Terms & Conditions

§ 1

General provisions

1.1 These General Terms and Conditions apply to the contractual relationship between the client and Süd Illustration Agency, Koppenstraße 32, 10243 Berlin (hereinafter referred to as “Agency”) regarding the procurement of illustrator services by the Agency. At the same time, these General Terms and Conditions of Contract are also applicable to the range of services offered by the illustrators insofar as the Agency acts on behalf of and in the name of the illustrators.

1.2 These General Terms and Conditions of the Agency shall apply exclusively. General terms and conditions of business or order of the client shall only apply insofar as the Agency has expressly agreed to them in writing.

1.3 These Terms and Conditions of Contract shall also apply to agreements between the Parties, regardless of whether the Agency concludes the contract in its own name for its own account or for the account of a third party or in the name of a third party for its own account. They constitute the framework for the contractual relationship between the parties and shall also apply to agreements between the parties which are in each case made in connection with the order, but beyond it, in addition to it or as a supplement to it (e.g. service agreements). (e.g. extension of services). The Parties clarify that these Terms and Conditions of Engagement shall otherwise also apply with respect to contractual relationships already agreed between the Parties and currently still ongoing.

1.4 In order to ensure the purpose of the contract, the Agency reserves the right to amend these General Terms and Conditions in the event that justified interests prevail (changes in the law, changes in jurisdiction or changes in economic circumstances) and to the extent that this is reasonable for the client. In the event of an amendment, the client shall be informed of the content of the amendment and shall be given a reasonable period of time to declare any objection. If the client does not object within the reasonable period of time, the amendment shall be deemed to be included in this contractual relationship.

 

§ 2

Definitions

2.1 Agency: Süd Illustration Agency, Koppenstraße 32, 10243 Berlin.

2.2 Client: A legal entity or a natural person that commissions services.

2.3 Services offered: The services offered by the Agency/Illustrators, which the client may commission.

2.4 Order: An agreement between the Agency and the client regarding the creation of works by the Illustrator.

2.5 Work: The illustration(s) created by the booked illustrator.

2.6 Performance: The scope of the work commissioned by the client.

 

§ 3

Subject matter of the contract

3.1 The subject matter of the contract, the detailed scope of services, all dates, absolute deadlines, deadlines as well as the remuneration and also material prices (expenses) shall be specified in detail in the respective order agreement/cost estimate concluded with the client and enclosed with these General Terms and Conditions.

3.2 The detailed performance description shall contain a list of all work or service results, works partial works, partial services, intermediate results, both in their entirety and in the form of a selection of work or service results. Only such (partial) deliverables shall be submitted to the client for acceptance which the Illustrator has previously determined at its own discretion to be suitable for acceptance (hereinafter referred to as “ready for delivery”). has determined. The client has no right to (partial) services (e.g. open files) that the Illustrator does not consider to be ready for delivery.

 

§ 4

Granting of rights

4.1 The contracting parties agree that the client shall be enabled to use the services in accordance with the purpose of the order. Furthermore, the client shall also be able to use the services for the purpose of advertising, marketing and press and public relations work (hereinafter referred to as “Advertising”) for the project in question and for the client itself. Finally, the client shall also be able to grant third parties the possibility of advertising for use in accordance with the order (hereinafter “granting of rights”).

4.2 For the aforementioned purpose, the Illustrator grants the client the necessary rights under the German Copyright Act as well as other rights (e.g. trademark and/or design rights) (hereinafter collectively referred to as “intellectual property rights”) that have arisen in connection with the (partial) services agreed upon in connection with this order, simply and with limitation as to time and place described by the estimate, and limited in content to the purpose of the order.

4.3 If the client wishes to use the Illustrator’s services for further purposes and/or beyond the scope of the content granted, the parties shall agree separately on a corresponding extension and remuneration of the scope of the granting of rights.

4.4 The granting of rights hereunder does not include any editing rights (§ 23 UrhG) (in particular no further development, reworking by combination with other works, extensions or reductions, error correction, further development, modification, including change of functionality.

4.5 The Agency/Illustrator reserves the right to use the artwork rejected by the client for other purposes and to grant rights thereto. This shall also and in particular apply to services of the Illustrator that are not the subject of special statutory rights, in particular copyright.

4.6 The client has no rights to sketches, drafts or concepts created by the Illustrator unless this has been agreed in writing.

 

§ 5

Responsibility of the client for provided material;
pre-existing third-party rights

5.1 In the event that the client provides material (data, objects, image/sound/text material) for the creation of the commissioned service, the client guarantees that the material provided does not infringe any third-party rights or that any required rights of use/ rights/licenses thereto are properly obtained and granted before the Illustrator considers using the material for the performance of the service.

5.2 The Parties agree that the client shall verify and ensure the legality of the services rendered by the Illustrator itself and in its own responsibility and at its own expense. This includes in particular, but is not limited to, obtaining any necessary rights of use/licenses from trademark and/or design owners with regard to possible property rights that have become part of the service provided as well as a trademark and design law review and clarification of the legal situation with regard to the service provided (in particular review of pre-existing trademark/design rights). The Agency shall provide the client with information required for its review regarding the works/trademarks/designs used within the scope of the service provided.

