General Terms and Conditions of ALPHA POOL GmbH


  1. Definition and scope
    1. The following General Terms and Conditions apply to all orders, contracts, offers, deliveries and services carried out by ALPHA POOL GmbH, Kaiser-Friedrich-Str. 90, 10585 Berlin, hereinafter referred to as “ALPHA POOL”, with their contractual partners, hereinafter referred to as “contractual partners”. In the case of any follow-up orders, an express re-reference to the General Terms and Conditions of ALPHA POOL is not required.
    2. The terms “order, agency and contractual partner” are to be understood in the commercial sense. “Order” means the contractual relationship regardless of the respective type of contract.
    3. The General Terms and Conditions of ALPHA POOL apply exclusively. Any deviating terms and conditions of the contractual partner shall not become part of the contract even if ALPHA POOL does not expressly object to them and shall only be valid if ALPHA POOL acknowledges them in writing.
  1. Protection of intellectual property
    1. All documents written by ALPHA POOL, in particular letters, emails, protocols, assessments, calculations, forecasts, evaluations and concepts are protected by copyright.
    2. Any use is only permitted with the written consent of ALPHA POOL and after payment of the fees or costs called for it.
    3. Should concepts, especially but not only in pitch situations, initially be presented without a cost note, these concepts may only be used after the contracting parties have agreed on a usage fee and ALPHA POOL has approved the use in writing.
    4. In any event of a violation, ALPHA POOL is entitled to determine a contractual penalty in an amount to be determined by ALPHA POOL at its reasonable discretion – but at least 10,000 euros – and to be reviewed by the competent district court (Landgericht Berlin) in the event of a dispute.
  1. Correspondence by electronic means
    1. The contractual partner authorises ALPHA POOL to conduct correspondence by e-mail, unless expressly ordered otherwise.
    2. The contractual partner confirms to be aware that electronic correspondence by e-mail carries considerable security risks, and that emails can for example be lost unnoticed or can be read, intercepted, falsified or falsified by third parties.
    3. This can result in significant damages for which ALPHA POOL cannot be held liable.
  1. Conclusion of contract
    1. The scope and content of the services owed by ALPHA POOL are determined individually by contract. Decisive for this is, if signed on both sides, the contract concluded in writing between ALPHA POOL and the contractual partner and, in the absence of such a contract, the offer submitted by ALPHA POOL, insofar as this has been signed by the contractual partner or approved in writing.
    2. All offers of ALPHA POOL are subject to change.
    3. The contract is concluded with the release of the offer or with the placing of the order by either ALPHA POOL or the contractual partner. The order can be placed in writing, by fax or by e-mail. Should internal regulations contradict an offer acceptance on the basis of the GTC of ALPHA POOL, the contractual partner is obliged to inform ALPHA POOL of this immediately. Otherwise, the terms and conditions of ALPHA POOL apply.
    4. In all other respects, all agreements made between ALPHA POOL and the contractual partner for the purpose of executing an order must be agreed to in writing. Changes, additions and ancillary agreements must be made in writing in order to be effective.
  1. Scope of services
    1. ALPHA POOL can act as an agency or only as an advisor.
    2. ALPHA POOL is entitled to commission third parties to fulfil its obligation under the contractual relationship. If ALPHA POOL commissions third parties designated by the contractual partner at the request of the contractual partner, the liability of ALPHA POOL is precluded.
    3. ALPHA POOL is entitled to partial services.
    4. Events of force majeure entitle ALPHA POOL to postpone the project commissioned by the contractual partner for the duration of the hindrance and a reasonable start-up time. A claim for damages by the contractual partner against ALPHA POOL does not result from this. This also applies if important deadlines and/or events for the contractual partner cannot be met and/or do not occur.
    5. Each party shall appoint a project manager to the other party who is entitled to submit and receive information and declarations of intent and assumes full responsibility for the scheduled execution of the contractual services.
  1. Concept
    1. Upon request, ALPHA POOL can develop a concept before the order is placed, the costs of which shall be reimbursed by the contractual partner in accordance with the offer or by agreement. The concept must be treated confidentially. The contractual partner is only entitled to use the concept outside the order to ALPHA POOL with the express written consent of ALPHA POOL, in particular themselves or using other providers or to pass it on to third parties.
    2. In any case of a breach of this obligation, ALPHA POOL is entitled to determine a contractual penalty in an amount to be determined by ALPHA POOL at its reasonable discretion – but at least 10,000 euros – and to be reviewed by the competent district court (Landgericht Berlin) in the event of a dispute; the plea of continuation is excluded.
    3. At the request of the contractual partner, ALPHA POOL presents the concept. The costs of the presentation as well as any travel expenses are to be borne by the contractual partner by agreement.
