Author: Melanie Diana Kraus | February 9th 2021
General Terms and Conditions KREATIONSWELT (hereinafter: Melanie Kraus) provides its services exclusively based on the following General Terms and Conditions. These General Terms and Conditions also apply to all future service contracts with her customers (hereinafter: customer) even if they are not explicitly referred to.
1. Copyright, Rights of Use and Exploitation and Transfer of Rights
1.1 Any order placed with Melanie Kraus shall be deemed a copyright contract which includes the granting of all existing rights of use and exploitation of the rendered services to the customer (according UrhG § 31 -3-). These rights can be exclusive or nonexclusive. The rights of use and exploitations are transferred to the customer only after full payment of all ordered and rendered services. The rights of use and exploitation shall be transferred by written agreement.
1.2 Any draft or design created by Melanie Kraus is deemed a copyright work. The copyright law is applicable even if the drafts and designs do not reach the required level of creativity according to UrhG §2.
1.3 The drafts or designs must not be copied or changed without written agreement of Melanie Kraus. The infringement of this provision entitles Melanie Kraus to charge a contractual penalty to the amount of the usual compensation regulated by the labor agreement for services (“Tarifvertrag für Dienstleistungen”).
1.4 Drafts, designs or suggestions developed by the customer do not originate any co-copyright.
1.5 The customer guarantees that he is the copyright owner or possesses the rights of use and exploitation of any of the material submitted to Melanie Kraus in relation to the accomplishment of her work and that this material is free of third-party copyright claims. Melanie Kraus shall not be liable for any third-party copyright claims. In case of any third-party copyright claim the customer shall defend and hold harmless Melanie Kraus of any loss and/or damage that arise from an infringement of this provision.
1.6 Melanie Kraus shall not be obliged to hand over the fonts used for the accomplishment of her work to the customer.
1.7 Subject to the written withdrawal by the customer at any time Melanie Kraus is entitled to refer to the customer relation in her own promotion material and website as well as on the customer´s website using the customer´s name and logo.
2. Offers, Order placement and Compensation
2.1. Any stated offer price is subject to the condition that the order data on which the offer is based remain unchanged. All stated prices are netto prices to which the VAT has to be added.
2.2 The offer includes an estimate of the required expenditure of work hours. The work hours actually provided must not exceed or undercut 10% of the estimate stated in the offer. As alternative Melanie Kraus offers a fixed-price service package which is binding for both parties and shall only be altered by mutual written agreement.
2.3 After the order placement and before the actual start of the project the customer shall receive a detailed description of the agreed services based on a briefing discussion with the customer or a detailed written briefing prior to the development of the offer.
2.4 Should the required work hours exceed the estimate stated in the offer by more than 10%.
2.5. Drafts, final artwork and printouts together with the granting of the right of use and exploitation of this material are deemed to be a service. If the customer only receives drafts or final artwork without any grant of rights no compensation of these rights shall be applicable. In this case all rights remain with Melanie Kraus.
2.6. The work hours required for the development of drafts and final artwork as well as other activities in relation to the development of artwork shall be documented and are subject to compensation if not otherwise agreed.
2.7. If the drafts are an integral part of the order (e.g. logo, graphic work, advertising material) the compensation of this work shall be due upon delivery of the complete data files or printouts. Any changes or further artwork during or after the accomplishment of this work requested by the customer shall not be deemed part of the agreed offer and be compensated separately.
3. Special Services and Additional Costs
3.1. Special services as ex post changes, adaptions and print control shall be compensated according to the required expenditure of work hours.
3.2 Any expenditures in relation to technical ancillary costs, particularly those that arise from materials required for special techniques (e.g. laser engraving) are subject to reimbursement by the customer.
4.1. The compensation of the ordered services is due upon the delivery of the ordered work and payable without any deduction if not otherwise agreed. If both parties agree on a delivery of the work in several parts, the compensation for each part is due upon its respective delivery. If the accomplishment of the ordered work stretches across more than six months the customer shall make reasonable intermediate payments as agreed in the contract.
4.2. Should Melanie Kraus have to make advance payments for any advance services (e.g. third-party printing costs), she is entitled to charge a reasonable advance payment to cover such costs.
4.3. Should the customer´s financial situation substantially deteriorate during the contract period to the extent that he might not be able to fulfill his contractual obligations, Melanie Kraus is entitled to charge an advance payment, to interrupt her work and/or to retain the finished work. This also applies in case of delay or default in payment.
5. Quality Commitment
5.1. Any advice and recommendation will be developed in close alignment with the customer´s stated goals and objectives and are directed to fulfill those goals and objectives.
5.2. The selection of third-party services shall be based on a balanced proportion of cost effectiveness and best possible results.
