ImpactRich – Terms and Conditions
These General Terms and Conditions shall apply exclusively to the business relationship between ImpactRich, a brand of MSI MODELSCHOOL International GmbH, Dag-Hammarskjöld-Straße 46, 34119 Kassel (hereinafter: “ImpactRich” or “we”) and our clients for our services and contractual relationships in the areas of advertising, PR, public relations, conception, realization and management of public relations measures, in particular through influencers, as well as our other services provided in this context, in particular consulting and design services. Furthermore, they shall also apply in their most recently incorporated version to all future orders and services in the business relationship in the above-mentioned areas of application, even if they are not mentioned separately again. Deviating conditions or contract offers of the customer are hereby contradicted. These terms and conditions do not apply to consumers. We provide our services exclusively to commercial customers and public corporations. For our other products and services, deviating terms and conditions may apply in each case.
- The contract for the service is concluded by confirmation of our binding offer by the customer or by confirmation or execution in accordance with the order of a binding request of the customer on our part. The subject matter of the contract is – exclusively – the respective agreed service. Additional and not expressly named service components are owed to me only insofar as they are necessary as an essential contractual obligation for the fulfillment of the respective purpose of the contract.
- All prices are subject to the applicable statutory value-added tax. Costs for license material, fonts, standard software and other third-party material are not included in offers and cost statements unless otherwise indicated.
- We owe professional execution, whereby the suitability of the service for a specific purpose not directly resulting from the order requires express agreement in text form.
- In the case of creative order content, we shall have freedom of design within the scope of the order according to our best judgment, unless an express agreement has been made on the execution.
- We do not owe the achievement of a success beyond the actual performance, such as click numbers, sales, reach, customer numbers, search engine positioning or the like. The inclusion of special technical or logistical or other circumstances and specifications attributable to the customer is only owed if this is agreed in text form.
- Subsequent changes to the subject matter and scope of the service shall require the consent of both parties. Additional services shall be adequately remunerated by the Client. In case of doubt, the standard rates of ImpactRich shall be deemed appropriate; if such standard rates do not exist or prove to be inappropriate, the regulations of the respective valid remuneration collective agreement or the relevant industry fee tables; if such general regulations do not exist, the remuneration rates customary in the industry for comparable services shall be deemed appropriate.
- Repeated design work and corrections shall also be deemed to be subsequent changes, insofar as they are not remedies for defects. We owe a basic proposal and a correction loop for creative services subject to deviating regulation or agreement.
- The place of performance is our place of business. Reasonable travel and travel expenses shall be reimbursed by the customer insofar as the travel or journey was made for the purpose of fulfilling the contract and with the approval of the customer or was necessary taking into account the expense and effectiveness of alternative means of transmission or communication. In the case of the provision or transmission of data, we are responsible until the data transfer of the infrastructure for which we are responsible to the transmission network. We are not responsible for errors in the transmission network or circumstances that occur in intermediate points or end points of the transmission network.
- We do not owe the storage of documents, promotional material or samples of the Client which the Client has not requested back within one month after termination of the order. Items and documents provided to ImpactRich by the Client shall be insured by the Client against damage, loss and theft. For damages that should not be covered by the insurance, we shall only be liable up to the amount of the material value.
- We shall only be in default on the basis of a reminder from the customer in text form, insofar as there is no fixed transaction. The agreement of binding completion dates requires text form. The performance dates stated are subject to the fulfillment of all necessary cooperation obligations of the customer.
- The presentation of the subject matter, scope and effect of our services serves solely to describe our services and does not constitute an independent warranty promise.
II. Special conditions for consulting services
- We provide consulting services exclusively on the basis of the information provided by the customer.
- We owe a professional execution of the consulting services taking into account the requirements specified in the order, but not a specific consulting result. Consulting services are always subject to the law on service contracts.
- Insofar as we provide consulting services and other services for the customer, these parts of the service shall each be qualified as an independent service. Insofar as we are active for the customer within the framework of project preparation as well as the conception and planning of measures and services, this shall be deemed to be a consulting service. We shall coordinate the services resulting from the consulting with the customer and agree on expedient measures based on the result of the consulting. In the implementation phase we do not owe a renewed examination of the task definitions, assumptions and basic conditions and can regard the consulting result agreed upon with the customer as basis, as far as the customer did not communicate deviating einfädeln text lines in time.