5.3 The client shall indemnify the Agency against any claims and expenses (including reasonable legal fees) resulting from the breach of warranty (clause 5.1.) or from the infringement of third-party rights (clause 5.2.).

 

§ 6

Credits and reference
and voucher copies

6.1 Insofar as the client uses and/or refers to the Illustrator’s performance hereunder, the client is obligated to designate correctly and completely in the spatial context and in a manner customary in the industry in all documents and media as follows: Name of the Illustrator/Süd Illustration Agency.

6.2 Notwithstanding the exclusivity of the granting of rights (Section 4), the Illustrator and the Agency shall be entitled to use the service and/or the commissioned project as well as the person/company of the client for self-promotion in all media, in particular on the Internet (reference). The use includes in particular the naming of the service / project / of the client and also the reproduction in both printed and digital form and the distribution and public accessibility of the performance. The Illustrator as well as the Agency shall furthermore be entitled to grant this right of use for the purpose of reference to their third parties involved in the performance (e.g. subcontractors) for their own advertising to the same extent, if applicable.

6.3 If the work described here is used by the client in a physical (in particular printed) form (e.g. publication, catalog, packaging, booklet,, etc.), the client shall provide both the Illustrator and the Agency with two free hard copies and a digital copy for their own archiving or documentation of their own work, for self-promotion and for participation in competitions and/or exhibitions.

 

§ 7

Fee; Foreign reference; Invoicing

7.1 All payments shall be made to the Agency. The Agency shall invoice the client and, if so agreed by the Parties, submit original receipts for reimbursement of costs.

7.2 If the parties have not made any other agreement, in particular no other interim or down payments, the total remuneration shall be due after completion of the service.

7.3 If the fee in the offer does not show any sales tax, the fee amount to be paid shall be increased by 19 % sales tax. client’s duties, fees, and other charges as well as, if applicable, the Illustrator’s social insurance (e.g. KSK in Germany) shall be borne by the client.

7.4 The client shall notify the Agency if the client’s place of residence/habitual abode, place of business/business performance, or place of business is not in Germany (hereinafter “foreign reference”).

7.5 If there is a foreign reference, the agreed fee shall be understood as a net agreement in the sense of income tax law, so that it is paid out in full to the Agency. In addition to the amount paid out, the client shall – if the tax laws of the foreign country so provide – pay the corresponding taxes abroad.

7.6 If the client is an entrepreneur and the service agreed upon in this contract is to be assigned to their company, the agreed fee shall be understood to be exclusive of VAT. This shall only apply if the client provides the VAT ID or, if no VAT ID exists in the client’s country of residence, comparable evidence showing the client’s entrepreneurial status.

7.7 Payment shall be made to the Agency’s bank account within 14 days of receipt of a proper invoice.

7.8 If the client is in default with a payment under this Agreement, they shall pay the legally applicable default interest on the overdue amount, without prejudice to any other rights and remedies. The Agency expressly reserves the right to assert further damage caused by default.

7.9 All listed rights of use remain with the Illustrator until full payment has been made.

7.10 All written fees are negotiated by the Agency for and on behalf of the Illustrator.

 

§ 8

Property rights

8.1 The Illustrator is entitled to ownership of all work results, intermediate results, both in their entirety and in the form of a selection of work results and the associated documents upon their creation, namely in the respective processing state.

8.2 In the event that the Parties agree on transfer of ownership, the (partial) work or (partial) service result/(partial) product ready for delivery shall be transferred by the Illustrator to the client upon handover or buy out.

 

§ 9

Deadlines; Acceptance, Adjustment loops,
Modification of the subject of performance

9.1 Dates/times which the parties have not expressly agreed as absolute deadlines are only approximate time estimates. Failure to comply with such time estimates shall not entail any consequences. The parties shall jointly agree on a new deadline in the event of non-compliance.

9.2 The Illustrator may submit partial services, interim results or other preparatory services to the client for interim acceptance (in accordance with § 640 BGB). Partial services submitted and accepted shall be remunerated in accordance with the Estimate, even if final acceptance of the final service no longer occurs due to a premature contractual condition.

9.3 On the occasion of the submission for (interim) acceptance, the Illustrator shall grant the client the right to request adjustments loops in accordance to what is agreed in the estimate of the service/partial service, provided and to the extent that the adjustment remains within the scope of the commissioned subject matter of the service, and compliance with agreed absolute deadlines remains possible under the Illustrator’s regular working hours/is not jeopardized. Thereafter, the client shall be obligated to accept the work or interim work insofar as the work/ interim work is in accordance with the order (§ 640 BGB).

9.4 If the client terminates the assignment before completion of the work, the Agency shall be entitled to the remuneration agreed in the estimate. Any expenses saved or remuneration earned for the Illustrator’s work capacity used elsewhere shall be taken into account. The client shall be at liberty to demonstrate a higher amount of saved expenses (than that estimated by the Agency) with appropriate evidence. The presumption of § 648 S. 3 BGB is excluded.

