General Terms and Conditions
- General information, Scope, Object of the Contract
- These General Terms and Conditions (GTCs) apply to all business relationships or orders for agency services concluded between PRO VOGUE Marketing GmbH
(hereinafter referred to as “PRO VOGUE”) and its customers (hereinafter referred to as “Customer” ). They are only applicable if the Customer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
- Provided that there is no other agreement to the contrary, the respective version of these GTCs valid at the time of commissioning or the latest version communicated to the Customer in text form shall nevertheless apply as the framework agreement for future transactions of a similar nature without having to refer to the GTCs in each individual case.
III. These existing GTCs shall apply exclusively. Any contrary, supplementary or deviating GTCs of the Customer shall only then and insofar become an integral part of the contract, to the extent that PRO VOGUE has explicitly approved their validity in writing. This consent requirement shall apply in every case, for example also in case PRO VOGUE were to unconditionally carry out an order on his behalf, fully aware of the Customer’s GTCs.
- Offer and Pricing Structure / Formulation of Contracts
- Offers are subject to alteration and are non-binding provided they are not explicitly described as binding or do not contain a particular acceptance deadline. PRO VOGUE’s offers shall take precedence over PRO VOGUE’s price list. Acceptance of the order as well as any verbal or telephone agreements or agreements made with/by employees of PRO VOGUE must always be in written form in order to be effective.
- If the Customer approaches PRO VOGUE and places an offer inquiry (by e-mail. telephone, Fax or by post), this will particularly not be considered an offer for conclusion of a contract. On the contrary, PRO VOGUE shall, as a consequence, extend an offer to the Customer based on the basic information of the Customer conveyed. This in itself will determine the acceptance deadline for the offer.
III. Price lists: Individual prices and flat rates from PRO VOGUE’s price lists shall always be based on a mixed calculation of the cost price for the resources involved such as personnel, materials and third-party services and allocated general costs for the construction and provision of infrastructure and resource management. Further components of the calculation include allocated general consulting, organisational and administrative costs as well as general administrative expenses.
- The cost price of materials and personnel includes, for example, wages as well as any related ancillary costs such as social security, etc. It also includes payments made to external suppliers (e.g. for outfits, catering, lighting & general equipment, freight forwarding, etc.). Costs involved in setting up and providing infrastructure and resource management are, for example, expenses for setting up and maintenance of personnel, material and logistical infrastructure – e.g. personnel recruitment and general training of employees, material procurement, warehousing and forwarding, networking – selection and cooperation with suppliers of auxiliary services – e.g. setting up and updating of supplier and personnel databases. General consultancy, organisational and administrative costs include, for example: the costs for the selection, commissioning and monitoring of suppliers and operational personnel as well as the provision of replacement emergency personnel in the event of emergencies. General administrative expenses include, for example, office expenses, travel expenses, telecommunications, postage, paper, copies, etc.
- Offer and pricing structure: The individual prices and flat rates from the PRO-VOGUE price list mentioned above will be adjusted individually and according to the project, depending on qualitative and quantitative characteristics, and proposed to the client in the form of project offers. The individual prices of resources are adjusted according to the type of resource, time periods – seasonal conditions, the urgency or short-term nature of the project, project-specific commitments to suppliers and personnel – etc. Following receipt of an offer, the customer may not invoke the right to settle claims with individual suppliers in accordance with the price list.
The general organisational and administrative costs will be adjusted according to internal project implementation expenses, the required freeing of capacities, configuration expenses for implementation mechanisms, disposition expenses for resources and with regard to special conditions – the time frame, type of project – also on a project specific basis and allocated to the projected resource quantities. Any project-specific flat rates offered, e.g. flat rates based on kilometres, project management, organisation, travel costs, outlay and expenses, are particularly affected by this adjustment. For the reasons stated above, individual prices and flat rates in the offer can therefore only be presented in connection with the quantities and other service items planned for the respective project. Individual items may, for various reasons, be partly subsidised in the offers in favour of other items, resulting in the latter being offered only in connection with other non-subsidised margins of stronger individual items. Therefore PRO VOGUE offers should be treated as project offers. Individual prices are listed in order to demonstrate the approximate composition of the costs to the client; any individual prices specified in offers should not be considered as valid in isolation. PRO VOGUE shall attempt, if instructed to do so, to conclude agreements with promotional locations, e.g. with regard to making appointments, approvals, costs, by e-mail and/or telephone (up to 5 times), however without providing any guarantee of this. Costs agreed for the above shall be incurred irrespective of the success of the agreements, i.e. also in the event of non-achievement or cancellation of the location. In the event that the Client permits PRO VOGUE to implement a project without the agreement and approval of the location, PRO VOGUE shall assume no liability whatsoever, particularly not for any resulting prohibitions, interruptions or costs. Where applicable, all damages incurred shall be borne by the client. Lead and contact number forecasts are non-binding and are dependent on influencing factors such as the product, the competitive situation, weather and frequency levels.
