Conditions
(according to the guidelines of the Illustratoren Organization eV)
1. Scope
These terms and conditions apply to all contracts between
Illustrator and the client exclusively. Deviating individual agreements, contract and terms and conditions must be in writing. The terms and conditions apply to all business transactions, including all future follow-up business, including those that are concluded orally, in particular by telephone, even if they are no longer expressly referred to in the follow-up business.
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2. Copyright protection and right of use
The services to be provided by the illustrator are subject to copyright protection. The provisions of the law on contracts for work and services and the copyright law apply. The payment of only a work fee does not yet entitle the user to use it. Rather, this requires a separate agreement on the granting of usage rights and their appropriate remuneration.
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3. Orders
Acknowledgments sent by the illustrator or
Meeting minutes are binding if the client does not object immediately. The illustrator is entitled to use suitable third parties to fulfill the contract. In this case he will acquire their possible usage and other rights to the extent owed to the client and grant them to the client.
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4. Compensation
All activities performed for the client, including presentations, drafts and work drawings, are subject to remuneration, unless otherwise agreed in writing. The remuneration consists of:
a) the design fee
b) the work drawing remuneration
c) the remuneration for the granting of the rights of use to the work drawing.
In the absence of other agreements, one will be made by the client
promised and / or paid remuneration as follows on the individual
Compensation components taken into account:
30% on the design fee
30% on the work drawing fee
40% on the usage rights, if granted.
The claim for remuneration for any granted rights of use arises regardless of whether and, if so, to what extent the client makes use of the rights of use. If no rights of use are granted, the remuneration for the use does not apply, but not the remuneration for the work performed up to that point. Suggestions by the client or his other cooperation have no influence on the amount of the remuneration.
If no usage rights are agreed, the distribution changes as follows:
50% on the design fee
50% on the work drawing fee.
The fees are net amounts plus the applicable
Sales tax are payable. The artists' social security tax
is to be paid additionally by the client and not included in the remuneration
contain.
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5. Payment terms
The remuneration is due upon delivery. It is payable without deduction.
If an order takes more than four weeks to be processed or if it requires financial advance payments from the illustrator that exceed 50% of the remuneration to be paid, the following payments must be made:
1/3 of the total remuneration when placing the order
1/3 after completion of 50% of the work
1/3 after delivery.
If the contract is terminated prematurely, the illustrator remains
at least the claims to the advance payments that have already become due at the time of the termination of the contract according to the above. Otherwise, Section 649 of the German Civil Code (BGB) applies. The client is in default of payment in whole or in part if he does not pay within 14 days of delivery without the need for a reminder. If the client does not use the services to the agreed extent, he has no right to a reduction or reimbursement of the remuneration. The client is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by the illustrator.
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6. Rights of use, ownership, self-promotion
If agreed, only rights of use are granted to the work or services of the illustrator. A right of ownership, in particular to drafts (sketches, layouts) and work drawings (final art) that he creates or has created, is not granted. All two- and / or three-dimensional workpieces (drafts, work drawings, models, dummies, samples) handed over to the client as part of the order remain the property of the illustrator. The client is only granted the right of possession as long as he is absolutely dependent on possession of the workpieces in order to use the illustrator's services in accordance with the contract. In any case, the right to possession ends at the latest with the termination of the contractual relationship between the illustrator and him.
The workpieces are undamaged after the end of the right of possession
to be returned, unless otherwise agreed in writing. The return takes place at the expense and risk of the client. In the event of damage or loss, the client has to pay compensation in the amount of 100% of the agreed remuneration, without acquiring ownership rights through such payment. The drafts handed over to the client are used for consultation with the client. Further rights of use are not granted to the client. Unless expressly agreed otherwise, any further contractual granting of usage rights refers exclusively to the approved work drawing. The services and works of the illustrator may only be used to the extent that this has been agreed for the order or results from the purpose of the order. In the absence of other written agreements, the client only receives simple rights of use or other rights, and only for the agreed duration and the agreed scope of use in terms of content and space; In the absence of any other written agreement, the scope of the granting of usage rights does not at least extend beyond the territory of the Federal Republic of Germany.