III. Media products
- For the development and execution of productions in the field of film, photography, animation and other creative services (hereinafter collectively referred to as “Production”) by us, the following provisions shall apply in addition:
- We prepare a concept proposal for the production, which shows the planned basic concept as well as the expected scope and purpose of the production(s).
- After submission of the concept proposal, the customer must approve the proposal in text form (e.g. e-mail) within two weeks or present detailed requests for improvements in text form.
- After approval of the concept by the customer, we create a proposal for the content, for example the storyboard according to the concept. After its presentation by us and control as well as approval by the customer, the implementation of the production takes place. If the customer rejects the concept proposal in a substantially modified version that takes into account the customer’s wishes more than twice in succession, or if the customer does not comment on the first version or an adjusted version within 7 days, we have the right to terminate the contract and demand the remuneration agreed for the respective development phase. If such remuneration for the development phase has not been expressly agreed, we shall have the right to demand a pro rata remuneration amounting to 20% of the remuneration agreed for the overall project per development phase.
IV. Websites/Web design/Online stores
- For the conception and creation of Internet pages and app layouts (hereinafter collectively referred to as “Internet pages”) by us, the following regulations apply in addition:
- We create a concept proposal for the website, which shows the planned number and linkage as well as the essential elements of the website(s).
- After submission of the concept proposal, the customer must approve the proposal to us in writing or by e-mail within two weeks or present detailed requests for improvements in writing or by e-mail. If the customer rejects the concept proposal in a substantially modified version that takes into account the customer’s wishes more than three times in succession without the existence of justified claims for defects, or if the customer does not comment on the first or an adjusted concept proposal within 7 days, we shall have the right to terminate the contract and to demand pro rata remuneration of 25% of the remuneration agreed for the overall project for the concept development phase. If no remuneration has been agreed, the customer shall pay us the remuneration provided by us in accordance with the offer, but at least an appropriate remuneration for the concept development. Section VII.6 of these General Terms and Conditions shall remain unaffected.
- After approval of the concept by the customer, we create the website according to the concept.
- We are free in the technical design of the website, as long as there is no deviation from the concept proposal. Furthermore, minor, reasonable deviations from the approved concept proposal shall not be deemed to be a defect, provided that the change is due to technical reasons, does not cause any significant restriction of the functionality of the Internet site and could only be avoided at considerable additional expense.
The provision of the Internet pages by making them available on a web server. The installation and hosting of the Internet site is not owed by us subject to an express agreement to the contrary.
- With regard to the technical compatibility of Internet pages and web applications provided by us, we shall be liable exclusively for the respective agreed quality. Compatibility with screen resolutions, end devices, browsers, web technologies and standards is owed exclusively to the extent agreed in each case, in the absence of such an agreement with the technologies most widely used for the respective form of communication at the time of commissioning.
- We are not liable for the suitability of Internet pages created by us with regard to the fulfillment of certain legal or technical standards, unless this is the subject of the respective order. The customer is responsible for the legal admissibility of the design requested by the customer as well as the fulfillment of legal requirements with regard to the customer’s Internet pages.
- Insofar as standard programs and/or third-party components are used within the scope of Internet pages and programming provided by us (for example, standard software, open source software, operating systems, server components, browsers, etc.), our liability and responsibility for their function and compatibility is excluded subject to our own performance. In particular, we are not responsible for malfunctions and limitations caused by defective third-party software. Unless otherwise agreed, the license relationship with regard to third-party software components exists directly between the customer and the respective software provider.
V. Social Networks
- If we publish or provide content for publication on behalf of the customer via third parties subject to their terms and conditions, any restrictions of the respective terms and conditions of use and business of the respective third party shall apply to the rights of use. This applies in particular to social networks such as Instagram/Facebook/Meta, for which an exclusive granting of rights in favor of the customer cannot take place because, according to the usage agreement, a granting of rights in favor of the platform operator must also take place at the same time.
