General Terms and Conditions NYBA Media GmbH
1. General Provisions
1) The following General Terms and Conditions apply to all contracts, services, and work performances of NYBA Media GmbH, Thurn-und-Taxis-Platz 6, 60313 Frankfurt am Main (hereinafter referred to as “NYBA”), vis-à-vis its clients (hereinafter referred to as the “Client”). They shall also apply as a framework agreement in their respective valid version to future contracts with the same Client, without NYBA having to expressly refer to them again in each individual case. NYBA will inform the Client without undue delay of any changes to these General Terms and Conditions.
(2) NYBA’s offers are directed exclusively at businesses. These General Terms and Conditions therefore do not apply to contracts with consumers.
(3) Deviating terms and conditions of the Client shall not apply unless NYBA has expressly agreed to them in writing. This requirement for consent shall apply in all cases, for example even if NYBA performs services without reservation in knowledge of the Client’s terms and conditions. Individual agreements made with the Client (including ancillary agreements, amendments, and modifications) shall in all cases take precedence over these General Terms and Conditions. The content of such agreements shall be governed by a written contract or written confirmation by NYBA. Legally relevant declarations and notices to be made by the Client to NYBA after conclusion of the contract (e.g. setting of deadlines, reminders, declarations of withdrawal) must be made in text form to be effective.
(4) Agents and representatives of NYBA are not authorized to make verbal ancillary agreements. Any verbal supplementary agreements or assurances made beyond the written service agreement shall only be valid if confirmed in writing by NYBA.
2. Services of NYBA, Engagement
(1) NYBA provides services for the Client primarily in the field of online marketing.
(2) A contract and any other agreements shall only come into effect upon written or email confirmation of the order by NYBA. Documents belonging to an offer, such as concepts, pitches, illustrations, and drawings, are only approximate unless expressly agreed otherwise.
(3) NYBA retains ownership and copyright rights to the offer and to all provided concepts, pitches, catalogs, documentation (e.g. drawings, plans, calculations, cost estimates), or other materials – including in electronic form. Such materials are provided solely for the purposes of the respective offer and may not be reproduced, even in part, or made accessible to third parties without NYBA’s express consent. This applies in particular to materials marked as “confidential”; their disclosure to third parties requires NYBA’s prior written consent.
(4) Unless otherwise agreed, NYBA shall be bound by its offer for a period of two weeks from the date of submission. A longer binding period may be agreed in individual cases.
3. Execution of Orders
(1) NYBA shall organize and execute the agreed services independently and at its own responsibility. NYBA shall independently determine the type, sequence, and allocation of work, in particular the number of assistants used, if any.
(2) NYBA is entitled to engage subcontractors in the execution of orders. In the case of assigning essential services, NYBA shall notify the Client in writing at least two weeks prior to their engagement. The Client may reject a subcontractor only for good cause.
(3) NYBA shall execute each order in accordance with the agreed concept, the principles of proper professional practice, and the latest state of the art, aiming at a practical and economical solution.
(4) NYBA is obliged to document the execution of each order to a reasonable extent. The content and scope of such documentation may be specified in the order. At the latest upon completion of the order, NYBA shall provide the documentation together with the other work results to the Client.
(5) The Client may request changes to the content and scope of the services insofar as this is reasonable for NYBA. This does not apply to services already rendered. If the requested changes are more than insignificant, NYBA shall determine the resulting delays and additional effort, and the parties shall agree on an appropriate adjustment of the contract. If no agreement is reached, NYBA shall be entitled to reject the change request or to bill the required time at the hourly rate specified in Section 5 (1) of these General Terms and Conditions.
4. Obligations of Cooperation
(1) If the Client designates a contact person in the order, this person shall be responsible for all matters relating to the execution of the order.
(2) The Client shall support NYBA’s activities to a reasonable extent and provide all data, information, and materials essential for the performance of the services in accordance with the order.
(3) If the Client provides NYBA with materials for use within the scope of the order, the Client shall be responsible for ensuring that it is entitled to transfer and use such materials. The Client shall indemnify, hold harmless, and defend NYBA at its own expense against all third-party claims or liability in this respect.
