Terms & Conditions
General terms and conditions vista GbR Andreas Magino, Jens Müller & Katharina Sussek — hereinafter vista
1. Scope of application
1.1 These General Terms and Conditions (GTC) shall apply exclusively to all contracts concluded between vista and the client. Any terms and conditions contrary to or deviating from these GTC shall not become part of the contract unless Designer has expressly agreed to their validity in writing.
1.2 All agreements made between vista and the client for the purpose of executing this contract are set out in writing in this contract.
2. Copyright protection; rights of use; self-promotion
2.1 The order placed with vista is a copyright contract. The subject matter of the contract is the creation of the commissioned work and the granting of rights of use to this work. The provisions of the law on contracts for work and services and the copyright law shall apply.
2.2 All works of vista, such as in particular drafts, final artwork and the commissioned work as a whole, are protected as personal intellectual creations by the Copyright Act, the provisions of which shall be deemed agreed even if the requirements for a work protected by copyright, such as in particular with regard to the required level of creation (section 2 subsection 2 UrhG), have not been met.
2.3 Without vista's consent, works as well as the work including the author's designation may not be changed, neither in the original nor in the reproduction. Any imitation of the work or parts of the work as well as of the preparatory work is not permitted.
2.4 The works of vista may only be used for the agreed type of use and the agreed purpose to the agreed extent. In the absence of an express written agreement, the purpose of the contract shall be deemed to be only the purpose made apparent by the client when the order was placed.
2.5 vista shall grant the client the rights of use required for the respective purpose (clause 2.4). For this purpose, the simple right of use shall be granted, unless vista and the client expressly agree otherwise. The rights of use shall not be granted until the fee has been paid in full.
2.6 The transfer of granted rights of use to third parties requires the prior written consent of vista.
2.7 Unless otherwise agreed, vista shall be named as the author in the reproduction, distribution, exhibition, in publications about the work and/or the public reproduction of the designs and final artwork and the work. If the client infringes the right to name the author, vista may demand a contractual penalty in addition to the fee owed for the design service in the amount of 100 % of the fee agreed for the use or, in the absence of an agreement, of the reasonable and customary fee for this. This shall not affect vista's right to claim higher damages in the event of a concrete calculation of damages.
2.8 Proposals, instructions and suggestions by the client for technical, design or other reasons and his other cooperation shall not have any influence on the fee and shall not constitute a joint copyright unless expressly agreed otherwise in writing.
2.9 The client shall not be entitled to apply for the registration of formal property rights such as design patents, trademarks etc. in relation to the drafts, final artwork or other work of vista without vista's prior written consent.
2.10 vista shall remain entitled to use the works or parts thereof, drafts and other works created in fulfilment of the order for its own advertising, irrespective of the medium (e.g. in its own website etc.) and to refer to its activities for the client.
3. Fees; due date
3.1 Unless otherwise expressly agreed between the client and vista, the fee shall be calculated in accordance with the fee recommendations of the BDG - Berufsverband der Deutschen Kommunikationsdesigner e.V., Warschauer Straße 59a, 10243 Berlin.
3.2 The preparation of drafts is always subject to a fee, unless expressly agreed otherwise in writing.
3.3 The fees are due upon delivery of the work. If the Work is created and delivered in parts, the corresponding partial fee shall be due upon delivery of the respective part. Unless expressly agreed otherwise in writing, a partial fee amounting to at least half of the total fee shall be payable with the first partial delivery. If the execution of an order extends over a longer period of time, vista may demand part payments in accordance with the work performed.
3.4 All fees are net amounts, payable plus the statutory value added tax, without deduction within two weeks of the due date.
4. Additional services; incidental and travel expenses
4.1 Unless otherwise agreed in writing, additional services, such as research, the reworking or modification of drafts, the creation and submission of further drafts, the modification of working drawings as well as other additional services (author's corrections, production supervision and others) shall be charged separately according to time spent.
4.2 Additional technical costs incurred in connection with the design work or design execution work (e.g. for models, intermediate reproductions, layout typesetting, etc.) shall be reimbursed by the client.
4.3 The client shall reimburse vista for the costs and expenses of travel which, after prior consultation, are necessary for the purpose of carrying out and fulfilling the order or for the use of the works.
4.4 Remuneration for additional services is due after they have been rendered. Disbursed ancillary costs shall be reimbursed as incurred. Remuneration and ancillary costs are net amounts payable plus statutory value added tax.
5. External services
5.1 The commissioning of external services which are necessary for the fulfilment of the order or the use of the works to the extent stipulated in the contract shall be carried out by vista on behalf and for the account of the client. The client is obliged to grant vista the corresponding written power of attorney for this purpose.
5.2 Insofar as vista, at the instigation of the client, contracts out services in its own name and for its own account in individual cases, the client shall be obliged to pay a reasonable advance for the expected costs. The client shall indemnify vista internally against all liabilities, in particular all costs, arising from the conclusion of the contract.
