GTC

General Terms of Business of the agency MSWW PR-Agentur Redaktionsteam Wilfried Wadsack e.K. governing cooperation with external firms
Edition: January 2011

  1. Subject and scope
    1. The following General Terms of Business concern services and/or works by the agency MSWW PR-Agentur Redaktionsteam Wilfried Wadsack e.K. (hereinafter referred to as MSWW) in the field of public relations. The type of services and works in each case is determined by the concept developed by MSWW, the quotation, the proposed campaigns or the individual orders.
    2. Unless specified otherwise in particular instances, these General Terms of Business constitute a material part of each contract concluded.
    3. Customers’ terms of business which diverge from these General Terms of Business, as well as amendments and supplements to the General Terms of Business, shall only be valid if and to the extent that they are confirmed by MSWW in writing. This shall apply even if MSWW has not explicitly rejected the customer’s terms of business and/or terms of delivery.
    4. The agreement on costs signed by MSWW and the customer shall form the contractual basis. This agreement shall be governed exclusively by the following General Terms of Business.
    5. The performance described in the agreement shall constitute its subject. MSWW undertakes to exercise due care when executing the agreement.
  2. Presentations
    1. Unless agreed otherwise in particular instances, MSWW shall develop and present its conceptual and design proposals in return for payment of a separate presentation fee.
  3. Conclusion of contract
    1. The agreed service or consulting activity designated in the contract, but not the achievement of a certain financial result, shall constitute the subject of the contract.
  4. Performances
    1. The performances to be rendered by MSWW shall be specified in detail in a separate agreement concluded by and between MSWW and the customer or shall be determined by placement of an order.
  5. Loyalty to the customer, data protection
    1. Out of loyalty to the customer, MSWW shall be obliged to advise the customer objectively in accordance with the customer’s objectives and to select subcontractors accordingly, e.g. for production operations. Insofar as the customer has not explicitly reserved the right to share in decision-making processes, subcontractors shall be selected by MSWW in compliance with the principle of ensuring a balanced relationship between cost-efficiency and the best possible success serving the customer’s interests.
    2. MSWW shall be obliged to treat in strictest confidence all the customer’s business secrets coming to the agency’s knowledge during the cooperation. This duty to ensure confidentiality shall apply not only during the term of the contractual agreement, but also thereafter.
    3. The contracting partners shall be obliged to process personal data exclusively within the framework of the relevant statutory regulations governing data protection and privacy, and in particular in compliance with the required organizational safety measures. All employees assigned to data processing tasks by the contracting partners shall likewise be obligated to comply with this requirement.
  6. Binding nature of contact reports and approvals
    1. MSWW undertakes to prepare a report of each meeting with the customer within five working days of the meeting and to present it to the customer without delay. The content of this report shall be binding for both contracting parties, unless the customer objects in writing within one week of receiving the report. Compliance with this time-limit shall be determined by the date on which the objection is received by MSWW.
    2. The customer shall be responsible for ensuring that the contact partners designated by the customer are authorized to sign on behalf of the customer, particularly with regard to approving budgets, cost estimates, texts and other coordinating activities. The customer shall inform MSWW in writing of any restrictions to this authority in good time before each activity.
  7. Press and media service
    1. MSWW shall send the press texts which it has prepared in conjunction with the contract/order by email, surface mail, fax, Internet or other communication channels, such as news platforms or press services.
    2. MSWW shall simultaneously make all the customer’s press releases and photographs available for downloading free of charge from its own website when they are distributed or in good time for commencement of the exhibition / event. This shall apply throughout the term of the contractually agreed cooperation, but not thereafter.
    3. Responsibility for the information published shall exclusively remain with the customer. The customer shall supply the material free from third-party rights and hold MSWW harmless in the event of third-party claims. MSWW shall not be liable for any losses or disadvantages arising from the distribution of press releases. MSWW has no control over whether or not the texts are in turn checked, processed and/or published by their recipients. MSWW consequently cannot accept any liability for details published by the informed media.
    4. As a matter of principle, MSWW shall strive to compile and distribute the texts as quickly as possible. Briefings supplied by the customer shall be processed and distributed in accordance with the deadlines specified in the reports. MSWW cannot accept any liability for delays due to belated briefings and/or approvals, nor for delays attributable to technical or server-related failures. Once a text has been sent out, it cannot be recalled. MSWW similarly cannot accept any liability for the texts’ processing by their recipients (media). MSWW reserves the right to refuse distribution of purely promotional texts which are devoid of information, or to adapt them with regard to form and content in consultation with the customer.
    5. Media addresses are used for dispatch by MSWW. MSWW is not obliged to provide the customer with the full addresses for the latter’s use. This shall apply both during the term of the contractually agreed cooperation and thereafter.
