General terms and conditions
I. General provisions, scope
(1) For all business relationships between the company
KÖNIGSTEINER AGENTUR GmbH (hereinafter referred to as “KÖNIGSTEINER”)
and its respective contract partners (hereinafter referred to as “client”), these general terms and conditions (GTC) apply exclusively. These GTC are first and foremost a part of all declarations of intent – especially of offers, acceptances, order confirmations – and all services from KÖNIGSTEINER, as well as a part of all contractual relationships that KÖNIGSTEINER enters with clients. The GTC only apply if the client is an entrepreneur (per Sec. 14 of the BGB (German Civil Code), a legal entity under public law, or special fund under public law.
(2) These GTC also apply in their respective version to all future business relationships between KÖNIGSTEINER and the client, even if KÖNIGSTEINER does not expressly advise the client of the applicability of these terms and conditions.
(3) KÖNIGSTEINER does not recognize terms and conditions from the client or a third party that are contradictory or deviate from KÖNIGSTEINER’s terms and conditions unless KÖNIGSTEINER has expressly agreed to their validity in writing. KÖNIGSTEINER’s GTC also apply exclusively if KÖNIGSTEINER accepts the order from the client unconditionally and/or delivers the service to the client unconditionally with the knowledge of terms and conditions that are contradictory or deviate from KÖNIGSTEINER’s terms and conditions. Even if KÖNIGSTEINER refers to a letter (also in electronic form, text form, per post, fax, or remote data transmission) – in particular an offer or an inquiry – from the client which includes or refers to the general terms and conditions of the client or a third party, this does not represent KÖNIGSTEINER’s agreement to the validity of any terms and conditions that contradict or deviate from KÖNIGSTEINER’s GTC; they will not become an integral part of the contract concluded with KÖNIGSTEINER either by KÖNIGSTEINER’s acceptance of the order or another – also implied – action by KÖNIGSTEINER.
(4) Stipulations or subsidiary agreements that deviate from these GTC are only effective if confirmed in writing by KÖNIGSTEINER.
II. Object of the contract
KÖNIGSTEINER facilitates for its clients advertising in the scope of and in relation to recruiting. This includes – depending on the specific contract with the client – customized design and creation as well as placement of job advertisements, programmatic advertising, company presentations and company events, special representations such as advertising banners, logo and text links, furthermore online databases and Web 2.0 applications for publication by third-party providers; by request, KÖNIGSTEINER also places advertising in public transportation and radio spots by third-party providers. In particular, KÖNIGSTEINER offers its clients the creation and/or display of advertising or banners to be placed on publication platforms of third-party providers (print or online placements), and also the opportunity to utilize image and employee-loyalty services (e.g., training offerings, special campaigns, production and publication of company videos) as well as employee consulting measures per special agreement via third-party providers of KÖNIGSTEINER.
The object of the contract is the performance by KÖNIGSTEINER of the service contractually agreed upon with the client, whereby KÖNIGSTEINER may also utilize third parties (in particular freelance workers, subcontractors) for this performance.
III. Offer, contract conclusion, third-party providers, inclusion of GTC from third-party providers
(1) All offers and quotes from KÖNIGSTEINER are subject to change and non-binding provided they are not expressly designated as binding.
(2) A contract with the client is only concluded when requests, orders, or bookings from the client are accepted by KÖNIGSTEINER, whereby the acceptance can occur in written form, electronic form, text form, per post, fax, or other remote data transmission; it is concluded at the latest when KÖNIGSTEINER has performed the services.
(3) The client is expressly informed that if the object of the contract is a publication or advertisement – regardless of whether in print, online, or digital form – the publication or advertisement on the publication/advertisement platform(s) of third-party providers is not in KÖNIGSTEINER’s sphere of influence; in particular, KÖNIGSTEINER has no influence on the placement, keywords and categorization. The client is not entitled to corresponding claims against KÖNIGSTEINER. The third-party provider is not an auxiliary person or vicarious agent of KÖNIGSTEINER.
Every publication or advertising platform of a third-party provider has its own general terms and conditions, the terms of which are incorporated into KÖNIGSTEINER’s current GTC provided that they refer to the content of the publication or advertisement to be performed.
