MONKEY XR GmbH (hereinafter »MONKEY«) offers entrepreneurs and companies, in relation to the marketing of their company and the products and services offered by them, the provision of services that have as their object the conception, design, production and implementation of advertising and communication campaigns, measures and media. These General Terms and Conditions (hereinafter referred to as »GTC«) shall apply to this range of services offered by MONKEY and the contractual and business relationships existing in this respect with MONKEY's clients (hereinafter referred to as »Customers«).
1.1 MONKEY provides services exclusively on the basis of these GTC in connection with the offer of MONKEY on which the order is based and a detailed concept, if any, prepared by MONKEY in the course of an order execution. By placing an order, the Customer agrees to the validity of these GTC. If an offer from MONKEY contains provisions that conflict with the provisions of these GTC, the provisions of the offer shall prevail in case of doubt. Other agreements that deviate from the provisions of these GTC shall be recorded in writing.
1.2 These GTC shall apply to the entire business relationship between MONKEY and Customers, provided that the latter act as entrepreneurs within the meaning of § 14 BGB (German Civil Code), i.e. in the exercise of their commercial or self-employed professional activity, or as legal entities under public law, and the subject of this business relationship is the aforementioned range of services offered by MONKEY. In this respect, these GTC in their current version shall also apply to future orders placed with MONKEY by the Customer, even if MONKEY does not expressly refer to them again and the GTC are not expressly included in the relevant contractual relationship again. This applies in particular to such further orders placed with MONKEY by the Customer within the scope of such business relationship in writing, by fax, electronically or merely (remotely) verbally, as well as expressly also to requests for changes made by the Customer with regard to an order already placed and to an extension or renewal of orders placed.
1.3 Conflicting or deviating general terms and conditions of the Customer shall only be included in a contract between MONKEY and the Customer if expressly confirmed by MONKEY in writing. If the Customer's general terms and conditions are validly included in this way, MONKEY's GTC shall remain unaffected. In case of doubt, the provisions of these General Terms and Conditions shall apply, even if MONKEY does not expressly object to their application or if the Customer declares that it only intends to perform a contract under its General Terms and Conditions.
2.1 Unless and to the extent MONKEY expressly declares otherwise when submitting an offer, MONKEY's offers are subject to change and non-binding and constitute solely an invitation to the Customer to offer MONKEY the conclusion of a corresponding contract by commissioning the offered services. Subject to such a deviating declaration, a contract with the Customer is thus only concluded when MONKEY confirms an order placed by the Customer. The Customer is regularly bound for four (4) weeks to its contractual offer made by commissioning the relevant services.
2.2 The order confirmation shall regularly be made in writing, by fax or by e-mail. If MONKEY does not confirm the order in this way, a contract for the services offered to and ordered by the Customer shall be concluded when MONKEY starts to provide these services. In this case, as long as it is not apparent to the Customer that MONKEY has started to provide the services, the Customer may request a statement from MONKEY within a reasonable period of time as to whether the order placed by the Customer will be confirmed. In case of fruitless expiry of such a period of explanation, the Customer shall no longer be bound to the respective order placement.
2.3 If the Customer's order deviates from the relevant provisions in MONKEY's offer with regard to the service contents and conditions specified therein, the effective agreement of such deviating provisions shall require that MONKEY expressly confirms them in writing, by fax or by e-mail. This applies in particular also to (remote) verbal and / or subsequent agreements regarding the content of the order as well as the execution of the order.
3.1 If necessary, a distinction is made in these GTC between different types of orders. This distinction is made according to the nature of the respective service to be provided by MONKEY on the basis of the order. A contract between MONKEY and the Customer may also cover several types of services (e.g. design of advertising material and business equipment and production of corresponding media) and thus consist of a combination of such types of orders. The applicability of a provision relating to a specific type of order depends on the type of service concerned in the individual case and the purpose for which MONKEY has been commissioned by the Customer to provide the relevant service. Accordingly, a distinction is made between the following types of order:
a. »Design and conception orders« are those orders which have as their object services in the form of the development, conception and / or planning of advertising and communication campaigns, of communication, advertising and / or marketing formats, media and means as well as of media content (including print and film formats as well as animated graphics and so-called animated characters) for the customer, including, where applicable and agreed in individual cases, advice to the customer in this respect. Communication, advertising and/or marketing formats, media and means in this sense are hereinafter collectively referred to as »communication media«. The implementation and realization of the developments, concepts and planning provided by MONKEY in the course of such an order is not the subject of a design and concept order, but of a production order.
b. »Production orders« are those orders which have as their object services in the form of the production of media content and / or communication media for the customer. Media content and communication media within the meaning of these GTC may also contain software elements or components, insofar as this is agreed on the basis of an order.
