General Terms and Conditions

Hello White Parrot GmbH, Hamburg

1. Scope

(1) The following general terms and conditions (Allgemeine Geschäftsbedingungen, AGB) apply to all legal transactions between Hello White Parrot GmbH, represented by its managing director (Geschäftsführer) Florian Pagel, Gerhofstraße 40, 20354 Hamburg (hereinafter “Hello White Parrot”), and its contractual partner (hereinafter referred to as the “Client”).

(2) The general terms and conditions shall be deemed agreed unless the Client objects to them without undue delay (unverzüglich) after receipt. Deviating general terms and conditions of the Client shall not apply and shall only be effective if Hello White Parrot has expressly acknowledged them in writing.

2. Offers, conclusion of contract

(1) The basis for the conclusion of the contract is the respective written offer of Hello White Parrot, in which the services and the fee are set out. The offers of Hello White Parrot are subject to change and non-binding (freibleibend und unverbindlich) and constitute an invitation to the Client to commission Hello White Parrot with the performance of services.

(2) Where, by way of derogation from para. 1, the fee is not governed by a written offer, it shall be determined on the basis of Hello White Parrot’s calculation basis applicable at the relevant time. In addition to the agency fee, the following services shall be charged separately according to the effort involved: advertising preparation, advertising planning, advertising design, copywriting, implementation of the marketing measures, materials, translations, travel costs, expenses, organisation and procurement costs, transfers of copyright, and technical costs such as photographs, photo prints, tooling costs, production of advertising materials and printing costs, as well as services of third-party contractors engaged (hire of personnel, premises, market research, etc.).

(3) By commissioning the performance of the selected service, the Client submits a binding offer to conclude a contract. The contract between the Client and Hello White Parrot is concluded upon Hello White Parrot’s declaration of acceptance in writing or by telecommunication (fernschriftlich). The same applies to supplements, amendments or collateral agreements. If Hello White Parrot does not refuse acceptance within 4 weeks of receipt of the order, the confirmation shall be deemed to have been given.

(4) An act of performance by Hello White Parrot in accordance with the order replaces the order confirmation. By making use of the services of Hello White Parrot, the Client declares acceptance of this offer and waives receipt of the declaration of acceptance.

(5) Documents, drawings, illustrations, technical data and service descriptions contained on websites, in brochures, circulars or price lists, or forming part of the offer, are non-binding unless they are expressly designated as binding in the order confirmation.

3. Order and scope of services of Hello White Parrot

(1) The subject matter of the order is solely the activity or service to be rendered as described in the order. The scope of services is determined by the order agreed in writing between the Client and Hello White Parrot.

(2) Collateral agreements or amendments that alter the scope of the contractual services must be made in writing.

(3) Hello White Parrot shall notify the Client without undue delay of any changes to or deviations of individual services from the agreed content of the order that become necessary after conclusion of the contract. Insofar as the agreed content of the order is not affected, or only insignificantly affected, by the changes, the Client shall have no right of termination on account of these deviations. Hello White Parrot is entitled, in consultation with the Client, to modify parts of the concepts in deviation from the service description.

(4) Insofar as Hello White Parrot concludes contracts with third parties for the performance or implementation of agreed advertising and marketing measures, such contracts are concluded in the name and on behalf of the Client, with the Client’s authority. This applies in particular to the hire of premises, the placing of orders in the catering and service sector, and the conclusion of contracts with graphic designers, finished artists (Reinzeichner) and artists.

(5) Insofar as Hello White Parrot provides additional services and performances free of charge outside the contractual agreement, it is entitled to discontinue these services at any time. This shall not give rise to any right of termination or any claim to a price reduction or damages in favour of the Client.

4. Changes to services

(1) Changes to and/or supplements of the order must be made in writing. The contracting parties shall agree without undue delay on the content of a proposal for implementing the requested change and shall attach the result of a successful agreement, as a supplementary agreement, to the text of the order to which the change relates.

(2) If no agreement is reached, or if the change procedure ends for any other reason, the original scope of services shall remain in force.

