General terms and conditions

§ 1 Scope

1) These General Terms and Conditions (GTC) are the basis for all orders concluded between LionMountain Pictures LLC, 1715 447 Broadway 2nd Floor, New York, NY 10013, USA (agency) and its clients. They are part of all contracts with the agency.

2) Insofar as these GTC are to be deviated from by agreement, these deviating agreements or regulations must be in writing. In the event of an order or when concluding contracts, the client accepts the GTC underlying here without exception. Misprints and errors excepted.

3) These GTC shall also apply to future transactions of the parties.

4) As a precaution, the Agency objects to the inclusion of GTC in orders of the Client.

§ 2 Conclusion of contract

1) Offers made by the Agency are subject to change and non-binding, unless an offer is designated in writing as binding. Unless otherwise specified in the offer, Agency shall be bound by binding offers for 30 days.

2) A contract for contractual services is usually concluded by an offer signed by both parties, otherwise by confirmation of the order by the Agency or commencement of the provision of services by the Agency. The Agency may request written confirmations of oral contractual statements made by the Client. The written approval of an offer or a cost calculation of the agency by the client is sufficient for placing the order.

§ 3 Offers and terms of payment

1) The remuneration amounts are net amounts. The statutory value added tax is payable on this. It is agreed that payment shall be made within 7 days from the date of the invoice, at the latest from receipt of the invoice and without deduction.

2) Remuneration shall be due and payable without deduction upon performance of the service. The Agency may charge an advance payment of up to 100% of the order value for all services. If work is delivered in parts, the corresponding partial payment shall be due upon delivery of the respective completed part. If the execution of an order extends over a longer period of time, the Agency may demand payments in accordance with the amount of work performed to date. For the rest, reference is made to § 4 of these General Terms and Conditions of the Agency.

3) The agency reserves the right to invoice your services by its own invoicing or via an external payment provider.

4) Third-party costs such as the acquisition of rights of use, material costs, official permits as well as other order-related expenses for external service providers may be charged as a complete advance payment and invoiced to the client.

5) The Client shall additionally reimburse the Agency for travel costs and travel time as well as other expenses in accordance with the contractual agreements. Travel time is compensated on a pro rata basis based on half of the agreed daily rate.

6) In the event that the Client makes use of the Agency’s services to a greater extent than originally envisaged, the Client shall pay an appropriate remuneration to be agreed for the additional service.

7) Unless otherwise stated in the offer, two correction phases are included in the offer price. Any correction phases beyond this will be recalculated and invoiced.

8) Drafts, concepts and templates provided by the agency are only binding in terms of color, image and/or sound design after express prior confirmation of realization by the agency.

9) The Agency shall be entitled to commission the external services necessary for the fulfillment of the order from another company. In this respect, the General Terms and Conditions of Business of the third-party provider shall apply to the Client, unless the Client is a consumer, in this case for the respective third-party service. For the rest, reference is made to § 6 of these General Terms and Conditions of the Agency.

10) The Client, unless it is a consumer, is obligated to release the Agency internally from all liabilities arising from the conclusion of the contract that the Agency concludes with the third-party service provider in its own name, in particular from the obligation to pay the price.

11) The Agency is entitled to present the Client as well as the works produced for the Client for the purpose of self-promotion (references). This also applies to publications on the Internet, on the agency’s website or other corresponding analog or digital platforms.

12) Kommt der Auftraggeber mit der Zahlung der Vergütung in Verzug und setzt die Agentur dem Auftraggeber eine Frist von mindestens 2 Wochen zur Zahlung, die erfolglos verläuft, ist die Agentur berechtigt, die weitere Leistungserbringung für die Dauer des Verzugs einzustellen. The Agency will threaten the Client with this measure in writing in advance. The client remains obligated to pay the agreed remuneration even during the period of refusal to perform. The Agency must take into account any expenses saved as a result of the refusal to perform and proven by the Client.