Any other or beyond the originally agreed scope -
outgoing use is only due to a special written
Granting of usage rights and against payment of the amount
the additional use in relation to the remuneration for the original use is permitted.
The transfer of granted rights of use to third parties requires the
Consent of the illustrator. About the scope of use is available
Illustrator a right to information. Suggestions or specifications of the
Client and other cooperation do not constitute grounds
Co-copyright of the client. Rights to the illustrator's services, in particular rights of use, are only transferred to the client once the entire remuneration of the illustrator relating to the order has been paid in full.
The illustrator has the right to sign his work and on the
To be named as the author of copies. When the works are recorded digitally, the name of the illustrator must be electronically linked to the image data.
The client is not entitled to edit the services (neither the originals or digital files nor reproductions) in parts or as a whole or to change and / or edit or have them changed in any other way, unless this is expressly the subject of the agreed granting of rights. This additional granting of rights is to be paid for separately in each case.
The illustrator is then not obliged to store them. Of the
In particular, Illustrator is not obliged to transfer work files that are in
Computer, including the source code, to keep and / or to surrender to the client. If the client wishes files to be stored and / or released, this must be agreed separately and paid for.
In the event of a violation of the usage, processing or name
the illustrator is entitled to demand a contractual penalty in the amount of three times the agreed basic remuneration. The right to assert claims for damages, monetary compensation or other rights in addition to the contractual penalty remains unaffected. All services provided by the illustrator may be used without restriction for the purpose of self-promotion, unless something else has been expressly agreed.
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7. Special services, ancillary and travel expenses
In the absence of other agreements, the client
During the design phase one (1) - not picture elements per design
exchanging - optimization step granted according to his specifications,
without this being charged as a special service. Every further change and / or new creation and submission of drafts, the change and / or new creation of work drawings as well as other additional services (e.g. manuscript study), ancillary costs (e.g. couriers) or technical costs (e.g. for reproductions, data carriers) will be charged separately depending on the effort calculated.
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The illustrator will calculate the effort according to an hourly or daily rate to be determined by him at his reasonable discretion, which is based on the remuneration recommendations of the IO (Illustratoren Organization eV). Something else arises
if such services expressly stating the amount of
Remuneration are included in the order confirmation.
If the contract is not carried out for reasons for which the illustrator is not responsible, the additional costs incurred are to be reimbursed by the client in addition to the partial remuneration to be paid in accordance with clauses 4 and 5. The remuneration for additional services is due after they have been provided. Any incidental expenses incurred are to be reimbursed. Remuneration and ancillary costs are net amounts plus the applicable
Sales tax are payable.
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8. Cooperation of the client
The client is obliged to provide the illustrator with all information and data necessary for the provision of the deliveries and services in a common format in good time.
The client ensures that the illustrator receives the rights required to use these documents. The client is also obliged to inform the illustrator, even without being asked, of circumstances that may be significant for the provision of his deliveries and services, and of which the client can recognize that they may be unknown to the illustrator. The documents provided will only be stored and returned to the client if this has been expressly agreed and only at the expense and risk of the client.
If the client defaults on acceptance due to failure to cooperate, the illustrator can demand appropriate compensation.
So much for the illustrator together with the client
If development stages are defined and the client has to provide his own services to achieve these development stages, he is obliged to provide all of the services to be provided by him in good time.
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9. Delivery, delivery time
Compliance with the agreed delivery dates assumes that all technical questions have been clarified, documents to be delivered by the client, releases, services to be provided and other obligations of the client are available or fulfilled in good time. If this does not happen and a timely delivery of the service with an additional payment accepted by the client for increased costs is no longer possible, the delivery period is extended by a reasonable period of time. Fixed deals are not closed. The exception of the unfulfilled contract remains reserved.
The illustrator's delivery obligations are fulfilled as soon as the work and services for dispatch have been performed. If the non-compliance with an agreed delivery deadline is due to force majeure, industrial action, fire, machine breakdown, telecommunication disruptions, computer disruptions, serious illness, unforeseen obstacles or other circumstances for which the illustrator is not responsible, the delivery time will be extended for the duration of these events. This applies accordingly
in the event that the illustrator enters one of these
Events in default of delivery. Delays in performance due to
Force majeure will be reported to the client. If the execution of the order is delayed for reasons for which the client is responsible, the illustrator can demand compensation, which he can calculate at his reasonable discretion by increasing the remuneration appropriately in accordance with the remuneration rules agreed here. The assertion of further damage caused by default remains unaffected by this.