(4) The Client shall notify NYBA within a reasonable period, generally no later than five business days, whether it accepts or rejects a proposal submitted by NYBA for the design and execution of the order.
5. Remuneration
(1) NYBA shall receive either a flat fee or remuneration based on hourly or daily rates in accordance with the conditions specified in the order. Unless otherwise agreed, the hourly rate shall be EUR 175.00 net for operational services and EUR 225.00 net for consulting services. In individual cases, the Client may be required to pay a one-time setup fee after the order is placed. Reimbursement of incidental expenses (e.g. travel costs) shall be governed by the order.
(2) The Client shall bear reimbursement of expenses incurred by NYBA, such as transport costs. Upon request, NYBA shall provide the original receipts.
(3) In the case of remuneration based on hourly or daily rates, NYBA shall be obliged to record the start, end, and content of its services in an orderly and verifiable manner. Invoices issued on an hourly or daily rate basis shall be due and payable without deduction within seven days of the invoice date.
(4) Unless otherwise agreed, invoices for flat-fee remuneration shall be due as follows:50% of the total remuneration upon engagement,50% upon completion.
(5) Invoices may be sent by email. In the event of default in payment, the statutory provisions shall apply.
(6) All fees are stated net plus 19% VAT, which shall be shown separately on NYBA’s invoices.
6. Deadlines
(1) Compliance with deadlines by NYBA presupposes fulfillment of the Client’s contractual obligations. Deadlines communicated by NYBA are non-binding, even if provided in writing, unless expressly designated in writing as a “binding completion deadline.” The lapse of deadlines does not release the Client from the obligation to set a reasonable grace period and to declare that performance will be rejected after expiry of such period. NYBA shall regularly inform the Client of the status of execution and notify the Client of any foreseeable delays.
(2) If NYBA is unable to meet a binding completion deadline for reasons beyond its control (non-availability of performance), NYBA shall inform the Client without undue delay and communicate a new expected completion date. If performance is also unavailable within the new deadline, NYBA shall be entitled to withdraw from the order in whole or in part; any consideration already provided by the Client shall be refunded without undue delay. The Client’s termination rights pursuant to Section 9 remain unaffected.
(3) Delay in performance by NYBA shall be governed by statutory provisions; however, a reminder by the Client is required in all cases.
7. Acceptance
(1) Where NYBA owes work performance, the Client shall be obliged to inspect and accept the work immediately upon completion, unless acceptance is evidently excluded due to the nature of the work. NYBA may set the Client a reasonable period for acceptance. Acceptance shall be deemed granted if the work result is used contractually without material objections. Acceptance may not be refused due to minor defects. Acceptance shall also be deemed granted if the Client fails to accept the work within a reasonable period set by NYBA despite being obliged to do so.
(2) Partial acceptances shall only take place if expressly agreed in the order.
8. Rights to Material and Immaterial Work Results
(1) Copyrights to all services created by NYBA, its employees, or engaged third parties (in particular offers, reports, analyses, concepts, expert opinions, organizational plans, programs, service descriptions, drafts, calculations, drawings, etc.) shall remain with NYBA unless expressly agreed otherwise.
(2) The Client may use such services exclusively for the purposes covered by the respective order, both during and after termination of the contractual relationship. The Client shall not be entitled to reproduce and/or distribute the services without NYBA’s express consent.
9. Early Termination of Orders
(1) NYBA and the Client may terminate an order early if
a) a notice period is agreed in the order;
b) a notice period of three months to the end of the calendar year is observed;
c) in the cases set out in Section 6
(2); d) there is good cause.Good cause for immediate termination by NYBA shall exist in particular iffacts become known that give rise to serious doubts regarding the Client’s ability to perform its contractual obligations and the Client fails to dispel such doubts within seven days of written request by NYBA;the Client is in default of payment of an invoice for more than 60 days.Any termination must be made in text form.
10. Liability
(1) Outside liability for material and legal defects, NYBA shall be liable without limitation in cases of intent or gross negligence. NYBA shall also be liable for slight negligence in the breach of essential obligations or cardinal obligations, but only for foreseeable, typical contractual damage and not for indirect damages. NYBA shall not be liable for slight negligence in the breach of other obligations. These limitations of liability shall not apply in the event of injury to life, body, or health.