§ 4 Term, termination and associated terms of payment

1) If a contract is agreed for a longer period of cooperation, the minimum term stated in the contract shall apply. If no minimum term is specified, it is 6 months.

2) The contract is extended in each case by the term specified in each case, but at least by 6 months, if the contract is not terminated before the end of the respective term with a notice period of 3 months. In the first month, the client may terminate the contract – subject to a 14-day notice period – if he is dissatisfied with the cooperation. The right to extraordinary termination remains unaffected. Any termination must be in writing to be effective.

3) If a fixed monthly fee is agreed, it shall be paid in advance on the first of each month for the respective calendar month, unless otherwise agreed. The amount for the first pro rata calendar month after the conclusion of the contract is due on the day of the conclusion of the contract. For the rest, reference is made to § 3 Section 12 of these General Terms and Conditions of the Agency.

§ 5 Cancellation of orders

1) In the event of changes or termination of orders, work and the like by the Client and/or if the prerequisites for the provision of services change, the Client shall reimburse the Agency for all costs incurred as a result and shall indemnify the Agency against any liabilities to third parties.

2) In the event of cancellation of an order, the Client undertakes to pay a portion of the agreed gross remuneration and the agreed gross additional costs as compensation in accordance with the breakdown below:

  • after conclusion of contract = 10
  • after conclusion of the contract 12 to 8 weeks before the start of the order = 25%.
  • after conclusion of the contract 8 to 4 weeks before the start of the order = 50%.
  • after conclusion of the contract 4 to 2 weeks before the start of the order = 75%.
  • after conclusion of the contract from 2 weeks before the start of the order = 100%.

3) In the case of orders for the planning, implementation and support of events, the deadlines stated here refer to the event date instead of the start of the order.

4) The basis for calculating the cancellation fees is the net offer price, taking into account any discounts or special agreements.

5) The cancellation of an order requires text form.

§ 6 Use of presentation content

1) If the Client wishes to use, in whole or in part, any work, works or services presented to the Client by the Agency for the purpose of concluding a contract, this shall require the express, prior and written consent of the Agency. The same shall apply in the event that the Client intends to use the contents of the presentation based on the services and conceptual ideas of the Agency, provided that these very concepts, services and/or ideas have not yet been included in the Client’s campaigns.

2) The acceptance of a presentation fee does not constitute consent to the use of the Agency’s work, services, concepts and ideas.

§ 7 Placing orders with third parties

The Agency is hereby expressly authorized by the Client, unless the Client is a consumer, to perform transferred work and services itself or, at its option, to commission third parties to do so in its own name.

§ 8 Time of Performance, Delays, Cancellation of Deadlines

1) Performance times are only binding if they have been confirmed in writing by the agency.

2) If the contracting parties subsequently agree on other or additional services that affect agreed deadlines, these deadlines shall be extended by a reasonable period of time. The same shall apply if the Client does not fulfill its obligations to cooperate, does not do so completely or does not do so in a timely manner.

3) Performance times shall be postponed in the event of unforeseen obstacles for which the Agency is not responsible, insofar as such obstacles have a significant influence on the performance of the service. The time of performance shall be postponed in accordance with the duration of such obstacles. The Agency shall immediately notify the Client of the beginning and end of such obstacles.

4) Reminders and setting of deadlines by the Customer must be in writing to be effective. A grace period must be reasonable. A period of less than two weeks is only appropriate in cases of particular urgency.

5) Agreed deadlines shall be observed by the Customer as a matter of principle. If the Client cancels an agreed appointment for reasons for which the Agency is not responsible, the Agency shall receive, unless otherwise agreed, a portion of the agreed gross remuneration and the agreed gross additional costs as broken down in § 5.2 as compensation.

§ 9 Delivery, delivery periods, packaging and shipping

1) The Agency shall meet its delivery obligations as soon as the created works, works or services are ready for dispatch, electronic transmission or online activation.

