As of January 2025
1. Scope, Order Placement
1.1. These General Terms and Conditions (hereinafter referred to as “GTC”) apply to all deliveries and services of Aiotive (hereinafter briefly “Aiotive”), in particular consulting, creative, and execution services in the field of advertising and brand communication.
1.2. These General Terms and Conditions apply in accordance with § 310 BGB only to entrepreneurs within the meaning of § 14 BGB, legal entities under public law, or special funds under public law. They are part of every contract concluded between Aiotive and its respective contractual partner (hereinafter briefly “Client”), unless explicitly agreed otherwise in individual cases. They also apply to all future business relationships with the Client, even if reference to these GTC is not expressly made in the future.
1.3. Deviating, conflicting, or supplementary purchasing conditions of the Client become part of the contract only if Aiotive has expressly agreed to their applicability in writing. An explicit objection to the Client’s general terms and conditions is not required. These GTC shall apply exclusively even if Aiotive performs the service unconditionally while being aware of deviating, conflicting, or supplementary terms and conditions of the Client.
2. Conclusion of Contract
2.1. Offers from Aiotive are, unless the offer itself or circumstances indicate otherwise, non-binding and subject to change. In particular, if Aiotive provides a mere cost estimate for the Client, this is solely an invitation for the Client to submit an offer, which requires acceptance by Aiotive.
2.2. Aiotive is bound to the respective offer only for the duration of the specified period; otherwise, § 147 para. 2 BGB applies.
2.3. Offers are considered accepted if the Client returns the signed offer to Aiotive within the deadline (including by e-mail) or otherwise indicates acceptance of the offer.
3. Scope of Services, Delivery Deadlines, Compensation, and Delay
3.1. Within the contractually defined framework, the Client grants Aiotive creative freedom in the fulfillment of the assignment.
3.2. If programming activities are part of the scope of services, the source code and documentation remain with Aiotive—subject to a deviating written agreement in individual cases—and are not part of the rights granted to the Client according to Section 13 below.
3.3. In image editing, only the final approved and processed images are generally delivered to the Client. Paths are not disclosed.
3.4. Subsequent changes to the commissioned services require a supplementary written agreement, subject to Section 4 below.
3.5. Specified delivery times, performance deadlines, milestones, and timelines are indicative and non-binding unless Aiotive has expressly confirmed them in writing as binding. Aiotive is released from meeting deadlines in cases of force majeure or other unforeseeable circumstances that cannot reasonably be avoided, until the obstacle is removed.
3.6. If a specific deadline is set for the service, the Client has no claims for delay that Aiotive is not responsible for.
4. Briefing
4.1. The Client’s specifications and the results of discussions with the Client (hereinafter briefly “Briefing”) form the basis for Aiotive’s activities, through which the agreed services are specified and clarified.
4.2. If the briefing is given orally, Aiotive will prepare a protocol within three working days after the discussion. The protocol prepared by Aiotive is considered a commercial confirmation letter, which becomes binding for both parties unless the Client objects within three days of receipt.
5. Presentations
5.1. If no order is placed following a presentation, all services provided up to that point (in particular the presented drafts, works, ideas, and concepts) remain the property of Aiotive. The Client is then obliged to return all documents and materials provided for the presentation immediately. The Client is not entitled to use, process, or base their own materials on these documents and materials or any other services provided by Aiotive. Aiotive remains free to use the presented results for other projects and clients, subject to existing confidentiality obligations.
5.2. If the Client or third parties acting with the Client’s consent use the work results provided by Aiotive for the presentation, e.g., by publishing and/or duplicating them, the Client is obliged to pay the remuneration according to Aiotive’s offer for the respective service or, in the absence of such, the market-standard remuneration.
6. Cost Estimates
6.1. Aiotive’s fee claims arise even if the respective service was not previously estimated by a cost estimate or calculation.
6.2. Cost estimates and calculations preceding a specific offer from Aiotive are non-binding unless expressly stated otherwise.
6.3. A cost overrun of up to 10% of the underlying cost estimate is considered approved by the Client. Cost overruns of more than 10% will be communicated to the Client.
6.4. Cost estimates for third-party services, who are not Aiotive’s vicarious agents, are forwarded by Aiotive solely as an intermediary without assuming substantive responsibility.
7. Client Cooperation Obligations
7.1. The Client must fulfill all necessary cooperation and provision obligations for the execution of the contract and support Aiotive in a collaborative manner.
7.2. The Client must immediately inform Aiotive of all circumstances relevant to the service, especially if they become known during execution.
