The general terms and conditions mentioned here apply to all contracts concluded between Fabian Marschelewski and the client. The terms and conditions are agreed if the client does not object to them immediately after receipt.
1. Copyright and rights of use
1.1 Every order placed with Fabian Marschelewski shall be a copyright contract for the granting of rights of use to the work performances.
1.2 All drafts and final versions are subject to copyright law. The provisions of the Copyright Act shall apply even if the level of creation required under Section 2 UrhG has not been reached.
1.3 The drafts and final artwork may not be altered either in the original or in reproduction without the express consent of Fabian Marschelewski. Any complete or partial imitation shall be inadmissible.
1.4 In the event of a breach of clause 1.3, the Client shall pay Fabian Marschelewski a contractual penalty amounting to 200% of the agreed remuneration.
1.5 The representation of the rights management and thus the administration of the rights of use shall be assumed by GEMA. Any public use of music must generally be registered with GEMA in advance by the client. The fees incurred by GEMA shall be borne by the customer. Fabian Marschelewski shall be indemnified by the customer against any claims by GEMA.
1.6 The rights of use shall not pass to the Client until the remuneration has been paid in full.
1.7 Fabian Marschelewski shall have the right to be named as the author on the reproductions (hard and soft copies). If the customer infringes the right to be named, he shall be obliged to pay Fabian Marschelewski a contractual penalty amounting to 100 % of the agreed remuneration. This shall not affect the right to claim higher damages in the event of concrete calculation of damages.
1.8 Unless otherwise agreed, Fabian Marschelewski shall in any case be entitled to use his designs and reproductions in the context of his own advertising.
2.1 Drafts and final artwork together with the granting of rights of use form a single service. Remuneration shall be based on the agreed fee.
2.2 If no rights of use are granted and only drafts and/or final artwork are delivered, it is prohibited to use them.
2.3 The preparation of drafts and all other activities performed by Fabian Marschelewski for the Client shall be subject to a charge, unless expressly agreed otherwise.
3. Payment due date
3.1 The remuneration is due upon delivery of the work or upon delivery within an agreed payment period. It is payable without deduction. If the ordered work is accepted in parts, a corresponding partial payment shall be due in each case upon acceptance of the part. If an order extends over a longer period of time or if it requires Fabian Marschelewski to make large financial advance payments, reasonable down payments shall be made, namely 1⁄3 of the total remuneration when the order is placed, 1⁄3 after completion of 50% of the work, 1⁄3 after delivery, unless other agreements have been made.
3.2 Fabian Marschelewski may demand default interest in accordance with the statutory provisions in the event of default in payment. The assertion of a proven higher damage remains unaffected.
4. External services, ancillary costs and travel expenses
4.1 Special services such as the reworking or alteration of final artwork or mastering shall be charged separately depending on the time required, unless other agreements have been made.
4.2 Fabian Marschelewski is entitled to order the external services necessary for the fulfilment of the order in the name and for the account of the client. The client is obliged to grant Fabian Marschelewski written authority to do so.
4.3 If, in individual cases, contracts for external services are concluded in Fabian Marschelewski’s name and for Fabian Marschelewski’s account, the client is obliged to indemnify Fabian Marschelewski internally from all liabilities arising from the conclusion of the contract, in particular from the obligation to pay the price for the external service.
4.4 Expenses for ancillary technical costs, in particular for special materials, shall be reimbursed by the client.
4.5 Travel costs and expenses for travel undertaken in connection with the order and agreed with the client shall be reimbursed by the client.
5. Reservation of title, obligation to return and surrender of data
5.1 Only rights of use shall be granted to drafts and final artwork, but ownership rights shall not be transferred.
5.2 Fabian Marschelewski is not obliged to release data carriers, files and data. If the client wishes Fabian Marschelewski to make data carriers, files and data available to him, this must be agreed in writing and paid for separately.
5.3 If Fabian Marschelewski has made data carriers, files and data available to the client, these may only be changed with Fabian Marschelewski’s consent.
5.4 The risk and costs of transporting data carriers, files and data online and offline shall be borne by the client.
5.5 Fabian Marschelewski is not liable for defects in data carriers, files and data, except in cases of intent and gross negligence. Fabian Marschelewski’s liability is excluded in the event of errors in data carriers, files and data which occur during data import into the client’s system.
6. Correction, production monitoring and samples
6.1 The Client shall submit correction samples to Fabian Marschelewski prior to duplication/publication.
6.2 If Fabian Marschelewski is to supervise production, he and the client shall conclude a written agreement. If Fabian Marschelewski carries out the production monitoring, he shall decide at his own discretion and give appropriate instructions.
7.1 Fabian Marschelewski is only liable for damages caused intentionally or through gross negligence by himself or his vicarious agents. This also applies to damages resulting from a positive breach of contract or an unlawful act.
7.2 The dispatch and return of works and templates shall be at the risk and for the account of the client.
7.3 With the acceptance of the work, the client assumes responsibility for the correctness of sound, text and image.
7.4 Fabian Marschelewski is not liable for the admissibility and registrability of his drafts and other design work under competition and trademark law.
7.5 Complaints and objections of any kind must be made in writing to Fabian Marschelewski within two weeks of delivery. Thereafter, the work shall be deemed to have been accepted in accordance with the contract and free of defects.
7.6 Deadlines for projects have to be chosen in such a way that there is enough time for an adequate processing. This also includes the timely delivery of tasks and material. The client or responsible project manager is solely liable for any failure to meet or exceeding of the deadline due to non-compliance with the above mentioned reasons.
8. Freedom of design and templates
8.1 Fabian Marschelewski is free to design as part of the order. If the client requests changes during or after production, he must bear the additional costs. Fabian Marschelewski retains the right to remuneration for work that has already begun.
8.2 If the execution of the order is delayed for reasons for which the client is responsible, Fabian Marschelewski may demand an appropriate increase in remuneration. In the event of intent or gross negligence, he may also assert claims for damages.
8.3 The client assures that he is entitled to use all materials and information provided to Fabian Marschelewski and that these templates are free from the rights of third parties. Should he not be entitled to use the material contrary to this insurance or should the material not be free from the rights of third parties, the client shall indemnify Fabian Marschelewski internally against all claims for compensation by third parties.
9. Final clauses
9.1 Place of performance is Berlin.
9.2 In the event that the customer does not have a general place of jurisdiction in the Federal Republic of Germany or moves his registered office or usual place of residence abroad after conclusion of the contract, Fabian Marschelewski’s registered office shall be agreed as the place of jurisdiction.
9.3 If one of the above terms and conditions is invalid, this shall not affect the validity of the remaining terms and conditions.