Terms of Service
(according to the guidelines of the Illustratoren Organization eV)
These terms and conditions apply exclusively to all contracts between the illustrator and the client. Deviating individual agreements, contract and terms and conditions must be made in writing. The terms and conditions apply to all business transactions, including all future follow-up business, including those that are concluded orally, in particular by telephone, even if they are no longer expressly referred to in the follow-up business.
2. Copyright protection and right of use
The services to be provided by the illustrator are subject to copyright protection. The provisions of the law on work contracts and the copyright law apply. The payment of only a work fee does not entitle the user to use it. Rather, this requires a separate agreement on the granting of usage rights and their appropriate remuneration.
Confirmations or minutes of meetings sent by the illustrator are binding if the client does not immediately object.
The illustrator is entitled to use suitable third parties to fulfill the contract. In this case he will acquire their possible usage and other rights to the extent owed to the client and grant them to the client.
All activities that are performed for the client, 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 work drawing remuneration
c) the remuneration for the granting of rights of use to the work drawing.
Unless otherwise agreed, remuneration promised and / or paid by the client will be offset against the individual remuneration components as follows:
30% on the design fee
30% on the work drawing fee
40% on the usage rights, if granted.
The claim for remuneration for any granted rights of use 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 does not apply, but not the remuneration for the work performed up to that point. Proposals by the client or his or her 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 remuneration is net amounts, which must be paid plus the applicable sales tax. The artist's social security tax is to be paid additionally by the client and is not included in the remuneration.
5. Payment terms
The remuneration is due upon delivery. It is payable without deduction. If an order takes more than four weeks to complete or if it requires financial advance payments from the illustrator that exceed 50% of the remuneration to be paid, the following payments must be made:
1/3 of the total remuneration when placing the order 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 rights to the payments on account which have already become due at the time of the termination of the contract according to the above. Otherwise, § 649 BGB applies. The client is in default of payment in whole or in part if he does not pay within 14 days of delivery without the need for a reminder.
If the client does not use the services to the agreed extent, he has no right to a reduction or reimbursement of the remuneration. 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.
6. Rights of use, ownership, self-promotion
To the extent that this has been agreed, only rights of use are granted to the illustrator's work or services. Ownership, in particular of drafts (sketches, layouts) and work drawings (final art) that he creates or has created, is not granted. All two- and / or three-dimensional workpieces (drafts, work drawings, models, dummies, samples) given to the client as part of the order remain the property of the illustrator. The client is only granted the right of possession as long as he is absolutely dependent on possession of the workpieces in order to use the illustrator's services in accordance with the contract. In any case, the right of possession ends at the latest with the termination of the contractual relationship between the illustrator and him.
The work pieces are to be returned undamaged after the right of possession has expired, unless otherwise agreed in writing. The return takes place at the expense and risk of the client. In the event of damage or loss, the client has to pay compensation in the amount of 100% of the agreed remuneration, without acquiring ownership rights through such payment.
The drafts handed over to the client are used for consultation
the client. Further rights of use are not granted to the client. Unless expressly agreed otherwise, any further contractual granting of usage rights refers exclusively to the approved work drawing. The services and works of the illustrator 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 other written agreements, the client only receives simple rights of use or other rights, namely only for the agreed duration and the agreed scope of use in terms of content and space; In the absence of any other written agreement, the scope of the granting of usage rights does not at least extend beyond the territory of the Federal Republic of Germany.
Any other use or use that goes beyond the originally agreed scope is only permitted on the basis of a special written grant of usage rights and against payment of a fee corresponding to the scope of the additional use in relation to the remuneration for the original use.
The transfer of granted usage rights to third parties requires the illustrator's consent. The illustrator is entitled to information about the scope of use. Suggestions or specifications of the client as well as other cooperation do not establish any joint copyright of the client. Rights to the illustrator's services, in particular rights of use, are only transferred to the client upon full payment of the illustrator's remuneration relating to the order.
The illustrator has the right to sign his work and to be named as the author on the copies. When the works are recorded digitally, the name of the illustrator must be electronically linked to the image data.
The client is not entitled to edit the services (neither the originals or digital files nor reproductions) in part or as a whole or to otherwise change and / or edit or have them changed, unless this is expressly the subject of the agreed granting of rights. This additional granting of rights is to be paid for separately in each case.
The illustrator is then not obliged to store them. In particular, the illustrator is not obliged to keep work files that have been created on the computer, including the source code, and / or to hand them over to the client. If the client wishes files to be stored and / or released, this must be agreed separately and paid for.
In the event of a violation of the rights of use, processing or naming, the illustrator is entitled to demand a contractual penalty in the amount of three times the agreed basic remuneration. The right to assert claims for damages, monetary compensation or other rights in addition to the contractual penalty remains unaffected.
All services provided by the illustrator may be used without restriction for the purpose of self-promotion, unless something else has been expressly agreed.