(3) The Client shall bear the effort and costs arising from the change request. These include in particular the review of the requested change and the preparation and implementation of the change proposal. Where the parties have agreed on daily rates, the effort shall be charged on that basis; otherwise it shall be charged according to the usual remuneration of Hello White Parrot.

(4) Hello White Parrot is entitled to change or deviate from the services to be provided under the contract if the change or deviation is reasonable for the Client, taking into account the interests of Hello White Parrot.

5. Performance of the contract, obligations of the Client, cooperation

(1) The basis of Hello White Parrot’s work is the Client’s briefing. If the briefing is given orally, the corresponding contact report becomes the binding working document.

(2) Hello White Parrot shall provide contact reports within 3 working days after each meeting with the Client. These contact reports are binding for the further handling of projects unless an objection is raised within a further period of 2 working days.

(3) The Client shall provide Hello White Parrot without undue delay with all information required for the performance of the order. Delays resulting from a lack of cooperation on the part of the Client shall not be borne by Hello White Parrot.

(4) The Client warrants that the data provided are correct and complete; the Client shall notify Hello White Parrot in writing without undue delay of any changes to personal data or material contractual information.

6. Remuneration, payment, default

(1) Remuneration is based on the agreement made in the order. All fees include the applicable statutory value added tax and, in the amount applicable at the time the contract is concluded and in accordance with the order, become due immediately upon invoicing. In the event of late payment, default interest at a rate of 8 percentage points above the base interest rate shall be deemed agreed.

(2) Hello White Parrot is entitled to request advance payments of a reasonable amount to cover its expenses.

(3) If the Client is in default of payment, Hello White Parrot has the right to refuse performance.

(4) The Client shall only be entitled to set-off if its counterclaims are undisputed by us or have been finally and conclusively established by a court (rechtskräftig festgestellt). The Client shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.

7. Conception, presentation and copyright protection

(1) If Hello White Parrot does not receive an order after taking part in a presentation or a pitch, or after preparing a concept, all services of Hello White Parrot, in particular their content, remain the property of Hello White Parrot. The Client is not entitled to make any further use of them, in whatever form.

(2) All services of Hello White Parrot (e.g. concepts, sketches of ideas, etc.) and individual parts thereof remain the property of Hello White Parrot. By paying the fee, the Client acquires only the right to use them for the agreed purpose. Unless otherwise agreed with Hello White Parrot, the Client may use the services of Hello White Parrot only itself and only for the term of the contract. Supplements to or modifications of services of Hello White Parrot by the Client are permitted only with the express consent of Hello White Parrot and, insofar as the services are protected by copyright, of the author (Urheber).

(3) Any use of services of Hello White Parrot that goes beyond the originally agreed purpose and scope of use requires the consent of Hello White Parrot, irrespective of whether the service in question is protected by copyright. Hello White Parrot and the author are entitled to separate, reasonable remuneration for such use.

(4) Repeated use (e.g. reprints) or multiple use of marketing concepts is subject to a fee and requires the consent of Hello White Parrot. The transfer of granted rights of use to third parties requires the consent of Hello White Parrot. Hello White Parrot is entitled to information on the extent of use.

(5) Materials supplied by the Client to Hello White Parrot (e.g. texts, photographs, samples, etc.) are used on the assumption that the Client is entitled to use them. Hello White Parrot does not verify whether the Client is entitled to use the copyrights and trade mark rights required for the services to be rendered. Any liability towards third parties in respect of copyright and/or trade mark claims is therefore excluded for the commissioned services.

(6) All services, in particular pitches, drafts, sketches, samples, source files, original documents and other documents (hereinafter referred to as “Services” or “Works”), may not be altered, either in the original or in reproduction, without the express consent of Hello White Parrot. Any imitation outside the scope of the order, including of parts, is prohibited. A breach of this provision entitles Hello White Parrot to demand a contractual penalty (Vertragsstrafe) in the amount of twice the agreed remuneration.