3.2 The manner in which MONKEY shall provide the Services shall be determined by MONKEY's offer on which the relevant Order is based and, if applicable, by a detailed concept (also known as »Statement Of Work«, SOW) prepared by MONKEY after the Order has been placed. To the extent that no detailed provisions have been made in this respect, MONKEY shall be free to determine the manner of the Services that are suitable for achieving the purpose discernibly pursued by Customer in placing the Order, as well as the manner in which they shall be provided, in accordance with its dutiful discretion. In particular, MONKEY shall be free to determine the design and aesthetics of the Services, taking into account the Customer's requirements in this respect, which are included in the underlying contract, as well as the Customer's legitimate interests, in particular economic interests, which are recognizable to MONKEY. If, after the conclusion of the contract, the Customer requests the implementation of specifications that interfere with the discretionary powers to which MONKEY Pictures is entitled under the foregoing, and the implementation of which is not included in the services to be provided by MONKEY for the execution of the order in question on the basis of the agreements made in the individual case or otherwise on the basis of these General Terms and Conditions, MONKEY shall be separately remunerated for any additional expenses incurred by MONKEY as a result of the implementation of such specifications.
3.3 If the subject of a production order includes the creation or integration of a software application or solution, MONKEY shall not owe the delivery of related documentation unless otherwise agreed in the individual case.
3.4 MONKEY owes the Customer an examination of the legal admissibility of advertising, marketing and communication strategies, campaigns and measures only insofar as this has been expressly agreed. The same applies to the publication and use of media content and communication media produced by MONKEY, with the exception of the legal situation with regard to such persons or their services and such content that MONKEY has independently involved in the production of the media content and communication media in question and that is affected by their use as agreed.
3.5 Unless expressly agreed otherwise in this respect, MONKEY does not owe any specific economic success on the Customer's side (beyond the dutiful provision of services) as a result of the provision of services by MONKEY or as a result of the use of the media content and/or communication media created in the course of the provision of services by MONKEY.
3.6 Unless otherwise expressly stated by MONKEY in writing, the dates stated by MONKEY are scheduled dates determined at MONKEY's discretion, which are in particular subject to the proper cooperation of the Customer or its employees and/or vicarious agents as well as to the scheduled progress of the performance of the order. Fixed transactions, i.e. MONKEY's obligation to provide services at fixed times or dates, require an express written agreement in each case.
3.7 If the Customer fails to provide MONKEY with persons, objects, information, data and content required for the execution of the Order as agreed, or if the Customer fails to perform any other acts of cooperation agreed upon and/or reasonably requested by MONKEY, MONKEY shall not be liable for any damages or other disadvantages resulting from any delay in the execution of the Order caused thereby, regardless of whether the Customer is at fault or not. Such delay shall entitle MONKEY to suspend the execution of the order or, after the fruitless expiry of a reasonable grace period granted to the Customer to perform the relevant cooperative action, to withdraw from the contract in whole or in part or to terminate the contract to that extent. This shall not affect MONKEY's right to compensation for the services performed as agreed up to that point. In any case of delay in the performance of the order for which the Customer is responsible, MONKEY may also demand compensation from the Customer for any additional expenses incurred by MONKEY as a result thereof.
3.8 In the event of force majeure or other unforeseeable events, the effects of which on the performance of the contract are beyond MONKEY's control (e.g. strike, power failure, riots or official measures for which MONKEY is not responsible, general disruptions of telecommunication and data networks, failure of third-party services required for the performance of the order for which MONKEY is not responsible), MONKEY shall be released from the relevant performance obligation for the duration of the impediment occurring as a result thereof plus a reasonable start-up period after its cessation. Should adherence to the contract in these cases represent an unreasonable hardship for MONKEY, MONKEY is entitled to withdraw from the contract.