(2) Where NYBA’s liability is excluded or limited, this shall also apply to the personal liability of its employees, representatives, and subcontractors.
11. Confidentiality
All information relating to the order and the business relationship shall be treated as confidential. In particular, NYBA shall treat all business processes that come to its knowledge, such as print materials, layouts, storyboards, numerical data, drawings, data carriers, and other documents containing copyrighted materials of the Client, as strictly confidential. NYBA shall impose confidentiality obligations on all employees and/or third parties (e.g. suppliers, designers) who have access to such information. The confidentiality obligation shall apply for an unlimited period beyond the term of this contract.
12.Non-Solicitation
The parties shall refrain from inducing employees or subcontractors of the other contracting party to breach their contracts or from soliciting them in a similarly unfair manner during the term of an order and for six months thereafter.
13. Documents, Right of Retention, and Data Protection
(1) NYBA shall use all information, documents, and other aids received from the Client or third parties exclusively for the execution of the order and shall treat them confidentially.
(2) Until all claims have been settled in full, NYBA shall have a right of retention over the documents provided. After settlement of all claims, NYBA shall return all documents provided by the Client or third parties in connection with the execution of the order. This shall not apply to correspondence between the parties or copies of reports, organizational plans, drawings, calculations, etc., provided that the Client has received the originals.
(3) NYBA shall store and process the contents of the orders and the services created in compliance with data protection regulations. Stored data shall not be disclosed to third parties unless required by law. Personal data shall be collected, processed, and used in accordance with applicable data protection laws. These obligations shall continue to apply after termination of the cooperation.
14. Final Provisions
(1) Should any provision of these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall remain unaffected.
(2) The place of jurisdiction shall be Frankfurt am Main. NYBA shall also be entitled to bring legal action at the Client’s place of business.
(3) The contractual relationship between NYBA and the Client shall be governed by the laws of the Federal Republic of Germany. The application of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG), is excluded.
Status: January 2020
1) The following General Terms and Conditions apply to all contracts, services, and work performances of NYBA Media GmbH, Thurn-und-Taxis-Platz 6, 60313 Frankfurt am Main (hereinafter referred to as “NYBA”), vis-à-vis its clients (hereinafter referred to as the “Client”). They shall also apply as a framework agreement in their respective valid version to future contracts with the same Client, without NYBA having to expressly refer to them again in each individual case. NYBA will inform the Client without undue delay of any changes to these General Terms and Conditions.
(2) NYBA’s offers are directed exclusively at businesses. These General Terms and Conditions therefore do not apply to contracts with consumers.
(3) Deviating terms and conditions of the Client shall not apply unless NYBA has expressly agreed to them in writing. This requirement for consent shall apply in all cases, for example even if NYBA performs services without reservation in knowledge of the Client’s terms and conditions. Individual agreements made with the Client (including ancillary agreements, amendments, and modifications) shall in all cases take precedence over these General Terms and Conditions. The content of such agreements shall be governed by a written contract or written confirmation by NYBA. Legally relevant declarations and notices to be made by the Client to NYBA after conclusion of the contract (e.g. setting of deadlines, reminders, declarations of withdrawal) must be made in text form to be effective.
(4) Agents and representatives of NYBA are not authorized to make verbal ancillary agreements. Any verbal supplementary agreements or assurances made beyond the written service agreement shall only be valid if confirmed in writing by NYBA.
2. Services of NYBA, Engagement
(1) NYBA provides services for the Client primarily in the field of online marketing.
(2) A contract and any other agreements shall only come into effect upon written or email confirmation of the order by NYBA. Documents belonging to an offer, such as concepts, pitches, illustrations, and drawings, are only approximate unless expressly agreed otherwise.
(3) NYBA retains ownership and copyright rights to the offer and to all provided concepts, pitches, catalogs, documentation (e.g. drawings, plans, calculations, cost estimates), or other materials – including in electronic form. Such materials are provided solely for the purposes of the respective offer and may not be reproduced, even in part, or made accessible to third parties without NYBA’s express consent. This applies in particular to materials marked as “confidential”; their disclosure to third parties requires NYBA’s prior written consent.
