GENERAL TERMS AND CONDITIONS (Convenience Translation)

General Terms and Conditions of

MENSCH Kreativagentur GmbH & Co. KG
Landsberger Straße 490
81241 Munich, Germany



1. The following general terms and conditions apply to all legal transactions of MENSCH Kreativagentur GmbH & Co. KG, hereinafter referred to as “Agency”, with its contractual partners, hereinafter referred to in short as “Partner”. Terms and conditions of the Partner deviating from these terms and conditions will only be accepted by the Agency by separate and written agreement.

2. All agreements concluded between the Agency and the Partner for the purpose of carrying out an order shall be agreed in writing. Amendments, additions and ancillary agreements must be in writing in order to be effective.

3. These terms and conditions also apply to all future business relationships with the Partner, even if they are not expressly agreed again.

4.The Agency provides services in the fields of advertising, design, marketing, trade fair, communication, software development and media, in particular with regard to brand positioning and development, consulting, conception, planning, design, realization, media consulting and booking of advertising and communication media in digital and printed form as well as the conduct of all business that is suitable for the purpose of the company. The detailed descriptions of the services to be provided are laid down in the tender documents, briefings, project contracts, as well as their annexes and service descriptions of the Agency.



1. The briefing provided by the Partner shall form the basis of the work of the Agency and form part of the contract, in addition to the project contract and its annexes. If the briefing is communicated orally or by telephone by the Partner, the Agency shall prepare a re-briefing on the content of the briefing, which shall be handed over to the Partner within 5 working days of the oral or telephonic communication. This re-briefing becomes a binding part of the contract if the partner does not object to this re-briefing within 5 working days.

2. Any modification and/or addition to the contract and/or its components shall be in writing. The Partner has to bear the additional costs incurred as a result.

3. Events of force majeure entitle the Agency to postpone the project commissioned by the Partner for the duration of the disability and a reasonable start-up period. This does not entitle the Partner to claim damages against the Agency. This also applies if important deadlines and/or events of the Partner cannot be met and/or do not occur.



1. With the full payment of the agreed fee for the contractually agreed duration and to the extent agreed in the contract, the Partner acquires the rights of use for all work carried out by the Agency within the scope of this contract. This transfer of the rights of use applies to the agreed use in the territory of the state in which the Partner has its seat, insofar as a transfer is possible under German law. Uses that go beyond this territory require a written agreement within the scope of the order or a separate written ancillary agreement. Rights of use of work that have not yet been paid for at the end of the contract shall remain with the Agency subject to this.

2. The services developed within the scope of the contract are protected as personal intellectual creations by the Copyright Act (“Urheberrechtsgesetz”) regardless of whether the requirements for such protection under the Copyright Act are met.

3. The Agency may sign the advertising materials it has developed in an appropriate and customary manner and publish the fact that it had been commissioned as well as the essentials of the contract for self-promotion. This signing and commercial use may be excluded by a corresponding separate agreement between the Agency and the Partner.

4. The work of the Agency may not be altered in the original or during reproduction by the partner or third parties commissioned by the partner. Any imitation, including that of parts of the work, is not permitted. In the event of an infringement, the Agency shall be entitled to an additional fee of at least 2.5 times the fee originally agreed by the Partner.

5. The transfer of granted rights of use to third parties and/or multiple uses are subject to a fee and require the consent of the agency, unless stipulated in the initial order.

6. The Agency shall be entitled to information on the extent of use.



1. The remuneration agreed in the contract shall apply. Payments are due net without any deduction within 10 days of the invoice date, unless otherwise stipulated by contract. If the payment dates are exceeded, the Agency shall be entitled to default interest of 10% above the base interest rate in accordance with Section 1 of the Discount Rate Reconciliation Act (“Diskontsatzüberleitungsgesetz”) without the need to send a further reminder. The right to claim further damage remains unaffected by this provision. Dunning costs and attorney costs, including for out-of-court actions, shall be borne by the Partner.

2. If the parties have not agreed on a specific price, the price shall be determined according to the Agency’s price list valid at the time of conclusion of the contract.

3. If the preparation of the agreed services extends over a longer period or involves several units, the Agency may charge the Partner instalments for the partial services already provided. These partial services do not have to be available in a form that can be used by the Partner and may also be available as a purely working basis on the part of the Agency.

4. In the event of changes or cancellations by the Partner of orders, works and the like by the Partner and/or if the conditions for the performance of the service change, the Agency shall be reimbursed for all costs incurred thereby and the Agency shall be exempted from any liabilities to third parties.

5. In the event of a Partner’s withdrawal from an order prior to the start of the project, the Agency shall charge the Partner the following percentages of the originally contractually stipulated fee as a cancellation fee: up to six months before the start of the order 10%, from six months to three months before the start of the order 25%, from three months to four weeks before the start of the order 50%, from four weeks to two weeks before the start of the order 80% , from two weeks before the start of the order 100%.