If the content of a publication or advertisement for the KÖNIGSTEINER client does not meet the conditions/requirements/criteria for a publication or advertisement on the publication or advertisement platform(s) chosen by the KÖNIGSTEINER client, the publication or advertisement can be rejected/refused by the respective publication or advertising platform. KÖNIGSTEINER has no influence on the possible rejection/refusal of the publication or advertisement. In case of a rejection/refusal by the publication or advertising platform, KÖNIGSTEINER is released from its contractual obligation with regard to the publication or advertisement on the respective rejecting/refusing publication or advertisement platform. KÖNIGSTEINER is entitled to propose to the client placing the publication or advertisement on a different, comparable publication or advertising platform. If the client agrees with KÖNIGSTEINER’s proposal, the publication or advertisement will be undertaken there, whereby Clause III (3) of these GTC also applies to this publication or advertising platform. If the client does not agree with KÖNIGSTEINER’s proposal, KÖNIGSTEINER’s claim to remuneration is reduced, if KÖNIGSTEINER is not at fault for the rejection/refusal of the publication or advertisement by the respective publication or advertisement platform, by the costs for publication or advertisement with regard to the publication or advertisement platform that rejected the publication or advertisement which were included in the contract between the client and KÖNIGSTEINER. KÖNIGSTEINER’s remaining claim for remuneration remains unaffected.
IV. No protection against competitors, involvement of the client, concession of rights of use by the client, release from liability of KÖNIGSTEINER by the client
(1) KÖNIGSTEINER does not grant the client protection from competition and is entitled to enter agreements with any competitors of the client.
(2) Should the content of a publication or advertisement or a changed publication or advertisement violate a legal or official ban, or transgress the standards of public decency, KÖNIGSTEINER is released from its obligation to perform the service.
(3) The client is obligated to provide KÖNIGSTEINER with all of the documents, data, programs, trademarks, fonts, materials, logos, photos, marks, templates, texts, and information required by KÖNIGSTEINER to perform the service in a timely manner.
(4) Upon concluding the contract, the client declares to KÖNIGSTEINER it holds all rights, in particular all rights of use for all fonts, logos, photos, marks, trademarks, data, templates, texts, and other documents that it makes available to KÖNIGSTEINER, and ensures that KÖNIGSTEINER does not violate the rights of third parties.
(5) The client expressly and irrevocably indemnifies KÖNIGSTEINER upon first demand from all possible rights and/or claims from third parties if claims are asserted against KÖNIGSTEINER by third parties and/or claims in connection with fonts, logos, photos, marks, trademarks, data, templates, texts, and other documents provided to KÖNIGSTEINER by the client. This indemnification pertains to all damages and expenditures including the necessary legal costs that KÖNIGSTEINER incurs in this context. The client is obligated to inform KÖNIGSTEINER without delay as soon it has knowledge of possible third-party claims against it regarding asserted or actual violation of rights.
V. Ownership, copyrights, concession of rights of use to the customer
(1) KÖNIGSTEINER reserves all rights of ownership, copyrights, and other commercial property rights, including all rights of use, for all drafts, templates, texts, layouts, work products, marks, trademarks, data, and other documents created by KÖNIGSTEINER as well as software used by KÖNIGSTEINER. A right of retention or right to refuse performance on the part of the customer is hereby excluded.
(2) With full payment of the amount owed, KÖNIGSTEINER will concede to the client a simple right of use without any restriction on place and time to the advertising material and its content created by KÖNIGSTEINER as part of the contract, if the corresponding creation was the contract content.
(3) If KÖNIGSTEINER concedes to its clients a time-limited right of use to programs, the client is obligated after expiration of the right of use to hand over to KÖNIGSTEINER all programs, program copies, and data carriers including the accompanying documentation. The client is not entitled in this regard to exercise a right of retention or right to refuse performance.
VI. Prices, transmission of invoice, payment conditions, compensation, rate of retention, prepayment, transfer of rights
(1) All of KÖNIGSTEINER’s prices are stated in euros plus the respective value-added tax applicable at the time of performance of the service.
(2) KÖNIGSTEINER is entitled to transmit its invoices to the client via telecommunication (e.g., per email).
(2) KÖNIGSTEINER’s invoices are due in full for immediate payment upon receipt by the customer. A deduction of discount is not permitted unless something different was agreed upon in writing between KÖNIGSTEINER and the client.
(3) The client cannot make any offset from KÖNIGSTEINER except for claims that are uncontested, legally established, or ripe for adjudication. This restriction does not apply if there are counterclaims against the client in the amount of the costs of removal of defects or completion with regard to the service performed by KÖNIGSTEINER from the same contractual relationship.
(4) The client can exercise a right of retention only on the basis of counterclaims by the client from the same contractual relationship that are uncontested, legally established, or ripe for adjudication.