3.9 If the subject matter of the services owed by MONKEY also includes the procurement and inclusion of third-party services (in particular within the scope of production orders), MONKEY shall be entitled to place the orders required for this purpose (»Third-Party Orders«) to the agreed extent and with the agreed content on behalf of and, unless otherwise agreed in this respect, for the account of the Customer. In this respect, MONKEY shall be authorized by the Customer to make the necessary declarations on behalf of the Customer at its due discretion. Notwithstanding any special agreements in this respect in individual cases, the selection, commissioning and, if necessary, modification of third-party services shall be at MONKEY's due discretion. In this respect, MONKEY only owes the dutiful selection of the respective service provider as well as the dutiful coordination and processing of the third-party orders.
3.10 MONKEY is entitled to change individual agreed services, provided that such changes become necessary for the performance of the contract after the conclusion of the contract according to MONKEY's due discretion and are reasonable for the Customer. MONKEY will inform the Customer immediately about any such necessary service changes.
3.11 MONKEY is entitled to use third party companies and service providers to create content or provide other services for the fulfillment of the performance obligations incumbent upon MONKEY under an order.
4.1 Both the execution of design and concept orders and the execution of production orders regularly require the permanent cooperation of the Customer, in particular that of its expert employees and specialist departments. The Customer is obligated to assist MONKEY in the performance of the services owed by MONKEY under the contract, if and to the extent that this is conducive to the performance of the respective order. The Customer shall always designate an expert employee of MONKEY who is available to MONKEY for this purpose during normal working hours and is authorized to make binding declarations for the Customer, in particular with regard to (partial) acceptances, defects and changes in the content, scope and design of the subject matter of the order. If the Customer's designated employee is prevented from attending, the Customer shall immediately designate a suitably competent and authorized representative to MONKEY.
4.2 In particular, Customer shall provide MONKEY with all information, data, content (e.g. contact data, access data, names including domain names, texts, images, graphics, sounds, videos and the like) that may be required for the performance of the Order, as well as any objects or items (in particular products, packaging and objects within the scope of production orders; hereinafter uniformly referred to as »Objects«) to be used by MONKEY on the basis of the relevant Order, free of charge and in a form directly suitable for the performance of the Order. Customer shall provide MONKEY with all textual, visual and auditory content to be processed by MONKEY for the purpose of performing the Order in the format specified by MONKEY or, in the absence of such specification, in a common digital format directly usable for the intended purpose. If necessary, Customer shall arrange for the conversion of such content at its own expense or pay MONKEY separately for such conversion. Customer shall be responsible for securing such information, data and content provided by Customer. MONKEY shall retain information, data and content provided by Customer only for a period of fourteen (14) days after acceptance of the relevant service result or completion of the order execution; such information, data and content shall be returned at Customer's risk and expense and only at Customer's express request within the retention period.
4.3 The Customer is solely responsible for ensuring that the information, data, content and objects provided to MONKEY are used in accordance with the contract, whether by MONKEY, by the Customer or by third parties commissioned by the Customer,
a. no legally protected interests and rights of third parties, in particular no contractual rights and no personal rights, copyrights and ancillary copyrights and no industrial property rights, are violated and
b. the aforementioned uses of such information, data, content and objects are not unlawful for any other reason, in particular due to a violation of data protection, regulations against unfair competition or criminal law regulations. Customer warrants to MONKEY, irrespective of fault, that the aforementioned rights and regulations will be observed and maintained and that the information and data required for the performance of the order, which Customer provides to MONKEY for this purpose, are complete and correct. Should MONKEY be held liable for the violation of such rights and regulations or for the incorrectness or incompleteness of information and data provided as a result of the Customer's own contractual use of such data, information, content and objects and/or as a result of the use of MONKEY's performance results by the Customer, including any third parties commissioned by the Customer, the Customer shall be obliged to indemnify MONKEY against any liability in this respect and to reimburse MONKEY for all resulting damages and necessary costs, including any necessary legal fees.