(4) Unless otherwise agreed, NYBA shall be bound by its offer for a period of two weeks from the date of submission. A longer binding period may be agreed in individual cases.
3. Execution of Orders
(1) NYBA shall organize and execute the agreed services independently and at its own responsibility. NYBA shall independently determine the type, sequence, and allocation of work, in particular the number of assistants used, if any.
(2) NYBA is entitled to engage subcontractors in the execution of orders. In the case of assigning essential services, NYBA shall notify the Client in writing at least two weeks prior to their engagement. The Client may reject a subcontractor only for good cause.
(3) NYBA shall execute each order in accordance with the agreed concept, the principles of proper professional practice, and the latest state of the art, aiming at a practical and economical solution.
(4) NYBA is obliged to document the execution of each order to a reasonable extent. The content and scope of such documentation may be specified in the order. At the latest upon completion of the order, NYBA shall provide the documentation together with the other work results to the Client.
(5) The Client may request changes to the content and scope of the services insofar as this is reasonable for NYBA. This does not apply to services already rendered. If the requested changes are more than insignificant, NYBA shall determine the resulting delays and additional effort, and the parties shall agree on an appropriate adjustment of the contract. If no agreement is reached, NYBA shall be entitled to reject the change request or to bill the required time at the hourly rate specified in Section 5 (1) of these General Terms and Conditions.
4. Obligations of Cooperation
(1) If the Client designates a contact person in the order, this person shall be responsible for all matters relating to the execution of the order.
(2) The Client shall support NYBA’s activities to a reasonable extent and provide all data, information, and materials essential for the performance of the services in accordance with the order.
(3) If the Client provides NYBA with materials for use within the scope of the order, the Client shall be responsible for ensuring that it is entitled to transfer and use such materials. The Client shall indemnify, hold harmless, and defend NYBA at its own expense against all third-party claims or liability in this respect.
(4) The Client shall notify NYBA within a reasonable period, generally no later than five business days, whether it accepts or rejects a proposal submitted by NYBA for the design and execution of the order.
5. Remuneration
(1) NYBA shall receive either a flat fee or remuneration based on hourly or daily rates in accordance with the conditions specified in the order. Unless otherwise agreed, the hourly rate shall be EUR 175.00 net for operational services and EUR 225.00 net for consulting services. In individual cases, the Client may be required to pay a one-time setup fee after the order is placed. Reimbursement of incidental expenses (e.g. travel costs) shall be governed by the order.
(2) The Client shall bear reimbursement of expenses incurred by NYBA, such as transport costs. Upon request, NYBA shall provide the original receipts.
(3) In the case of remuneration based on hourly or daily rates, NYBA shall be obliged to record the start, end, and content of its services in an orderly and verifiable manner. Invoices issued on an hourly or daily rate basis shall be due and payable without deduction within seven days of the invoice date.
(4) Unless otherwise agreed, invoices for flat-fee remuneration shall be due as follows:50% of the total remuneration upon engagement,50% upon completion.
(5) Invoices may be sent by email. In the event of default in payment, the statutory provisions shall apply.
(6) All fees are stated net plus 19% VAT, which shall be shown separately on NYBA’s invoices.
6. Deadlines
(1) Compliance with deadlines by NYBA presupposes fulfillment of the Client’s contractual obligations. Deadlines communicated by NYBA are non-binding, even if provided in writing, unless expressly designated in writing as a “binding completion deadline.” The lapse of deadlines does not release the Client from the obligation to set a reasonable grace period and to declare that performance will be rejected after expiry of such period. NYBA shall regularly inform the Client of the status of execution and notify the Client of any foreseeable delays.
(2) If NYBA is unable to meet a binding completion deadline for reasons beyond its control (non-availability of performance), NYBA shall inform the Client without undue delay and communicate a new expected completion date. If performance is also unavailable within the new deadline, NYBA shall be entitled to withdraw from the order in whole or in part; any consideration already provided by the Client shall be refunded without undue delay. The Client’s termination rights pursuant to Section 9 remain unaffected.
