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1.1. Unless otherwise agreed, these General Terms and Conditions (the “GTC”) apply to all goods and services provided by Cheil Germany GmbH, Frankfurter Straße 4, 65760 Eschborn (the “Agency”), to entrepreneurs under § 14 German Civil Code (“BGB”), as well as to legal entities and special funds under public law (collectively, the “Client” and together with the Agency, the “Parties”). These conditions specifically cover areas including advertising, communications, digital, social media, retail marketing, content marketing, production, public relations, and strategic consulting..
1.2. These GTC shall also apply to all future business relationships between the Agency and the Client without the need for a separate explicit incorporation. The continued applicability of the GTC may be terminated by unilateral written notice with three months’ notice effective at the end of a calendar month, following the full completion of an order.
1.3. The Client’s terms and conditions are hereby expressly excluded and shall only apply if the Agency has expressly and in writing agreed to their applicability.
2.1. If the Agency provides drafts, concepts, or designs before receiving a commission—whether on its own initiative or as part of pitches, presentations, or similar formats ("Presentations")—these materials are offered solely to initiate a business relationship.
2.2. The reproduction or distribution of such Presentations requires the prior consent of the Agency. No transfer of ownership in the delivered documents or items shall occur, and no rights of use in respect of protectable content (e.g. works, trademarks, designs) shall be granted. The Client undertakes not to use, modify, or disclose the presented drafts, concepts, or designs as a basis for further work or to third parties without consent. Should the Client decide against commissioning or if no commissioning occurs within three months from the date of presentation, all documents shall be deleted or destroyed upon the Agency’s request and any provided materials or items shall be returned, as applicable.
3.1. At the Client’s request, the Agency shall submit a cost estimate or proposal, setting forth the services to be rendered, the compensation, and the applicable conditions (the “Cost Estimate”).
3.2. Unless otherwise agreed, if the compensation stated in the Cost Estimate is based on time expended, it constitutes a non-binding estimate of the expected effort.
3.3. The Client commissions the Agency by approving the Cost Estimate or by otherwise instructing the Agency to render the services.
4.1. The contractual services shall be rendered in accordance with the generally recognized principles of agency practice and with due care.
4.2. In the case of services that include iterative corrections, any possible corrections shall be limited solely to optimization or fine-tuning requests and shall not comprise fundamental changes (i.e. no amendment or expansion of the order). An iteration is only possible if the Parties agree that the services have been rendered in conformity with the contract. The number of included iterations shall be specified in the individual order.
4.3. The Agency is not authorized to review or advise on legal matters. In particular, it shall not conduct trademark searches, assess potential conflicts with existing industrial property rights (e.g. trademarks, designs, utility models) or perform examinations under competition, copyright, or data protection law; such tasks fall outside the scope of the Agency’s services. The Client shall be solely responsible for carrying out such examinations and shall bear any costs incurred thereby. However, the Agency shall point out any apparent legal risks in connection with the content or design of planned advertising measures so that the Client may decide, after its own examination, whether the measure should be continued or modified.
4.4. In the development of signs (e.g. trademarks, logos, corporate identifiers, slogans), the Agency warrants that at the time of the initial presentation no third-party rights are known that would be infringed in the Federal Republic of Germany by using the developed signs in commercial transactions. The Agency does not guarantee the registrability or protectability of the signs. It is the Client’s responsibility to conduct its own search, at the latest before implementation, in order to identify and avoid any potential conflicts.
5.1. Delivery dates or deadlines shall only be binding if expressly confirmed in writing by both Parties; otherwise, they shall be deemed target dates. Upon reaching a target date, the Client may, in writing and with appropriate notice, instruct the Agency to provide the outstanding services. Upon expiration of such notice period, the claim for performance shall become due. After commissioning, any initial determination, shortening, or anticipation of delivery dates or deadlines shall require the Agency’s consent, which may be conditioned upon the payment of an additional fee.
5.2. Minutes of meetings prepared by the Agency and transmitted to the Client shall be deemed binding if confirmed in writing (e.g. by e-mail) or if not objected to within five business days.
5.3. Should the Client have subsequent change requests (“Change Requests”), these must be communicated to the Agency as early and in as much detail as possible; however, they shall only become effective upon the Agency’s express confirmation. If a Change Request results in the originally commissioned service being rendered partially or not at all, the Agency shall notify the Client and clarify whether performance is to be suspended or continued. In such cases, deadlines shall be extended by the duration of the suspension period. Should additional costs arise, the Agency shall indicate this so that the Client may decide whether to implement the Change Request against payment of the additional costs or to retain the original scope of service.