  1. Dates and delivery periods
    1. Dates and delivery periods are generally non-binding guidelines, unless they have been agreed in writing as an integral part of the contract.
    2. ALPHA POOL is not liable for delays in delivery that are based on the contractual partner refraining from any necessary obligations to cooperate.
    3. If the contractual partner is in default of acceptance or culpably violates other obligations to cooperate, ALPHA POOL is entitled to demand compensation for the damage incurred in this respect, including any additional expenses. Further claims are reserved.
  1. Obligations to cooperate
    1. The contractual partner is obliged to provide ALPHA POOL with the information necessary for the provision of the services. Should there be delays for which the contractual partner is responsible, ALPHA POOL is entitled to extend the continuous services or the scope of services by the resulting fee hours.
    2. The information provided by the contractual partner serves as an essential basis for the consulting and planning services of ALPHA POOL. The provision of incorrect or incomplete information shall be borne by the contractual partner.
    3. With the acceptance of concepts, texts or other services, the information shall be deemed to have been provided completely and correctly. If a concept or other service has to be changed due to the correction of information already provided or as a result of the subsequent submission of information, this is always considered an extension of the scope of services.
    4. If the contractual partner does not comply with his duty to provide information, ALPHA POOL must request him in writing to do so within a reasonable period of time. If the contractual partner does not comply with his duty to provide information despite setting a deadline, ALPHA POOL is entitled to provide its services on the basis of the information already available or to withdraw from the contract. ALPHA POOL may also demand reimbursement of all expenses incurred by ALPHA POOL within the framework of the contractual relationship and which were in vain or had to be provided additionally as a result of the contractual partner’s breach of duty. A further claim for damages due to breach of duty or from § 642 BGB remains unaffected.
    5. If ALPHA POOL recognizes during production that the object of performance must be modified with regard to requirements and properties that have, at that point, been worked out, the contractual partner will be informed of this immediately and alternative proposals will be made to him.
    6. The same obligation to provide information exists if ALPHA POOL realizes that information or requirements of the contractual partner are incorrect, incomplete, not clear or objectively unsuitable for execution.
  1. Remuneration and terms of payment
    1. The remuneration agreed in the respective offer shall apply. If no remuneration is specified for a service, the price list of ALPHA POOL valid at the time of commissioning shall apply.
    2. All prices are net plus the statutory VAT rate applicable at the time of performance and excluding travel and other ancillary costs. Possible ancillary costs will only be triggered after prior approval by the contractual partner.
    3. Unless otherwise agreed to in writing, ALPHA POOL shall be reimbursed in addition to the agreed remuneration for travel expenses and expenses incurred in connection with the execution of the order. Travel expenses will be charged to the contractual partner as follows: External costs (taxi, rental car, flight, train, food, etc.): according to receipts. Travel costs in your own car: 0.50 Euro/km. ALPHA POOL is entitled to use Business Class for air travel and 1st car class for rail travel. All other costs such as lawyers’ fees, courier costs, transport costs, translation costs, telecommunications as well as colour copies and colour printouts ordered by the contractual partner shall be charged to the contractual partner on the basis of supporting documents.
    4. Additional expenses of ALPHA POOL, in particular due to change and supplementary requests of the contractual partner, for the acquisition of rights of third parties, for the involvement of subcontractors, for artists and costs incurred by other third parties, for contributions to the artists’ social insurance as well as fees for the use of copyright services, will be invoiced additionally. Customs, shipping and packaging costs incurred shall also be borne by the contractual partner.
    5. If the development of the agreed services extends over a longer period of time or if high external costs arise in advance, ALPHA POOL may invoice the contractual partner for advance payments for the partial services to be provided or already provided. These partial services do not have to be available in a form that can be used by the contractual partner and may also be available as a pure working basis on the part of ALPHA POOL. The percentage remuneration is determined per contractual partner and project order.
    6. Unless otherwise contractually stipulated, payments are due within 10 days of invoicing without any deductions. If the payment deadlines are exceeded, ALPHA POOL is entitled to a claim for default interest in the amount of 8% above the base interest rate in accordance with § 288 paragraph 2 BGB (German Civil Code) without further reminder. The right to assert further damages remains unaffected by this provision.
    7. If the contractual partner cancels the project in whole or in part after commissioning, ALPHA POOL is entitled to a fee pro rata according to the degree of order fulfillment – but at least 80 percent of the contractually agreed total fee. The total fee includes all internal costs and all external costs including travel expenses. The contractual partner shall otherwise indemnify ALPHA POOL against any obligations towards third parties.