- Order Cancellation
- In the event that an order is cancelled, the Customer is obliged to pay part of the agreed gross remuneration as well as the agreed gross additional costs as compensation, in accordance with the following breakdown:
- Order cancellation fee up to the time of introduction of booked employees of PRO VOGUE, 40% of the agreed order value for staff positions and 100% of the value of all other positions, thereafter 100% of the total order value. Less than 48 hours before deployment, 100% of the total order value. Unless otherwise agreed, order cancellation fees shall in principle only apply to the order as a whole and not to the individual items contained in the order. If agreed services are not used, either in their entirety or partially, no entitlement to credit or reimbursement exists, unless otherwise agreed. Exempted from this are products and services that are remunerated on the basis of time and materials spent, and which were also explicitly described as such in the offer. This refers to both the complete order and the individual items contained in the order. In the event of changes or cancellations of the order or of the individual services contained in the order – in full or in part – any expenses saved shall be excluded from entitlement to credit or reimbursement for the aforementioned reasons.
III. The calculation basis for cancellation fees is the net offer price taking into account possible rebates or special arrangements.
- Cancellation of an order has to be done in writing.
- Execution of the Order
- The operational personnel is selected by PRO VOGUE according to the Customer’s request and the order requirements. These workers have a separate employment contract with PRO VOGUE. PRO VOGUE is the only one authorised to issue directives to these employees.
- The designated operational personnel will exclusively carry out the activities defined in the contract for the Customer, whereby the right to issue instructions will be retained to ensure that further performance can be transferred to other equally qualified persons for important organisational or other reasons – even during the execution of an order. There is particularly is no claim on the part of the client to continued use of the same staff.
III. The weekly working time of the operational personnel is the number of hours mentioned in the offer. If any overtime work is to be done, the consent of PRO VOGUE has to be sought in advance.
- The client can expel operational personnel from the area of operation with immediate effect during an ongoing operation and demand suitable replacements for the next day, if there is a reason which would entitle an employer to terminate an employee for an important reason in accordance with Section 626 of the German Civil Code (BGB), and if the client communicates this reason to PRO VOGUE in writing with proof.
- In the event of the absence of any of the operational personnel due to illness, vacation, unexcused absence, maternity leave, parental leave, military or alternative service or similar reasons and with the departure of any of the operational personnel from the employment relationship, PRO VOGUE shall be entitled to provide other operational personnel with comparable qualifications.
- If it is necessary to provide services other than those agreed in the contract during the assignment, this must be agreed in advance with PRO VOGUE or its representatives. Price changes are only possible in the course of the performance of an individual order if changes are made to the requirements.
VII. PRO VOGUE reserves the right not to carry out the order for important reasons (e.g. imminent insolvency, insolvency of the client) or in the event of payment deviating from the agreement, whereby this does not release the client from his obligation to pay.
Settlement: The settlement of the order, particularly the remuneration of the persons deployed, shall be carried out exclusively by PRO VOGUE and is due 2 weeks before commencement of the activity – unless otherwise agreed. The client undertakes to sign off the documentation of the activities of the persons employed submitted to them during or after completion of the order or, in case of prevention, to approve the information provided by PRO VOGUE as accurate. A detailed individual settlement of the agreed travel times, breaks, training times, mileage etc. – e.g. presentation of proof of travel by the deployed persons – must be agreed separately and this comes with additional costs. Reconstruction does not often make economic sense because of many small individual positions and the administrative costs associated with it. Therefore PRO VOGUE also relies on information provided by its employees. Checks are only carried out on a random basis. Travel flat rates and mileage or distance are not only determined based on distance but also according to the type and age of the vehicle, driving capability of the driver, traffic conditions, quality of directions provided, unintentional losing of one’s way, diversions, driving in cities (long times for short distances), search for parking space and many others. The client can only assert his right of retention, provided it stems from claims arising from the same contract relationship and is based on undisputed and legally binding demands. The takeover of the debt collection is exempted from liability.
- Confidentiality Obligation
PRO VOGUE and the Customer agree to treat as confidential all business and trade secrets of the other contracting party and all information they have received from the other party and which is not publicly accessible. This obligation shall remain valid also after the end of the mutual contractual relationship.
- Customer’s Obligation to Cooperate
- The timely fulfilment of the performances agreed presupposes that the client and his vicarious agents fulfil their obligations to cooperate in good time and in full, particularly with regard to information and documents requested by the Customer, and that he fulfil his payments and other obligations.