(5) If the client defaults on payment, KÖNIGSTEINER is entitled to withhold its services in part or in full until the outstanding amounts have been received in payment.
(6) If there is a significant decline in the client’s assets after conclusion of the contract that could endanger KÖNIGSTEINER’s claims to payment, in particular where it can be assumed that the client will suspend payments, the client will fall into arrears over the payment, or a request will be filed to initiate insolvency proceedings over the client’s assets, KÖNIGSTEINER can require prepayment or a security deposit within a reasonable period of time and refuse the service until receipt of the prepayment in full, payment, or security deposit. KÖNIGSTEINER is entitled to a right of full or partial termination without claims of the client to compensatory damages, and demand damages in place of performance if the client does not provide prepayment, payment or security, or does not provide this within a reasonable amount of time.
(7) The client is not entitled to transfer rights or claims from this contract to a third party without prior consent by KÖNIGSTEINER.
VII. Time of performance, delay of performance
(1) Deadlines, especially the time of performance stated by KÖNIGSTEINER, are only binding if they have been expressly agreed upon in writing as binding by KÖNIGSTEINER. Notwithstanding the above, adhering to deadlines for services requires clarification of all technical questions and questions that affect the layout between the contractual parties and the timely and orderly fulfillment of obligations by the client, especially the timely receipt from the client of all documents, data, programs, trademarks, fonts, materials, logos, photos, marks, templates, texts, and information to be supplied as well as adherence to the agreed-upon payment conditions. If these prerequisites are not met in a timely manner, the time of performance for KÖNIGSTEINER will potentially be extended accordingly. The latter does not apply if the delay is attributable to KÖNIGSTEINER.
(2) Agreed-upon time of performance may potentially be extended as appropriate in cases in which there are impediments to performance that are not attributable to KÖNIGSTEINER. This applies in particular to disruptions in the job portals, disruption in the power supply, operational breakdowns, labor disputes, force majeure, pandemic, circumstances beyond KÖNIGSTEINER’s control. KÖNIGSTEINER will notify the client of such impediments to performance without undue delay.
(3) Should the client be in default of acceptance or violate its duty to cooperate, KÖNIGSTEINER is entitled to prepone alternative contracts of other customers and extend the time of performance as appropriate. KÖNIGSTEINER is entitled without prejudice to further claims against the client to the extent of damages incurred by KÖNIGSTEINER including potential expenses or additional expenditures.
(4) The occurrence of a delay in performance by KÖNIGSTEINER is otherwise defined by statutory provisions – taking into consideration the existing regulations in Clause VII. Notwithstanding hereof, however, a minimum of one reminder must be sent in writing by the customer to KÖNIGSTEINER that sets an appropriate deadline for performance of the service. If KÖNIGSTEINER is in default with a service after these provisions, if it does not involve an negligible breach of duty, the client is entitled to terminate the contract or to damages instead of the service in accordance with the compensatory damages provisions in these GTC.
VIII. Defects, obligation of inspection and notification, prioritized subsequent performance
(1) The client is obligated to review the service performed by KÖNIGSTEINER for defects promptly and if a defect is present, to notify KÖNIGSTEINER promptly. In this case, KÖNIGSTEINER has an initial right to subsequent performance within an appropriate period of time, i.e., KÖNIGSTEINER can eliminate the defect or produce a new product at its discretion.
(2) If the subsequent performance fails, is not acceptable for KÖNIGSTEINER or the client, or would only be possible at disproportionately high cost or effort, the client – without prejudice to any claims for damages that comply with these GTC – is entitled to reduce the compensation to an appropriate level or withdraw from the contract at their discretion in accordance with statutory provisions.
(1) KÖNIGSTEINER is only liable for damages, regardless of the legal grounds, in cases of
negligent injury to life, body, health;
fraudulent concealment of defects;
acceptance of a warranty or procurement risk.
(2) In case of negligent violation of material contractual obligations (those duties and obligations the contract is deemed to impose upon KÖNIGSTEINER according to its spirit and purpose and the very fulfillment of which is deemed to be necessary for due and careful completion of the contract), KÖNIGSTEINER is also liable for minor negligence. In the case of liability for minor negligence, the liability is limited to reasonably foreseeable damage which is typical of the contract.
(3) A potential limitation of liability for KÖNIGSTEINER also applies for the benefit of employees, legal representatives, and vicarious agents of KÖNIGSTEINER.
(4) Claims under the Product Liability Act remain unaffected by the preceding provisions.