5.4. In the event that technical know-how (e.g. programming, structure and functioning of software, integration of programs, databases, systems including source codes) is developed under the contract, a claim for the release of the source code shall only exist if expressly agreed or if necessary for exercising the granted rights of use. Should the release be agreed upon and the software include third-party standard software or software subject to license restrictions, the release shall be subject to the applicable license conditions.
5.5. The Agency is entitled to utilize open-source software or components in the development of software and shall inform the Client of such use as well as the components employed, including the applicable licensing conditions.
6.1. The Client shall support the Agency to a reasonable extent by providing necessary information and data in a timely manner and by granting the requisite approvals and permits so that the workflow and execution of the order are not adversely affected.
6.2. Should the Agency be unable to perform its services or only be able to do so with additional effort due to missing or insufficient cooperation, it shall be entitled to claim such additional effort separately. In such cases, deadlines shall be extended by the duration of the delay plus an appropriate commencement period of at least three business days.
6.3. The Client guarantees that any materials provided (e.g. brand logos, texts, images) are free of third-party rights and that their use does not contravene applicable law. In the event that the Agency is held liable by third parties due to such content, the Client shall indemnify the Agency on first demand against all claims. Furthermore, the Client shall proactively inform the Agency of any industry-specific or legal restrictions (e.g. advertising bans or limitations) as well as requirements for advertising measures (e.g. consumer information) and shall provide all necessary documents in a timely manner.
7.1. Unless otherwise agreed, the Agency shall receive the compensation stipulated in the Cost Estimate or proposal; alternatively, compensation shall be based on time expended, calculated according to the hourly rates valid at the time of commissioning. All fees and expenses are exclusive of the legally applicable value-added tax.
7.2. Services in the area of developing brands, corporate signs, brand claims, or similar identifiers shall generally be concluded by the Agency only against a separate fee for the use of the work results, the amount of which shall be determined by the scope of the granted rights of use.
7.3. Upon full performance and, in advance, on a monthly basis at the end of the month, the Agency shall be entitled to invoice the rendered (partial) services. Payments are due within 10 days after the invoice date, with advance invoices payable immediately.
7.4. Expenses and ancillary costs (e.g. travel expenses, accommodation costs, courier fees) shall be reimbursed separately upon presentation of evidence; travel time shall be billed at 50%. GEMA fees, contributions to artists’ social security, customs duties, and similar expenses shall be borne by the Client; if these are initially advanced by the Agency, they shall be recharged.
7.5. Should the Client terminate an order before full performance without a valid reason, the Agency shall be entitled to claim the agreed compensation. In doing so, deductions shall be made for any expenses saved or alternatively utilized. It is presumed that the Agency is entitled to 60% of the compensation agreed for the services not rendered.
7.6. The right of retention and the set-off with counterclaims are only permissible within the scope of claims arising from the same contractual relationship or those that have been acknowledged or finally determined by the Agency.
8.1. The Agency is entitled to perform the assigned work itself or to subcontract all or part of the work – in particular to companies within the Cheil agency group.
8.2. The Agency may commission third-party services involving the activities of third parties (e.g. film productions, photoshoots, provision of stock photos, testimonials, influencer mediation, performers, models, production of advertising materials, printing, proofreading, translations, market research, legal advice, exhibition construction). In doing so, the Agency shall always obtain the Client’s consent. No separate consent shall be required if subcontractors are listed in the approved Cost Estimate, if the order is not expected to exceed a net amount of EUR 10,000.00, or if it concerns repeat orders.
8.3. Should the Agency assume the handling of contracts for third-party services (e.g. selection, soliciting quotations, negotiations, coordination, invoice or payment processing), an additional fee shall be charged on a time-spent basis or as a flat percentage surcharge.
9.1. Subject to any contrary agreements, the Agency grants the Client, upon full payment of the due compensation, all necessary copyright-related rights of use in the delivered work results (Agency Services) to the extent required to achieve the contractual purpose.
9.2. In cases of doubt, the grant of a simple license for the territory of the Federal Republic of Germany and for the planned duration of use shall suffice. Any further use, in particular modifications or alterations, shall require the Agency’s prior written consent. The same applies to any transfer to third parties or the granting of sublicenses.
