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Kristina Labs

Alter Fischmarkt 3-5

48143 Münster
 

 


TERMS OF SERVICE
(according to the guidelines of the Illustratoren Organization eV)


1. Scope
These terms and conditions apply exclusively to all contracts between the illustrator and the client. Deviating agreements, in particular conflicting terms and conditions, require the written consent of the illustrator. The terms and conditions apply to all business transactions, including all future follow-up transactions, including those that are concluded orally, in particular by telephone, even if they are no longer expressly referred to in the follow-up transactions.

2. Orders
Confirmations or minutes of meetings sent by the illustrator are binding if the client does not object immediately.
The illustrator is entitled to use third parties to fulfill the contract. In this case, he will acquire any rights of use and other rights to the extent owed to the customer and transfer them to the customer.

3. Compensation
All activities performed for the customer, including presentations, drafts and work drawings, are subject to remuneration unless otherwise agreed in writing.

The remuneration consists of:
a) the design fee
b) the remuneration for the work drawing
c) the remuneration for the transfer of the rights of use to the work drawing

Unless otherwise agreed, any remuneration promised and/or paid by the client will be credited to the individual remuneration components as follows:
30% on the draft fee
30% on the work drawing fee
40% on the rights of use, if such are transferred

The claim for remuneration for any rights of use granted arises regardless of whether and, if so, to what extent the client makes use of the rights of use. If no rights of use are granted, the remuneration for the use shall not apply, but not the remuneration for the work performed up to that point. Suggestions by the customer or his other cooperation have no influence on the amount of the remuneration.
If no rights of use are agreed, the distribution changes as follows: 50% on the design fee
50% on the work drawing fee
The fees are net amounts to be paid plus the applicable sales tax if the illustrator is subject to sales tax. The artist's social insurance contribution is to be paid additionally by the client and is not included in the remuneration.

4. Terms of Payment
Payment is due upon delivery. It is payable without deduction. If an order takes more than four weeks to be processed or if the illustrator requires financial advance payments that exceed 50% of the payment to be made, the following advance payments must be made: 1/3 of the total payment when the order is placed, 1/3 after Completion of 50% of the work, 1/3 after delivery.
If the contract is terminated prematurely, the illustrator retains at least the claims to the advance payments that have already become due at the time the contract is terminated according to the above. For the rest, § 649 BGB applies.
The customer is in arrears with a payment in whole or in part if he does not pay after 14 days of delivery without a reminder being required.
If the customer does not use the services to the agreed extent, he is not entitled to a reduction or refund of the payment. The client is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by the illustrator.

5. Use Rights, Ownership, Self-Promotion
To the extent agreed, only rights of use are granted for the work or services of the illustrator. A right of ownership, in particular to drafts (sketches, layouts) and work drawings (final art) that he creates or has created, is not transferred. All two- and/or three-dimensional workpieces (drafts, work drawings, models, dummies, samples) handed over to the client as part of the order remain the property of the illustrator. The client is only granted a right of possession for as long as he is absolutely dependent on the possession of the workpieces for the contractual use of the illustrator's service. In any case, the right of ownership ends at the latest with the termination of the contractual relationship between the illustrator and him. The workpieces are to be returned undamaged after the end of the right of ownership, unless otherwise agreed in writing. The return is at the expense and risk of the client. In the event of damage or loss, the customer must pay compensation in the amount of 100% of the agreed remuneration without acquiring ownership rights through such payment.
The drafts provided to the customer are only intended to facilitate the customer's decision-making process and for internal use by him and the illustrator. Further rights of use are not transferred to the client. Unless expressly agreed otherwise, any further contractual transfer of rights of use relates exclusively to the accepted work drawing.
The services, even if they are not protected by copyright or should not be the subject of other special protective rights, may only be used to the extent that this has been agreed for the order or results from the purpose of the order. In the absence of any other written agreements, the client only receives simple usage or other rights, and only for the agreed duration and the agreed scope of use in terms of content and space; Geographically, the scope of the transfer of usage rights does not extend beyond the territory of the Federal Republic of Germany unless otherwise agreed in writing.

