El Club Bremen operates the Internet platform accessible at www.El Club Bremen.com and at other domains (hereinafter referred to as “platform”). The platform enables registered users (hereinafter referred to as “creatives”) to submit ideas, design proposals, works, and other creative output (hereinafter referred to as “ideas”) as part of projects sponsored by El Club Bremen’s clients on the platform (hereinafter referred to as “projects).
Clients of El Club Bremen are given the opportunity to acquire rights to use ideas submitted by creatives from El Club Bremen and/or the creatives. Details of how the platform works have been explained to the client, who is familiar with them.
The general terms & conditions listed below contain the basic rules governing the use of the platform and all associated legal transactions and quasi-contractual actions between the client and El Club Bremen. Projects may also be subject to other project-specific terms and conditions that will take precedence over the general terms & conditions in case of doubt.
1.1 El Club Bremen renders the services specified in the relevant quotation. In particular, El Club Bremen coordinates the initiation and the general execution of projects on the platform and with the creatives.
1.2 In addition, El Club Bremen also ensures the operation of the platform as a service provider on a permanent basis. In contrast, El Club Bremen’s services exclude, as a matter of principle, any services that are typically performed by an advertising agency unless these explicitly specified as an element of the service quotation. In particular, El Club Bremen will not be obliged to examine the protectability or usability of ideas (e.g. as a brand) submitted by creatives in the course of a project unless it is given a separate commission to do so. Furthermore, El Club Bremen’s obligations do not include the examination of legal questions regarding the idea and the content used by the creative within it, in particular arising in the area of copyright, competition law and trademark law unless it is given a separate commission to do so.
2.1 The success of a project depends to a significant degree on the briefing given to the creatives, i.e. the information made available to them for the assignment. In order to allow the best possible briefing of creatives in the client’s interest, the client will make all documents and information available that are required or can be reasonably requested by El Club Bremen in order to render the contractually agreed services, in particular, in order to conduct the competition. In particular, the client will make a detailed briefing available to El Club Bremen for the creatives that enables El Club Bremen to describe the project to the creatives. The client will provide all other cooperation required for launching and executing the project.
2.2 El Club Bremen and the creatives will be permitted to use names, logos, brands and other materials and objects that may be subject to the client’s or third-party copyright, intellectual property rights or other protected rights, to an extent that is required for the execution of this agreement and the project. This assignment of rights covers, for example, trademarks, claims, text, photographs of products etc. that may be required as material for the project description and the preparation of the briefing by El Club Bremen and/or for the development and realization of an idea by the creative as part of a project. Furthermore, El Club Bremen may also use the client’s logo and trademark on the platform to promote the project, for documentation purposes and for its own appropriate marketing purposes (for example in El Club Bremen brochures).
2.3 The client will give El Club Bremen clear and binding written notification as to whether, how and to what extent it intends to make use of which ideas (exploitation interest) in order to be able to acquire the corresponding rights of use to the ideas in accordance with the license agreement.
The acquisition of rights of use is governed by the license agreement between the client and El Club Bremen and, where applicable, by the project type of the contract for work between the client and the creative.
4.1 The goods and services provided by El Club Bremen are to be reimbursed with the fee agreed in the corresponding quotation.
4.2 Where El Club Bremen also assumes responsibility for settling payment with creatives, it will include these payments as expenses on its invoice. The settlement of these payments does not constitute any additional obligation on the part of El Club Bremen towards the client other than processing payment; in particular this does not make creatives representatives or agents of El Club Bremen.
4.3 The invoice will be issued when the project commences on the platform or on conclusion of a workshop. Prize money, recognition premiums and all other reimbursements owed to El Club Bremen are due for payment immediately on receipt of the invoice. El Club Bremen will issue the client with an invoice in accordance with commercial and accounting practice for the actual services rendered.
4.4 El Club Bremen must sometimes make use of third-party services in order to execute projects.
Invoices issued by such third parties, and other expenses incurred by El Club Bremen in order to execute this agreement will only be charged to the client after prior consultation and approval.
4.5 All prices are subject to VAT at the prescribed statutory rate.
4.6 Depending on the volume of the commission and/or project, El Club Bremen is entitled to demand appropriate payments in advance.
4.7 The invoice amount is due on receipt of the invoice by the client and payable within the period specified on the invoice. If no payment period is specified on the invoice, payment is to be made within 14 days of receipt of the invoice.
5.1 El Club Bremen will be liable in accordance with statutory provisions for loss or damage incurred by the client that result from intent or gross negligence, that is the consequence of the absence of a guaranteed quality, that is due to a culpable breach of fundamental contractual obligations (cardinal obligations), that is the consequence of culpable injury to life, body or health or that is subject to liability in accordance with the Product Liability Act (ProdHaftG).
