects exist only to the extent that the trades prepared by the Agency deviate from the agreements made with the Customer.
(6) The Customer shall inspect the trades immediately after completion or transmission by the Agency. If he finds any defects, he must immediately notify the Agency of these in writing with a precise description of the defects. Defects that cannot be discovered immediately even with careful inspection must be reported in writing immediately after discovery, at the latest, however, on the 5th working day after transmission.
(7) In the case of projects or trades that extend over a longer period of time, the Customer’s claims for liability for defects shall be limited to claims for subsequent performance. The Agency may either rectify the projects or trades or submit an alternative proposal. If a date or deadline is specified in the contract for the service to be provided by the Agency and if the provision of the service is only of interest to the customer if it is provided on time, the customer is entitled to withdraw from the contract without the need to set a deadline.
§13 BEGINNING, DURATION AND TERMINATION OF THE CONTRACT
(1) The beginning of the contractual relationship, its duration and its termination shall be determined by mutual agreement between the Agency and the Customer and shall be an integral part of the contract. Unless otherwise agreed, the contractual relationship shall be of unlimited duration.
(2) In the case of projects or trades planned for a longer period of time, the Customer may only terminate the contractual relationship in the cases determined by law or in accordance with the provisions of these GTC. In this case, the Agency shall not be obliged to provide any further services. In addition, in the event of termination, the Customer shall bear the costs of production or acquisition of items and for the commissioning of services from third-party suppliers, which were acquired, produced or commissioned exclusively for the contractually agreed purpose. However, with regard to the costs of third-party services purchased by the Agency, this shall only apply to the extent that these can no longer be terminated and, in the event of a possible termination, shall be limited to the claims for damages asserted by the third-party service provider. Services already commenced at the time of termination shall be charged as provided and completed even if the customer waives the right to be provided with the partial service or waives the right to use it. With regard to the full or partial utilization by the Customer of the services developed by the Agency up to premature termination by the Customer, § 9 (6) shall apply accordingly.
(3) If the execution of the contract or parts of the agreed services does not come about for reasons for which the Customer is responsible, the Agency may withdraw from the contract. In all other respects, § 6 paragraph 9 shall apply, with the exception of permissible termination.
(4) If the Customer does not fulfill his obligations according to § 7 paragraph 1, § 10 paragraph 3 and 4, if necessary not even after an appropriate grace period, the Agency is entitled to withdraw from the contract.
(5) In the cases of the above paragraph 4, the Agency shall be released from its obligation to perform. Instead, it shall be entitled to claim compensation for the damage it has incurred, which shall be based on the scope of the time required to date for the provision of the contractually owed service, based on the usual hourly rates announced in accordance with the order confirmation or agency price list (see § 4 Paragraph 1). In addition, the Agency may claim expenses for external services commissioned in the interest of the Customer. The right of both contracting parties to extraordinary termination remains unaffected by the above provision.
§14 NON-SOLICITATION AND PROHIBITION OF DIRECT TRANSACTIONS
(1) The employees and third parties employed by the Agency for the execution of the subject matter of the contract may not be employed or commissioned by the Customer, neither on a temporary basis, nor as permanent employees, nor as subcontractors, nor may they be placed with third parties for a period of up to 24 months after the execution of the contractual relationship. Further claims for damages of the agency remain unaffected.
§15 SECRECY AND SAFEKEEPING
(1) The Agency undertakes to treat as confidential any information marked as confidential and, at the written request of the Customer, to delete any data provided by the Customer and to destroy or return any documents provided by the Customer.
(2) The Agency shall observe data protection law.
(3) The Customer undertakes to keep all contractual objects secret from third parties. Employees with access to contractual objects shall be instructed in writing about the Agency’s copyright as well as the obligation to maintain secrecy and shall be obligated to comply in favor of the Agency.
(4) The Customer shall keep all contractual objects, in particular any documentation provided to him, carefully in order to exclude misuse.
§16 FINAL PROVISIONS, PLACE OF PERFORMANCE AND JURISDICTION
(1) The place of performance and jurisdiction is the court located at the registered office of the Agency.
(2) All legal relationships between the Agency and the Customer shall be governed by the law applicable to the legal relationship of domestic parties at the registered office of the Agency.
(3) Amendments and supplements to the contract must be made in writing. Verbal side agreements are invalid.
(4) If a clause of these GTC is invalid, the validity of the remaining clauses shall not be affected. In place of the invalid clause, an agreement shall apply which most economically promotes the purpose of the contract. If such an agreement cannot be determined from the parties’ intentions, the statutory provision shall apply. The agency aligns the GTC according to the respective valid laws of the BGB, §§ 305 to 310§.
(5) German law shall apply.