Terms and Conditions

General Terms and Conditions of COVER Communications GmbH

Subject matter of the contract

The General Terms and Conditions apply for all legal transactions of COVER Communications GmbH, hereinafter in short referred to as “agency”, with its contracting partners, hereinafter in short referred to as “customer”. Any conditions of the customer deviating from these terms and conditions, are only accepted by the agency after separate, written acknowledgement.
All agreements reached between the agency and the customer for execution of an order, must be done in writing. Amendments, supplements and ancillary agreements must be done in writing to become effective.
These terms and conditions also apply for future business relationships with the customer, even if they are not expressly agreed again.
The agency provides services in the field of consulting, campaign conception, implementation and reporting, as well as content creation in the area of influencer marketing. The detailed description of services to be rendered is derived from the order confirmations, briefings, project templates, the annexes thereof and the agency’s performance specifications.

Contract elements and amendments to the contract

In addition to the order confirmation and a possible project contract with the annexes, the briefing which must be handed over to the agency by the customer, forms the basis for the agency work and an integral part of the contract. If the briefing is communicated to the agency by the customer verbally or telephonically, the agency shall compile a re-briefing on the contents of the briefing, which will be handed to the customer within 5 working days after the verbal or telephonic notification. This re-briefing becomes a binding part of the contract, if the customer does not object to this re-briefing within 5 working days.
Any amendment and/or supplement to the contract and/or its components must be done in writing. Any resulting additional costs must be borne by the customer.
Events of force majeure entitle the agency to postpone the project commissioned by the customer for the time of the impediment and an appropriate starting period. There is no resulting claim for the customer against the agency. This only applies if important appointments and/or events for the customer cannot be met and/or do not occur as a result.

Copyright and utilisation rights

Upon full payment of the agreed fee for the contractually agreed term and scope, the customer acquires the utilisation rights for all work carried out by the agency in line with this order. Transfer of the utilisation rights applies insofar as a transfer is possible under the German legislation and applies to the agreed use in the territory of the Federal Republic of Germany. Utilisation beyond this territory requires a written agreement in line with this order or a separate written ancillary agreement. Utilisation rights for work, which has not been paid upon termination of the contract, remain with the agency, unless otherwise agreed. After termination of the contract, the utilisation rights remain with the agency, unless another form of utilisation right beyond the termination of the contract is expressly defined in a separate agency contract.
The services developed within the scope of the order are personal intellectual creations protected by the copyright law and remain with the agency. This provision shall also be considered as agreed if the required level of creation required by the copyright law, has not been attained.
The agency is entitled to sign and publish the self-developed advertisement items in an appropriate and customary manner and publish the assigned order for self-promotion. This signing and promotional use can be excluded by a corresponding separate agreement between the agency and the customer.
The work of the agency may not be altered by the customer or a third party commissioned by the customer, neither in the original nor in the reproduction. Any imitation, even of parts of the work, is not permitted. In case of violation, the agency is entitled to an additional fee from the customer of at least 2.5 times the originally agreed fee.
The transfer of utilisation rights granted to third parties and/or multiple uses are, insofar not specified in the first order, fee-based and require the agency’s consent.
The agency is entitled to information about the scope of use.

Remuneration

The remuneration agreed in the contract shall apply. Unless contractually agreed otherwise, payments are due within 14 days of invoicing without any deductions. If payment deadlines are exceeded, the agency is entitled to default interest of 10% above the basic interest rate pursuant to §1 of the Discount Rate Transition Act without further reminder. The right to assert further damage remains unaffected by this regulation.
If the provision of the agreed services extends over a longer period, the agency is entitled to charge the customer instalment payments for the already rendered partial services. The partial services must not be available in a usable form for the customer and may also be available as a mere working basis on part of the agency.
In the event of amendments or discontinuation of orders, work or the like by the costumer and/or if the conditions for provision of services changes, the agency shall be compensated for all costs incurred and shall be exempted from any liabilities to third parties.
If the customer withdraws from an order before the start of the project, the agency shall charge the customer the following percentages of the originally contractually agreed fee as a cancellation fee: up to four weeks prior to commencement of the order 20%, as from four weeks to two weeks prior to commencement of the order 25%, as from two weeks prior to commencement of the order 30%
All prices quoted in offers and orders and the resulting fees payable are exclusive of the legally valid value added tax to the applicable rate.

Additional services

Unforeseen additional expenses require mutual agreement and, if applicable, subsequent payment.

Secrecy obligation of the agency

The agency is obliged to treat all information obtained based on the order from the customer as strictly confidential for an unlimited period of time and must oblige both, its employees and third parties commissioned by it, to maintain absolute secrecy in the same manner.

Obligations of the customer

The customer shall provide the agency with all data and documents required for the implementation of the project free of charge. The agency shall handle all work documents carefully, protect them from third-party access, use them only for preparation of the respective order and return them to the customer after completion of the order.
In connection with a commissioned project, the customer shall only award contracts to other agencies and service providers after consultation and in agreement with the agency.