- Insofar as we manage the customer’s presence on social networks on behalf of the customer, our service consists of checking and providing content to the agreed extent and rhythm. Unless otherwise agreed, we review new postings and reactions daily on working days with the exception of Saturdays. We are not responsible for the content of reactions/postings of third parties or the success of their removal. Unless otherwise agreed with fixed response times, our responses to user postings will be made within a reasonable period of time, taking into account our operational and organizational capabilities and workload.
- In the event of special incidents, in particular user postings in large numbers that are detrimental to the customer, we shall inform the customer or the customer shall inform us (in each case the party that first notices the circumstance) immediately. The reaction to the situation shall be in accordance with the agreement with the customer. Unless otherwise assessed, the customer shall be responsible for reviewing any legal aspects, although we may recommend specialized legal advice to the customer if the customer so desires.
- The release and commissioning of the customer with regard to publications on behalf of the customer includes the verification of compliance with the terms and conditions of the respective social network. We are not responsible for any blockings or other adverse measures due to such publications.
- Social networks are subject to various influences that we cannot uniformly control or influence, such as measures or actions of the operator or reactions of other users. We therefore do not owe any specific results with regard to our actions and are not liable for actions of users or the network operator. Furthermore, we are not liable for the duration of the existence of postings, unless otherwise agreed in individual cases. We shall not be liable for the removal of postings by third parties, unless we have caused this ourselves.
VI. Third Parties
- We may, at our discretion, engage third parties for the performance of services. This shall not affect our responsibility for the contractual obligations incumbent upon us.
- Insofar as agreed, the placing of orders with third parties shall be carried out in the name and on behalf of the customer after the customer’s consent. If third parties are included in the service on behalf of or at the request of the customer (third-party services), we shall not be liable for these third parties or their performance. We shall only be responsible for the selection or supervision of third party services or their performance debtors if this has been expressly agreed and separately remunerated. We may demand advance payment for any remuneration (third-party costs) to be paid by us to such third parties and defer an order until payment has been received. The same applies to other costs and expenses that arise due to the specifications or wishes of the customer for the respective production (e.g. rental, travel, transport, accommodation costs).
- Insofar as we commission third parties on our own behalf (in particular influencers in relation to advertising campaigns), we owe appropriate contractual commissioning and monitoring. We shall not be liable for any performance disruptions not caused by us, in particular, for example, user interactions and social networks or actions of third parties that contradict our proper instruction and monitoring despite all due care.
VII. General obligations to cooperate
- The customer shall provide us with all information essential for the respective order and inform us in good time of any problems or change requirements. Instructions shall be given in good time to allow a reasonable period for implementation.
- We are entitled to communicate with the customer by email in the course of executing the order. Unless otherwise requested by the customer and agreed in text form, electronic communication shall take place without content encryption. The customer is requested to protect any data transmitted by him that requires special secrecy from unauthorized access, for example, by means of password protection, and to inform us of this circumstance and of the information required for use in accordance with the order prior to such transmission.
- The project communication shall take place in German or English, the communication in case of doubt by e-mail or in another way established between the contractual partners. The customer shall ensure that communication on its side is conducive to the project. This includes the actual receipt of messages addressed to the customer by us, the regular checking of incoming mail and the answering of questions/granting of approvals at short notice, taking into account the agreed time requirements.
- We may assume that the information and notifications provided by the customer are correct and complete and are not obliged to make inquiries and requests. We shall, however, draw the customer’s attention to any inaccuracies or gaps in information that we identify. Delays resulting from incorrect, incomplete or delayed cooperation entitle us to a correspondingly later provision of our service, even if this occurs during a delay that has already occurred.
- The customer shall only provide us with templates and materials whose use and processing in accordance with the order does not infringe any third-party rights. In addition, the customer shall only give us instructions whose execution does not violate the rights of third parties or statutory provisions. We are expressly not obligated to carry out a legal review, but we will inform the customer of any recognized infringements of rights. The customer shall indemnify us against claims and rights of third parties as well as damages, expenses and costs which are attributable to infringements of rights for which the customer is responsible.