4.4 Subject to express agreements to the contrary in individual cases, it shall be the sole responsibility of the Customer to duly pay fees and levies to collecting societies, statutory social insurances and governmental institutions and authorities that are incurred or payable as a result of the respective execution of the order and / or as a result of the use of the respective performance results by the Customer or by third parties commissioned by the Customer. This, of course, does not include the fulfillment of tax and social security obligations incumbent upon MONKEY as an employer and as a client of third parties, as well as as a result of the collection of remuneration agreed upon on the basis of an order placed with MONKEY by a Customer. If MONKEY is held liable by any of the aforementioned entities as a result of the execution of the order and/or use of the results of the services by the Customer or third parties commissioned by the Customer, the Customer shall indemnify and hold MONKEY harmless from any such claims. If MONKEY incurs such fees and charges, Customer shall reimburse MONKEY for the corresponding amounts against evidence, unless otherwise agreed in the individual case.
5.1 Acceptance by the Customer of the services provided by MONKEY shall only be required if and to the extent that they have been provided in fulfillment of an obligation to produce a specific service result (a concept, media content, communication medium and the like). In this case, the corresponding performance results (including any interim or partial performance results, if applicable) shall be transmitted or made available to the Customer for review and acceptance. Unless expressly requested otherwise by the Customer and insofar as this is possible in view of the nature of the service provided, the transmission/access shall be effected electronically, in particular by e-mail or by providing a hyperlink for retrieving a performance result via the Internet. Acceptable performance results that are free of material defects shall be accepted by the Customer without undue delay; they shall be deemed accepted if the Customer has not declared their acceptance within one (1) week of their delivery.In the event of material defects, the Customer may refuse acceptance of the relevant performance results until the defects have been fully remedied. Material defects are regularly only such substantial deviations of the performance from its agreed properties that lead to a substantial impairment of the usability of the performance results for the customer. In the case of non-substantial defects, the customer shall accept the relevant services subject to the reservation of any warranty rights to which it is entitled in this respect.
5.2 Only the characteristics of the services concerned, which were determined in the respective offer of MONKEY and any detailed concept prepared in the course of the execution of the order and, insofar as no special provisions are made therein, the regulations contained in these GTC regarding the type, content and quality of the performance of services by MONKEY, shall be decisive for the acceptability and the absence of defects of the services of MONKEY.
5.3 The Customer is advised that the type of software environment, server technology, transmission technologies and end devices that may be used for the provision, transmission and/or presentation of media content and communication media or for the operation and use of software (elements or components) may affect their availability and presentation and/or their usability and scope of functions. If no agreements are made as to the software environment in which the media content or communication media to be created will be available, displayable, usable or functional, for which end devices and, if applicable, on which server technology and using which transmission technologies, the Supplier shall be liable for any damage caused by the use of the media content or communication media. MONKEY owes the agreed availability, displayability, usability and/or functionality of the media content or communication media only in connection with such third-party software (e.g. operating systems, web browsers and the like), such server technology and such transmission technologies and end devices that are widespread and customary at the time of the conclusion of the contract, and this only for the versions or generations of the relevant third-party software or technology that are current at that time. Notwithstanding any deviating agreements in individual cases and notwithstanding MONKEY's obligation to perform its services in accordance with its duties, MONKEY does not warrant the functionality and properties of third-party software that MONKEY integrates into media content or communication media to be created by MONKEY as agreed.
5.4 The Customer is further advised that, according to the current state of the art, it is not possible to create, operate and use software that is capable of running without errors in any combination of applications and under any technical and external conditions and that is always immune to interference and/or damage by third parties, in particular by targeted attacks by so-called »malware«.
5.5 The Customer shall inspect MONKEY's performance results for any defects immediately after delivery. Obvious defects shall be reported to MONKEY in writing immediately after delivery of the respective performance result. Defects that can only be detected upon careful inspection shall be reported in writing within one (1) week after delivery of the relevant performance result. Defects that cannot be detected even during a careful inspection must be reported to MONKEY in writing immediately after their discovery. The notice of defect must contain a description of the detected defects in as much detail as possible, which will enable MONKEY to remedy the defects by subsequent performance. Warranty claims asserted due to late notices of defects are excluded, unless MONKEY was aware of the defect in question at the time of delivery. The timeliness of a notice of defect is determined by its timely receipt by MONKEY.
5.6 The customer shall not be entitled to claims for the removal of defects in the event of an only insignificant deviation from the quality owed and in the event of an only insignificant impairment of the usability of the service provided. The same shall apply to defects based on information, data, contents and/or objects provided by the customer and/or based on the customer's specifications.
