Updated: 17. February 2023
1 . GTC scope of application
1.1 These general terms and conditions (“GTC”) shall apply to all declarations of intent, contracts, and legal or legal-like transactions of schoesslers GmbH, Leipziger Str. 126, 10117 Berlin (hereinafter “schoesslers”) with their customers (hereinafter “CUSTOMER”).
1.2 These GTC solely target entrepreneurs and are thus solely applicable to entrepreneurs. Entrepreneurs are any natural or legal entity or judicable partnership that acts within the scope of its commercial or self-employed work when entering into a legal agreement.
1.3 Contrasting or deviating conditions to these GTC are not accepted unless an express written agreement with schoesslers is made. These GTC shall also apply if schoesslers unconditionally provides services in knowledge of contrasting conditions or customer conditions deviating from these conditions.
1.4 schoesslers reserves the right to unilaterally alter the GTC at any point. Changes to the GTC shall be disclosed to the customer in writing or electronically (e.g. via email). The customer may object to the updated version of the GTC within 2 weeks after said disclosure. Without objection, changes shall be deemed accepted. If the customer objects to changes to the GTC, schoesslers shall have the right to terminate the contractual relationship with immediate effect.
1.5 These GTC are valid in their most recent updated form at the respective point in time of the legal transaction being concluded or the contractual-like relationship being entered. Unless agreed otherwise, they shall also apply to any future legal transactions or contractual-like relationships, even if not expressly agreed upon again. The currently valid version of these GTC can be found at: https://legal.vogel.de/en/legal-cockpit-2/schoesslers/gtc/
2. Contractual relationships and contents
2.1 schoesslers is a communications services agency The customer can commission from schoesslers in particular services regarding the strategic monitoring and operational support of PR and communications activities. The services ordered in detail result from the order confirmation and are subject to these GTC.
2.2 The services owed by schoesslers are hereinafter jointly referred to as “subject of performance”. schoesslers does not guarantee any specific economic success.
2.3 schoesslers is entitled, after prior deliberations with the CUSTOMER, to perform the services itself, to use competent third parties as proxies for the performance of services under the contract, and/or to substitute such services (hereinafter “external services”).
2.4 The contractual agreements between the parties correlate as follows:
- Order confirmation including potential attachments,
- these GTC, respective up to date version,
- legal provisions.
In the event of any contradictions, the contractual bases shall apply in the order listed.
3. Conclusion of contract
Unless otherwise agreed in writing, any offers by schoesslers are binding for the period listed in the offer. The parties enter into a contract upon the customer signing and transmitting the offer (“order confirmation”)within the binding period. Oral agreements or commitments require confirmation by schoesslers in written form to be effective.
4. Cooperation duties and approvals, acceptances, releases
4.1 The customer shall grant approvals, acceptances, and releases detailed in the commission in due time to ensure that workflow at schoesslers and their suppliers and thus the jointly fixed objectives are untouched. Approvals, acceptances, and releases which are not provided or are provided late may cause additional costs which shall be borne by the customer. Approvals, acceptances, and releases are deemed granted if schoesslers does not receive a statement from the customer within a period of 7 days after schoesslers has sent the respective subject of performance to the customer. Acceptance shall be deemed granted at the latest upon use or payment of the remuneration.
4.2 The information and materials provided by the customer serve as an essential basis for the services of schoesslers. The customer guarantees schoesslers the correctness of the information and is liable for any legal consequences of incorrect information provided. The customer shall ensure that schoesslers obtains the rights required to use said materials and shall indemnify schoesslers against any claims by third parties in respect to the respective materials.
4.3 If the customer fails to comply with their duty to cooperate, schoesslers shall request the customer to do so within a reasonable period of time (text form, e.g. e-mail suffices). If the customer does not comply with their information obligation despite a given deadline, schoesslers shall be entitled, at its own discretion, either to provide its service on the basis of the information already available or to rescind from the contract. Additionally, schoesslers may also claim compensation for any expenses incurred by schoesslers within the scope of the contractual relationship which were in vain or were additionally incurred as a result of the breach of duty by the customer. Further claims for damages remain unaffected.