8 . Warranty and Liability of PRO VOGUE
- Insofar as there is no information to the contrary in the GTCs and the following provisions, PRO VOGUE shall be liable for any contractual and non-contractual breach of duties according to legal regulations.
- PRO VOGUE shall be liable for damages – irrespective of the legal grounds – within the context of fault-based liability for willful intent and gross negligence. In cases of simple negligence, PRO VOGUE shall only be liable, subject to limitations of liability (e.g. diligence in one’s own affairs, insignificant breach of duty),
- a) for damages arising from injury to life, limb or health,
- b) for damages arising from breach of an essential contractual duty (an obligation, the fulfilment of which enables proper implementation of the contract in the first place and the observance of which the contracting party regularly trusts and is entitled to expect); in this case our liability is however limited to reimbursement of the foreseeable, typically occurring damages at the time of concluding the contract, and is at most equal to the amount of the agreed remuneration for that part of the performance which cannot be rendered as stipulated in the contract.
III. Liability for damages which cannot be predicted by PRO VOGUE or which are mastered by the client is excluded.
- a) The risk of legal tolerance of measures carried out will be borne by the client. In particular, actions commissioned by the client should have infringed against antitrust laws, copyright laws and especially laws governing advertising. PRO VOGUE shall expressly not be liable for factual statements contained in promotional activities of the Customer relating to the Customer’s products and services.
- b) Insofar as the client makes his own promotional materials or drafts available to PRO VOGUE for conducting the advertising campaign, the client shall bear the risk of legal permissibility of the campaign as well as the advertisements carried out for and in it. PRO VOGUE wishes to particularly point out that legal checks are only carried out on special request and at the expense of the client. The client indemnifies PRO VOGUE from all claims of third parties on account of – actual or alleged – inadmissibility of the advertising activities.
- If the service delivery gets culpably impossible for PRO VOGUE, the client is entitled to demand compensation. The compensation is limited to the amount of remuneration for that part of the service which cannot be rendered due to impracticality. Any other claims for compensation on the part of the client over and above the amount stated, and in all cases of late delivery or non-fulfilment, particularly due to force majeure, illness, strikes or lockouts, are excluded.
- If liability is excluded or limited by PRO VOGUE, this will also apply particularly to the personal liability of the operational staff, their [PRO VOGUE’s] workers, employees, representatives and vicarious agents. It will not apply for as long as a defect has been maliciously concealed by PRO VOGUE.
Notwithstanding the legal limitation period, it remains true for all claims of the client which are not based on deliberate or grossly negligent behaviour on the part of PRO VOGUE, and which are not directed at compensation for damages arising from injury to life, limb or health, or are based on a breach of essential contractual duties, that the claims will become time-barred in one year, starting at the end of the year in which the claim was made and in which the client learnt of the circumstances justifying the claim and the person causing the damage or would have learned thereof without gross negligence.
- Data protection
We would like to point out that in the course of the business relationship and contract fulfilment, personal data will be processed in accordance with the General Data Protection Regulation (GDPR).
The client may only assign claims from this contract with the prior written consent of PRO VOGUE and only as far as the interests of PRO VOGUE are not unduly affected by such action.
Persons employed by PRO VOGUE may not be hired by the client directly or indirectly as permanent or freelance workers, and neither should they be engaged as sub-contractors or be hired out to third parties, not even as temporary workers, during the contractual relationship as well as for the duration of 18 months after completion of their work with the client. For each case of violation, a contractual penalty amounting to EUR 5,000 per person to be paid to PRO VOGUE has been agreed. Further claims for compensation remain unaffected by this.
- Other Conditions
The client and PRO VOGUE are entitled to use all documentation collected during the campaign, including images and video material, for their own advertising and presentation purposes without restriction. These may include registered trademarks and products of the respective parties.
- Applicable law, Place of Jurisdiction and Final Provisions
- This contractual relationship is governed exclusively by German law with the exclusion of the UN Convention for International Sale of Goods.
- If the client is a merchant in the sense of the Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes directly or indirectly arising from the contract relationship shall be the competent court with jurisdiction over the registered offices of PRO VOGUE. However, PRO VOGUE is entitled in all cases to assert claims against the client also at the client’s general place of jurisdiction. Preferential legal provisions, particularly those regarding exclusive jurisdiction, shall remain unaffected.
III. There are no supplementary verbal agreements to this contract. Any amendments and supplements to this contract must be made in writing, including the agreement to waive this written form requirement.
- Should individual provisions of this agreement be ineffective or unenforceable, this will not affect the effectiveness of the rest of the agreement. In such a case the parties undertake to agree, in lieu of the ineffective/unenforceable provision, on a provision that – in a legally permissible manner – comes as close as possible to the original intentions of the parties from a legal and economic perspective. The same applies if there is a loophole in the contract requiring supplementation.
- Other provisions
Good vibes only