7.3. If Aiotive has to redo work or the completion of the order is delayed due to incorrect, incomplete, untimely, or subsequently changed information from the Client, the Client bears the resulting additional effort.
7.4. The Client guarantees that the materials and documents provided to Aiotive are free of third-party copyright, trademark, or other rights and that Aiotive is authorized to use them. Aiotive is not liable for any infringement of such rights. The Client indemnifies Aiotive against all resulting damages, expenses, and costs, including necessary legal defense costs.
7.5. Aiotive may terminate the contract with reasonable notice if the Client defaults on cooperation obligations or acceptance of offered services. Compensation for resulting damages remains unaffected.
8. Engagement of Third Parties
8.1. Unless otherwise agreed, Aiotive may perform the owed services itself or through third parties as vicarious agents.
8.2. If the production of advertising materials requires third-party services, the Client generally engages third parties themselves. If not, Aiotive commissions third parties after written coordination with the Client, with due diligence and excluding liability, in the Client’s name and on their account. Aiotive verifies the invoices of third-party services for content and accuracy.
8.3. Third-party services not commissioned as part of Aiotive’s own scope do not count as vicarious agents of Aiotive.
8.4. Aiotive receives a handling fee of 5% of the respective order value for the selection, engagement, instruction, and supervision of third parties not acting as Aiotive’s vicarious agents.
9. Remuneration
9.1. The Client shall pay the agreed remuneration for the contractually agreed services.
9.2. Unless explicitly agreed otherwise, remuneration is based on actual effort according to the hourly rates and price lists valid at the time of contract conclusion. Any services exceeding the offer (additional correction cycles, changes, extensions), as well as subsequently delivered additional features, will be billed separately based on effort according to the following hourly or daily rates, after consultation with the Client.
9.3. If Aiotive creates concepts and presentations as part of so-called “pitches,” these are explicitly chargeable. Aiotive generally does not participate in unpaid pitches.
9.4. All services not explicitly included in the agreed scope of services will be remunerated separately.
9.5. Additional costs due to subsequent changes requested by the Client, unless they are merely clarifications within the briefing (Section 4), are borne by the Client and invoiced according to Section 9.2.
9.6. If the Client terminates the contract after the order has been placed but before project completion, the Client is obliged to pay the agreed remuneration, reduced by costs Aiotive saves by not performing or stopping the project; § 648 sentences 2 and 3 BGB apply accordingly.
10. Reimbursement of Expenses
10.1. Third-party and incidental costs, as well as any expenses incurred by Aiotive for contract execution or arising as a necessary consequence of the assignment, shall be reimbursed by the Client in each case upon presentation. This includes communication, shipping, travel, accommodation, taxi costs, expenses for third-party services, and other disbursements (e.g., GEMA fees, artists’ social contributions, customs duties).
10.2. If Aiotive commissions third parties who are not vicarious agents (e.g., photographers, producers, models) on behalf of the Client, this is always at the Client’s expense. If Aiotive has advanced payments, the Client must reimburse these immediately upon request.
10.3. If the contractual collaboration is terminated early at the Client’s request or services are subsequently revoked by the Client, Aiotive will invoice all expenses already incurred (working time, travel costs, per diems, information-gathering costs, etc.).
11. Prices, Payment Terms
11.1. The agreed remuneration is, unless expressly stated otherwise, a net fee plus VAT at the statutory rate applicable at the time of service provision.
11.2. Aiotive’s invoices are due for payment within 14 days of receipt without any deduction.
11.3. Unless otherwise agreed, Aiotive is entitled to invoice the services at the end of each month.
11.4. For larger projects (longer than six weeks), Aiotive may invoice partial payments for services already rendered, even if these partial services are not yet in a usable form for the Client.
11.5. If the Client is in default of payment, Aiotive may, after written notice, suspend further work until the overdue amount is paid.
11.6. The Client may not offset or withhold payment unless their counterclaim is undisputed or legally established.
12. Termination / Withdrawal
12.1. Aiotive is entitled to terminate the contract for cause before completion of the assignment. Important reasons include:
a) Contract execution becomes impossible due to reasons attributable to the Client,
b) The Client violates essential contractual obligations, particularly payment or cooperation obligations, and continues despite written warning with a 14-day deadline,
c) Justified doubts about the Client’s ability to pay exist, and the Client fails to provide prepayments or security within the specified period,
d) The Client suspends payments or files for insolvency, or proceedings are opened or dismissed due to lack of assets.