(5) The preceding provisions are not associated with a change in the burden of proof to the client’s disadvantage.
(6) The preceding provisions in Clause IX. also do not apply if the client demands of reimbursement of expenses incurred in vain in lieu of claims to compensation for damages.
(7) KÖNIGSTEINER assumes the technical and graphic rendering of websites and job advertisements as well as other publication and advertisement texts only on the basis of the respective applicable HTML standard. KÖNIGSTEINER informs clients that HTML documents may appear differently in different browsers, which is not in KÖNIGSTEINER’s scope of responsibility.
(8) KÖNIGSTEINER also informs clients that KÖNIGSTEINER is not accountable if disruptions occur for which KÖNIGSTEINER is not responsible, which are caused by the quality of internet access; if the client makes unauthorized changes to the source text of the webpages and the publication or advertisement; if internet data transmission is negatively impacted as a result of force majeure.
X. Statute of limitations
All client claims – for whatever legal reasons – lapse after 12 months after conclusion of the contract, with the following exceptions: For claims per Clause IX. (1) a) to e) as well as per Clause IX. (3) the statutes of limitation prescribed under law apply.
XI. Naming as a reference client
(1) KÖNIGSTEINER is entitled to name the client as a reference client with prior written consent from the client. The client may refuse to give consent only for a compelling reason and withdraw consent that was previously given. In the latter case, KÖNIGSTEINER is entitled to use advertising material that has already been created.
(2) The entry can also be done be online, for instance, on the KÖNIGSTEINER company website, including the display of the client’s company logo. The client grants KÖNIGSTEINER for this purpose a simple, non-transferable right of use without any restriction on place and time with regard to the necessary name and trademark rights.
XII. Data privacy
(1) The parties will each comply with the applicable data protection laws.
(2) If and to the extent that the client’s personal data is processed by a third party for KÖNIGSTEINER as part of performing the service, the parties will conclude a standard data processing agreement with third-party processors per Art. 28 GDPR.
(1) The parties will each handle with confidentiality all trade secrets as well as other information marked confidential belonging to the other party (hereinafter referred to as “confidential information”). The receiving party will handle the confidential information with the same care that they treat their own confidential information of equal sensitivity; however, at a minimum with the care of a prudent businessman.
(2) Use of confidential information is restricted to use in the context of the existing contract between the two parties. Disclosure of confidential information to third parties is prohibited without prior consent of the other party. Associated companies and consultants who are legally obligated to secrecy are not third parties in the sense of this clause.
(3) Provided that applicable legal obligations require it, the recipient is furthermore entitled to disclose and pass on confidential information. Unless prohibited by law, KÖNIGSTEINER will inform the client about the disclosure of confidential information.
(4) The parties will impose on their employees or third parties who they provide with confidential information an obligation to treat this information with confidentiality as part of the respective service agreements and employment contracts, on condition that the obligation of secrecy extends beyond the end of the individual service agreement or employment contract insofar as a relevant general obligation for preserving confidentiality does not already exist.
(5) Information that is excluded from the confidentiality obligation includes information
- a) that was already generally known when the contract was concluded or became generally known after the contract was concluded without violating the confidentiality obligations in these GTC
- b) the recipient developed independent of the contract existing between the two parties
- c) received by the recipient from a third party or outside of the contract existing between the two parties from the other party without a confidentiality obligation.
It is incumbent upon the party relying on the exception to provide evidence of the existence of the exceptions listed in this clause.
(6) With the end of this contract, the parties will return or delete confidential information belonging to the other party in their possession upon request by this party. This excludes confidential information for which there is a longer statutory storage obligation as well as data backups made as part of normal backup processes.
XIV. Place of performance
The place of performance for all obligations for KÖNIGSTEINER arising from the contract is the KÖNIGSTEINER registered office, unless otherwise stated in the order confirmation, or unless otherwise agreed.
XV. Applicable law, contract language, court of jurisdiction, severability clause
- a) The exclusive jurisdiction for all indirect and direct disputes resulting from the contract relationship is the court of jurisdiction for the KÖNIGSTEINER registered office.
- b) The same jurisdiction as in Clause XV. (3) a) applies if the client does not have a general place of jurisdiction in the Federal Republic of Germany, or after conclusion of the contract changes his or her domicile or place of habitual residence to outside the Federal Republic of Germany, or his or her domicile or place of habitual residence is not known at the time the action is filed.
- c) KÖNIGSTEINER is entitled to bring a legal action against the client at his or her general place of jurisdiction.