1. General

These “General Terms & Conditions” shall exclusively govern any business transaction between the customer and Fink & Fuchs Public Relations AG.Any opposing terms & conditions of the customer shall only apply if they are explicitly recognized by Fink & Fuchs Public Relations in writing.

Any deviating or additional agreements to these “General Terms & Conditions” must be made in writing.

Should any individual provisions of these “General Terms & Conditions” be invalid, this shall not affect the validity of the remaining provisions and of the contracts that are concluded on their basis. The invalid provision shall be replaced with a valid provision that comes closest to the content and purpose of the original clause.

2. Contract/Project Order

The basis of business relationships is the corresponding PR Agency contract, the project order and associated order confirmations, which define the agreed services (scope of services) as well as the remuneration.

Fink & Fuchs Public Relations’ offers are without engagement. Customers shall be bound by their orders upon receipt by Fink & Fuchs Public Relations.

3. Services and Fees

The basis for billing is the price list of Fink & Fuchs Public Relations in its latest version.

Unless agreed otherwise, Fink & Fuchs Public Relations’ claim to remuneration for each single service shall arise as soon as this service has been provided. Fink & Fuchs Public Relations shall be entitled to ask for advances to cover its expenses.

All services of Fink & Fuchs Public Relations that are not explicitly compensated by the agreed fee shall be remunerated separately. This applies in particular to all additional services provided by Fink & Fuchs Public Relations.

All third-party costs and expenses that are incurred for Fink & Fuchs Public Relations shall be compensated by the customer. If it can be expected that the actual cost will exceed the quoted costs by more than 20 per cent, Fink & Fuchs Public Relations will notify the customer of the higher costs.

Third-party costs that are incurred in the context of PR activities, such as room hires, catering costs, photographer’s fees, costs for clipping services, printing and shipping costs, layout, typesetting and repro costs, costs for equipment in event facilities etc., will be forwarded to the customer with a handling surcharge of 15 per cent, unless the customer agrees to bear such costs directly.

The charges that are required by German law and must be paid to the German Social Security Fund for Artists (= 3.9% in 2010) shall be on-debited to the customer in the event that orders are issued to appropriately qualified free-lance staff (e.g. copywriters, photographers, designers, web designers, artists, etc.).

4. Withdrawal of Contracting Party / Order Cancellations or Changes

In the event of the withdrawal of a contracting party or of changes of orders, Fink & Fuchs Public Relations shall be entitled to an adequate compensation or payment of its extra costs. Extra costs that are incurred due to changes of regular project orders that have been executed without fault or the costs that are incurred until the cancellation of the order is received shall be paid by the contracting party in the exact amount as proven by Fink & Fuchs Public Relations.

5. Withdrawal by Fink & Fuchs Public Relations

Fink & Fuchs Public Relations is also entitled to withdraw from the contract for cause, especially in the event that:

• orders from the customer violate legal regulations;
• the contracting party has applied to initiate bankruptcy proceedings over its property or stops its payments;
• bankruptcy proceedings are initiated over the property of the contracting party or bankruptcy proceedings are refused for lack of funds or other reasons.

Fink & Fuchs Public Relations will notify the contracting party in writing of its exercise of the right of cancellation. The above cases of withdrawal shall not give rise to any damage claim of the contracting party.

6. Non-Disclosure Obligation

Fink & Fuchs Public Relations, its employees and any contracted third parties agree to maintain secrecy for all affairs that come to their knowledge in the context of their work for the customer. This non-disclosure obligation shall apply both to the customer and his business relationships. Only the customer himself, but not his vicarious agents, can exempt Fink & Fuchs Public Relations in writing from this non-disclosure obligation. This obligation shall survive the termination of the contract.

7. Right of Use

Upon the receipt of the full payment, Fink & Fuchs Public Relations will grant the customer the unlimited right of use for all ideas and proposals that have been developed in the context of this contract, unless conflicting rights of third parties.

8. Approval

The customer shall verify and authorize all PR services of Fink & Fuchs Public Relations that are proposed or to be supplied.

In particular, the customer shall ensure the verification of the legal admissibility of the Fink & Fuchs Public Relations’s services, especially with respect to competition and brand regulations. Fink & Fuchs Public Relations will initiate an external legal verification only if requested in writing by the customer. The customer shall pay the costs incurred by such action.