5.7 The Customer shall lose any rights arising from liability for defects if the Customer changes the relevant service or has it changed and this makes it impossible or unreasonably difficult for MONKEY to remedy the defect. In any case of modification of the relevant service, the Customer shall reimburse MONKEY for any additional expenses incurred in remedying the defect.
5.8 If and to the extent that nothing to the contrary has been expressly agreed, the customer may only demand up to two revisions of a service result that has the properties owed and complies with the formal and technical standards customary at the time of its delivery. This applies in particular to so-called »correction loops« for the adaptation of service results to the customer's aesthetic or creative and / or formal ideas that deviate from the aforementioned properties and standards, go beyond them or are independent of them. Even after such a request for a revision or adaptation of the relevant service result, the decisive factor for the acceptability of the services to be provided by MONKEY shall remain solely their properties in accordance with the aforementioned clause 5.2.
5.9 If any of MONKEY's Services are defective in accordance with the foregoing and Customer is entitled to warranty claims in respect thereof, MONKEY shall remedy such defects within a reasonable period of time, which shall normally be four (4) weeks, by way of subsequent performance.In the event of defects of title for which MONKEY is responsible, MONKEY shall, at its own option and expense, either modify or replace the Service in such a way that, if Customer uses the relevant Service in accordance with the contract, no third party rights are infringed any longer or such use is no longer opposed by any third party rights, or provide Customer with the necessary authorization to use the Service in accordance with the contract by concluding a license agreement. If a remedy of defects fails or is disproportionately expensive or cannot reasonably be expected of MONKEY for other reasons, Customer shall be entitled to reasonably reduce the remuneration agreed with respect to the relevant performance or to withdraw from the contract in accordance with the statutory provisions and to claim damages in accordance with the provisions set forth in Section 8 of these General Terms and Conditions. The statutory cases of dispensability of a prior request for subsequent performance shall remain unaffected. At the time of the Customer's withdrawal, MONKEY's claims for payment related to expenses already incurred (e.g. material, transport and travel costs, expenses for third-party services) as well as claims for remuneration due to services already rendered shall remain valid.
5.10 Warranty claims of the Customer due to a defect shall become statute-barred within one year from acceptance of the relevant (partial) service result or provision of the relevant (partial) service. This shall not apply to the Customer's claims for damages due to a defect if MONKEY has acted grossly culpably or had knowledge of the defect at the time of delivery or in case of injury to life, body or health due to such a defect.
6.1 MONKEY shall be entitled to the exclusive rights to all results of the Services provided by MONKEY in the course of the execution of design and concept orders and production orders. In particular, all concepts, drafts, layouts, scripts, storyboards, test and preliminary versions, presentation media and the like developed and/or used by MONKEY in the course of preparing the offer and executing the order - also as interim or transitional results – shall be deemed to be performance results in this sense, irrespective of whether and, if applicable, in what form they are embodied. MONKEY's right with respect to these performance results shall correspond in content and scope to the right to which the author is originally entitled under the German Copyright Act (UrhG) with respect to his or her work, even if the performance results in question do not fall under the definition of a work under the UrhG in the individual case. Unless otherwise agreed with regard to MONKEY's right to the service results created by MONKEY and with regard to the rights granted to the Customer in this respect, the provisions of the UrhG shall apply accordingly. Rights existing to information, data, contents and objects provided by the Customer or to services of third parties which are included by MONKEY in the service provision shall remain unaffected. Proposals and instructions of the Customer as well as the Customer's cooperation in the performance of an order in accordance with the agreement shall not in themselves constitute any joint copyright or any other form of joint entitlement of the Customer to the results of MONKEY's services which could give rise to a right of exploitation or use on the part of the Customer in this respect.
6.2 Subject to deviating agreements in individual cases, MONKEY shall grant the Customer the rights of use required for the Customer's use of the performance result owed in accordance with the agreement or, in the absence of an agreement to this effect, for the Customer to achieve the purpose of use discernible at the time the agreement was concluded. Unless a more comprehensive granting of rights is required and unless otherwise agreed in writing, the Customer shall be granted a right of use with the same content in each case as a simple, transferable right, limited in time to two (2) years, to use the performance result owed in its entirety and in unchanged form. Unless otherwise agreed and the purpose recognizable at the time of conclusion of the contract does not require any further authorization, this right shall, in case of doubt, be granted spatially limited to the territory of the country in which the customer has its registered office, unless it is recognizable at the time of conclusion of the contract that the service result is to be used online for the intended purpose; in this case, the rights shall be granted spatially unrestricted.