5.2 Cardinal obligations are such contractual obligations whose fulfillment is essential for the proper execution of the agreement, on whose observance the contractual parties may rely and the infringement of which jeopardizes the achievement of the purpose of the agreement.
5.3 In the event of infringement of a cardinal obligation – provided damage is only due to slight negligence – liability will be limited to such damage that must typically be expected to arise from use of the platform.
5.4 The client’s right to claim damages will lapse after one year. The expiry period begins on the date such entitlement to claim damages arises and the client’s knowledge of or the grossly negligent ignorance of the reasons for such claims and of the identity of the infringing party. Notwithstanding this, the right to claim will lapse three years after the act of infringement.
6.1 El Club Bremen is entitled to deploy sub-contractors or other agents in order to render the contractually agreed services. This also applies to El Club Bremen’s freelance staff who are integrated into El Club Bremen’s working and organizational structure. El Club Bremen will ensure that sub-contractors or other agents and freelance staff comply with the conditions and provisions of this agreement.
6.2 El Club Bremen will conclude any agreement it needs to make with third parties for the purpose of providing all the personnel and material resources required to execute the project in its own name and for its own account.
7.1 El Club Bremen will treat all information that it becomes aware of in the course of cooperation with the client and which is not intended to be disclosed to third parties with the utmost confidentiality. El Club Bremen will oblige employees and third parties who receive such information and documents for the purpose of performing work in connection with this agreement to observe the same confidentiality. The obligation of non-disclosure applies beyond the term of the agreement and of the individual commission.
7.2 Where the client so wishes, El Club Bremen can arrange for a non-disclosure agreement (NDA) to be concluded between the client and a creative participating in a project. El Club Bremen is not a party to such non-disclosure agreement and therefore cannot assume any liability or warranty for infringements of obligations by the creative and for legal action being taken and/or enforced against the creative for infringements of obligations.
8.1 Warranty for defect of title depends on the type of project involved:
8.1.1 PUBLIC/PRIVATE project: El Club Bremen will provide warranty for the infringement of third-party proprietary rights where the rights in question were granted to the client by El Club Bremen .
8.1.2 INVITE project: Liability for defect of title will be assumed by the creative in accordance with the agreement concluded between the creative and the client.
8.1.3 Liability on the part of El Club Bremen and/or the creative will be excluded if defect of title is attributable to material of the client or of a third party was used as part of the idea.
8.1.4 Furthermore, defect of title will not occur if the creative creates designations, names etc. as part of their idea and the client uses said designation etc. without conducting appropriate research or commissioning El Club Bremen to do so
8.1.5 Finally, defect of title will not occur if it is based on the use of third-party materials (including such materials that are covered by a free license such as Creative Commons) and the client provided or agreed to such material. Creatives are required to mark third-party materials as such
8.2 In the event of an infringement of the rights of any third party, El Club Bremen and/or the creative will be entitled, to an acceptable degree for the client, to modify the contractual performance in such a way that it is no longer subject to protection of the infringed rights of third parties but still conforms to the terms of the agreement, or to obtain permission that it may be used as provided for by the agreement with no additional costs being incurred for the client.
8.3 The warranty period is one year and commences with the end of the project.
8.4 Notwithstanding the other provisions of this agreement, the parties will inform each other immediately and in writing if and when claims are asserted against them for infringement of proprietary rights.
9.1 The client and El Club Bremen will each nominate a project manager who will be responsible for providing binding information. Project managers will be authorized to give and receive declarations, with the exception of notice of termination. El Club Bremen’s project manager will be the client’s point of contact and responsible for all questions arising in the course of the project and for receiving any information due from the client and any other obligations arising from the cooperation. The project manager nominated by the client must immediately pass on all information relevant for the fulfillment of the project, must take decisions and meet obligations arising from the cooperation. The project manager is an authorized signatory.
9.2 The client undertakes to provide authorizations, approvals and instructions in a timely manner and to supply documents and information so that El Club Bremen can perform the work easily and in good time without incurring additional costs or suffering degradation in quality. Any additional costs incurred as a result of delayed authorization or approval will be borne by the client. Instructions must be given in writing at least.
10.1 Should any provision of this agreement be or become invalid, the validity of the rest of the agreement will remain unaffected. The invalid provision will be replaced by one that comes nearest to the intent of both parties in line with what is legally possible.
10.2 The parties to this agreement agree that the place of jurisdiction will be Berlin for any disputes arising from the conclusion, performance or termination of this agreement. The agreement will be governed by German law.