9. Deadlines

Fink & Fuchs Public Relations will make every reasonable effort to meet the agreed deadlines. However, failure to meet any deadlines will entitle the customer to exercise his legal rights only after granting Fink & Fuchs Public Relations a reasonable grace period. This period shall begin with Fink & Fuchs Public Relations’s receipt of a written notice. An obligation to pay damage claims based on the title of the delay shall only arise from willful action or gross negligence on the part of Fink & Fuchs Public Relations.

Inevitable or unforeseeable events – in particular delays caused by subcontractors of Fink & Fuchs Public Relations – shall exempt Fink & Fuchs Public Relations in any case from meeting the agreed delivery date.

10. Payment

Fink & Fuchs Public Relations’s invoices are payable within 30 days of receipt without deduction. For delayed payments, past-due interest at a rate of 6 per cent p.a. above the base rate is agreed. The supplied goods and services shall remain the property of Fink & Fuchs Public Relations suntil payment is made in full.

11. Warranty and Damages

The customer shall claim and substantiate any apparent faults in writing within seven workdays after the service has been provided by Fink & Fuchs Public Relations. In the event of justified and timely complaints, the customer shall be entitled to rework of the service by Fink & Fuchs Public Relations.

In the event of breach of duties due to ordinary negligence, Fink & Fuchs Public Relations’s liability shall be limited to the direct average damage that can be foreseen based on the specific type of service and is typical for such contracts. This includes cases of negligent breach of duties by the Fink & Fuchs Public Relations’s legal representatives or vicarious agents. Fink & Fuchs Public Relations will not be held responsible for any breach of insignificant contractual duties due to ordinary negligence. The above limitations of liability shall not apply in case of physical injury and injury to health as well as for the customer’s loss of life for which Fink & Fuchs Public Relations can be held responsible.

12. Liability in Case of Third-Party Claims against the Customer or Fink & Fuchs Public Relations

The customer shall be expressly responsible for the compliance with legal regulations, particularly in the field of competition law, in the communication measures that are proposed by Fink & Fuchs Public Relations. In particular, the customer shall authorize a PR measure proposed by Fink & Fuchs Public Relations only after making sure that it is admissible under the applicable competition legislation or if he agrees to fully assume the risk that is associated with the execution of the PR measure. Fink & Fuchs Public Relations expressly rejects any liability for claims that are raised against the customer as a result of the PR measure. In particular, Fink & Fuchs Public Relations will not be held responsible for the cost of legal action, the customer’s own costs of legal counsel or the costs of the publication of judgment, as well as for any damage claims or similar claims of third parties.

The customer shall exempt Fink & Fuchs Public Relations from any liability and legal prosecution in the event that claims are raised against Fink & Fuchs Public Relations itself based on the execution of a PR measure. The customer shall compensate Fink & Fuchs Public Relations for any associated financial and other loss (including nominal damages). If damage is incurred for Fink & Fuchs Public Relations, the customer shall be obliged to pay damages.

13. Prohibition of Enticement

The direct or indirect mutual enticement of employees by the two contracting parties is prohibited. It shall also be prohibited for the contracting parties to employ an employee of the other contracting party in their own company in any way during an existing employment relationship. In addition, it shall only be possible to employ a former employee of the other contracting party if this employee has not been employed with this other contracting party for the past 12 months. The above limitations do not apply if the respective employer has previously approved the planned employment with the contracting party in writing. Violations of this provision will result in a penalty in the amount that is defined in the contract or project order, unless the respective contracting party had no knowledge of the previous employment with the other contracting party at the time of recruiting the employee.

14. Applicable Law

The legal relationships between the customer and Fink & Fuchs Public Relations and the issue of the validity of a contract as well as its advance and subsequent effects shall be exclusively governed by the law of the Federal Republic of Germany.

15. Place of Performance and Venue

The place of performance is Wiesbaden. The agreed venue for any direct or indirect litigation that may arise between Fink & Fuchs Public Relations and the customer shall be the German court that is locally and technically competent for the location of Fink & Fuchs Public Relations. However, Fink & Fuchs Public Relations shall also be entitled to invoke the aid of another court that is competent for the customer.

16. Concluding Provisions

Should any individual provisions of these “General Terms & Conditions” be invalid, this shall not affect the validity of the remaining provisions. Legal provisions shall apply in all other respects.

Any version of these General Terms & Conditions that is written in a language other than German is intended for information purposes only. The German version shall be legally binding in all cases.

Issue: January 2010