8. Colours and image samples/illustrations

(1) Hello White Parrot points out that screen colours (RGB) differ from printing colours (CMYK) on different media (e.g. paper, fabrics, films, banners, etc.). Return or exchange on account of colour deviations is excluded.

(2) This is well known throughout the printing industry, and the Client confirms to Hello White Parrot that it is aware of this. In order to avoid misunderstandings, a colour-accurate sample (proof) may be ordered in advance for an additional charge.

9. Termination

(1) The Client is entitled to terminate the contractual relationship with Hello White Parrot at any time.

(2) However, early termination of the contractual relationship obliges the Client to pay a reasonable fee remunerating the services rendered up to the time of termination.

(3) If the Client withdraws from or cancels the order before the order begins (order volume of at least 1 week), Hello White Parrot is entitled to charge the following percentages of the remuneration as a cancellation fee: up to 1 month before the start of the order 20 %; from 1 month to 2 weeks before the start of the order 30 %; from 2 weeks to one week before the start of the order 40 %; from 1 week before the start of the order 50 %.

(4) The right of both contracting parties to extraordinary termination (außerordentliche Kündigung) remains unaffected.

10. Warranty and damages

(1) Hello White Parrot undertakes to prepare conscientiously and to select and supervise the service providers carefully in accordance with the duty of care of a prudent businessperson (ordentlicher Kaufmann).

(2) The Client must assert and substantiate complaints, claims and impairments in writing without undue delay [within three working days after performance by Hello White Parrot]. In the event of justified and timely complaints, the Client is entitled to damages. The Client acknowledges that any claim for damages against Hello White Parrot, on whatever legal grounds, is limited in amount to the agreed fee.

(3) Claims for damages by the Client, in particular on account of impossibility of performance, positive breach of obligation (positive Forderungsverletzung), fault in contracting (culpa in contrahendo), defective or incomplete performance, or tortious acts, are excluded unless they are based on intent or gross negligence on the part of Hello White Parrot.

11. Exclusion of liability

(1) Hello White Parrot will carry out the work entrusted to it by the Client with professional care, creativity and to the best of its knowledge.

(2) Hello White Parrot is liable for damage incurred only in cases of intent and gross negligence. This also applies to damage resulting from a positive breach of contract (positive Vertragsverletzung) or a tortious act.

(3) The liability of Hello White Parrot is limited in amount to the damage typical and foreseeable for comparable transactions of this kind which was foreseeable when the order was placed or, at the latest, when the breach of duty was committed. In particular, Hello White Parrot is not liable for loss of profit or other financial losses of the Client.

(4) Liability lapses if the Client or a third party has made changes of any kind to the service rendered by Hello White Parrot.

(5) Hello White Parrot accepts no liability for the admissibility under competition law and trade mark law, or for the registrability, of its designs and the services rendered. The risk of the legal admissibility of the services performed is borne by the Client. This applies in particular in the event that the services infringe the provisions of competition law, copyright law and the specific advertising laws. Hello White Parrot will, however, point out legal risks insofar as it becomes aware of them during preparation.

(6) The Client shall indemnify Hello White Parrot against claims by third parties where Hello White Parrot has acted at the express request of the Client even though it informed the Client of its concerns regarding the admissibility of the advertising measures.

(7) Under no circumstances is Hello White Parrot liable for factual statements about products and services of the Client contained in the services. Nor is Hello White Parrot liable for the eligibility for protection or registration under patent, copyright and trade mark law of the ideas, suggestions, proposals, concepts, drafts, typefaces, image material, etc. supplied within the scope of the order.

(8) The Client warrants that it is entitled to use all materials handed over to Hello White Parrot and that these materials are free from third-party rights. Should the Client, contrary to this assurance, not be entitled to use them, or should the materials not be free from third-party rights, the Client shall indemnify Hello White Parrot, in their internal relationship (im Innenverhältnis), against all claims for compensation by third parties.

12. Acceptance

(1) The Client shall confirm receipt of the service in writing and, after a successful acceptance test, declare acceptance (Abnahme) in writing.

