Terms and Conditions

§1. Subject Matter and Scope

1. The following General Terms and Conditions (GTC) apply to all legal transactions of Koch Essen Kommunikation + Design GmbH, hereinafter referred to as “KE,” with its contractual partners, hereinafter referred to in short as “client,” in particular for services and works in the field of advertising. The type of services and works in detail results from the concept developed by KE, the offer, action proposals, or individual orders.
2. These GTC are an integral part of every concluded contract and also apply to future business relationships without the need for their explicit re-incorporation. Deviating terms and conditions of the client, as well as deviations from these GTC, are only permissible if expressly and in writing recognized by KE. This also applies if the client's business and/or delivery terms have not been expressly objected to.

§2. Loyalty Obligation

1. KE undertakes to advise the client objectively and aligned with its objectives. Unless otherwise agreed, the selection of third-party companies to be involved will be made with a balanced consideration of cost-effectiveness and optimal success in the client’s interest.

§3. Scope of Services and Remuneration

1. The scope of individual services and the remuneration owed are determined by KE’s service description. All (individual or total) calculations within service descriptions or offers, unless explicitly stated otherwise, represent estimates of the work effort required for a requested service. KE prepares this estimate based on the information provided by the client, the client's expectations, and KE’s know-how in implementing corresponding projects. These are model outlines for a project with defined project steps/phases in an example project. Subsequent information, details, or change requests generally require approval by KE and/or the client or an adjustment of the service description. Efforts are always billed based on actual time tracking.
2. Total prices stated in service descriptions do not imply that the project can be completed at the stated price and within the stated time unless such a binding commitment is explicitly given in the offer or service description. Projects may involve significantly more or less effort. Changes may result from new requirements, identified problems, deeper work, or simple requests for changes regarding function or design.
3. If no remuneration is determined for a service typically expected to be provided against payment, the KE price lists valid at the time of commissioning apply.
4. Additional effort by KE, in particular due to changes and additions requested by the client, will be charged as additional effort according to the agreed hourly rates or, alternatively, according to the KE price lists valid at the time of commissioning.
5. The client bears the damage resulting from the need to repeat or delay work due to incorrect, subsequently corrected, or incomplete information provided by the client, provided the client is responsible for the damage.
6. KE may have the services owed performed by third parties as subcontractors. KE is generally authorized to involve third-party companies and subcontractors, provided that KE observes confidentiality, data protection, and project-specific requirements of the client. The client may only reject such a third party for an important reason. Deviations from this principle must be requested by the client and expressly agreed.
7. KE’s services are generally subject to contract law for services. In this respect, KE owes the effort to achieve a result. Contractual provisions for work contracts only apply with respect to specifically defined milestones and content concretely agreed between the parties. However, KE also has the right for service contract services to request interim approvals if and to the extent such approvals are necessary for KE to sufficiently ensure the fulfillment of further performance obligations. The client must respond to such requests without delay and indicate whether the service so far corresponds to their expectations. Unlike in work contracts, the client does not have warranty rights here; KE will revise or reconsider the service based on the agreed budget, with estimated work efforts increasing by the factor corresponding to the unapproved work. After interim approval, the condition of the prior and interim services to which the statement relates is agreed.
8. If the client terminates the contract after the order and before completion of the project, the client is obliged to pay for already performed partial services plus a base amount of 20% of the originally expected fee.
9. KE is further indemnified against any obligations to third parties arising from the order.
10. KE is only obliged to review the legal admissibility of advertising (especially competition, trademark, food, and pharmaceutical law) if this is expressly part of the order. If the client commissions KE for these services, the client bears the resulting fees and costs of KE and third parties (lawyers, authorities, etc.) at market rates unless otherwise agreed.
11. KE is not obliged to verify the accuracy of factual statements in advertising about the client’s products and services that were prepared or approved by the client.
12. KE’s services are also considered performed in accordance with the contract if they are not registrable or protectable (e.g., patents, trademarks, copyrights), unless otherwise expressly agreed. KE is not obliged but entitled to make its services subject to intellectual property filings.
13. For review and approval, KE submits all drafts to the client before publication. By approving and/or using the works, the client assumes responsibility for the accuracy and contractual compliance of content, images, audio, and text.