  1. Warranty and liability
    1. For the purpose of examination and approval, ALPHA POOL shall submit all drafts to the contractual partner – as far as possible – before publication. With the release, the contractual partner assumes responsibility for the correctness of content, image, sound and text.
    2. Any defects in the service must be reported by the contractual partner immediately in writing. Insofar as rectification is possible and can be carried out with reasonable effort, ALPHA POOL has the right to remedy defects for which it is responsible.
    3. Warranty claims of the contractual partner shall become statute-barred within a period of six months after completion of the relevant services.
    4. In principle, both the Agency and the Contractual Partner bear the respective risk of the legal admissibility of the measures developed and implemented themselves. This applies in particular in the event that the actions and measures violate provisions of competition law, copyright law and special advertising law. ALPHA POOL and contractual partners are obliged to point out legal risks that become known in the course of their activities. If ALPHA POOL considers a legal examination by a competent person or institution to be necessary for one of the measures to be carried out, the contractual partner shall bear the costs for this after consultation with ALPHA POOL.
    5. ALPHA POOL is not obliged to check the factual statements about products and services of the contractual partner contained in the generated branded material, which have been prepared or approved by the contractual partner, for correctness. ALPHA POOL is in no case liable because of the factual statements contained about products and services of the contractual partner. ALPHA POOL is also not liable for the patent, copyright and trademark protection or registration capacity of the ideas, suggestions, suggestions, concepts and drafts delivered within the scope of the order.
    6. ALPHA POOL shall ensure that the declarations of granting of rights necessary for the creation of the content are obtained from the persons depicted in the photo and moving image material and shall indemnify the contractual partner from any liability in this regard.
    7. If the contractual partner provides ALPHA POOL with materials for the execution of the contract, he guarantees that these are free of property rights or other rights of third parties that restrict or exclude the contractual use. The contractual partner indemnifies ALPHA POOL from all claims of third parties that they assert against ALPHA POOL due to existing rights to the materials brought in. In particular, the contractual partner assumes all obligations towards copyright management companies.
    8. The parties shall notify each other immediately in writing if claims are asserted against them for infringement of property rights.
    9. The review of the legal admissibility of advertising (esp. Competition, trademark, food and pharmaceutical law) is only owed by ALPHA POOL if this is expressly the subject of the contract. If the contractual partner commissions ALPHA POOL with these services, he shall bear, unless otherwise agreed, the resulting fees and costs of ALPHA POOL and third parties (lawyer, authorities, etc.) at customary market conditions.
    10. ALPHA POOL is only liable for damages caused by it or its vicarious agents intentionally or through gross negligence. The liability of ALPHA POOL is limited in amount to the one-time income of ALPHA POOL resulting from the respective order. The liability of ALPHA POOL for consequential damages resulting from the legal basis of a positive breach of contract is excluded if and to the extent that the liability of ALPHA POOL does not result from a breach of the obligations essential for the fulfilment of the purpose of the contract.
    11. Insofar as the implementation of communication measures becomes completely or partially impossible due to the influence of third parties, force majeure or for other reasons that escape the area of responsibility of ALPHA POOL (vehicle damage, accidents, illness – with doctor’s note), the claim for remuneration of ALPHA POOL shall remain.
  1. Rights to the produced material (moving image, photo, text, audio)
    1. The entire material produced (moving image, photo, text, audio) is the property of ALPHA POOL at all times, even in the event that damages are paid for this.
    2. Any use of the material requires a prior written declaration of release by ALPHA POOL and is subject to a fee. Use of the material is only permitted to the extent specified in the release declaration. Any use beyond the agreed scope requires a new release. In the event of use contrary to the agreement, the user of the material is obliged to pay ALPHA POOL a license of use in the amount of at least 100% of the recording fee and/or the incurred and usual costs of the copyrights.
    3. The use of the produced material as a working template for sketches or for layout purposes, as well as the presentation to contractual partners, is already considered a chargeable use.
    4. In principle, only simple rights of use are granted to the materials released for use. Thus, among other things, the right of use of the material is only granted for one-time use for the purpose specified by the contractual partner and/or in the publication and in the medium or data carrier specified by the user or which results from the circumstances of the placing of the order. Further licensing of the image material by the contractual partner/user to third parties is also prohibited in this context. The acquisition of exclusive rights of use (exclusive rights) and the granting of blocking periods must be expressly agreed and must be remunerated separately. This applies in particular to:
      1. secondary exploitation or publication in the case of advertising measures or other reprints
      2. any editing, modification or redesign of the image material
      3. the digitization, storage or duplication of the image material on data carriers of all kinds (e.B magnetic, optical, magneto-optical or electronic carrier media such as CD-ROM, CD, floppy disks, hard disks, memory, microfilm, etc.), insofar as this does not only serve the technical processing of the image material
      4. any duplication or use of the image data on the Internet or in online databases or in other electronic archives (also insofar as internal electronic archives of the contractual partner are concerned)
      5. the transfer of the digitized material produced (by means of remote data transmission or onto data carriers suitable for communication to the public on screens or for the production of hard copies)