2) Transmission shall be at the risk of the client. This also applies if the shipment is made within the same location or by agency employees or agency vehicles. If the client wishes a certain type of dispatch, he must inform the agency of this in writing in advance.

3) If the shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the contractual partner from the date of readiness for shipment.

4) Packaging and shipping costs shall be borne by the customer. In the case of delivery to the Agency, the Client shall bear the freight, postage or other delivery costs free to the Agency.

5) Delivery dates require an express agreement to be binding. They shall be indicated in writing if the entire order is made in writing.

6) Delivery difficulties of third parties, in particular of suppliers of the Agency, force majeure, strikes, lockouts, inability to deliver through no fault of the Agency, in particular machine standstill through no fault of the Agency, power and water failure shall extend the delivery period by the duration of the impediment or shall entitle the Agency to withdraw from the contract in whole or in part without the Contract Partner being entitled to claim damages therefrom if the Agency is not at fault for the delay.

7) The Client, unless he is a consumer, acknowledges that production-related shortfalls of up to 15% on the part of the Agency or third parties commissioned by the Agency to carry out the work do not entitle the Client to complain about defects, reduce the price or withdraw from the contract.

8) The Client, unless it is a consumer, acknowledges that in the event of production-related excess quantities on the part of the Agency or third parties commissioned by it to carry out the work, the Agency shall be entitled to charge for the excess quantities.

§ 10 Ownership, rights of use and copyrights, obligation to return, contractual penalty

1) Unless otherwise agreed in writing, only rights of use are granted to the Agency’s work, but no rights of ownership are transferred.

2) Unless otherwise agreed in writing, in the event of damage to or loss of the designs, artwork or final artwork, the Client shall reimburse the Agency for the costs necessary to restore them. The assertion of further damages remains unaffected. Sending and other transmission of the work shall be at the risk and for the account of the client.

3) The Agency is not obliged to hand over data carriers, files and data. If the Client wishes the Agency to provide him with data carriers, files and data, this must be agreed in writing and paid for separately.

4) If the Agency has provided the Client with data carriers, files and data, these may only be changed with the written consent of the Agency.

5) The risk and costs of transporting data carriers, files and data online and offline shall be borne by the Client.

6) The works developed by the Agency in the form of text content, concepts, advertising strategies, logo developments, designs, studies, layouts, photographs, video recordings, tables and databases, production services and map material (whereby this list is not intended to be exhaustive) – hereinafter referred to as works – are subject to copyright protection as personal intellectual creations. In the event that the work has not reached the creative-creative-artistic level required under the Copyright Protection Act (UrhG), this shall be deemed to have been agreed between the Agency and the Client.

7) The works prepared by the Agency may not be modified without prior and express consent. This concerns both originals and reproductions of the work. Any imitation of the Work, whether in whole or in part, is prohibited and will be enjoined.

8) In case of violation of § 7 paragraph 7 of the GTC, the Client shall pay the Agency a contractual penalty in the amount of 200% of the agreed remuneration.

9) The copyright shall not pass to the Client after the order has been executed by the Agency, but shall remain entirely with the Agency. The Agency may grant the Client rights of use.

10) The Agency shall transfer the rights of use to the Client in the type and scope if and to the extent that these are required for the respective purpose of use. Unless otherwise agreed in writing, the Agency shall transfer the simple right of use to the Client. In the event that the Agency has granted the Client the exclusive right to use a work, the Agency shall remain entitled to use and exploit the designed works and their reproductions within the framework for self-promotion. If the Client intends to pass on the rights of use to third parties, this shall require a separate written agreement between the Agency and the Client. If the Agency uses the services or rights of third parties to fulfill the contract, their corresponding rights of use shall be acquired by the Agency to the extent necessary and transferred to the Client to the extent necessary for the respective campaign.