Any other use or use that goes beyond the originally agreed scope is only permitted on the basis of a special written transfer of rights of use and against payment of a fee corresponding to the scope of the additional use in relation to the payment for the original use. The transfer of granted rights of use to third parties requires the consent of the illustrator. The illustrator is entitled to information about the scope of use.
Suggestions by the client or his other cooperation do not constitute any (joint) rights of the client, unless this has been expressly agreed. Rights to the services of the illustrator, in particular rights of use, only expire upon full payment of the entire remuneration for the order by the illustrator Illustrators to the client.
The illustrator has the right to sign his work and to be named as the author on the copies. When the works are digitally recorded, the name of the illustrator must be electronically linked to the image data.
The customer is not entitled to edit the services (neither the originals nor reproductions) in part or as a whole or to otherwise change and/or have them edited or changed, unless this is expressly the subject of the agreed delivery or service .
The illustrator is not obliged to store it afterwards. In particular, the illustrator is not obliged to keep work files that were created on the computer, including the source code, and/or to hand them over to the client. If the customer wishes to store and/or hand over files, this must be agreed and paid for separately.
In the event of a violation of the rights of use, editing or naming, the illustrator is entitled to demand a contractual penalty of three times the agreed remuneration. The right to assert claims for damages, monetary compensation or other rights in addition to the contractual penalty remains unaffected.
All services rendered by him may be used without restriction by the illustrator for the purpose of self-promotion, unless something else has been expressly agreed.

6. Special services, ancillary and travel expenses
In the absence of other agreements, the customer is granted one (1) optimization step per design during the design phase – not exchanging image elements – according to his specifications, without this being charged as a special service.
Any further change and/or new creation and submission of drafts, the change and/or new creation of work drawings as well as other additional services (e.g. manuscript study), additional costs (e.g. couriers) or technical costs (e.g. for reproductions, data carriers) will be charged depending on Expenses calculated separately. The illustrator will calculate the expenses according to an hourly or daily rate to be set at his own discretion, which is based on the remuneration recommendations of the IO (Illustratoren Organization eV). The situation is different if such services are expressly included in the order confirmation, stating the amount of the remuneration.
If the contract is not carried out for reasons for which the illustrator is not responsible, the incidental costs incurred must be reimbursed by the client in addition to the partial remuneration to be paid in accordance with Section 4 Paragraph 2 in conjunction with Section 649 BGB. The remuneration for additional services is due after they have been rendered. Accrued ancillary costs are to be reimbursed as they are incurred. Remuneration and ancillary costs are net amounts to be paid plus the applicable sales tax.

7. Participation of the client
The client is obliged to provide the illustrator with all the information and data required to provide the goods and services in a common format in good time.
The client ensures that the illustrator receives the rights required to use these documents. The client is also obliged to inform the illustrator, without being asked, of circumstances that may be significant for the provision of his deliveries and services and of which the client can see that the illustrator is not aware of them.
The documents provided will only be stored and returned to the client if this has been expressly agreed and only at the expense and risk of the client.
If the customer is in default of acceptance due to failure to cooperate, the illustrator can demand appropriate compensation.
Insofar as the illustrator defines development stages together with the client and the client has to provide his own services to achieve these development stages, he is obliged to render all services to be rendered by him in good time.

8. Correction, Production Monitoring
Before the start of production, the drawings, data, drafts or other templates must be approved by the client.
The production supervision by the illustrator only takes place on the basis of a special agreement. When taking over the supervision of production, the illustrator is entitled to make the necessary decisions and give corresponding instructions at his own discretion.

9. Delivery, Delivery Time
Adherence to agreed delivery dates presupposes that all technical questions have been clarified, that documents to be provided by the customer, approvals, services to be rendered and other obligations of the customer are available or fulfilled in good time. If this does not happen and if timely delivery of the service is no longer possible with an additional payment accepted by the customer for increased costs, the deadline for delivery is extended by a reasonable period of time. Fixed deals are not closed. The exception of the unfulfilled contract remains reserved.
The illustrator's delivery obligations are fulfilled as soon as the work and services have been dispatched.
If non-compliance with an agreed delivery period is due to force majeure, labor disputes, fire, machine breakdown, telecommunications malfunctions, computer malfunctions, serious illness, unforeseen obstacles or other circumstances for which the illustrator is not responsible, the delivery time will be extended for the duration of these events. This applies accordingly in the event that the illustrator is in default of delivery when one of these events occurs. Delays in performance due to force majeure will be reported to the client.

If the execution of the order is delayed for reasons for which the client is responsible, the illustrator can demand compensation, which he may calculate at his reasonable discretion by increasing the remuneration appropriately in accordance with the remuneration rules agreed here. The assertion of further damage caused by delay remains unaffected by this.

10. Passing of Risk
Unless otherwise stated in the order confirmation, the handover will take place at the illustrator's registered office. If the customer wishes delivery to another location, this is done at his own risk and expense. The risk is transferred to the customer when the goods are handed over to the carrier or, if such a carrier is not involved, at the latest when the customer or his vicarious agents accept the service, even if partial deliveries are made or the illustrator provides additional services (e.g. transport costs or delivery).