6. All prices stated in offers and orders and the amounts to be paid as a result are exclusive of VAT in the statutory amount on the day of invoicing. Artist’s social tax, customs duties, or other subsequent levies are passed on to the partner.

7. Objections against the Agency’s remuneration statements shall be raised immediately after receipt of the invoice, but no later than 10 days after the date of reckoning or invoice, without, however, affecting the due date. Failure to object in good time shall be deemed to be an authorisation.



1. The Agency reserves ownership of the delivery items until full payment has been made.

2. Only rights to use are granted for drafts and print data, but no ownership rights are transferred.

3. The originals must – to the extend they have not been paid – therefore be returned undamaged within a reasonable period of time, unless another agreement has been made.

4. The sending and possible returns of the work shall be at the risk and account of the partner.

5. The Agency is not obliged to release files, source files or layouts created in the computer to the Partner. If the Partner wishes to receive the computer data or source data, this must be agreed separately and remunerated. If the Agency has made computer files available to the Partner, they may only be modified with the prior consent of the Agency.



1. Special services such as proofreading of texts are carefully carried out to the best of our knowledge.

2. If more concepts or drafts of advertising materials are made at the request of the Partner, they will be invoiced separately. The number of drafts is recorded in the offer and requires a detailed briefing of the Partner.

3. Expenses for technical ancillary costs, in particular special materials, productions of models, photos, intermediate photographs, reproductions, photo set, printing, etc. are to be reimbursed by the Partner.

4. Costs for travel to be made in connection with the order shall also be reimbursed by the Partner.



1. Unforeseeable additional expenditure shall be subject to mutual agreement and, where appropriate, an additional remuneration.

2. Production monitoring by the Agency shall be carried out only on the basis of special agreements. When taking over the production supervision, the Agency is entitled to take the necessary decisions and to issue appropriate instructions at its own discretion, taking into account the ideas and requirements of the Partner. For this effort, the agency charges a handling fee.

3. Before execution and reproduction, the Partner shall be provided with corrective samples by the Agency. Of all the duplicated works, 10-20 flawless unfolded receipts (an appropriate number for valuable pieces) are left to the Agency free of charge. The Agency is entitled to use these pieces for the purpose of self-promotion.


Section 8 MARKING

1. The Agency is entitled to indicate the author on all advertising materials and in all advertising measures, without the Partner being entitled to a fee.

2. The Agency is entitled to refer to the business relationship on its Internet websites with its name and company logo.



1. The Agency’s delivery obligations shall be fulfilled as soon as the Agency’s work and services have been dispatched. The risk of transmission (e.g. damage, loss or delay), no matter with which medium is transmitted, is borne by the Partner.

2. Delivery periods and delivery dates are only binding if the Partner has duly fulfilled any obligation to cooperate (e.g. procurement of documents, releases, provision of information, preparation of service catalogues / mandatory specifications) and the dates have been confirmed in writing by the agency.

3. Due to a delay of the Partner, a timely deadline can no longer be guaranteed.

4. Templates and drafts provided by the Agency shall not be binding on colour, image, stroke and sound until their corresponding implementation capability has been confirmed in writing by the Agency.

5. If the Agency is in arrears with its services, it shall first be granted a reasonable grace period. After fruitless expiry of the grace period, the Partner may withdraw from the contract. Compensation for the damage caused by delay can only be demanded up to the amount of the order value (own performance without prior performances and material).



1. The Agency undertakes to keep secret all information and documents available to it in connection with the conclusion of the contract, which are described as confidential or, in other circumstances, are clearly identifiable as the Partner’s business or trade secrets, and not to record or pass them on, unless required to achieve the purpose of the contract.

2. The Agency has ensured, by appropriate contractual agreements with the workers and/or agents working for it, that they also refrain from any use, disclosure or unauthorised recording of such business and trade secrets.

3. Such obligations shall also apply to the Partner with regard to the Agency’s business and trade secrets, in particular the ideas and concepts brought to the attention during the development phase/cooperation.



The Partner shall make available to the Agency all the data and documents necessary for the implementation of the project free of charge. All working documents are handled by the Agency carefully, protected from access by third parties, used only for the preparation of the respective order and returned to the partner after completion of the order.



1. The Partner shall check the work and services delivered by the Agency immediately upon receipt, but in any case within three working days and in any case before being passed on, and to report defects immediately after discovery. If there is no immediate review or notification of defects, there are no claims of the partner.

2. In the event of a justified notification of defects, the deficiencies will be rectified within a reasonable period of time.