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10. Transfer of risk
Unless otherwise stated in the order confirmation, the handover takes place at the illustrator's office. If the client wishes delivery to a different location, this is done at his own risk and account. The risk passes when the goods are handed over to the carrier or, if one is not involved, at the latest when the customer or his vicarious agents accept the service
Client over, even if partial deliveries are made
or the illustrator additional services (e.g. transport costs or
Delivery) has taken over.
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11. Warranty for defects, liability
The illustrator enjoys creative freedom in the artistic implementation of the order placed with him. If his work does not meet the taste of the client or if his style does not correspond to the client's ideas, this alone does not constitute a defect in his services. The warranty rights of the customer require that the work and services supplied by the illustrator are checked and processed immediately upon receipt, but in any case before further processing
Has reported defects immediately after discovery.
Slight color deviations in the print results from
Screen displays or computer printouts are due to technical reasons and in this respect do not represent a defect. If the illustrator is responsible for a defect, he is initially entitled to subsequent performance within a reasonable period of time. If the supplementary performance fails, the client is, after the unsuccessful expiry of a
a reasonable period specified by him for subsequent performance, at his option, entitled to withdraw from the contract or to demand a corresponding reduction in remuneration (reduction). A supplementary performance has failed if the defect has not yet been remedied after the second attempt at supplementary performance. The warranty period is 12 months from the transfer of risk. The deadline is a statute of limitations and also applies to claims for compensation for consequential damage caused by a defect, provided that no claims from tort are asserted; the statutory limitation period applies to these. The illustrator is liable for damages - regardless of the legal reason
- only in the event of willful intent or gross negligence,
including willful intent or gross negligence on the part of its representatives or vicarious agents. Unless he has intentionally violated the contract, the liability for damages is limited to the foreseeable, typically occurring damage.
Excluded from this limitation of liability are damage resulting from injury to life, limb or health of the client, as well as damage due to violations of the illustrator's cardinal obligations.
Insofar as the illustrator only passes on third-party services (e.g. photographers, service providers) to the contractor, his liability is limited to the fault of the selection. Liability for computer viruses is excluded, unless the illustrator acts with intent or gross negligence.
The client assumes the obligation to check the legal admissibility of the services provided by the illustrator. If the services of the illustrator violate the rights of third parties or are otherwise illegal because they are based on illegal specifications and / or templates of the client, the client alone is liable for the internal relationship. He has to compensate the illustrator for all damage resulting therefrom, including the reasonable costs of legal defense, and to keep him free from all claims by third parties. However, the illustrator will notify the client of any legal violations associated with his services as soon as he becomes aware of them. In particular, this liability regulation applies to factual statements or other materials provided to the illustrator by the client or otherwise left; To the same extent, the client is liable for all rights of use and exploitation as well as, if applicable
other necessary rights to those supplied by him
Materials are available to the required extent.
Insofar as the illustrator's liability for damages after the previous
excluded or restricted, this also applies to
With regard to the liability of its employees, workers, freelancers, representatives and vicarious agents.
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12. Receipt sample
The client leaves all reproduced work to the illustrator
at least five perfect, unfolded voucher samples free of charge.
The illustrator is entitled to use these samples for the purpose of self-promotion
to use.
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13. Place of performance, place of jurisdiction, applicable law
As the place of performance and, as far as legally permissible, as the exclusive
The parties agree that the illustrator's place of business is the place of jurisdiction. It is only the law of the Federal Republic of Germany.
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14. Final provisions
Changes and additions to the contract must be made in writing to be effective. The same applies to changes to the written form requirement.
The invalidity or ineffectiveness of individual provisions of the contract does not affect the validity of the remaining provisions. The same applies to loopholes. Instead of the ineffective provisions or to fill in loopholes, the legally possible provision that comes closest to what the contracting parties wanted or would have wanted according to the meaning and purpose of the contract should be used.