11) The rights of use granted by the Agency shall not pass to the Client until the Client has paid the remuneration in full.

12) The Agency is entitled to draw its company name and logo or the Internet address as a copyright notice on all designed productions in an appropriate font size or to have the services mentioned in a possibly existing imprint/credits with company name and complete address. If the client violates the right to name, he is obliged to pay the agency a contractual penalty in the amount of 100% of the agreed remuneration. This does not affect the right of the agency to claim higher damages in case of concrete calculation of damages.

13) The creation of works developed and elaborated by the Agency is always carried out only for a legally independent person or for a natural person; if the use of these works by affiliated or associated companies is desired, this requires a separate written, contractual agreement and remuneration.

14) Text content, images, links, references or other content supplied to the Agency by the Client for the purpose of executing the order must not interfere in an inadmissible manner with the copyrights, usage rights, trademark rights, patent rights or other rights of third parties. The client is exclusively liable for data supplied by the client.

15) Drafts, concept templates, other templates, files, which are created by the Agency or by which the Agency has created, remain the property of the Agency until full payment.

§ 11 Warranty, Liability

1) The Agency shall only be liable for damages that it or its vicarious agents cause intentionally or through gross negligence. This also applies to damages resulting from a positive breach of contract or a tortious act. Furthermore, the Agency shall not be liable in the event of grossly negligent breach of non-essential contractual obligations by simple vicarious agents. The client, unless he is a consumer, acknowledges that any form of claims for damages against companies is limited to compensation for only foreseeable and typical damages.

2) By accepting the commissioned work, the client declares that he accepts responsibility for the correctness of the image and text.

3) The Client, unless it is a consumer, shall inspect works delivered by the Agency immediately upon receipt and notify any defects without culpable delay after their discovery. If the immediate inspection or notification of defects is omitted, the customer shall have no claims.

4) The Agency shall not be liable for the admissibility and registrability of its drafts and other design work under competition and trademark law.

5) The liability of the Agency is excluded in case of errors on data carriers, files and data that occur during data import to the Client’s system.

6) The Client assures that he is entitled to use all templates handed over to the Agency and that these templates are free of third party rights. If, contrary to this assurance, he is not entitled to use them or if the handed-over templates affect the rights of third parties, the Client shall indemnify the Agency internally against all claims for compensation by third parties.

7) The links and references set by the Agency on its own Internet presence or on that of clients do not reflect the opinion of the Agency in terms of content. The agency has neither been involved in the creation of the external appearance nor in the creation of the content or identifies itself with it, unless they are commissioned productions, which are then also recognizable as such. However, the agency also declines any liability for their contents.

8) Complaints and objections of any kind whatsoever must be made in writing to the Agency within two weeks of delivery. Accordingly, work of a contractual nature shall be deemed to have been accepted in accordance with the contract and free of defects.

9) Insofar as the Agency commissions external services at the instigation of the Client or on its own initiative, the Agency is hereby released from liability for the services and work performed by the commissioned third parties as service providers.

10) The release of the works created by the Agency and their publication are the exclusive responsibility of the Client. In the event that the Client entrusts the Agency with full or partial releases, the Agency is hereby released from liability.

11) The Agency does not undertake any legal review with regard to the created works, texts, design content and measures. This is the sole responsibility of the client.

13) Changes required by the Agency due to illegibility of the Client’s manuscript for which the Agency is not responsible, or changes required in deviation from the print/ typesetting template, shall be charged according to the working time spent on them and invoiced to the Client.

14) Drafts and proofs are to be checked by the Client for errors in content, syntax, style and grammar and returned to the Agency accordingly. There is no liability on the part of the agency for such errors that were overlooked by the client. Changes made by telephone by the client must be confirmed in writing.

15) In the event of changes after printing approval, all costs, including the costs of machine downtime, shall be borne by the Purchaser.