3. The risk of the legal admissibility of the measures developed and implemented by the Agency shall be borne by the Partner. This applies in particular in the event that the actions and measures violate the provisions of competition law, copyright and special advertising laws. However, the Agency is obliged to draw attention to legal risks, provided that the Agency became aware of those during its activities. The Partner shall indemnify the Agency from claims of third parties if the Agency has acted at the express request of the Partner, although it has communicated to the Partner its concerns with regard to the admissibility of a measures. The notification of such concerns by the Agency to the Partner must be made immediately after the Agency becomes aware of those in written form. If the Agency considers that a competition law examination by a particularly competent person or institution is necessary for any action to be taken, the costs shall be borne by the Partners, in consultation with the Agency.

4. With the approval of drafts, clean drawings or print data by the partner, the Partner assumes responsibility for the correctness of the image and text.

5. For the drafts, pure drawings or print data released by our Partner, any liability of the Agency shall be waived.

6. Agency shall not be liable for the admissibility and entry of the drafts under the law of competition or trademark law.

7. The Agency assumes no liability for the images, data and writings provided by the Partner.

8. In no event shall the Agency be liable for any material statements contained in the promotional activities concerning the Partner’s products and services. The Agency is also not liable for the patent, copyright and trademark protection or registration capacity of the ideas, suggestions, suggestions, concepts and drafts supplied within the scope of the contract.

9. The Agency shall only be liable for damages that it or its vicarious agents have caused intentionally or through gross negligence. The Agency’s liability shall be limited in amount to the agency’s one-off income resulting from the relevant order. The Agency’s liability for consequential damages for defects on the legal basis of the positive breach of contract shall be excluded if and to the extent that the Agency’s liability does not result from a breach of the obligations essential for the performance of the purpose of the contract.

10. Insofar as the Agency commissions necessary third-party services not owed by the Agency, the respective contractors/contractors are not vicarious agents of the Agency. Liability for the services and results of work of such contractors/contractors is excluded, insofar as nothing is contrary to the statutory provisions.



The Partner undertakes to pay any fees to collecting societies such as GEMA. If these fees are paid by the Agency, the Partner undertakes to reimburse them to the Agency if proven by the Agency. Depending on the agreement, this can be done immediately or even after the termination of the contractual relationship.



Free employees or third parties engaged by the Agency are vicarious agents or agents of the Agency. The Partner undertakes not to commission these employees or third parties, directly or indirectly, for 12 months following the completion of the respective contract without the assistance of the Agency.



All working documents, electronic data and records produced by the Agency in the context of the performance of the contract shall remain with the Agency. The release of these documents and data cannot be requested by the Partner. By paying the agreed fee, the Agency owes the agreed performance, but not the intermediate steps leading to this result in the form of sketches, drafts, production data, etc.



1. The Agency shall provide commissioned projects in the field of media planning with the best of its knowledge and belief on the basis of the media documents available to it and the generally available market research data. A certain commercial success is not owed by the Agency to the Partner through these services.

2. In the case of extensive media services, the Agency is entitled, by agreement, to invoice the partner for a certain proportion of the external costs and to book the relevant media only after receipt of payment. A handling fee will be charged for this purpose. The Agency shall not be liable for any non-compliance with a switching date due to late receipt of payment. This does not result in a claim for damages from the partner against the agency.



The Treaty shall enter into force upon its signature. It is concluded for the contract term specified in the contract or for a specific project. If the contract is concluded for an indefinite period, it may be terminated by both parties with a notice period of six months at the end of a month. The right to terminate without notice for good cause remains unaffected by this provision. Termination is required in writing. If, on the other hand, the parties have concluded the contract for a certain period of time, the parties are not entitled to terminate the contract before that period expired.



If a dispute arises in the course of or after the termination of an order concerning the commissioned project, an out-of-court mediation procedure according to the mediation proceedings of the European Institute for Conflict Management e.V. (EUCON) shall be conducted before the initiation of legal proceedings. In the event of disputes concerning quality assessment or the amount of remuneration, external expert opinions are drawn up in order to reach an out-of-court settlement if possible. The costs of this will be shared by the partner and the agency.



1. The Partner is not entitled to transfer claims from the contract.

2. The General Terms and Conditions of the Partner do not become part of the contract.

3. A set-off or the assertion of a right of retention by the Partner is only permitted with recognised or legally established counterclaims.

4. The law of the Federal Republic of Germany shall apply. The exclusive place of jurisdiction for all disputes arising out of or in connection with the contractual relationship of the parties is the seat of the Agency.

5. Should any provision of these General Terms and Conditions be wholly or partially ineffective or lose its legal validity at a later date, this shall not affect the validity of the remaining provisions. Instead of the invalid provision, by means of the adaptation of the contract, another appropriate provision should apply which is economically closest to what the contracting parties would have wanted if they had been aware of the ineffectiveness of the scheme.

6. The English version of these terms and conditions is only a convenience translation. In case of deviations between the German and the English version, the German version shall prevail.

Version: July 2020