6.3 The granting of rights with regard to performance results shall always refer exclusively to accepted final results. The presentation or other making available of drafts, layouts, scripts, storyboards, test and preliminary versions and other such interim/preliminary results shall not in itself constitute a granting or transfer of rights in this respect. Without MONKEY's express prior written consent, the Customer is therefore prohibited from using such interim/preliminary results, in particular from disclosing them to third parties and implementing them by the Customer himself or by third parties commissioned by him to do so.
6.4 Insofar as MONKEY creates or has created script, machine and/or source code within the scope of the execution of the order, such code shall remain with MONKEY under warranty of the right granted to Customer to use the relevant performance result, unless expressly agreed otherwise in writing. Insofar as the Customer is entitled to use created and/or integrated software in connection with third-party software, the right to decompile to the extent and under the conditions specified in the German Copyright Act (UrhG) shall remain unaffected. Insofar as performance results are provided with the integration of open source modules, the granting of rights with regard to such modules shall be made in accordance with the respective applicable free software licenses.
6.5 Any use of the results of the services provided by MONKEY by the Customer in the form of their distribution and/or licensing to third parties shall require an express agreement in each individual case, unless such a purpose was already obviously based on the placing of the order on the part of the Customer. Companies affiliated with the customer within the meaning of § 15 of the German Stock Corporation Act (AktG) are in this respect in case of doubt not to be regarded as third parties in this sense.
6.6 Any use of the Performance Results beyond the scope set forth above shall require MONKEY's prior written consent. Without such consent, the Customer shall in particular not be entitled to use the Performance Results only in part or in excerpts, to combine them with Performance Results of third parties, to publish, distribute or make publicly available the Performance Results in edited or otherwise significantly modified form, or to grant rights of use to such modified versions.
6.7 Repeat uses (e.g. reprints of physical products, use for further campaigns, events, broadcasts, etc.) or multiple uses (e.g. for other publications, media, formats, products, etc. than those on which the order was based) are, in case of doubt, not covered by the rights granted and require MONKEY's written consent. MONKEY may not refuse such consent only if this would significantly affect the Customer's legitimate interests and such interests outweigh the legitimate interests of MONKEY. In each of these cases, MONKEY shall be entitled to a separate remuneration for the Customer's repeat or multiple use of the performance result.
6.8 For each case of unauthorized use of the performance results by the Customer, MONKEY shall be entitled to demand a contractual penalty in the amount of 200% of the order remuneration attributable to the performance in question. Legal claims to which MONKEY is entitled in these cases in addition or over and above this shall remain unaffected.
6.9 Unless otherwise agreed, templates, models, files and other working materials that MONKEY produces or has produced in the course of executing the order remain the property of MONKEY. MONKEY is not obligated to keep or surrender any such materials. If MONKEY and the Customer agree to transfer such work materials to the Customer after the order has been placed, MONKEY shall be entitled to separate remuneration.
6.10 The granting of rights shall always be subject to the condition precedent of the complete fulfillment of all payment claims to which MONKEY is entitled on the basis of the order in question.
6.11 MONKEY is entitled to request from the Customer written information about the scope of use of performance results.
7.1 Unless differentiated in this respect in the relevant order, the services of MONKEY that are the subject of the order as well as any granting of rights of use to the results of the services shall be remunerated collectively. Unless and insofar as expressly stated otherwise by MONKEY, the amounts of remuneration for individual services stated in a quotation are cost estimates based on effort estimates prepared by MONKEY Pictures on the basis of the information provided by the Customer at the time the quotation is prepared and the Customer's needs communicated by the Customer and/or identified by MONKEY.Insofar as the amount of MONKEY's remuneration has not been agreed in the individual case, it shall be based on MONKEY's remuneration rates applicable at the time the contract is concluded. In the context of orders placed with MONKEY in connection with an advertising campaign of the Customer or the Customer's client, MONKEY may in such cases also charge a fee amounting to 10% (ten percent) of the advertising or media budget handled by MONKEY as remuneration.