§4. Presentations and Meetings

1. If no order is placed after a presentation, all services, in particular presentation materials and contained drafts, works, ideas, etc., remain the property of KE. The client is not entitled to use this material in any form. Forwarding, publishing, reproducing, distributing, or otherwise using the presentation materials and offers by the client obliges the client to pay a fee corresponding to the service. This is based on KE’s offer or, if no offer exists, on market conditions.
2. At the client’s request, KE will provide meeting minutes within three working days after each meeting. These minutes serve as a legally binding working basis for further project work, unless objected to in writing within a further three working days.

§5. Offers and Estimates

1. KE’s offers are non-binding and without obligation. Unless expressly agreed otherwise in writing, billing is based on KE’s hourly rates for actual effort. Estimates (KVA) or calculations of any kind are non-binding. Exceeding an estimate or preliminary calculation by more than 15% will be communicated to the client.
2. KE will inform the client of any changes to project requirements and evolving plans as early as possible in accordance with the GTC and will initiate the necessary clarifications. Based on KE’s experience, client interests may sometimes require rapid changes without prior further contractual clarifications. Therefore, KE reserves the right, notwithstanding paragraph 1, to deviate from up to 20% of the commissioned work without having to undergo formal change and budget approval procedures, if such budget overruns result from additions or deviations from the original project requested by the client. The principle still applies that services that must necessarily be compensated can be billed at the agreed rate.
3. KE’s fee claims are valid even if no estimate was provided before the service. If an estimate was expressly agreed before order commencement, it is deemed approved after seven working days unless the client explicitly and in writing objects.
4. Third-party and incidental costs (e.g., photographers, stylists, designers, printers, postage, telephone, fax, image rights, color copies, proofs, data media, courier, travel expenses) are separately reimbursable upon proof unless otherwise agreed.
5. KE may contract necessary third-party services in the client’s name and on their account. KE supervises production and verifies service and invoices of service providers. For project coordination, KE charges a 15% agency fee on the net value of third-party invoices, payable with invoices of the service providers. If KE exceptionally issues service/production orders in its own name and on its own account, all third-party costs are passed on to the client.
6. KE may request immediate advance payments for production orders with a projected value of €5,000 plus VAT up to the gross order value.

§6. Client’s Cooperation Obligations

1. The client must provide all requirements, documents, materials, data, and information (client content) to be considered by KE for service delivery—without special request or at least within a reasonable period upon request. This reflects the knowledge available to KE when preparing the offer.
2. The client is also obligated, even after the conclusion of the contract, to assist KE in fulfilling the contractually owed services, in particular by providing client content, qualified personnel, communication resources in a timely manner, as well as by granting access to interfaces and promptly providing approvals, authorizations, and acceptances. The same applies to the provision of passwords, access credentials, server addresses, etc., insofar as these are relevant to KE’s services. This requirement applies especially when KE requests such content or actions, but also whenever the client can reasonably assume that they are necessary for the execution of the contract.
3. This also applies to information on marketing goals, markets, products, and other strategies if materially relevant for KE’s service.
4. Failure to timely or fully fulfill these obligations may extend agreed deadlines. Newly provided content impacts calculation of time, effort, and feasibility, allowing KE to adjust offered services.
5. The client is obligated to review every message sent by KE and to fulfill any resulting obligations to cooperate, such as reviewing, accepting, or approving services, providing client content, or making decisions on open issues, as promptly as possible; that is, within the timeframe set by KE or, if the client considers this period to be too short, immediately within a period communicated by the client to KE.
6. Client content provided to KE may be used by KE without restriction for the provision of services, unless the client explicitly indicates any limitations (legal or factual) or a review obligation for KE has been agreed upon between the parties. Should KE be held liable due to the provided client content or its use by third parties, or should KE be able to demonstrate additional effort resulting from identified errors in the provided client content, the client shall indemnify KE against such claims upon first request.
7. The client must designate one or more project managers authorized to approve or request project changes. KE is not obliged to follow requests from non-responsible staff but will seek clarification between project managers.
8. KE is indemnified against obligations to third parties arising from the order.
9. Cooperation is always at the client’s expense and does not constitute a deductible service to KE.

§7. Deadlines and Delivery Times

1. Deadlines and delivery times are generally non-binding guidelines unless expressly agreed in writing as fixed.
2. KE is not liable for delays caused by the client failing to fulfill cooperation obligations. If the client is in default or culpably violates cooperation obligations, KE may claim resulting damages including extra expenses. Further claims remain reserved.

