General Terms and Conditions
I, Kathrin Kreitmeyer, am a qualified graphic designer. Together with my team at the company “ornament control—Daten für neue Oberflächen“ (hereafter referred to as “ornament control” or “we”), we offer our own designs on the website www.ornament-control.de (two- or three-dimensional designs for use by freelance or business clients such as architects, interior designers, designers, product manufacturers, printers, agencies, or builders (hereafter referred to as “clients” or “you / your”), particularly in the form of wallpapers or surfaces for walls, ceilings, facades, or floors on varying forms of backing materials (hereafter referred to as “duplicated materials”).
We only conclude contracts with business clients. We do not offer our services to consumers. Consumers are defined as a natural person who enters into a legal transaction for a purpose that cannot be attributed to either their commercial or independent professional activities (§ 13 German Civil Code). These general terms and conditions do not apply to consumers.
The provisions of these terms and conditions are binding for all legal transactions with ornament control. On granting the first order, the client recognizes the exclusive validity of our provisions, including for future orders, even if the wording of the general terms and conditions contradicts the client’s own terms and conditions, unless otherwise agreed in writing.
§ 1 Copyright, right of use, conclusion of contract
(1) Every design shown on our website www.ornament-control.de was created either by me or my team. Unless otherwise stipulated, I am the sole creator of all designs on display as defined by the German Copyright Act (UrhG). In any event, ornament control holds the copyright for all designs shown. All designs on offer are governed by the German Copyright Act and are protected as personal intellectual creations. The provisions of the German Copyright Act are valid even if the required threshold of originality pursuant to § 2 of the German Copyright Act is not attained. Ornament control is thus entitled to copyright claims arising from §§ 97ff. of the German Copyright Act.
(2) The presentation of designs on our website is by no means an offer for usage, but instead represents a non-binding offer to the customer to make an offer for the use of the design.
(3) A contract for the use of particular designs is concluded when the client accepts the submitted offer resulting from his or her inquiry. The offer and acceptance of the offer must be made in written form, at the very least in the form of an e-mail or telefax.
(4) After the contract has been concluded, we prepare the representational design for the agreed manner of usage and convey it to the client electronically, in instances in which he or she is the producer of the duplicated materials, or to a third-party producer stipulated by the client. The design is transferred in the form of a reproducible data file (vector graphic or pixel file/tiff), in most instances by making it available on an ftp server and transferring the login details by means of e-mail. Ornament control will only transfer the representational design to the producer of duplicated materials stipulated by the client. The client has the right to demand delivery directly to him- or herself in cases in which he or she is the producer.
(5) Ornament control will transfer the necessary usage rights for the design to the client free of any rights of third parties. Unless otherwise agreed in writing, usage rights are restricted to a simple, non-transferable right of use that is unlimited in terms of time and space and limited to a one-time usage on or in a particular physical workpiece (duplicated materials). Usage rights are transferred to the client only after the agreed fee has been paid in full. Unless otherwise expressly agreed upon in writing, ornament control does not grant the client exclusivity and may grant third parties usage rights to the design.
(6) The one-time transfer of the usage rights to the producer of duplicated materials is allowed provided the client is not himself a producer. Other transfers of usage rights to third parties require a written agreement.
(7) The client must ensure that the producer of the duplicated materials irrevocably deletes the transferred motif / printing data for the design
– used only as stipulated in the contract,
– 30 days at the latest after the duplicated materials have been produced,
– in no way may this data be transferred to third parties without the written consent of ornament control.
The client is responsible for any non-compliance with the aforementioned obligations on the part of the producer.
(8) The concepts and designs may not be altered either in the original or in reproductions without the expressed agreement of ornament control. Any reproduction or processing, either in part or in whole, is not permitted.
(9) Ornament control has a legal right to be named as the originator of all duplicated material. In the case of the authorized use of the design, ornament control waives the right to be named as the originator on the workpiece to be produced for which the usage rights have been transferred. In every additional instance in which the design—such as in catalogues, advertizing presence, showrooms, internet websites, etc.—“ornament control—Kathrin Kreitmeyer” must be named as the originator if and when the design is used as a dominant compositional feature. The client is liable to ornament control for his or her customers’ and/or clients’ use of the design. An infringement of naming rights entitles us to claim damages. Without proof of additional damages, compensation shall be 100% of the agreed fee. The right to prove higher damages remains unaffected.