12.2. All terminations must be in writing.
13. Granting of Rights
13.1. All work results created by Aiotive (e.g., drafts, drawings, print templates, concepts, ideas) may only be used, edited, or altered with Aiotive’s consent. Any imitation is prohibited.
13.2. All rights to work results, including preliminary work and intermediate stages, particularly ownership, copyright, usage, performance protection rights, and trademark or brand rights, remain exclusively with Aiotive unless explicitly transferred in writing and fully paid by the Client.
13.3. Granting of rights to the Client is determined primarily by the respective contractual agreement in terms of time, territory, and content.
13.4. If no explicit agreement exists, the scope of rights granted is based on the purpose of the contract.
13.5. Ownership and usage rights transfer to the Client only after full payment of the total order, regardless of the scope of rights granted.
13.6. The Client undertakes to use Aiotive’s services only to the extent permitted under Sections 13.1–13.5 in connection with the respective contract.
13.7. Transfer of granted rights to third parties, multiple usage, or sublicensing is chargeable and requires prior written consent from Aiotive unless contractually agreed otherwise.
13.8. Aiotive obtains rights from third parties for implementation at the Client’s expense, if required.
13.9. Aiotive assumes no liability for statutory claims of authors for subsequent remuneration increases under §§ 32, 32a UrhG.
13.10. Aiotive may request information from the Client on the used deliverables.
13.11. Aiotive may reasonably sign developed advertising materials and use them for self-promotion after publication.
14. Storage and Custody
14.1. Aiotive’s work results and Client-provided materials, data, and documents are stored beyond delivery only by prior agreement and for additional fees.
14.2. If no other agreement exists, Aiotive may destroy provided materials after four weeks without notice to the Client.
14.3. If insurance for items under Section 14.1 is required, the Client must arrange it themselves.
14.4. Originals included in the services remain Aiotive’s property and may be destroyed six months after service provision.
15. Warranty
15.1. The Client has statutory warranty rights for material and legal defects.
15.2. The Client must inspect Aiotive’s services immediately upon receipt, before first use, and report defects promptly. Failure to inspect or report relieves Aiotive of liability for obvious or known defects and resulting consequential defects.
15.3. Warranty claims are void if the Client modifies Aiotive’s work without authorization, unless the modification does not affect the defect.
15.4. Aiotive’s warranty obligation expires one year after the Client receives the service.
16. Liability
16.1. Aiotive is fully liable for intent and gross negligence according to statutory provisions. For ordinary negligence, liability is limited to:
a) Damage to life, body, or health,
b) Breach of essential contractual obligations, limited to foreseeable, typical damage.
16.2. These limitations also apply to breaches by persons for whose fault Aiotive is responsible, and not in cases of fraudulent concealment of defects or guarantees.
16.3. Aiotive will inform the Client of identifiable risks and ensures the Client receives rights to own contributions as contractually agreed.
16.4. Liability for third-party claims is excluded if Aiotive pointed out legal risks or they were not apparent.
16.5. If the Client proceeds with advertising despite Aiotive’s warnings, the Client indemnifies Aiotive against third-party claims.
16.6. Client claims expire 12 months after knowledge, max. 3 years after the breach, except in cases of intent or injury to life, body, or health.
17. Collective Rights Management and Artist Social Security Contributions
The Client must comply with claims from collective management organizations. If Aiotive fulfills these, the Client reimburses costs. In artistic, conceptual, or advertising consulting services, the Client pays the artist social security contributions.
18. Assignment, Contract Transfer
18.1. The Client may not assign rights from the order to third parties.
18.2. Aiotive may transfer all rights and obligations to affiliated brands.
19. Confidentiality
19.1. Both parties must keep all information learned in connection with the contract confidential for two years after cooperation ends.
19.2. Rights and obligations from separate confidentiality agreements remain unaffected.
20. Data Protection
20.1. The Client confirms that transmitted personal data has been processed in accordance with GDPR and BDSG and that necessary consents exist.
20.2. If Aiotive processes personal data on behalf of the Client, a separate agreement under Article 28 GDPR will be concluded.
20.3. The Client agrees that Aiotive may store personal data for the duration of the contract as required for performance.
21. Final Provisions
21.1. Place of performance for delivery and payment is Frankfurt am Main.
21.2. Jurisdiction for all disputes is Frankfurt am Main. Aiotive may also file suit in any other jurisdiction.
21.3. German law exclusively applies, excluding the UN Sales Convention (CISG).
21.4. If any provision of these GTC is invalid, the validity of the remaining provisions remains unaffected. Invalid provisions will be replaced by valid provisions that best reflect the intended purpose.