  8. Cost estimates, remuneration, third-party costs
    1. Unless explicitly agreed otherwise, MSWW shall draw up its invoices on the basis of the rates specified in the customer’s order or in the flat-rate agreement. Prices shall comply with the recommended fees customarily charged in the industry.
    2. Cost estimates and calculations shall be given without obligation; the customer shall be informed if the provisional calculation or cost estimate is exceeded by more than 20%.
    3. Third-party and ancillary costs, such as the costs incurred for photographers, printers, speakers, musicians, etc. as well as for telephone calls, fax, courier services, travel expenses, etc. shall be remunerated separately as documented, unless explicitly agreed otherwise.
    4. In order to carry out the project or order, MSWW shall be entitled to purchase services and/or goods from third parties in consultation with the customer and within the scope of the calculated budget (press-cutting agency, uploading press texts to press platforms, dispatching press releases through such external service providers as ots, etc. entertaining guests in conjunction with press events, purchasing giveaways in conjunction with press events, etc.). Third-party services shall be ordered on behalf and for account of MSWW. The invoiced sum will be charged out to the customer as documented.
  9. Copyright and right of use, ownership
    1. Unless explicitly transferred in writing, all rights to the preliminary work, such as drafts and conceptual designs, as well as to the other works produced by MSWW, especially copyrights, right of use and ownership, shall remain with MSWW even when the results of such work have been handed over to the customer.
    2. In the case of publications, MSWW shall be named in the customary manner as holder of the copyright. In the case of publications by MSWW, the latter shall be entitled to refrain from listing the copyright of photographers/designers. The customer shall be obliged to conclude corresponding agreements with the photographers/designers retained by the customer.
    3. If rights are transferred, the scope of such a transfer shall be governed exclusively by the contractual agreements and the intended purpose. Rights shall only be transferred to the customer when the complete order has been paid in full.
    4. Ownership of the products resulting from the agency’s work shall only pass to the customer when the order has been paid in full.
    5. The customer shall grant MSWW all copyrights and rights of use needed for use of the data and materials sent to MSWW, as well as all other rights, especially the right of duplication, dissemination, transmission and retrieval from databases, to the extent necessary for execution of the order in terms of both time and content.
    6. The customer warrants that it holds all the rights to the transmitted data and materials (text, photographs, logos, etc.) as required for execution of the order. The customer shall hold MSWW harmless in the event of any claims by third parties.
    7. MSWW undertakes to acquire the necessary rights of use where possible – if third parties have to be retained for execution of the contract – and to extend these rights to the customer accordingly.
    8. All media distribution lists (national and/or international) shall remain the property of MSWW as a matter of principle. They shall not be made available to the customer for the latter’s use. The customer shall only be provided with the list of media in the individual distribution lists if requested by the customer.
    9. MSWW shall be permitted to name its customers as references. In this context, MSWW reserves the right to use services rendered in the past for presentation purposes. This shall also apply with regard to publication on the website of MSWW.
  10. Invoices, netting, withholding
    1. Prices shall be agreed exclusive of value-added tax at the statutory rate.
    2. MSWW shall draw up its accounts on a monthly basis as a matter of principle. The prices, remuneration, costs and expenses itemized in the invoice shall be payable without deduction within 14 days of receiving the invoice. Interest shall be charged in an amount 8% above the basic interest rate on expiry of 90 days following receipt of the invoice. This interest shall accrue on the defaulted payment even without reminder of payment when the deadline for payment is exceeded. If the customer is in arrears, MSWW shall be entitled to charge a handling fee in the amount of EUR 5 for the first reminder of payment and a handling fee of EUR 10 for the second and last reminder of payment. If the customer does not discharge its payment obligations despite being reminded and granted a period of grace, MSWW shall be entitled to terminate the contractual relationship without notice. Even when the contractual relationship has been terminated, all obligations arising from pending transactions under the contract shall remain in force until all pending transactions have been completed, the final invoice drawn up and all payment obligations discharged.
    3. The customer may only net own claims against MSWW’s claims insofar as the customer’s claims are undisputed or have been established by a court of law without right of appeal. The customer may only withhold payments if the counter-claim is based on the same contractual relationship.
    4. If the customer modifies or prematurely cancels orders, work or complex planning processes, the customer shall reimburse MSWW all costs incurred and shall hold MSWW harmless against all liabilities claimed by third parties. The right to assert further claims shall remain unaffected.
    5. MSWW shall be entitled to exercise its right to withhold until all MSWW’s accounts have been settled. Services rendered or goods delivered and/or the results of work shall remain the property of MSWW until the sum due has been paid in full.