(3) Delay in performance by NYBA shall be governed by statutory provisions; however, a reminder by the Client is required in all cases.
7. Acceptance
(1) Where NYBA owes work performance, the Client shall be obliged to inspect and accept the work immediately upon completion, unless acceptance is evidently excluded due to the nature of the work. NYBA may set the Client a reasonable period for acceptance. Acceptance shall be deemed granted if the work result is used contractually without material objections. Acceptance may not be refused due to minor defects. Acceptance shall also be deemed granted if the Client fails to accept the work within a reasonable period set by NYBA despite being obliged to do so.
(2) Partial acceptances shall only take place if expressly agreed in the order.
8. Rights to Material and Immaterial Work Results
(1) Copyrights to all services created by NYBA, its employees, or engaged third parties (in particular offers, reports, analyses, concepts, expert opinions, organizational plans, programs, service descriptions, drafts, calculations, drawings, etc.) shall remain with NYBA unless expressly agreed otherwise.
(2) The Client may use such services exclusively for the purposes covered by the respective order, both during and after termination of the contractual relationship. The Client shall not be entitled to reproduce and/or distribute the services without NYBA’s express consent.
9. Early Termination of Orders
(1) NYBA and the Client may terminate an order early if
a) a notice period is agreed in the order;
b) a notice period of three months to the end of the calendar year is observed;
c) in the cases set out in Section 6
(2); d) there is good cause.Good cause for immediate termination by NYBA shall exist in particular iffacts become known that give rise to serious doubts regarding the Client’s ability to perform its contractual obligations and the Client fails to dispel such doubts within seven days of written request by NYBA;the Client is in default of payment of an invoice for more than 60 days.Any termination must be made in text form.
10. Liability
(1) Outside liability for material and legal defects, NYBA shall be liable without limitation in cases of intent or gross negligence. NYBA shall also be liable for slight negligence in the breach of essential obligations or cardinal obligations, but only for foreseeable, typical contractual damage and not for indirect damages. NYBA shall not be liable for slight negligence in the breach of other obligations. These limitations of liability shall not apply in the event of injury to life, body, or health.
(2) Where NYBA’s liability is excluded or limited, this shall also apply to the personal liability of its employees, representatives, and subcontractors.
11. Confidentiality
All information relating to the order and the business relationship shall be treated as confidential. In particular, NYBA shall treat all business processes that come to its knowledge, such as print materials, layouts, storyboards, numerical data, drawings, data carriers, and other documents containing copyrighted materials of the Client, as strictly confidential. NYBA shall impose confidentiality obligations on all employees and/or third parties (e.g. suppliers, designers) who have access to such information. The confidentiality obligation shall apply for an unlimited period beyond the term of this contract.
12.Non-Solicitation
The parties shall refrain from inducing employees or subcontractors of the other contracting party to breach their contracts or from soliciting them in a similarly unfair manner during the term of an order and for six months thereafter.
13. Documents, Right of Retention, and Data Protection
(1) NYBA shall use all information, documents, and other aids received from the Client or third parties exclusively for the execution of the order and shall treat them confidentially.
(2) Until all claims have been settled in full, NYBA shall have a right of retention over the documents provided. After settlement of all claims, NYBA shall return all documents provided by the Client or third parties in connection with the execution of the order. This shall not apply to correspondence between the parties or copies of reports, organizational plans, drawings, calculations, etc., provided that the Client has received the originals.
(3) NYBA shall store and process the contents of the orders and the services created in compliance with data protection regulations. Stored data shall not be disclosed to third parties unless required by law. Personal data shall be collected, processed, and used in accordance with applicable data protection laws. These obligations shall continue to apply after termination of the cooperation.
14. Final Provisions
(1) Should any provision of these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall remain unaffected.
(2) The place of jurisdiction shall be Frankfurt am Main. NYBA shall also be entitled to bring legal action at the Client’s place of business.
(3) The contractual relationship between NYBA and the Client shall be governed by the laws of the Federal Republic of Germany. The application of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG), is excluded.
Status: January 2020