§8. Acceptance

1. Insofar as specific requirements between the parties are agreed upon in the sense of a defined success to be achieved and must be observed by KE, and insofar as they constitute a separable part of the service, these may constitute contractual work services (werkvertragliche Leistungen) or services similar to contractual work services.
2. Insofar as and to the extent that the law governing contracts for work and services applies to a (partial) service provided by KE, the provision of drafts as well as the notification of completion of parts of the owed service constitutes a request for acceptance.
3. KE is entitled to request from the client one or more acceptances of separable parts of the service to be provided (interim acceptance) within a project. This is particularly possible for agreed milestones.
4. The client is obliged to accept services that have been provided “in substantial conformity with the contract.” Acceptance is deemed to have occurred if the client does not refuse acceptance within a reasonable period set by KE, stating at least one defect, or if the client pays the contractually agreed fee without reservation, unless payment was made prior to the request for acceptance. In the case of milestones, use of the service is also deemed to constitute acceptance.
5. If the client does not consider services provided to be in substantial conformity with the contract, they must report objections without culpable delay, in a comprehensible manner and in text form.
6. If the client raises objections in due time, KE is obligated to remedy the defects. At KE’s discretion, this may be done either by rectification or, in the case of identified errors, by a cost-neutral replanning for the client. However, insofar as replanning is required due to client specifications or partial responsibility of the client is demonstrated, KE shall only bear or assume a share of the costs corresponding to KE’s degree of fault.
7. Rectifications are to be made in accordance with the client’s specifications if the client’s objection is sufficiently specific that KE can correct the service without further inquiry to the client and these specifications are, in KE’s discretion, feasible and likely to be successful. If the objection is not sufficiently specific, or if, in KE’s discretion, another solution is preferable, KE shall only be obliged to carry out an industry-standard rectification at its own discretion. KE may refuse rectification at any time if it can only be carried out at disproportionate cost; in such case, the client is entitled, at its option, to reduce the fee or to withdraw from the contract.
8. Upon acceptance, the condition of the preliminary and interim results to which the declaration refers is deemed to be agreed upon.
9. If no timely acceptance or justified refusal thereof takes place, the service is likewise deemed accepted, and KE may carry out subsequent services in the good-faith belief that the service conforms to the contract. Later changes in this position by the client may result in subsequent services becoming useless. In such case, however, KE retains the right to remuneration for the subsequent services performed in good faith. Likewise, the period between the client’s necessary action and the client’s actual action shall be added to any agreed deadlines or timeframes as well as agreed budgets.

§9. Invoicing and Set-Off

1. KE is entitled to invoice the client for installment payments for partial services already rendered, provided that these partial services are available to the client in a usable form.
2. All prices are exclusive of statutory VAT. Invoices are payable immediately upon receipt without deduction. If the invoice is not settled within 14 days of receipt, interest of up to 5% above the base interest rate will be charged. The 14-day payment term does not apply if individual payment terms have been agreed with the client in writing.
3. Offsetting with counterclaims or the assertion of a right of retention is only permissible if the client’s claims are undisputed or have been finally adjudicated.

§10. Copyright, Usage, and Exploitation Rights

1. Upon full payment of the agreed fee, the client acquires the usage rights for all works produced by KE within the scope of this order, for the contractually agreed duration and scope. This transfer of usage rights applies, to the extent permitted under German law, for the agreed usage within the territory of the Federal Republic of Germany. Usage extending beyond this territory requires a written agreement within the framework of the order or a separate written ancillary agreement. Usage rights for works not yet paid for at the termination of the contract remain with KE, unless otherwise agreed.
2. All drafts, drawings, printing templates, concepts, ideas, etc. created by KE are protected works under § 2 of the German Copyright Act (UrhG), even if they do not meet the requirements of § 2 UrhG. Therefore, all services provided by KE may not be used, processed, or modified without KE’s consent. Any imitation, including partial imitation of drafts, drawings, printing templates, concepts, ideas, etc., is prohibited. In case of infringement, the client is obligated to pay KE an immediately due contractual penalty amounting to 2.5 times the originally agreed fee. KE has the right to information regarding the extent of use of its creations.
3. In the event of a transfer of rights, the scope of such transfer with respect to territorial, temporal, and substantive limitations is determined exclusively by the contractual agreements or the purpose of the contract; § 31(5) UrhG applies accordingly. Rights are transferred to the client only upon full payment of the total order. If the subject of the order was only the design of an advertising medium, the client does not acquire the right to use the respective design for advertising purposes. The transfer of granted usage rights to third parties and/or multiple uses are, unless regulated in the original order, subject to additional fees and require KE’s consent.
4. KE is entitled to sign its works in a customary industry manner and must be named upon publication. Orders placed may be published by KE for self-promotion.