(2) Upon acceptance or approval of the services or partial services by the Client, the Client assumes responsibility for the correctness of text and images. Any liability of Hello White Parrot for services approved by the Client is excluded.

(3) The acceptance test shall last no more than 3 working days after transmission to the Client. The Client is obliged to notify Hello White Parrot in writing, without undue delay after completion of the acceptance test, in the form of a list of corrections, if deviations from the contractually specified requirements have been found during the test.

(4) Thereafter, the service shall be deemed accepted as being in conformity with the contract and free of defects. All other defects become time-barred one year after acceptance of the work.

(5) Hello White Parrot will remedy the defects after receipt of the list of corrections and send the Client a new or revised work for review. If the defects have been remedied and no new defects have arisen, the Client is obliged to declare acceptance or freedom from defects without undue delay after the review has been carried out, but no later than after 3 working days. If, within the aforementioned period, the Client declares neither that new defects have arisen nor that it accepts the work as being in conformity with the contract or declares it free of defects, acceptance or the declaration of freedom from defects shall be deemed to have been given upon expiry of the period.

(6) The aforementioned periods also apply in the event that, after corrections have been made, new defects have arisen which the original work did not contain.

13. Release of data

(1) Hello White Parrot is not obliged to hand over data carriers, files and data. If the Client wishes Hello White Parrot to provide data carriers, files and data, this must be agreed in writing and remunerated separately.

(2) Where Hello White Parrot has provided the Client with data carriers, files and data, these may only be altered with the consent of Hello White Parrot.

(3) The risk of loss of data carriers, files and data, online and offline, is borne by the Client.

(4) Except in cases of intent and gross negligence, Hello White Parrot is not liable for defects in data carriers, files and data. Hello White Parrot accepts no liability for errors in data carriers, files and data that arise when data are imported into the Client’s system.

14. Data protection

(1) The Client is aware of and consents to the personal data required for the performance of the contractual relationship being stored by Hello White Parrot on data carriers and, where applicable, being passed on to affiliated companies in the course of processing the order. The Client expressly consents to the collection, processing and use of its personal data.

(2) The stored personal data will, as a matter of course, be treated confidentially by Hello White Parrot. Hello White Parrot may transmit these data to agents and to carefully selected business partners, for example for the purpose of credit checks.

(3) The collection, processing and use of personal data are carried out in compliance with the General Data Protection Regulation (GDPR), the German Federal Data Protection Act (BDSG) and the TDDDG.

(4) The Client has the right to revoke its consent at any time with effect for the future. In this case, Hello White Parrot is obliged to delete the Client’s personal data immediately. In the case of ongoing usage relationships, deletion takes place after termination of the contract.

15. Advertising/reference/documents

(1) From the time the order is placed, Hello White Parrot is entitled at any time to use the cooperation with the Client as a reference towards third parties.

(2) Hello White Parrot is further entitled to use services rendered (e.g. images, layouts, treatments, drafts, photographs, texts) for its own advertising for acquisition purposes, for example in reference lists, internet publications, in tenders, etc. This also includes the right to use the Client’s name and logo on the website of Hello White Parrot. Hello White Parrot is further entitled to use the services rendered for the Client insofar as the Client does not use them itself.

(3) The Client is obliged to name Hello White Parrot in connection with any awards and prizes received and in press releases.

(4) Documents provided will be returned to the Client only upon special request. Hello White Parrot’s obligation to retain them ends 3 months after the order has been completed.

(5) Hello White Parrot is likewise entitled, after publication, to issue press releases, in particular to the trade press, on the respective orders / projects.

16. Final provisions

(1) The law of the Federal Republic of Germany applies between the Client and Hello White Parrot, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). The place of performance is Hamburg. The exclusive place of jurisdiction for claims between the Client and Hello White Parrot arising from the contractual relationship is Hamburg, provided that the Client is a merchant/business (Unternehmen), a legal entity under public law or a special fund under public law (öffentlich-rechtliches Sondervermögen).

(2) Should individual provisions of these terms be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a substitute provision that comes as close as possible to the purpose pursued by the invalid provision.