Agency Briefing

It is the Client’s responsibility to inform the Agency in writing about the campaign objectives, implementation requests, as well as visual language and content requirements of the influencers before the order is generated. If changes in the influencer set-up are requested due to incorrect information, this correction loop will be charged additionally. However, this will only be effected after prior notification to and approval by the Client.
Additional services such as the integration of tracking links, discount codes, highlight sections or possible buy-outs must be communicated before the order confirmation, because these are usually associated with additional costs. If this information only becomes known after the contract has been signed, the Agency reserves the right to add these services to the order subsequently and to invoice them accordingly.
The Client undertakes to complete the Agency’s briefing document in full and to submit it to COVER Communications. Conditions and information not transmitted in this briefing cannot be claimed retrospectively.
If the briefing is changed with the associated demand for a re-shooting or a re-creation of the content, the Agency reserves the right to charge an expense allowance of 50% – 100% of the total amount of the item in question. The amount of this compensation shall be at the discretion of the Agency and shall be in proportion to the time and financial expenditure.

Implementation of the content by influencers

The influencers implement all their contributions authentically and in the sense of their familiar language / visual language. Client wishes are taken into account as far as possible, but cannot be guaranteed. By signing the order, the Client confirms that he/she agrees with the known contents (texts and pictures) of the booked influencers.

Correction loop and release

Our services include a correction loop with release process. The correction loop applies both to the set-up and to the contents of the influencers. Points that have not emerged from the agency briefing can neither be claimed from the agency nor from the influencers at a later stage.
Decisions regarding the release must be communicated to the Agency immediately, but no later than one day before the publication date. In the event the release is delayed by the Client despite timely submission of the contents by the Agency, a delay of the posting date by up to 14 days shall be accepted.

Warranty and liability of the agency

The risk of legal admissibility of the measures developed and implemented by the agency is borne by the customer. This applies in the event that the actions and measures violate against the provisions of the competition law, the copyright law and the special advertising law. However, the agency is obliged to point out legal risks, insofar as it becomes aware of such in the course of its activities. The customer shall indemnify the agency from third-party claims if the agency has acted according to the customer’s express request, although it has notified the customer of its concerns regarding the admissibility of the measures. The reporting of such concern by the agency to the customer must be made in writing immediately after becoming known. If, for measures to carried out, the agency deems it necessary to have a competition law examination by a particularly knowledgeable person or institution, the customer shall bear the costs for this after consultation with the agency.
The agency shall in no case be liable for statements made on products or services of the customer in the advertising measures. The agency is further not liable for patent, copyright or trademark protection or registrability of the ideas, suggestions, proposals, concepts and designs provided in the scope of this order.
The agency is only liable for damages caused by intent or gross negligence on the part of the agency or its vicarious agents. The liability of the agency is limited to the one-off income of the agency resulting from the respective order. The liability of the agency for consequential damages from the legal basis of the positive violation of the contract is excluded if and to the extent that this liability of the agency does not result from a violation of the obligations essential for the fulfilment of the contractual purpose.

Collecting Societies

The customer is informed that in case the order is placed in the artistic, conceptional or advertising consultancy sector, in particular, however, when working with influencers, a levy is payable to the artists’ social insurance fund. This levy is paid by the agency and charged to the customer accordingly.

The customer may not deduct this levy from the agency invoice.

Third-party benefits

Freelancers, third parties and influencers engaged by the agency are vicarious agents or executing aides. The customer undertakes to not commission these employees appointed by the agency during the 12 months following the conclusion of the order neither directly nor indirectly with projects without the agency’s cooperation.

Work documents and electronic data

All working documents, electronic data and records compiled by the agency in the scope of the order processing, shall remain with the agency. The customer cannot demand the handing out of these documents. With the payment of the agreed fee, the agency owes the agreed service, but not the intermediate steps leading to this result in form of analyses, evaluations, designs, influencer set-ups and campaign implementation.

Media planning and media implementation

The agency shall provide commissioned projects in the area of influencer campaigns to the best of its knowledge and belief on the basis of the influencer documents accessible to it and generally accessible data, as well as their empirical values. The agency does not owe the customer a certain success through these services.
All discounts, special conditions and rebates as defined by the customer are taken into account in the price calculation.
In case of extensive influencer services, the agency is entitled, upon agreement, to charge the customer a certain proportion of the external costs and to book the corresponding influencer after receipt of payment. The agency is not liable for possible non-compliance with a publication date due to a late receipt of payment. This shall not give rise to a damage claim of the customer against the agency.

Term of contract, notice periods

The contract shall enter into force upon signing. It shall be concluded for the contract term specified in the contract or order. If the contract is concluded for an indefinite period, it can be terminated at the end of the month by either party with a three months’ notice period. The right for termination without notice for good cause remains unaffected by this regulation. The termination must be done in writing.

Disputes

If a dispute arises in the course of or after completion of an order regarding the commissioned project, an out-of-court mediation procedure must be conducted prior to initiating legal procedures. In case of disputes regarding the quality assessment or amount of the remuneration, external assessment reports are drafted in order to reach an out-of-court settlement if possible. The costs for this are shared between the customers and the agency.

Final provisions

The customer is not entitled to assign claims from this contract.
Offsetting or assertion of a retention right by the customer is only permissible with recognised or legally established counter-claims.
The legislation of the Federal Republic of Germany applies; the place of performance and jurisdiction is Landsberg am Lech.
If one provision of this general terms and condition is invalid wholly or partially, or loses its validity at a later stage, the validity of the remaining provisions shall remain unaffected by this. In place of the invalid provision, another appropriate provision should apply by way of contract adjustment, which comes economically closest to the intention of the contracting parties, if they would have been aware of the invalidity of the provision.

Landsberg, 14/02/2019