4.4 If a concept or other service has to be modified due to the correction of previously provided information or as a result of the subsequent filing of information, this shall always be deemed to be an extension of the scope of services and shall be remunerated subsequently.
4.5 Each party shall designate to the other party a contact person authorized to give and receive information and declarations of intent, and who also assumes full responsibility for the orderly performance of the contractual services.
5. Maturity of the subject of performance
5.1 The maturity date of schoesslers’ services shall be based on the joint agreements between schoesslers and the customer who shall agree on a schedule and adjust it if necessary.
5.2 The event of delays in performance for which schoesslers is responsible, the duration of the grace period to be legally set by the customer shall be two weeks, given the nature of the services to be provided by schoesslers allowing it, and shall begin upon receipt of the written notice of grace by schoesslers.
6. Remuneration and prices / price changes/ external services
6.1 The prices stated in the order confirmation shall be deemed agreed between the parties, plus the VAT rate applicable at the time of performance.
6.2 In the case of agreed regular services, i.e. term projects, a monthly lump-sum fee (hereinafter “retainer”) shall be agreed.
6.3 Services that exceed the scope of the agreed commission will be agreed upon as additional single orders based on the commission. For this, schoesslers shall make an estimate and an offer on the basis of the commission. A single order is concluded in accordance with the provision in section 2 of these GTC. In case no individual project order exists, additional services shall be charged based on the respective offer.
6.4 For project-based services without continuous commission of schoesslers, the remuneration listed in the order confirmation shall apply. Services not listed in the order confirmation are charged as additional services based on another offer.
6.5 Unless the parties agree otherwise, the agreed remuneration includes potential costs for media monitoring and recordings of clippings by third-party service providers up to 100.00 € per month. Any costs for media monitoring and clippings exceeding this amount are to be covered by the CUSTOMER upon monthly billing.
6.6 Invoicing for the services provided by schoesslers, as well as for the costs incurred through the commissioning of third parties and for expenses, shall be in subsequent monthly form or, based on a separate written agreement, after the completion of a project.
6.7 Unless otherwise agreed, invoices shall be due without deduction within thirty (30) calendar days of complete delivery and performance (including any agreed acceptance), and invoicing.
6.8 Travel expenses incurred by schoesslers shall be reimbursed by the CUSTOMER based on the CUSTOMER’s approval and on receipts. Travel expenses include in particular the costs for transportation (airplane, cab, rental car or, train), and for accommodation. For flights, the costs are only reimbursable for the use of economy class, for train travel only for second class, and for accommodation only for a four-star hotel, unless the employee is accommodated in a hotel of the customer.
6.9 Third-party costs resulting from production work (e.g. photography, graphics, print, typesetting, printing plate) and not already included in the respective order shall be charged with an agency-standard 15% premium for specialist department services (e.g. production) based on prior agreement. This premium also covers handling costs for separate commissions to take over the payment service.
6.10 Expenses (e.g. courier services) incurred by schoesslers when executing the order shall be charged given receipts. The common business needs of postage and telephone charges are covered by the base remuneration.
7. Term and termination of contracts and rescission
7.1 The contract term specified in the commission and the notice periods specified therein shall apply. There shall be no ordinary right of termination on the part of the customer in the case of a fixed-term commission. In the absence of a termination provision in the case of open-ended commissions, an ordinary notice period of three (3) months, in each case by the end of the month, shall be deemed agreed between the parties. Notice of termination must be in writing.
7.2 The right to extraordinary termination remains unaffected. Serious grounds for termination exist in particular if (i) one party breaches essential obligations or repeatedly breaches non-essential obligations arising from the contractual relationship and does not remedy the breach within a reasonable period of time after being requested to do so by the other party, or (ii) one party cannot reasonably be expected to adhere to the contract as a result of force majeure, or (iii) insolvency proceedings have been instituted against the assets of the other party, or such proceedings are imminent.
7.3 If a commission is extraordinarily terminated by the customer after the start of its execution or if the customer withdraws from the commission for reasons for which schoesslers is not responsible, schoesslers shall be entitled to invoice the services delivered up to that point in accordance with the commission and to demand reimbursement of all costs incurred and to demand that the customer indemnify and hold schoesslers harmless with regard to any claims of third parties, in particular contractors. The customer is entitled to prove that schoesslers has not incurred any damages or only significantly lower damages than the aforementioned cancellation fees.