    6. All documents presented to MSWW in conjunction with execution of the order shall be handed over on request when MSWW has completed its work and all claims arising in conjunction with the contract have been settled. However, this shall not apply for articles authored by MSWW within the framework of free editorial activities (documentaries, reports, commentaries, etc.). This shall not apply with regard to the correspondence exchanged between the contracting parties, nor for simple copies or backups of photographs, graphs, layouts, reports, organization charts, drafts, etc. of which the customer has received the originals.
    7. The obligation to file documents shall end twelve months after termination of the contractual relationship.
  11. Liability
    1. MSWW warrants correct execution of the agreed performances. Timely execution can only be warranted by MSWW insofar as it relates to own performances by MSWW and their execution does not also depend on the participation of third parties (authors, print shops, journalists, media, event organizers, etc.).
    2. If an order cannot be executed for reasons beyond MSWW’s control, in particular on account of a computer failure, Acts of God, strikes, statutory regulations, disturbances for which third parties (e.g. providers, print shops), network operators or service providers are responsible, it shall be executed at a later date if possible. MSWW shall remain entitled to its remuneration if the order is subsequently executed within a reasonable period of time which is also acceptable to the customer after the disturbance has ended.
    3. The customer shall be responsible exclusively for the content of any PR text, report, advertorial or other documents approved by the customer. MSWW shall not accept any liability for the correct reproduction of changes or supplements communicated by telephone. MSWW shall not accept any liability for the documents provided by the customer for execution of the order.
    4. Warranty claims by the customer against MSWW shall become statute-barred after one year. In the case of performances under a contract for work and services, this period shall commence with acceptance of the performance. In the case of performances under a service contract, it shall commence when they arise.
    5. MSWW’s liability for breaches of duty due to minor negligence shall be limited to the direct damage or loss typical of the contract and foreseeable for this type of performance. This shall also apply in the case of breaches of duty due to minor negligence by MSWW’s representatives or vicarious agents. The agency shall not be liable for immaterial breaches of duty due to minor negligence.
    6. MSWW is not responsible for checking legal issues, especially in conjunction with copyright, competition and trademark law. Unless agreed otherwise in writing, MSWW shall consequently not be liable for the lawful nature of the content and/or design of the result produced. The same shall also apply with regard to liability for errors arising from documents provided by the customer.
    7. The customer’s claims for damages on account of a breach of duty shall become statute-barred one year after delivery of the work / rendering of the service, unless MSWW can be charged with malicious intent.
    8. The burden of proof shall not be changed to the customer’s disadvantage by the above rulings.
    9. If action to refrain and desist or claims for damages, etc. are brought against MSWW by third parties on account of the design and/or content of the result produced, the customer shall hold MSWW harmless, unless the action is based on a breach of duty by MSWW for which MSWW is liable under the terms of the contract.
    10. Documents shall be dispatched at the customer’s risk, even when dispatched within the same town or by MSWW’s employees or using MSWW’s vehicles. MSWW shall be entitled, but not obliged, to insure deliveries on behalf and for account of the customer.
    11. MSWW shall be entitled to destroy unreclaimed documents after a period of 12 months. MSWW shall only be liable for the loss of documents in cases of gross negligence.
    12. The contracting partners agree that MSWW’s warranty shall not encompass the content, nature and scope of public reactions (by media, opinion leaders, readers, etc.) to public relation campaigns or services in conjunction with the contractual performances. Achievement of a particular financial result is not guaranteed by MSWW.
  12. Concluding provisions
    1. Place of performance for delivery and payment shall be Bad Oeynhausen. Place of jurisdiction for all disputes between the contracting partners shall be Bad Oeynhausen insofar as the customer is a business person, legal entity under public law or a special trust in public law. However, the agency MSWW PR-Agentur Redaktionsteam Wilfried Wadsack e.K. shall be entitled to sue the customer at any other applicable jurisdiction. This venue shall also apply to persons other than those mentioned above if the customer does not have a general place of jurisdiction in Germany, has moved its domicile and/or head office abroad immediately after concluding the contract or if its domicile and/or head office or ordinary place of residence is unknown at the time of filing suit.
    2. If any of the above provisions prove invalid, this shall not affect the validity of the remainder. Where possible, an invalid clause shall be replaced, through supplementary interpretation, by a ruling meeting its purpose to the best possible extent. Amendments, supplements and other verbal agreements shall only be valid if set out in writing. This shall explicitly also apply to amendment and cancellation of the requirement for written form.
    3. Unless agreed otherwise, contractual relations with foreign customers shall also be governed by German law. The United Nations Convention on the International Sale of Goods shall be excluded.

Bad Oeynhausen, January 2011
MSWW PR-Agentur Redaktionsteam Wilfried Wadsack e.K.

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