1. Scope of application

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

2. Copyright and right of use

The services to be performed by the artist are subject to copyright protection. The provisions of the law relating to contracts for work and services and the provisions of the German Copyright Act (Urheberrechtsgesetz) apply. The simple payment of a fee for work does not entitle to the use of the work. This requires a separate agreement on the granting of rights of use and reasonable remuneration, without which commercial use is not permitted. 

3. Orders

Confirmations or meeting minutes transmitted by the artist are binding if the Client does not immediately object.
The artist is entitled to involve suitable third parties for the fulfilment of the contract. In this case, the artist will acquire any rights of use and other rights of use held by the third parties and will grant these rights to the customer.

4. Remuneration

All services rendered to the customer, including presentations, drafts and work drawings, are subject to fees, unless otherwise agreed in writing. 

The remuneration shall consist of:
a) The draft fee (sketch)
b) The work drawing fee (rendering and delivery)
c) The fee for the transfer of the rights of use.

Unless otherwise agreed, fees promised and or paid by the client shall be credited as follows to the individual remuneration components:

30 % to the draft fee
30 % to the work drawing fee
40 % to the general rights of use
+ an additional 50% to the commercial rights of use in so far as any such rights are granted.

The entitlement to the fee for any rights of use arises irrespective of whether and, if so, to what extent such rights of use are used by the customer. If no rights of use are granted, the artist will receive no fee for use of the work but will receive fees for work performed up to that point. Proposals or any other contributions by the customer have no effect on the amount of the fees.

All fees are net amounts and, if the artist is subject to VAT, VAT will be added to each fee at the rate applicable at the time. Premiums due to the Artists‘ Social Security Fund are to be paid by the customer in addition and are not contained in the fees.

5. Terms of payment

If a contract is performed over a time period of more than four weeks or requires advanced payments by the artist in excess of 50% of the fees due to the artist, the following instalment payments are due:

1/3 of the total fee at the time the order is placed
1/3 on completion of 50% of the work
1/3 on delivery.

Payments are generally done in full in advance unless agreed upon otherwise by both parties.

If the contract is terminated prematurely, the artist is entitled at least to those instalment payments that have already become due to the artist on the termination in accordance with the above provisions. In all other respects § 649 BGB of the German Civil Code (Bürgerliches Gesetzbuch) applies. The customer is in default with payment, in whole or in part, if he fails to make payment within 14 days of delivery; no demand note is necessary.

If the customer fails to use works of the artist to the extent agreed, the customer is not thereby entitled to a fee reduction or refund. The customer is only entitled to right of offset if his counter-claims have been judged to be final and absolute, are undisputed or are accepted by the artist.

6. Rights of use, ownership and self-promotion

In so far as is agreed, only rights of use are granted to the artist’s work or services. Title, particularly to drafts (sketches and layouts) and work drawings (final art) which she creates or causes to be created is not granted. All two-dimensional and/or three-dimensional works delivered to the customer in connection with an order (drafts, work drawings, models,
dummies, samples) remain the property of the artist. The customer has a right of possession to such works only for as long as possession of the works is absolutely necessary for the agreed use of the artist’s work. In all cases the right of possession will terminate at the latest when the contract between the artist and the customer terminates.

After the right of possession has terminated, the works will be returned to the artist in an undamaged condition unless otherwise agreed in writing. The works will be returned at the cost and risk of the customer. In the event of damage or loss, the customer is liable for damages in the amount of 100% of the agreed fees, with the customer acquiring no ownership rights as a result of the payment of such damages.

The purpose of the drafts passed to the customer is consultation with the customer. No further rights of use to such drafts are granted to the customer. Unless otherwise expressly agreed any additional contractual rights of use applies exclusively to the approved pieces. The artist’s work and services may only be used to the extent agreed for the order or which arise from its purpose.

The customer is not entitled to edit the performances (neither the originals nor reproductions) in parts or as a whole or to otherwise change them and/or have them edited or changed, unless this is expressly the subject of the agreed delivery or performance.

The artist is not obligated to store the material thereafter. In particular, the artist is not obligated to store work files created in the computer, including the source code, and/or to hand them over to the customer. If the customer wishes the storage and/or release of files, this is to be agreed upon and remunerated separately. 

In the event of an infringement of the rights of use, processing or naming rights, the artist shall be entitled to demand a contractual penalty in the amount of three times the agreed remuneration. The right to assert claims for damages, monetary compensation or other rights in addition to the contractual penalty shall remain unaffected. 

All services provided by the artist may be used by the artist without restriction for the purpose of self-promotion, unless expressly agreed otherwise.

7. Special services, additional and travel expenses

Unless expressly agreed otherwise, during the draft phase the customer may request one (1) optimisation (but which does not amend the image elements) according to his instructions without this being invoiced as a special service.

Any further modification and/or new creation and submission of drafts, the modification and/or new creation of work drawings as well as other additional services, incidental costs or technical costs (e.g. for reproductions, data carriers) will be charged separately, depending on the time and effort involved. The artist will charge for the effort according to an hourly or daily rate to be determined by her at her reasonable discretion. This does not apply if such services are expressly included in the order confirmation, stating the amount of remuneration.

If the contract is not performed for any reasons for which the artist bears no responsibility, the customer will pay all incidental costs incurred by the artist in addition to the partial fee due in accordance with Clauses 4 and 5. Payment for additional services is due after services are rendered. Reimbursement of any incidental costs advanced by the artist is due after they are incurred. Fees and incidental costs are net amounts; VAT applicable at the time must be paid in addition.

8. Cooperation of the client

The customer is obliged to make available to the illustrator in good time all information and data in a standard format that is needed for the execution of the goods and services.