7.5 schoesslers reserves the right to assert further claims for damages.
8. Rights of use, Property
8.1 In the event that a service obtains copyright protection through processing by schoesslers, schoesslers shall transfer to the customer a non-exclusive right of use unlimited in terms of space, content, and time. This right of use includes in particular the right to reproduce, distribute, and make publicly available the work in whole or in part. The right to modify and transfer to third parties is included. Any differing granting of rights of use requires an individual agreement in writing.
8.2 The granting of any rights of use shall take place upon acceptance and, subject to a condition precedent, upon full payment of the agreed remuneration.
8.3 schoesslers does not guarantee the subject matter of the service being free of third-party property rights. This applies in particular to the case that schoesslers creates or uses designations, texts, pictures, videos, names, or other contents subject to legal protection during the creation of the subject of performance. If the CUSTOMER is held liable for the use of the subject matter of the service provided by schoesslers due to an infringement of industrial property rights, and/or copyrights of third parties, the CUSTOMER itself is responsible for responding.
8.4 Rights to drafts unexecuted or rejected by the CUSTOMER remain with schoesslers. This also applies to schoesslers’ services that are not subject to special statutory rights, in particular copyright.
8.5 Any working materials, data and records, drafts and production data created for providing their services, shall remain in ownership and possession of schoesslers. Surrendering said documents and data is not part of the service provision and cannot be demanded by the CUSTOMER.
8.6 Digital storage of print items is not allowed without the rights owner’s consent. This includes digitalization via scanning, photocopying, photographing, etc., and distribution. The exception rule in § 49, UrhG (German Act on Copyright and Related Rights), allows for creation of digital press reviews under certain conditions. The CUSTOMER requires a corresponding license to legally use these which can be granted by schoesslers given a respective agreement and payment of a fee. Usage period and fees are based on the respective GTC of the media providers or service providers (e.g. Landau Medien). For this, the CUSTOMER shall oblige to respective provisions regarding distribution and storage. Regarding this, the CUSTOMER shall keep schoesslers indemnified from any third-party rights.
9.1 schoesslers does not guarantee any success of your measures.
9.2 If not further regulated in the other provisions, schoesslers shall be liable for damages due to breach of contractual or non-contractual obligations only in case of intent and gross negligence. The limitation of liability also applies to legal representatives, executives, and proxies. schoesslers shall only be liable for slight negligence in case of breach of an essential contractual obligation (cardinal obligation), and in case of damage resulting from injury to life, body, or health. In the event of a slightly negligent breach of cardinal obligations, however, the obligation to pay compensation shall be limited to the foreseeable damage typical for the contract. Cardinal obligations are obligations which are essential to be fulfilled for the proper performance of this contract and on the observance of which the other party may regularly rely.
9.3 schoesslers shall not be liable for the factual information about the CUSTOMER’s products contained in the subject matter of the performance or the protectability under copyright, design, trademark, or brand law of the ideas, proposals, concepts, drafts, etc. delivered within the scope of the commission, unless this protectability was expressly agreed in writing as part of the contract.
9.4 The liability for breaches of duty, which occurred neither intentionally nor grossly negligent, is limited to the sum of the contractual fees, which the CUSTOMER has paid to schoesslers for the period of two years prior to the occurrence of the damaging event within the scope of the specific contractual relationship. This does not apply to liability for injury to life, body, and health.
9.5 schoesslers is liable to entrepreneurs only in case of intent and gross negligence for atypical/unforeseeable indirect damages and consequential damages, and for loss of profit. In this case, schoesslers’ liability is limited to the contract-typical foreseeable damage, at most to the sum of the contractual fees which the CUSTOMER has paid to schoesslers for the period of two years prior to the occurrence of the damaging event within the scope of the specific contractual relationship. This does not apply to liability for injury to life, body, and health.