    5. Any granting of rights of use is subject to the condition precedent that the usage fee is paid in full to ALPHA POOL.
    6. A transfer of the produced material to third parties, also to other editorial offices of the publisher or to subcontractors, is not permitted unless it has been approved or confirmed in writing by ALPHA POOL. If a transfer is permitted in individual cases or if the material is sent to a third party at the instigation of the contractual partner/media partner, the contractual partner/media partner shall be liable for the complete return of the material in perfect condition and for the payment of the costs, contractual penalties and usage fees incurred. The contractual partner/media partner is responsible for the fault of the third party to the same extent as his own fault.
    7. In principle, the use of the material is only permitted in the original version. Any change or redesign (e.B. montage, phototechnical or other alienation, coloring) and any change in image reproduction (e.B. publication in excerpts) requires the prior consent of ALPHA POOL. Also, the material may not be initialed, recreated or otherwise used as a motif. The only exception to this is the elimination of unwanted blurring or color weaknesses by means of electronic retouching.
    8. ALPHA POOL may use the material it has designed for self-promotion on its Internet website, its social media channels as well as on the presentations and advertising material created by it for self-promotion purposes for an unlimited period of time.
    9. Rights of use for designs rejected or not executed by the contractual partner remain with ALPHA POOL. This also and especially applies to services of ALPHA POOL that are not the subject of special legal rights, in particular copyright.
  1. Collecting societies
    1. The contractual partner undertakes to pay any fees incurred to collecting societies such as Gema. If these fees are paid by ALPHA POOL, the contractual partner is obligated to reimburse ALPHA POOL against proof. This can also be done after termination of the contractual relationship.
    2. The contractual partner is informed that when awarding contracts in the artistic, conceptual and advertising consulting area to a non-legal person, an artist’s social security contribution must be paid to the artists’ social security fund. This levy may not be deducted by the contractual partner from the agency invoice. Unless otherwise agreed, the contractual partner is responsible for compliance with the obligation to register and submit and is responsible himself, insofar as the order has been made in the name and on behalf of the contractual partner.
  1. Duration of contract, notice periods
    1. The contractual relationship is valid for the period for which it is concluded. Termination according to § 627 BGB is excluded.
    2. If the contractual relationship is concluded for an indefinite period, it can be terminated by both parties with a notice period of three months to the end of the month. The right to terminate without notice for good cause remains unaffected by this provision. An important reason exists in particular if insolvency proceedings are opened against one of the contractual partners or rejected for lack of assets or if ALPHA POOL or contractual partners are in default with a significant part of the respective performance obligation or with more than 20% of the respective payment obligation. In any case, both ALPHA POOL and the contractual partner must be given the opportunity to correct their breach of contract by setting a deadline. Any termination must be in writing.
  1. Obligation of confidentiality of the Agency
    1. ALPHA POOL is obliged to treat all information that it receives from the contractual partner on the basis of an order as strictly confidential for an unlimited period of time and to oblige both its employees and third parties consulted by it to maintain absolute secrecy in the same way.
  1. Disputes
    1. If, in the course of or after completion of an order, a dispute regarding the commissioned project arises, an out-of-court mediation procedure must be carried out – as far as possible – before the initiation of judicial proceedings.
    2. In the event of disputes in matters of quality assessment or the amount of remuneration, external expert opinions are prepared by a neutral expert to be appointed by the IHK at the place of performance in order to reach an out-of-court settlement as far as possible. The costs for this will be borne by the person who complains about the quality or the amount of the remuneration.
  1. Final provisions
    1. The contractual partner is not entitled to assign claims arising from the contract.
    2. Should any provision of these General Terms and Conditions be invalid in whole or in part or lose its legal validity at a later date, this shall not affect the validity of the remaining provisions. Instead of the invalid provision, another appropriate provision shall apply by way of the contract adjustment, which comes economically closest to what the contracting parties would have wanted if they had been aware of the ineffectiveness of the provision.
    3. Deviating agreements by which these General Terms and Conditions are amended in whole or in part must be made in writing in order to be effective.
    4. The place of performance and jurisdiction for all disputes in connection with the contractual relationship is Berlin. The law of the Federal Republic of Germany shall apply exclusively to the exclusion of German private international law.

Berlin, April 2020