The customer will ensure that the artist receives the rights necessary for the use of these documents. The customer is also obliged to notify the artist, without being so requested, of any circumstances which may be significant for the execution of his goods and services and which the customer can see are possibly unknown to the artist. The files passed
to the artist will only be returned to the customer if this was expressly agreed; if such a transfer takes place it is at the risk and for the account of the customer.

If the customer fails to accept agreed works in breach of his duties of cooperation, the artist may demand reasonable compensation.

In so far as the artist defines development stages together with the customer and the customer must contribute work of his own to reach those development stages, the customer is obliged to complete and deliver all such work in good time.

9. Delivery, Delivery Time

Compliance with the agreed delivery dates presupposes that all technical questions have been resolved and that all documents and approvals to be supplied by the customer are available in good time and that all activities and obligations incumbent on the customer are available and have been completed in good time. If this is not the case and timely delivery of the artist’s work is no longer possible even for an additional fee covering the additional costs as agreed with the customer, the delivery period will be extended for a reasonable time period. Contracts with fixed dates under German law (Fixgeschäfte) are not concluded. The artist reserves the right to raise the defence of non-performance.

The artist’s delivery obligations have been met as soon as the goods and services have been dispatched. If non-compliance with an agreed delivery period is due to force majeure, a labour dispute, fire, broken machinery, disrupted telecommunications, computer malfunction, severe illness, unforeseen obstacles or any other circumstances for which the artist is not responsible, the delivery period is extended for the duration of such events. The same applies, mutatis mutandis, if delivery by the artist was delayed at the time any such event occurs. The artist will inform the customer of any delays in delivery due to force majeure.

If the execution of the order is delayed for reasons for which the client is responsible, the artist may demand compensation for damages, which she may calculate by an appropriate increase of the remuneration in accordance with the rules of remuneration agreed upon herein at her own reasonable discretion. The assertion of further damage caused by delay remains unaffected.

If performance of the order is delayed for reasons for which the customer is responsible, the artist may claim damages which he may invoice by reasonably increasing the fee at his discretion according to the provisions on remuneration in this agreement. The artist’s right to claim additional damages for delayed performance remains unaffected thereby.

10. Transfer of risk

Unless otherwise stated in the order confirmation, risk passes at the artist’s place of business/place of residence. If the customer desires delivery at a different location, delivery will be made at the customer’s risk and cost. Risk passes from the artist to the customer at the time of delivery to the carrier or, if no carrier is involved, not later than the time when the work is received by the customer or his agents, including if partial deliveries are made and if the illustrator has agreed to provide any additional services (e.g., cost of transport or delivery).

11. Warranty for defects, liability

The artist may exercise artistic license in the artistic performance of the order placed with her. If the artist’s work is not in conformity with the customer’s taste or the artist’s style does not meet the expectations of the customer, this on its own will not be deemed a defect of the artist’s work. The customer’s warranty rights are based on the premise that the customer checks the goods and services supplied by the artist immediately on receipt and in any event prior to processing and has complained about any deficiencies immediately after their detection.

If the artist is responsible for a defect, the illustrator is initially entitled to render remedial performance within a reasonable time period. If remedial performance fails after the expiry of a reasonable grace period set by the customer, the latter has the option of either withdrawing from the contract or demanding an appropriate fee reduction. Remedial performance fails if the deficiency has not been rectified even after the second attempt at remedial performance. The warranty period is 12 months from the transfer of risk. The warranty
period is a prescription period and also applies to claims for consequential damages caused by defects, in so far as no tort claims are asserted; any tort claims are subject to the statutory prescription period.

The artist is liable for damages for whatever reason in law only in cases of intent or gross negligence including intent or gross negligence on the part of the artist’s representatives or agents. Except in the event that the artist has wilfully infringed the contract, the artist’s liability for compensation is limited to loss or damage which can be foreseen and which typically occur. This limitation of liability does not apply to loss or damage involving loss of life, bodily injury or impairment of health, or to loss or damage resulting from a breach of any of the artist’s material obligations.

In so far as the artist merely passes on services to the customer that were performed by third parties (e.g. photographers, service providers), the artist’s liability is limited to cases where the artist made a wrongful selection. Liability for computer viruses is excluded except in cases where the artist acts with intent or gross negligence.

The customer is obliged to verify the lawful nature of the goods and services supplied by the artist. If any of the goods and services supplied by the artist infringes the rights of third parties or otherwise infringes applicable law because it is based on unlawful requirements and/or specifications issued by the customer, the customer, in the relationship between the parties, has sole liability for such infringements or violations. The customer will indemnify the artist for all resulting damages, including reasonable legal defence costs and hold the artist harmless from all third-party claims. However, the artist will notify the customer of any infringements associated with his work as soon as the artist acquires positive knowledge of such infringements.

This liability provision will apply, in particular, to factual information or other contributions provided or otherwise specified to the artist by the customer; to the same extent, the customer is liable for any failure to obtain all licenses and commercial exploitation rights or any other necessary rights to the materials delivered by the customer and with the
necessary coverage.

In so far as the artists liability for damages is excluded or limited under the above provisions, this also applies with regard to any liability of the artist’s staff, employees, independent contractors, representatives and agents.

12. Place of performance, place of jurisdiction, applicable law

To the extent permitted by law the parties agree that the exclusive place of jurisdiction will be the artist’s main business address. This Agreement is governed exclusively by the law of the Federal Republic of Germany.

13. Final provisions

Amendments of and additions to this Agreement must be made in writing to be valid. The same applies for amendments to the requirement for written form.

The invalidity or unenforceability of individual provisions of this Agreement does not affect the validity of the remaining provisions. The same applies for any lacunae in the provisions. The provision which is admissible in law and which comes closest to what the contractual parties wanted or would have wanted according to the intention and purpose of the Agreement is to take the place of the invalid provisions or to complete the lacunae.