- The customer shall inspect the contractual performance as well as the preliminary and intermediate products handed over to him immediately upon receipt and shall grant acceptance without delay. We are entitled to demand an interim acceptance upon completion of individual work sections. Acceptance of a service shall be deemed to have been granted if it is not refused by the customer within 7 days with meaningful justification or if the customer uses the work result. Complaints made thereafter shall be deemed to be subsequent change requests. Acceptance may not be refused on artistic grounds, provided that there is no deviation from a design result agreed in text form. Our liability for content accepted or provided by the customer is excluded to the extent of the acceptance/provision by the customer. This applies in particular to grammar/spelling, correctness of content, usability for the intended purpose, legal admissibility and other such factors and their respective effects. Proofreading correction is only part of our service if this has been expressly agreed and separately remunerated.
- The customer shall be responsible for clarifying the legal requirements applicable to the customer with regard to our performance. In particular, the customer shall ensure that no industrial property rights, rights of third parties or other statutory provisions are infringed by the implementation of customer-related requirements. We are not obliged to provide legal advice or research. This shall not affect our liability for the provision of contractual copyright usage rights with regard to the services provided by us.
- A warranty for the freedom of conflicting rights of third parties in relation to our performance exists exclusively in relation to copyrights in the European Union. We shall owe searches for industrial property rights (trademarks, patents, designs) as well as the examination with regard to competition law exclusively insofar as this has been expressly agreed and subject to the reservation that the search shall be remunerated to the extent of the expenses of a qualified law firm specializing in industrial property protection.
- The delivery or performance date or the delivery or performance period shall be agreed according to our anticipated performance capacity and shall be non-binding and subject to unforeseen circumstances and obstacles, in particular force majeure, government measures, general hazardous situations, armed conflicts or measures due to epidemics or diseases, non-issuance of official permits, labor disputes of any kind, sabotage or non-delivery, incorrect delivery or late delivery for which we are not responsible. Such events extend the delivery date accordingly, even if they occur during a delay that has already occurred. The customer reserves the right to terminate the contract extraordinarily in the event of a hindrance to performance lasting more than three months. In this case, the customer shall reimburse us for the expenses already incurred up to the termination, non-cancelable expenses and our imputed profit for the order, insofar as we are not responsible for the impediment to performance.
- If the expense increases and the cause does not lie in our area of responsibility, we may demand reasonable compensation for the additional expense actually incurred.
IX. Rights of Use
- We grant the customer the rights of use to the service result (end result) required for the respective purpose of use. Unless otherwise agreed in writing, the remuneration shall cover the granting of simple, non-exclusive rights of use for the intended purpose, form of use and period of use in accordance with the original order. Any further use, in particular in or on media not expressly included, in a different geographical area, in edited form (insofar as the editing is not required for the use as agreed) and/or in a different period of time shall require an express additional grant of rights. Transfer of rights of use as well as sublicensing require our consent in text form. The transfer of open, editable files to the customer is not owed, unless such an obligation has been agreed in text form. All rights to interim results, proposals or drafts as well as concepts and contributions to tenders shall remain with us unless otherwise agreed in text form; the customer shall only be entitled to use them for his own purposes with our consent.
- All grants of rights are subject to the condition precedent of full payment of the remuneration owed for the overall performance. No partial rights are granted in the event of partial payment. Any use before full payment and the use by the customer of materials provided by us within the scope of application services rendered free of charge (e.g. pitches) shall be unauthorized and inadmissible.
- Insofar as we provide third-party material for the customer in accordance with the order (e.g. stock photos, the rights to which are held by third parties), the customer must observe the applicable restrictions on the right of use. As a rule, materials provided for Internet pages may not be used within the framework of other Internet pages or other media. Our liability for transgressions of the right of use by the customer is excluded.
- We shall be entitled – even if exclusive rights of use are granted – to use the results of performance and their designs within the scope of our own advertising as well as for participation in competitions, in particular also on the Internet, in particular also as a reference, naming the customer.
X. Retention of title
- In the case of deliveries of physical objects, we reserve title to the delivery item until receipt of all payments under the delivery contract. In the event of conduct by the customer in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. The taking back of the object of sale by us is at the same time a withdrawal from the contract. After taking back the delivery item, we shall be entitled to realize it; the realization proceeds shall be credited against the customer’s liabilities – less reasonable realization costs.