9.3. In the creation of work results, the Agency makes use of AI-supported software solutions (e.g. ChatGPT, Adobe Firefly, Midjourney, Co-Pilot). The Parties agree that the services generated by such systems generally do not qualify for copyright protection. The Agency grants the Client only those rights of use which it itself holds in respect of the AI-generated and, if applicable, edited results.
9.4. Should the Agency engage subcontractors for the performance of the contract, it shall acquire the rights of use from them in the agreed scope and grant these rights to the Client. In the case of commissioning third-party services, the rights of use granted to the Client shall be governed by the conditions stipulated by the respective service provider.
9.5. The Agency shall be entitled to use the services or work results provided to the Client for its own advertising purposes. This includes the right to participate in industry or creative competitions with the rendered services or work results.
10.1. The Client shall examine the works and services rendered by the Agency immediately upon receipt – but no later than prior to any use – and shall notify the Agency immediately of any defects. Failure to notify shall result in the waiver of warranty claims for obvious or known defects or their consequential damages. In the event of a defect, the Agency may, at its sole discretion, remedy the defect or provide a replacement (subsequent performance).
10.2. The warranty obligation shall expire one year after receipt of the service or after acceptance.
10.3. Should third parties assert claims in relation to the Agency’s services, the Client shall notify the Agency immediately, without such notification constituting an acknowledgment of the alleged infringement, and any disputes shall be resolved only in agreement with the Agency.
11.1. The Agency shall be fully liable in accordance with the statutory provisions for damages resulting from the following circumstances:
- infringements of body, life, or health;
- gross negligence or intentional breach of duty by the Agency, its legal representatives, or vicarious agents;
- breach of any assumed guarantees;
- fraudulently concealed defects;
- claims under the German Product Liability Act.
11.2. In all other cases, the Agency shall only be liable for slight or ordinary negligence in the event of breaches of essential contractual obligations (cardinal obligations). In such cases, liability shall be limited to the typical, foreseeable damage.
11.3. The Agency’s liability for damages based on slight negligence is otherwise excluded.
11.4. Liability shall be excluded if the Agency has expressly pointed out specific concerns to the Client and the Client, despite such notice, decides against making any changes. In such cases, the Client shall indemnify the Agency on first demand against any claims by third parties, including the necessary legal costs.
11.5. The Agency shall ensure that its employees and any subcontractors using AI-supported systems are duly trained regarding the specific risks involved. The Agency shall not be liable for intellectual property infringements arising from the use of AI models, provided that it has fulfilled its contractual obligations.
12.1. The Agency shall be liable in accordance with applicable law for the content of its website, which is prepared with the utmost care and to the best of its knowledge, and is provided solely for informational purposes. A contract for the advertised services shall only be concluded when the commissioning company accepts a tailored offer or when the Agency accepts an offer from the commissioning company.
12.2. The Agency does not guarantee the accuracy, correctness, or completeness of the content of external websites linked via hyperlinks. Responsibility for external content rests solely with the respective providers or operators. Upon becoming aware of legal violations, the Agency shall promptly review the removal of the disputed links.
12.3. All texts, images, videos, and other content published on the Agency’s website are subject to German copyright law. Any unauthorized use (e.g., reproduction, modification, or distribution) is prohibited without the express consent of the rights holders.
13.1. The Parties undertake to keep confidential all information and documents which become accessible or are transmitted in connection with the conclusion of the contract and which are marked as confidential or can be recognized as business or trade secrets. In the event that the Parties have entered into a separate confidentiality agreement, the provisions thereof shall apply exclusively.
13.2. Disclosure to affiliated companies within the Cheil agency group is permitted provided that they likewise undertake confidentiality obligations.
14.1. The Parties undertake to comply with the statutory data protection regulations, in particular the GDPR and the new Federal Data Protection Act (BDSG), and shall instruct their employees accordingly.
14.2. Insofar as personal data is transferred or processed in the context of the contractual services, the Parties shall enter into a separate data processing agreement (“DPA”).
15.1. The place of performance for services and payments, as well as the exclusive jurisdiction for all disputes, shall be Frankfurt am Main.
15.2. The law of the Federal Republic of Germany shall apply, excluding the provisions on private international law as well as the UN Convention on Contracts for the International Sale of Goods (CISG).