7.2 Unless expressly agreed otherwise, actual and reasonable expenses incurred by MONKEY for the execution of an order (e.g. travel, production, courier and transport costs, costs for obtaining filming permits, etc.) shall be reimbursed separately by the Customer upon corresponding proof. This also applies in particular to legal fees in an appropriate amount, if and to the extent that the services to be provided by MONKEY also include a legal review on the basis of a corresponding agreement in the individual case. If, in the course of the performance of an order, MONKEY purchases services (in particular data, content, production services, services including artistic services and consulting services) from third parties as agreed, which do not provide these services as subcontractors of MONKEY, MONKEY shall also be entitled to charge Customer a so-called »handling fee« of up to 15% (fifteen percent) of the value of the purchased service in each case to compensate Customer for the expenses associated with the purchase of such services, in addition to the costs incurred for this purpose.
7.3 Any extension of the order at the Customer's request, in particular in the form of modification, rescheduling, restructuring and extension of an order already placed, shall in principle be remunerated separately by the Customer to MONKEY. This shall not apply only if an extension of the order initiated by Customer does not involve significant additional expense for MONKEY or an extension of the service result to be delivered to Customer in the course of the performance of the order in question. Unless otherwise agreed in the individual case, an order extension at the Customer's request shall always also be deemed to be such a significant additional expense that MONKEY incurs in the performance of the agreed service, but which was not recognizably part of the expense that was estimated by MONKEY in the corresponding offer, in any case provided that MONKEY notifies the Customer of such additional expense before it is performed and the Customer then requests the further performance of the order.
7.4 If MONKEY is entitled to separate remuneration for additional work performed, the amount of such remuneration shall be based on the remuneration agreed upon for the performance of the respective order, in particular on the agreed hourly and/or daily rates, in the absence of such provisions on MONKEY's hourly and daily rates applicable at the time the additional work is incurred.
7.5 The Customer's dutiful cooperation in the execution of the order, in particular in the form of suggestions, specifications, instructions and information as well as the provision of information, data, contents and objects, shall not - subject to special agreements in individual cases - have the effect of reducing the remuneration, not even indirectly, e.g. by way of set-off.
7.6 Unless and insofar as MONKEY does not state otherwise, all prices are exclusive of the statutory value added tax applicable on the day of invoicing.
7.7 The remuneration to which MONKEY is entitled shall be due for payment in each case no later than after acceptance of the relevant service result or provision of the relevant service and invoicing in this respect. MONKEY shall be entitled to demand advance payments from the Customer depending on the status of the service provision and/or advance payments in the amount of up to 50% of the remuneration due for the relevant service. Since the performance of such services regularly requires substantial expenses at the outset (e.g. for technology and materials, transport, personnel, accommodation, permits, catering, etc.), MONKEY shall be entitled in particular to demand advance payments to the aforementioned extent on the agreed remuneration for a production order involving the production of film footage.
7.8 The Customer shall be in default in each case if and to the extent that a remuneration amount owed and invoiced is not credited to MONKEY's account notified to the Customer within four (4) weeks from the date of proper invoicing. If the Customer is in default of payment for more than five (5) business days, MONKEY shall be entitled to suspend any further performance of the order and to withhold all services and performance results until all due liabilities of the Customer to MONKEY, including any default damages and interest incurred as a result of the default, have been settled in full. This does not affect MONKEY's other or additional rights in this case.
7.9 In principle, Customer may only set off its own claims against MONKEY's claims if its claims are undisputed or have been legally established. This shall not apply only if the Customer's claims are payment claims to which the Customer is entitled as a result of a defectiveness of the services provided by MONKEY for which MONKEY is responsible under the same order on the basis of which MONKEY asserts claims against the Customer.