§11. Liability and Shipping

1. KE is liable to the client for damages only in cases of intent or gross negligence. This does not apply to damages arising from injury to body, life, or health, and in cases of breach of essential contractual obligations.
2. Liability for warranty claims is limited to 12 months from delivery. The reduction of the limitation period does not apply insofar as a defect was fraudulently concealed by KE. Any further liability claim expires one year after the execution of the order. Excluded from this are warranty claims of consumers as well as claims for damages arising from injury to life, body, and health and/or claims for damages due to grossly negligent or intentional acts by KE. In such cases, statutory provisions apply.
3. In cases of slight negligence, KE and its vicarious agents are liable only if an essential contractual obligation is breached or in cases of delay or impossibility.
4. In cases of liability due to slight negligence, KE’s liability as well as that of its vicarious agents for breaches of duty, tort claims, and claims for reimbursement of futile expenses is limited to such damages as are foreseeable or typical.
5. Liability under the Product Liability Act as well as for injury to life, body, or health remains unaffected by the limitation of liability.
6. The above limitations of liability and the shortened warranty period do not apply in cases of absence of warranted characteristics, fraud, or injury to life, body, or health.
7. Due to unintentional errors and printing or transmission mistakes that entitle KE to rescind, the client may not claim damages as a result of such rescission.
8. The examination of legal issues, particularly in the fields of copyright, competition, or trademark law, is not the responsibility of KE. KE is not liable for the legal reliability of the content and design of the work results. However, KE is obligated to point out legal risks if they become known to it in the course of its work. If KE considers a legal review of measures expressly requested by the client necessary, the costs incurred shall be borne by the client. KE is also not liable for factual statements contained in the created content regarding the client’s products or services.
9. If KE is held liable by third parties due to the design or content of the work results, the client shall indemnify KE from such liability.
10. Shipment of documents is at the client’s own risk. This also applies if shipment takes place within the same locality or is carried out by employees or vehicles of KE. KE is entitled, but not obligated, to insure deliveries in the name and at the expense of the client.
11. If KE is prevented from fulfilling its contractual obligations or from meeting agreed deadlines due to third-party influence, force majeure, or other reasons beyond its control, KE’s claims for remuneration remain unaffected. Furthermore, KE is not liable for any resulting damages of any kind. In addition, KE must be granted a reasonable start-up period to resume work.
12. KE is under no circumstances liable for the economically desired success of a measure implemented by KE that the client clearly or implicitly intended to pursue with the commissioned service, unless such agreement was expressly made between the parties.

§12. Liability for Content on Client Websites / Liability under the DSA / DDG

1. The client is responsible for the content on their websites. KE does not review this content and does not provide legal advice on the content, but will gladly point out obviously unlawful or incorrect content to the client.
2. For content created by KE and used on client websites, the provisions under section X of these GTC apply.
3. Insofar as KE is, in exceptional cases, liable due to the provision of access or hosting of a client website under the Digital Services Act (DSA) or the German Digital Services Act (DDG), the following applies:
   1. The moderation and restriction of user and client content is carried out on the common basis of content moderation for hosting services and takes into account the statutory model of liability for unlawful third-party content upon knowledge (“notice and take down”) pursuant to Art. 6(1) DSA.
   2. If KE receives a notification or becomes aware of unlawful content, KE will inform the client and request the client to remove the content immediately and provide a statement or counterstatement. For this purpose, a form is provided to the client and an appropriate deadline in compliance with legal requirements is set. The client is informed either automatically or manually by a member of our team. Upon expiry of the deadline, the client will receive an automatic reminder if they have not submitted a statement or counterstatement via the form.
   3. We reserve the right to block the IP address through which the reported content is accessible after the deadline and after manual review by a member of our team, until the issue has been resolved by the client or a statement or counterstatement has been submitted by the client (legal basis: Art. 6(1) DSA). The client may, at any time, submit an unblocking request via their client account and provide a statement or counterstatement.
   4. We decide based on the information available to us and the objective legal situation under EU and German law. If you are adversely affected by our decision, you have the right to a legal remedy. A legal remedy may be exercised in particular by direct objection to the decision and must be addressed to dsa@koch-essen.de or our address (see https://koch-essen.de/impressum/). We will review the merits of the legal remedy without undue delay, at the latest within 2 weeks, and will either issue a reasoned new decision or explain the rejection of the requested new decision.
   5. If, after our review, our assessment remains unchanged and this imposes a legal burden on you, particularly because, for example, content was (not) blocked or a block was (not) maintained, you have recourse to the ordinary courts. For this purpose, you may – subject to other possible avenues such as out-of-court dispute resolution – bring an action before a civil court in an EU Member State. The general statutory limitation periods apply.
   6. To maintain the integrity of our network, we also cooperate with various blacklists. If a client IP address is reported via such lists, an abuse notification will be sent to the client as described above. To detect netscans and DDoS attacks, we automatically monitor metadata of transmitted packets to determine whether they are suitable, due to their nature, for enabling communication. If this suitability is absent, an abuse notification will be sent to the client as described above.
   7. Further information can be found at https://koch-essen.de/dsa-meldeformular/.