10. Retention, archiving, and release of data and documents
10.1 All reports, print documents, films, and illustrations created by schoesslers for the CUSTOMER shall be properly stored by schoesslers without separate remuneration for a period of one year, beginning with the termination of the respective communication measure, and shall be handed over during this period at the request of the CUSTOMER. After expiration of the retention period or in the event of termination of the contract before expiration of this period, the documents shall be handed over to the CUSTOMER at the CUSTOMER’s written request, otherwise they shall be destroyed. The aforementioned documents may also be stored in digital form.
10.2 The CUSTOMER shall bear the costs of the compilation of data, shipment, packaging, storage beyond the agreed period and, if applicable, the costs of removal and destruction as well as the activities and insurance in connection therewith.
10.3 schoesslers may immediately destroy documents that are no longer required, such as manuscripts, sketches, drafts of unrealized advertising measures, or similar documents.
schoesslers as well as its affiliated companies within the meaning of §§ 15 of the German Stock Corporation Act (AktG) are permitted to use work results or excerpts from the commissions for the purpose of self-promotion – even after the end of the contract period – free of charge.
12. Confidentiality and data protection
12.1 schoesslers will treat the transmitted subjects of performance as confidentially as state-of-the-art technology allows; however, for electronic data transmission, schoesslers cannot guarantee 100% confidentiality.
12.2 The parties shall treat as confidential all documents, information, and data they receive for the realization of the contractual relationship, and which are designated to them as confidential and shall use them only for the realization of the respective commission. In particular, commissions concluded between the parties shall also be deemed confidential. The parties shall impose a corresponding obligation on their employees and third parties involved in the services, in particular subcontractors. Independent of the reason for a potential termination, these obligations shall remain in effect even after the termination of the contractual relationship for two years from the end of the contract.
12.3 The CUSTOMER authorizes schoesslers to process any data received as part of the business relationship in accordance with applicable data protection regulations, given the processing requires explicit authorization meaning no other legal basis for the processing exists. Schoesslers declares that all staff and proxies have been sworn to secrecy and compliance with data protection, and that schoesslers have taken all required technical and organizational measures to assure execution of applicable data protection regulations.
13. Cession and offset
The CUSTOMER may only transfer the rights and obligations arising from this contract given express written consent of schoesslers. The CUSTOMER may only offset claims of schoesslers against undisputed or legally established claims.
14. Force majeure
Force majeure or other unforeseeable events for which schoesslers is not responsible and which make it substantially more difficult or temporarily impossible to provide the contractual services, including pandemic, strike, lockout, and regulatory actions, shall allow schoesslers to postpone the performance of their services for the duration of the hindrance plus a reasonable start-up period. schoesslers shall inform the CUSTOMER immediately about the occurrence of such hindrances to performance. If the delays resulting from an event in accordance with sentence 1 above exceed the period of six weeks, and if an adjustment of the contract is not possible and not reasonable for either party, both parties are released from their performance obligations agreed upon in the order confirmation. Services delivered by schoesslers are to be remunerated by the CUSTOMER according to their share. Damage claims are excluded in such a case.
15.1 Unless otherwise agreed in the respective order confirmation or in these GTC, all agreements between schoesslers and the CUSTOMER regarding contractually owed services, and all modalities of the performance of the services shall require text form.
15.2 For all other legally relevant declarations and notifications of the CUSTOMER towards schoesslers regarding the commission (e.g. deadline, reminder, withdrawal) the requirement of the written form shall apply. Legal formalities and further proofs, in particular in case of doubts about the legitimacy of the declaring party, remain unaffected by this.
16. Applicable law, place of jurisdiction, severability clause
16.1 Solely the law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.
16.2 Place of jurisdiction for any arising legal disputes between schoesslers and the CUSTOMER is Berlin.
16.3 Changes and additions, and termination of the contractual relationship with schoesslers must be in writing to be effective unless another form has been agreed upon in this contract. This also applies to any alteration of this written form provision.
16.4 Should one or more provisions of these GTC be or become invalid or void, the validity of the remaining provisions of these GTC shall remain unaffected. This applies accordingly to the filling of a gap in the contract. The invalidity of individual provisions of these GTC shall not affect the validity of the remainder of the commission.