8.1 MONKEY is liable in contract and tort;
a. for damages due to gross negligence and intent and for those resulting from injury to life, body and health;
b. for damages resulting from the breach of contractual obligations, the fulfillment of which is essential for the proper execution of the contract and on the compliance with which the Customer regularly relies and may rely (so-called »essential contractual obligations«); in this respect, however, the liability is limited to the amount of the foreseeable damage, the occurrence of which must be typically expected. As a contract-typical foreseeable damage, the simple amount of the respective order value is regularly considered. Any further liability claims are excluded to this extent and in this respect, in particular MONKEY is not liable for loss of profit, loss of savings and other indirect and direct consequential damages.The above limitations of liability also apply to the benefit of MONKEY's employees, bodies and vicarious agents. MONKEY shall not be liable for the conduct of its vicarious agents if such agent is the Customer or a person appointed by the Customer with such function. The latter includes in particular persons provided by the Customer for the purpose of the production of media content or communication media by MONKEY (in this respect in particular actors and models).Mandatory statutory liability provisions remain unaffected by the above provisions.
8.2 Claims for damages by the customer due to the breach of material contractual obligations (see above under Section 8.1, lit. b), shall become statute-barred, irrespective of knowledge, within five (5) years from the time they arise.
8.3 Since the Customer is solely responsible for backing up the information, data and content provided to MONKEY, MONKEY shall not be liable for their loss.
8.4 The assumption of a guarantee by MONKEY can only be accepted if such a guarantee has been expressly declared by MONKEY. Such guarantees shall be recorded in writing. Furthermore, MONKEY does not assume any obligation to pay lump-sum damages or contractual penalties, unless expressly agreed otherwise in the individual case.
9.1 If and to the extent not otherwise agreed, technically impossible or unreasonable for the Customer with regard to the specific form of use of the service result, MONKEY shall be named as the author or creator of the relevant service in connection with each publication of a service result created by MONKEY on behalf of the Customer in a place customary in the industry and, to the extent technically possible, in each case in the designation and, if applicable, design form specified by MONKEY. Any violation of MONKEY's right to be named shall entitle MONKEY to damages in the amount customary in the industry.
9. 2 MONKEY shall be entitled, for the purpose of advertising MONKEY and the services offered by MONKEY in advertising materials and other media, to refer to the existing business relationship with the Customer and - unless information in this respect is declared or obviously confidential - to orders carried out within the scope thereof and to the services provided by MONKEY in the course thereof, and, for this purpose, to use the name, trademark, logo and other signs used by the Customer to identify itself and, where applicable, its products or services that were the subject of the relevant service provided by MONKEY, to an appropriate and proportionate extent. In this respect, MONKEY is in particular entitled to mention and reproduce the Customer and the services provided to the Customer to this extent as a reference to MONKEY's portfolio of services on MONKEY's website and in other reference material.
9.3 MONKEY shall be provided free of charge with at least ten (10) specimen copies of physically reproduced communication media and media content produced by or on behalf of the Customer using MONKEY's performance results for the purpose of delivery to third parties, which MONKEY may also use, distribute and publicly reproduce as part of its own advertising.
10.1 If the Customer terminates an order before its execution has been completed, MONKEY's claim to the remuneration for the services already performed shall remain unaffected. In addition, MONKEY shall be entitled to compensation for loss of earnings in such cases, which shall regularly amount to 15% of the remuneration for the services not yet performed under the order in question at the time of termination. The Customer is free to prove in individual cases that MONKEY incurred a lower loss as a result of the premature termination of the order, just as MONKEY is free to prove a higher loss in individual cases.
10.2 The Customer's obligation to reimburse MONKEY for expenses already incurred by MONKEY for the purpose of executing the order in question, in accordance with any agreements made in this respect in the individual case and otherwise in accordance with these GTC, shall also remain unaffected by premature termination of the order. It is clarified that expenses in this sense may also consist in incurring liabilities.
10.3 The right of the contracting parties to withdraw from an order prematurely in the cases provided for by law shall remain unaffected.
11.1 The place of performance for the obligations arising from the business relationship between MONKEY and the Customer and the sole place of jurisdiction for all disputes arising from and in connection with the contractual relationship between MONKEY and the Customer is the registered office of MONKEY.
11.2 The contractual relations between MONKEY and the Customer as well as any disputes arising in connection therewith shall be governed exclusively by the laws of the Federal Republic of Germany.
11.3 Should individual provisions of these GTC be legally invalid in whole or in part or lose their legal validity at a later date, this shall not affect the validity of the remaining provisions of the GTC.
Status: January 2022