6. Cooperation of the client; freedom of design; templates
6.1 The client is obliged to provide vista with all documents necessary for the fulfilment of the order in due time and to the agreed extent. This applies in particular to texts, photos, logos, graphics, films, pieces of music, etc. vista shall not be responsible for delays in the execution of the order due to the late or incomplete handover of such documents.
6.2 The client assures that he is entitled to use all documents that he provides to vista. Furthermore, the client is solely responsible for the correctness and completeness of the documents provided by him. Should the client not be entitled to use the documents or should the documents not be free of third party rights, the client shall indemnify vista internally against all claims for compensation by third parties.
6.3 vista shall have freedom of design within the scope of the order. To this extent, complaints regarding the artistic design of the drafts and the work are excluded. Additional costs for changes initiated by the client during or after production shall be borne by the client.
7. Data delivery and handling
7.1 vista shall not be obliged to surrender to the client the design data or other data (e.g. data of contents, screen designs, drafts, etc.) or data carriers created in the performance of the order. If the Client wishes data or files to be handed over, this shall be agreed separately and shall be remunerated by the Client.
7.2 If vista makes files or data available to the client, these may only be used to the extent agreed. Modifications or changes to the files or data may only be made with vista's consent.
7.3 The risk and costs of transporting data carriers, files and data shall be borne by the client, irrespective of the means of transmission.
7.4 vista shall not be liable for defects in data carriers, files and data that occur during data transmission to the client's system.
8. Ownership and obligation to return
8.1 All drafts, final artwork and conceptual services as well as any data provided, regardless of whether they are executed or not, shall only be subject to rights of use and not to rights of ownership. Originals shall be returned undamaged to vista no later than three months after delivery, unless expressly agreed otherwise.
8.2 The deliveries and returns shall be made at the risk and for the account of the client. In the event of damage or loss, the client shall reimburse the costs necessary to restore the originals. vista reserves the right to claim further damages.
9. Correction; production monitoring; specimen copy
9.1 Before the work is reproduced (start of production), vista must be provided with correction samples.
9.2 Production shall only be supervised by vista if this is agreed in a separate written agreement with the client. In this case vista is entitled to make necessary decisions at its own discretion and to give instructions to the production companies. vista shall only be liable for errors in the event of its own fault and in accordance with clause 10.
9.3 Of all reproduced works or parts of works or other works, vista shall be provided with an appropriate number of perfect specimen copies, at least 10 copies, free of charge, which vista may also use in the context of its own advertising.
10. Warranty; Liability
10.1 vista is liable for damages only in case of intent or gross negligence. This does not apply to damages resulting from the breach of a contractual obligation that is essential for the achievement of the purpose of the contract (cardinal obligation), as well as damages resulting from injury to life, body or health, for which vista is also liable in case of slight negligence.
10.2 Claims of the client against vista due to a breach of duty shall become statute-barred one year after the statutory commencement of the limitation period. Excluded from this are claims for damages pursuant to clause 10.1; the statutory limitation periods shall apply to these.
10.3 The client is obliged to inspect the work immediately after delivery and to report any defects without delay. Obvious defects must be notified in writing within two weeks of delivery at the latest. The timely dispatch of the notice of defects shall be sufficient to comply with the time limit. In the event of a breach of the duty to inspect and give notice of defects, the work shall be deemed to have been accepted free of defects.
10.4 The release of production and publication shall be effected by the client. With the release, the client assumes liability for the technical and functional correctness of text, image, design and product.
10.5 With the exception of a possible fault in selection, vista shall not be liable for orders for third-party services which vista awards to third parties.
10.6 Insofar as vista subcontracts third-party services at the instigation of the client in its own name and for its own account, vista hereby assigns to the client all warranty claims, claims for damages and other claims to which it is entitled against the third-party company arising from defective, delayed or non-performance. The client undertakes to first enforce the assigned claims against the external company before making a claim against vista.
10.7 vista shall not be liable for the protectability or registrability under copyright, design or trademark law of the work or parts of the work as well as the drafts or its other design work which it provides to the client for use. vista shall not be obliged to carry out or arrange for research into design patents, trademarks or other property rights. These as well as a review of the property right situation shall be arranged by the client himself and at his own expense.
10.8 vista shall not be liable for the legal admissibility of the intended use of the work or parts of the work or the designs, in particular with regard to copyright, design, competition or trademark law. vista shall only be obliged to point out legal risks insofar as these become known to vista during the execution of the order.
11. Place of performance
Place of performance for both parties is Düsseldorf.
12. Final provisions
12.1. The place of jurisdiction shall be Düsseldorf, provided that the client is a merchant and the contract forms part of the operation of its commercial business or the client is a legal entity under public law or a special fund under public law or has no general place of jurisdiction in Germany. vista shall also be entitled to bring an action at the registered office of the client.
12.2 The law of the Federal Republic of Germany shall apply with the exception of the UN Convention on Contracts for the International Sale of Goods.
12.3. If one of the provisions of these GTC is invalid in whole or in part, this shall not affect the validity of the remaining provisions.
status: 1 January 2019