§13. Termination

1. KE and the client may terminate the contract at any time in writing in the ordinary course.
2. Both parties have the right to terminate the contract for cause. Prior to such termination, the contracting parties shall, insofar as reasonably possible, grant each other adequate opportunity to remedy the reason for termination.
3. If the contract is terminated for a reason attributable to the client, or if the client terminates the contract for a reason not attributable to either party (or without reason), KE is entitled to the agreed remuneration. Furthermore, the client shall indemnify KE from any obligations to third parties arising from the order. However, KE must offset what KE has saved in expenses as a result of the premature termination of the order. The same applies if the service has become impossible for a reason not attributable to KE. In case of doubt: Compensation amounts to 50% of the agreed amount for fixed projects or project phases, in addition to invoices for work performed up to that point. The (possibly provisional) results of the work performed up to that point will then be made available to the client subject to reservation.
4. For lump sums pursuant to para. 3, the limitation applies that they must be adjusted if the lump sum exceeds the damage or the loss in value that could normally be expected in the ordinary course of events, or if the client proves that no damage or loss in value occurred at all or is significantly lower than the lump sum. In the case of lump-sum compensation, the costs saved for services that would otherwise have had to be rendered up to full completion of the order as well as earnings obtained or maliciously not obtained from other use of the workforce must also be deducted.
5. If termination is attributable to KE, KE is only entitled to remuneration for services provided up to the termination of the contract that were rendered in accordance with the agreement and free from defects and defenses.
6. If a contracting party becomes insolvent, or if insolvency proceedings are opened against their assets or opening is refused due to insufficient assets, the other contracting party is entitled to terminate the contractual relationship for cause.
7. If the contract is terminated by KE, KE will, in consultation with the client, ensure the transfer of remaining work to third parties, unless the termination is based on circumstances attributable to the client.
8. If the work of KE consists of repeated performance of similar services, it is presumed that the contract in question has an indefinite term, unless a different agreement has been made in writing. This contract may only be terminated in writing with due observance of a reasonable notice period of at least three months.

§14. Collecting Societies and Artists’ Social Security Contribution

1. The client is obligated to fulfill existing claims of collecting societies. If such claims are fulfilled by KE, the client is obligated to reimburse KE for the costs incurred. Furthermore, the client is informed that, when awarding contracts in the artistic, conceptual, and advertising consultancy fields to a non-legal entity, they are required to pay an artists’ social security contribution to the Artists’ Social Security Fund (Künstlersozialkasse). This contribution may not be deducted by the client from KE’s invoice.

§15. Final Provisions

1. Place of performance for delivery and payment as well as place of jurisdiction for all disputes between the contracting parties is Essen, insofar as the client is a merchant, a legal entity under public law, or a special fund under public law. The place of jurisdiction also applies to persons other than those mentioned above if the contractor has no general place of jurisdiction in Germany, immediately relocates their residence and/or business from Germany after conclusion of the contract, or if their residence and/or business or habitual abode is unknown at the time an action is filed.
2. Unless otherwise agreed, German law shall also apply to contractual relationships with foreign contractors.