16) The services provided by the Agency are usually based on the specifications and meeting contents with the Client. The client is solely responsible for errors, misunderstandings and changes resulting from incorrect or incomplete information provided by the client.

17) The Agency does not assume any warranty or liability for the obligations to be performed by a Client towards a third party arising from offers and contracts made by contacting them via the presentation on the Internet.

§ 12 Internet presences and web-based software and database solutions

1) If the client does not fulfill his payment obligation, internet-based presentations and/or appearances and websites will be removed from the internet after prior notice. The client will be informed of the costs incurred for this. The client shall bear these costs.

2) If the Client desires reinstatement on the Internet after removal has previously been made due to non-fulfillment of payment obligations, the Client will be notified in advance of the costs incurred for this. The client shall bear these costs.

3) The Internet presence provided to the Client by the Agency may not be used to store, use or distribute obscene, pornographic, threatening or defamatory material or material for gambling. If the client violates this, this shall lead to immediate termination of the contractual relationship for good cause in the event that the client is responsible for the violation.

4) Insofar as the Client requests updates, adjustments, changes and/or revisions to the content or concept, these shall be implemented by the Agency as quickly as possible. Deadlines may be agreed for dates that are of particular importance to the client.

§ 13 Domain registration and maintenance contracts

1) Insofar as the Agency is commissioned to carry out Internet domain registrations, this shall be agreed in writing and in an individual contract.

2) The same shall apply insofar as the Agency is entrusted with the care and maintenance of databases, website content and other content.

§ 14 Exclusion of competition

The Agency is expressly authorized to act for the same and similar products and manufacturers and to offer and perform its services for them, ensuring at all times the confidentiality of the Customer’s documents.

§ 15 Secrecy and data protection

1) The contracting parties undertake to treat as confidential all items (e.g. documents, information) received from the other contracting party or becoming known to them before or during the performance of the contract which are protected by law or contain business or trade secrets or are designated as confidential (“confidential information”), even beyond the end of the contract, unless they are publicly known without any breach of the duty of confidentiality. The contractual partners shall store and secure confidential information in such a way that access by third parties is excluded.

2) The Client shall make confidential information available only to those employees and agents who require access in order to perform their official duties. He shall instruct such persons as to their need for secrecy.

3) Insofar as the Agency processes data in the course of providing services that can be attributed to a specific or identifiable person, the Client shall be solely responsible for ensuring that the respective data subject has consented to this processing of his/her data or that legal permission has been granted. The Client shall always remain the responsible party with respect to such personal data. The Client shall indemnify the Agency against all claims of the data subject and compensate the Agency for all damages incurred by the Agency as a result of the transmission of personal data to the Agency or the Agency’s access to the personal data in violation of data protection law, unless the Client proves that it is not responsible for the violation. At the request of the Customer, the contracting parties shall conclude an agreement on commissioned processing in advance that satisfies the relevant statutory requirements.

4) The Agency may name the Client as a reference client as of the conclusion of the contract.

§ 16 Place of Jurisdiction and Final Provisions

1) The law of the Federal Republic of Germany shall apply, excluding the conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods.

2) The place of jurisdiction for all disputes arising from and in connection with the contractual agreements of the contracting parties is the registered office of the Agency.

3) Insofar as declarations must be made in writing in accordance with these GTC, e-mails shall be sufficient unless otherwise agreed. This shall not apply to reminders, setting of deadlines, declarations of withdrawal or termination by the Customer, which must always be signed in original or provided with a qualified electronic signature and must be received by the Contractual Partner in this form.

4) Any transfer of rights and obligations under this Agreement by the Client shall require the prior written consent of the Agency.

5) The Agency is entitled to change these GTC. The Agency shall notify the Client of the changes in writing. The changes shall be deemed to be agreed if the Customer does not object in writing within three months of receipt of the announcement of the change. The Agency shall separately draw the Client’s attention to this deadline and to the legal consequences of any failure to comply with it in the announcement.

Status January 2023

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