6. Reservation of Ownership
6.1. Melanie Kraus is entitled to request the return of drafts and finished data files. The customer shall compensate Melanie Kraus for any damage the requested drafts and data files suffered.
6.2. Melanie Kraus shall not be obliged to return any draft or design that was created through the use of computer systems. Should the customer request the return of computer data files (eg. open layout data files) a written agreement will be required and the return of such data files shall be subject to separate compensation. Should Melanie Kraus make data files available to the customer, these files must not be modified without Melanie Kraus´ prior agreement.
7.1. If the work is to be shipped, the risk shall pass as soon as the consignment has been handed over to the shipment company.
7.2. Only those delivery dates are deemed valid that have been set by written agreement.
7.3. Should Melanie Kraus fall behind the agreed delivery date, the customer shall grant an appropriate period of grace. On expiry of that period of grace the customer shall be entitled to withdraw from the contract.
7.4. In case of operational disruptions at Melanie Kraus´ operations or at the operations of one of her suppliers as well as in the case of force majeure the customer shall be entitled to withdraw from the contract only in those cases where the delay caused by such disruptions becomes unreasonable and/or unacceptable for the customer. In all other cases the agreed delivery dates shall be extended by the period of operational disruption. Melanie Kraus shall not be liable in any way for any such operational disruption.
8. Claims and Liability
8.1. In case of a justified claim the customer is entitled, with the exclusion of other claims, to receive a remedy of the defects or a partial or complete refund for the defective work.
8.2. Defects in part of the delivered work do not entitle to a claim on the delivered work as a whole, with the exception that the defects of a partial delivery render this delivery useless.
8.3 Minor color deviations in color reproductions must be tolerated, no matter the production technique used. The same applies for the comparison of other templates and proofs (eg. digital proofs, print proofs, digital templates) with the final product.
8.4 Any claim must be stated in written form within 7 working-days after delivery. In case of delivery by shipment company the time limit for claims shall be 14 working-days. After this time limit the work shall be deemed as free of defects and accepted.
8.5 Melanie Kraus undertakes to fulfil any order with due diligence and care and to treat any template that has been made available to her with utmost care. In case of damage Melanie Kraus shall only be liable for deliberate acts and gross negligence. A compensation for damages beyond the material value of a template is excluded.
8.6 If the subject-matter of the contract is an intermediate product that will be further processed (Logo, print template) the customer is obliged to inspect this intermediate product upon delivery for completeness, accuracy and defects.
Melanie Kraus shall not be liable for any damage beyond the material value of the intermediate product.
8.7 As part of the order fulfillment Melanie Kraus is entitled to subcontract third-party services (eg. print, programming, multimedia production, art direction, text and graphic design). Melanie Kraus shall only be liable for her own work and services and only for deliberate acts and gross negligence. (siehe Anmerkung deutsche Fassung)
8.8 The customer is obliged to inspect any delivered work or intermediate product for completeness, accuracy and defects. With the approval of drafts, graphics or printouts the responsibility for the completeness, accuracy and the absence of defects is transferred to the customer. Melanie Kraus shall not be liable for drafts, graphics or printouts that have been approved by the customer.
9. Data storage, data protection and freedom of design
9.1. The customer shall be responsible for data storage and data protection. Melanie Kraus is entitled to make copies of all data for her own storage. She undertakes to treat all data with maximum care and safety. Melanie Kraus shall not be liable for unlawful access to these data or data loss that results from unlawful access.
9.2. The customer grants Melanie Kraus freedom of design. No claims can be made with respect to design freedom.
9.3 Melanie Kraus shall not be liable for the admissibility under competition and trademark law of the delivered work.
10.1 Melanie Kraus undertakes to treat any customer consultation, offer or order as well as any material made available to her with utmost confidentiality from the first customer contact until the fulfillment of the contract, unless she has been dispensed from confidentiality by written statement.
10.2. The confidentiality extends to any third-party supplier that Melanie Kraus might subcontract. In order to guarantee the required confidentiality Melanie Kraus shall sign an appropriate confidentiality agreement with each third-party supplier.
10.3. Should the customer request confidentiality beyond the fulfillment of the contract a separate written agreement is required.
11. Applicable law, legal venue and severability
11.1 The law of the Federal Republic of Germany shall apply to these Terms and Conditions.
11.2 As far as legally permissible the legal venue is Traunstein, Germany.
The place of performance is Grassau, Germany.
11.3 Should individual terms of these Terms and Conditions be ineffective, the legal effectiveness of the other provisions shall not be affected. In this case both parties will do their utmost to replace the ineffective provision by an effective one that comes as close as possible to the ineffective provision.
© 2021 – Melanie Diana Kraus