11. Warranty for Defects, Liability
The illustrator enjoys creative freedom in the artistic realization of the commission given to him. If his illustration does not meet the client's taste or if his style does not correspond to the client's ideas, this alone does not constitute a defect in his services.
The customer's warranty rights presuppose that he has checked the work and services provided by the illustrator immediately after receipt, but in any case before further processing, and has given notice of defects immediately after discovery. Slight deviations in the color of the print results from the screen display or computer printout are due to technical reasons and do not constitute a defect in this respect.
If there is a defect for which the illustrator is responsible, he is initially entitled to supplementary performance within a reasonable period of time. If the supplementary performance fails, the customer is entitled, after the unsuccessful expiry of a reasonable period set by him for supplementary performance, to withdraw from the contract or to demand a corresponding reduction in payment (reduction). Subsequent performance has failed if the defect has not been remedied after the second attempt at subsequent performance.

The warranty period is 12 months, calculated from the transfer of risk. The period is a statute of limitations and also applies to claims for compensation for consequential damage, insofar as no claims from tort are asserted; the statutory limitation period applies to these.
The illustrator is only liable for damages - for whatever legal reason - in the event of intent or gross negligence, including intent or gross negligence on the part of his representatives or vicarious agents. Insofar as he has not intentionally violated the contract, the liability for damages is limited to the foreseeable, typically occurring damage. Excluded from this limitation of liability are damages resulting from injury to life, limb or health of the client as well as damages due to breaches of the illustrator's cardinal obligations.
Insofar as the illustrator only passes on third-party services (e.g. photographers, service providers) to the contractor, his liability is limited to fault in selection.
Liability for computer viruses is excluded unless the illustrator acts intentionally or with gross negligence.
The client assumes the obligation to check the legal admissibility of the services provided by the illustrator. If the services provided by the illustrator infringe the rights of third parties or are otherwise unlawful because they are based on unlawful specifications and/or templates from the client, the client alone is liable internally. He has to compensate the illustrator for all resulting damage, including the reasonable costs of legal defense, and to indemnify the illustrator against all claims by third parties. However, the illustrator will inform the client of any legal violations associated with his services as soon as he becomes aware of them. In particular, this liability regulation applies to factual statements or other items provided to the illustrator by the client or otherwise provided; to the same extent, the customer is liable for ensuring that all rights of use and exploitation and any other necessary rights to the materials supplied by him are available to the required extent.
Internally, the responsibility for content that the illustrator places on the Internet on behalf of the client lies exclusively with the client. If, for whatever reason, the illustrator is claimed as a disruptor or person responsible within the meaning of the Teleservices Act or the Media Services State Treaty or other standards, the client shall indemnify him from any third-party claims.
Insofar as the illustrator's liability for damages is excluded or limited according to the above, this also applies with regard to the liability of his employees, workers, freelancers, representatives and vicarious agents.

12. Receipt Sample
The customer shall provide the illustrator with five to ten flawless, unfolded samples of all reproduced works free of charge. The illustrator is entitled to use these patterns for the purpose of self-promotion.

13. Place of Performance, Place of Jurisdiction, Applicable Law
The parties agree on the illustrator's place of business as the place of performance and, to the extent permitted by law, as the exclusive place of jurisdiction.
It is only the law of the Federal Republic of Germany.

14. Final Provisions
Changes and additions to the contract must be made in writing to be effective. The same applies to changes to the written form requirement.
The nullity or ineffectiveness of individual provisions of the contract does not affect the validity of the remaining provisions. The same applies to loopholes. In place of the ineffective provisions or to fill in loopholes, the legally possible provision that comes closest to what the contracting parties wanted or would have wanted in terms of the meaning and purpose of the contract should come into effect.


DATA PROTECTION
(Source: https://www.e-recht24.de)

The operators of these pages take the protection of your personal data very seriously. We treat your personal data confidentially and in accordance with the statutory data protection regulations and this data protection declaration. Our website can usually be used without providing personal data. Insofar as personal data (e.g. name, address or e-mail addresses) is collected on our website, this is always done on a voluntary basis as far as possible. This data will not be passed on to third parties without your express consent. We would like to point out that data transmission on the Internet (e.g. when communicating by e-mail) can have security gaps. A complete protection of the data against access by third parties is not possible.

Information, deletion, blocking: You have the right to free information about your stored personal data, its origin and recipient and the purpose of the data processing as well as a right to correction, blocking or deletion of this data at any time. You can contact us at any time at the address given in the imprint if you have any further questions on the subject of personal data.

 

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