7. Special services, ancillary and travel expenses
Unless otherwise agreed, the client will be given one (1) optimization step for each design during the design phase - not exchanging image elements - without this being charged as a special service. Any further changes and / or new creation and submission of drafts, changes and / or new creation of work drawings as well as other additional services (e.g. manuscript study), ancillary costs (e.g. couriers) or technical costs (e.g. for reproductions, data carriers) will be calculated separately depending on the effort. The illustrator will calculate the expenses according to an hourly or daily rate to be determined by him at his own discretion, which is based on the remuneration recommendations of the IO (Illustratoren Organization eV). Something different arises 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 additional costs incurred are to be reimbursed by the client in addition to the partial remuneration to be paid according to clauses 4 and 5. The remuneration for additional services is due after they have been provided. Any incidental costs incurred are to be reimbursed. Remuneration and ancillary costs are net amounts to be paid plus the applicable sales tax.
8. Cooperation of the client
The client is obliged to provide the illustrator with all information necessary for the provision of the deliveries and services as well as the necessary data material 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, even without being asked, of circumstances that may be significant for the provision of his deliveries and services, and of which the client can recognize that they may be unknown to the illustrator. 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 client 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 in order to achieve these development stages, he is obliged to provide all services to be provided by him in good time.
9. Delivery, delivery time
Adherence to the agreed delivery dates assumes that all technical questions have been clarified, documents to be supplied by the client, approvals, services to be provided and other obligations of the client are available or fulfilled in good time. If this does not happen and a timely delivery of the service with an additional payment accepted by the customer for increased costs is no longer possible, the delivery period 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 for dispatch have been performed. If the non-compliance with an agreed delivery period is due to force majeure, industrial action, fire, machine breakdown, telecommunication disruptions, computer disruptions, 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 own discretion by increasing the remuneration appropriately in accordance with the remuneration rules agreed here. The assertion of further damage caused by default remains unaffected by this.
10. Transfer of risk
Unless otherwise stated in the order confirmation, the handover takes place at the illustrator's office. If the client wishes delivery to another location, this is done at his own risk and account. The risk is transferred to the carrier upon handover or, if one is not involved, at the latest upon receipt of the service by the customer or his vicarious agents, even if partial deliveries are made or the illustrator provides additional services (e.g. transport costs or Delivery) has taken over.
11. Warranty for defects, liability
The illustrator enjoys creative freedom in the artistic implementation of the order placed with him. If his work 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 performance. The customer's warranty rights require that the customer has checked the work and services supplied by the illustrator immediately upon receipt, but in any case before further processing, and that defects have been reported immediately upon discovery. Slight color deviations of the print results from the screen display or computer printout are due to technical reasons and do not represent a defect.
If there is a defect for which the illustrator is responsible, he is initially entitled to subsequent performance within a reasonable period of time. If the supplementary performance fails, the customer is entitled to withdraw from the contract or to demand a corresponding reduction in remuneration (reduction) after a reasonable period set by him for supplementary performance has expired. Subsequent performance has failed if the defect has not yet been remedied after the second attempt at subsequent performance.
The warranty period is 12 months from the transfer of risk. The period is a statute of limitations and also applies to claims for compensation for consequential damage caused by a defect, provided that no claims are asserted from tort; the statutory limitation period applies to these.
The illustrator is only liable for damages - for whatever legal reason - in the event of willful intent or gross negligence, including willful intent or gross negligence on the part of its representatives or vicarious agents. Unless he has intentionally violated the contract, the liability for damages is limited to the foreseeable, typically occurring damage. Excluded from this limitation of liability are damage resulting from injury to life, limb or health of the client as well as damage due to breaches of the illustrator's cardinal obligations.
Insofar as the illustrator merely passes on third-party services (e.g. photographers, service providers) to the contractor, his liability is limited to fault in the selection. Liability for computer viruses is excluded, unless the illustrator acts with intent or gross negligence.
The client assumes the obligation to check the legal admissibility of the services provided by the illustrator. If the illustrator's services violate the rights of third parties or if they are otherwise illegal because they are based on illegal specifications and / or templates by the customer, the customer alone is liable for the internal relationship. He has to compensate the illustrator for all damage resulting therefrom, including the reasonable costs of legal defense, and to keep him free from all claims by third parties. However, the illustrator will notify the client of any legal violations associated with his services as soon as he becomes aware of these. In particular, this liability regulation applies to factual statements or other materials provided to the illustrator by the client or otherwise left; to the same extent, the client is liable for ensuring that all rights of use and exploitation as well as any other necessary rights to the materials supplied by him are available to the required extent.
Insofar as the illustrator's liability for damages is excluded or limited according to the foregoing, this also applies with regard to the liability of his employees, employees, freelancers, representatives and vicarious agents.
12. Receipt sample
The client provides the illustrator with at least five perfect, unfolded voucher samples free of charge from all the reproduced work. The illustrator is entitled to use these samples for the purpose of self-promotion.
13. Place of performance, place of jurisdiction, applicable law
The parties agree that the illustrator's place of business is the place of performance and, as far as legally permissible, 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 invalidity or ineffectiveness of individual provisions of the contract does not affect the validity of the remaining provisions. The same applies to loopholes. Instead 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 according to the meaning and purpose of the contract should apply.