GENERAL TERMS AND CONDITIONS
I. SCOPE OF APPLICATION
Who’s Mark – hereinafter referred to as the “Agency” – provides its services exclusively based on these General Terms and Conditions and generally only to customers who are not consumers. This also applies to future business relationships, even if these provisions are not expressly referenced. Any conflicting or deviating terms and conditions of the contractual partner shall only be valid if explicitly acknowledged by the Agency, at least in text form.
II. OFFER, ORDER, CONTRACT CONCLUSION, AND CONTENT
The offer or a cost estimate from the Agency forms the basis of a contract. The scope of services offered and the agreed remuneration are specified therein. Offers from the Agency are non-binding and subject to change. They serve as the basis for a corresponding order from the customer, which constitutes a binding contractual offer to the Agency. When a customer places an order, the contract is concluded upon the Agency's acceptance of the order. Acceptance is generally confirmed by an order confirmation in text form, although the customer waives the need to receive the Agency's declaration of acceptance.
The scope of services to be provided is derived from the order confirmed by the Agency or the corresponding underlying offer that has become part of the contract.
Unless explicitly agreed otherwise, examining the legal admissibility or usability of the commissioned services or deliverables for a specific purpose is not part of the contract. Such matters, especially those related to advertising, competition, trademark, or copyright law, are solely the responsibility of the customer. Additionally, the Agency is not obligated to check customer-provided materials, photos, drafts, etc., for potential third-party rights. The Agency will, however, point out any apparent legal risks.
III. ORDER PROCESSING AND COOPERATION
The customer must promptly provide the Agency with all information and documents necessary for the – including timely – processing of the order. This includes immediate notification of any changes in relevant circumstances. Costs arising from incorrect, incomplete, or subsequently altered information are the customer’s responsibility and may need to be compensated separately at standard rates.
The customer is required to review the Agency’s services (drafts, sketches, etc.) and promptly approve them upon the Agency's request, unless explicitly agreed otherwise.
Deadlines and schedules must be agreed upon at least in text form. Any fixed-term agreement requires explicit designation as such. The Agency must be granted a reasonable grace period of at least 14 days. This period begins upon receipt of a reminder by the Agency.
Unavoidable or unforeseen events – especially delays caused by the Agency’s subcontractors – release the Agency from adhering to agreed delivery deadlines. The same applies if the customer fails to fulfill their cooperation obligations (e.g., providing documents or information) or does so belatedly. In such cases, deadlines are extended by the duration of the respective event.
Deliverables requiring acceptance shall be deemed accepted, unless otherwise provided by statutory regulations, two (2) weeks after their delivery to the customer, provided no substantial objections are raised within this period.
The Agency may engage third parties for service provision. Such third-party commissioning is generally undertaken in the Agency’s name but at the customer’s expense. Third-party services are usually subject to the third party's general terms and conditions. For instance, over- or under-deliveries of up to 10% in advertising orders or other volume-based adjustments are standard market practices. The customer acknowledges such third-party terms as binding upon them.
IV. REMUNERATION
The entitlement to remuneration arises, in case of doubt, upon service provision. Services not expressly covered by the agreed fee are to be compensated separately. The fee is exclusive of applicable statutory VAT.
The Agency may request an advance payment of up to 50% of the agreed fee, including for third-party services. Necessary expenses incurred by the Agency shall be reimbursed by the customer. The remuneration generally does not include external costs (e.g., stock images, illustrators, couriers, travel, accommodation, etc.). A handling fee of 15% is applied to such external costs, and 20% for third-party services subject to KSK levies (e.g., photographers, illustrators).
Instead of using the Agency for handling, the customer may process third-party payments directly, ensuring timely payments upon due dates.
Objections to the Agency's invoices must be raised in writing within six weeks of receipt; otherwise, the invoice is deemed accepted.
For all presentations and conceptual work not utilized or implemented for advertising purposes by the customer, the Agency is entitled to reasonable compensation that covers all costs, even if no specific fee was agreed upon for this stage of work. The customer does not acquire any rights to the deliverables. The Agency is free to use the services otherwise. Presentation materials must be promptly returned to the Agency.
V. INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
The remuneration does not, by default, include the transfer of rights to the deliverables. Absent explicit agreement, the services do not include the provision of so-called open files (editable source data), such as open PSD or InDesign files, or the associated rights for editing or modification.
A flat fee of 50% of the total order value applies for open files. The acquisition of usage rights to the deliverables is contingent upon the complete payment of the agreed fee. Pre-existing works remain non-exclusive.
The customer must appropriately credit the Agency and authors. The Agency may use deliverables or excerpts thereof for self-promotion, including in online media, free of charge, with appropriate attribution to the customer.
If a third party claims a rights violation based on materials provided or licensed by the customer, the customer shall fully indemnify the Agency, including covering damages and legal defense costs.
VI. WARRANTY AND LIABILITY
Statutory warranty rules apply. The Agency does not guarantee specific characteristics of its deliverables unless expressly agreed otherwise.
Liability for damages is excluded unless caused by the Agency’s intent or gross negligence. The Agency is fully liable for intent and gross negligence and in cases of mandatory statutory liability, such as under the Product Liability Act.
For slight negligence, the Agency is liable only for damages resulting from injury to life, body, or health, or in cases of essential contractual obligations.
Liability is limited to foreseeable, typical damages up to the agreed net contract value, excluding third-party services.
VII. FINAL PROVISIONS
Amendments to the contract, including agreed service content, require text form.
Customers may only offset claims if acknowledged in writing by the Agency or legally established.
Delivered items remain the Agency’s property until full payment.
Should any provision of these General Terms and Conditions be invalid, the remaining provisions remain unaffected.
German substantive law applies exclusively. The UN Convention on Contracts for the International Sale of Goods is excluded.
Effective: January 2025