9.5 If the client wishes to make an adjustment that changes the ordered subject of performance, the Agency shall have the right to first provide an assessment of the feasibility, time frame and possible additional costs (change offer). Upon this assessment, the client shall have a period of 10 working days to comment and, if necessary, to agree on the costs (acceptance of the change offer in total), after the fruitless expiry of which (fiction of rejection of the change offer the Agency will execute the order as originally commissioned (without adjustment of the subject matter of the service and with a time delay for which the client is responsible). The Parties agree that the Illustrator shall suspend the performance of the service until the time when the Parties have agreed on the execution of the change of the service.

 

§ 10

Liability

10.1 The Agency and the Illustrator shall each be liable for reimbursement of expenses and damages (hereinafter „damages”) in accordance with the statutory provisions in the following cases: In the event of liability under the Product Liability Act, in cases of intent or fraudulent misrepresentation, in cases of gross negligence, for injury to life, limb or health, in the event of the assumption of a guarantee by the Agency or the Illustrator, and in all other cases of mandatory liability under the law. The agency is not liable for the fault of their illustrators.

10.2 The Agency and the Illustrator shall also be liable for damages in the event of culpable breach of so-called cardinal obligations in accordance with the statutory provisions. Cardinal obligations in this sense are all obligations breach of which jeopardize the achievement of the purpose of the contract as well as all obligations the fulfillment of which makes the proper execution of the contract possible in the first place and on the compliance with which the client may regularly rely. However, insofar as the breach of a cardinal obligation was only due to slight negligence, the amount of claims for damages shall be limited to the typical foreseeable damage. Liability for the slightly negligent breach of obligations other than those mentioned above is expressly excluded.

10.3 In all other respects, claims against the Agency and the Illustrator are excluded, irrespective of the legal grounds, in particular for material defects, defects of title and/or breach of other obligations arising from the contractual obligation or from a pre-contractual obligation (e.g. § 311 para. 2 BGB) by the Agency or Illustrator, their legal representatives, employees, vicarious agents, from § 311 a BGB or from tort.

10.4 Insofar as the liability of the Agency and the Illustrator limited or excluded above provisions, this shall also apply to the personal liability of the legal representatives, employees and vicarious agents of the Agency or the Illustrator

10.5 Change of the burden of proof to the disadvantage of the client is not connected with the above regulations.

10.6 An exclusion or limitation of claims with regard to interest on arrears or to the lump sum pursuant to Section 288 (5) of the German Civil Code (BGB) or to compensation for damage caused by costs of legal action shall not be associated with the above provisions.

10.7 Apart from that, Illustrator is not liable for error messages of the computer data that may occur when the client downloads data or that may occur on the clients’ system.

 

§ 11

Other rights and Obligations

11.1 The Illustrator shall perform their services within the scope of the order on their own responsibility and at their own professional and artistic discretion.

11.2 Both the Agency and the Illustrator shall archive the performance as well as the content and materials used to produce the performance only until delivery and acceptance/ until after the project has been completed. After this time, the Agency and the Illustrator are entitled to delete project-related data.

11.3 The client shall provide the Agency and/or the Illustrator with all data, information, materials, accesses and other cooperative actions (such as feedback) required for the performance of the service in accordance with the order in a timely and appropriate manner. Timeliness in the aforementioned sense is only ensured if compliance with agreed absolute deadlines and/or the provision of the commissioned service remains possible in an orderly manner and under the Illustrator’s regular working hours/is not jeopardized.

11.4 The client shall return all original artwork and samples no later than three months after delivery. Other artwork shall be returned by the client in any case immediately after termination.

 

§ 12

Data Protection

12.1 The Agency shall collect and process the personal data received from the client within the scope of this contractual relationship.

12.2 The data collection and data processing of the client’s personal data shall be carried out for the purpose of implementing the contract. In this respect, the data collection and data processing are based on Article 6 sec. 1, 1 b) GDPR.

12.3 Furthermore, the purposes of data collection and data processing result from legal obligations of the agency, e.g. legal retention periods and obligations to provide evidence to the tax authorities. In this respect, the data collection and data processing are based on Article 6 sec. 1. 1 c) GDPR.

12.4 In addition, the purpose of data processing may result from legitimate interests of the Agency if and to the extent that the interests, fundamental rights and freedoms of the client do not prevail (e.g. permanent archiving for documentation). In this respect, the data collection and data processing is based on Article 6 sec. 1 1 f) GDPR.

12.5 Further information (information, correction, deletion, etc.) can be found in the privacy policy of the Agency at https://sudillustration.com/data-protection/

 

§ 13

Final provisions

13.1 The place of performance and jurisdiction for all disputes between the Parties arising from the contractual relationship shall be Berlin, insofar as the client is a registered merchant, a legal entity under public law or a special fund under public law

13.2 Contractual relationship shall be governed by German law.