- Invoices are due and payable without deduction within 10 working days after receipt of the invoice. Invoices shall be deemed accepted if the customer does not object to them in text form within 30 days after receipt of the invoice, stating factual and verifiable reasons. The due date remains unaffected by this. Unless otherwise agreed in individual cases, our services are provided exclusively against advance payment.
- If the customer defaults on the payment of an invoice despite a reminder or if we become aware of circumstances that give rise to considerable doubts about the customer’s ability to pay (e.g. an application to open insolvency proceedings or a negative assessment of creditworthiness by a recognized credit information agency), we shall be entitled to settle all services rendered up to that point and to suspend our performance until all claims arising from the business relationship have been settled in full. Furthermore, we shall be entitled to make the continuation of the service dependent on an advance payment covering the expected expenses as well as our remuneration. Claims or rights against us due to a justified suspension of performance in the event of default shall be excluded.
- If an order cannot be carried out or cannot be carried out completely due to circumstances for which we are not responsible (in particular in the event of termination by the customer pursuant to § 648 BGB), the customer shall owe us compensation for the omitted service in the amount of 70% of the remuneration to be paid for the respective omitted service. Saved expenses shall be credited against this, provided that the expense is expressly part of the service and is actually saved (e.g. travel expenses). The customer reserves the right to prove higher saved expenses and we reserve the right to prove lower saved expenses.
- Offsetting is only possible with claims that are not disputed by us or have been legally established. The exercise of a right of retention is only permitted insofar as the counterclaim is based on the same contractual relationship.
- The customer is responsible for any fees or contributions to collecting societies as well as for the levy to the Künstlersozialkasse and has to bear these costs.
XII. Liability for defects
- Once approved by the customer, we are released from all responsibility for the accuracy of the templates and drafts. We are not liable for errors overlooked by the customer.
- Material and process-related deviations in color, size and shape of samples, samples, proof printouts or other templates from the final production that cannot be avoided when using the usual care in trade do not count as defects. In the area of digital pre-press, material and process-related deviations between digital reproduction and the final production result are conceivable. This applies in particular to unavoidable deviations between the display on the screen and the final printed result, taking into account the technology used. As long as such deviations do not lead to a restriction of the suitability of the end product, there is no defect. Unless expressly agreed otherwise, services provided by printers and other service providers in the area of digital or analog print preparation and print execution are considered third-party services within the meaning of No. VI.2 above.
XIII. Other liabilities
- We are liable for intent and gross negligence in accordance with legal regulations. Furthermore, we are only liable to the customer in the event of a breach of an essential contractual obligation (cardinal obligation) as well as for damages resulting from injury to life, body or health as well as for any guarantees given. Essential contractual obligations are those whose fulfillment is necessary to achieve the goal of the contract and those on whose compliance the customer as a contractual partner can regularly rely. In the case of a slightly negligent violation of cardinal obligations, our liability is limited to the damage typical for the contract and foreseeable, but at most to the amount of the total remuneration for the order on which the liability arises. Liability for lost profits is excluded. The above limitations of liability also apply in favor of our employees, vicarious agents, bodies and legal representatives as well as claims for reimbursement of expenses.
XIV. Confidentiality/data protection
- We undertake to maintain secrecy about business and trade secrets as well as all information from the customer that is designated as confidential and which becomes known to us in connection with the execution of the contract. We will pass on the customer’s confidential information exclusively for the purposes of the contractual relationship for the customer’s benefit and not to third parties unless this is necessary to fulfill our obligations to the customer or to fulfill legal obligations. All of the customer’s business secrets are considered confidential in accordance with the Trade Secrets Act.
- If and to the extent that our service involves the processing of personal data for the customer on his behalf in accordance with Article 28 of the General Data Protection Regulation, we will conclude an order processing agreement with the customer at his request, taking into account the legal requirements. We are not obliged to agree to agreements that go beyond the legal obligations, such as the agreement of contractual penalties or the granting of guarantees.
XV. Final provisions
- The law of the Federal Republic of Germany. This also applies if our service is used abroad as intended.
- If individual provisions of the General Terms and Conditions are invalid, the validity of the remaining conditions will not be affected.
- Place of performance and place of jurisdiction for merchants, legal entities under public law and customers without a general place of jurisdiction in Germany is Kassel.
Status of these terms and conditions: 03/2022