(10) Ornament control reserves the right to use photographs of the duplicated materials produced on the basis of its designs for reference purposes (in particular on, but not limited to, the website www.ornament-control.de), in presentation portfolios, or during presentations or trade fairs.
(11) Proposals made by the client, his or her employees and representatives, or any other client contributions shall have no influence on the fee. They do not constitute a claim to shared copyright.
(12) For each instance of the non-authorized use of the design—including in an altered form—and/or the unauthorized transfer to third parties—including by performing or vicarious agents—the client is obligated to pay a contractual penalty of EUR 5,000 for each culpable violation with the exclusion of the objection of continuation of offense.
§ 2 Payment
(1) Unless otherwise agreed, payment is calculated based on the price list viewable at www.ornament-control.de. The price for the use of the design is generally comprised of a basic fee for the relevant motif according to various price categories, a fee dependant on the size of the surface (price per m2) tiered according to the size of the duplicated materials to be produced, as well as a time-related fee for your desired customizations of the design or any additional activities (at present: EUR 58 per hour). A sizing of the motif for a particular surface is included in the basic fee.
(2) The prices quoted are net prices and are subject to statutory value added tax (VAT)
(at present: 19 %).
(3) If in any case the designs are used again or used to a greater extent than originally envisioned, ornament control is entitled seek appropriate compensation in addition to the agreed payment. The client is obliged to immediately inform ornament control of any excess usage. If any non-authorized usage is carried out and ornament control is not informed of this usage, ornament control is entitled to assess a supplementary fee for excess usage of 100% of the agreed usage fee according to p. 1.
(4) The creation of designs, customization of the design to fit the client’s specific wishes, as well as all other activities carried out by ornament control for the client are subject to additional fees unless explicitly agreed otherwise.
(5) Should the client desire changes to be made during or after the production of the duplicated materials, the client must bear the additional costs. Ornament control is entitled to payment for work already commenced.
§ 3 Payment due date
(1) Payment is due as soon as the relevant design has been delivered to the client or the agreed producer of the duplicated materials in the form of a reproducible graphic/photograph, unless otherwise stipulated in the order confirmation, and is payable without deductions.
(2) If the designs are accepted in part, then appropriate partial payment is due upon receipt of the part. In the event the order is extended over a longer time period or requires high financial outlays, ornament control is entitled to claim payment in appropriate installments.
§ 4 Special services, additional fees, indemnification
(1) Ornament control is entitled to contract third-party services necessary for the fulfillment of the commission on the behalf of and at the expense of the client. The client undertakes to provide ornament control with the necessary authorization to do so.
(2) Should ornament control conclude individual agreements for third-party work on behalf of and at the expense of the client, for the purposes of their internal relationship the client is obligated to free ornament control from all obligations which result from the conclusion of such agreements. In particular this includes assumption of the costs.
(3) Expenses incurred for additional technical costs, in particular for the production of models, press proofs, material tests, etc., are to be reimbursed by the client.
(4) If and when ornament control is, at the client’s wish, to transfer the relevant design to and settle accounts with the producer of the duplicated materials, the client remains obligated to pay ornament control the agreed remuneration. The settling of accounts with a producer may not be construed as a relinquishment of any payment the client is obligated to pay.
§ 5 Production supervision, press proofs
(1) Ornament control will only conduct product supervision by special agreement. Should it take on product supervision, ornament control is entitled to make necessary decisions and issue relevant instructions at its own discretion.
(2) Depending on the media, chromaticity can vary between the motif seen on the computer monitor and on the material printed using a PC printer. The materials selected can also influence a motif’s chromaticity. For this reason, we strongly recommend having a press proof made prior to final production, particularly for color-sensitive projects. In this instance, we provide the selected producer with a test file in the scale selected by the customer (ca. 50 x 50 cm). In exceptional cases larger sizes can be agreed upon in advance. We charge € 35.00 net for the preparation of such a press proof file.
§ 6 Warranty provisions, notice of non-conformity, liability
(1) Ornament control is obligated to carry out the order with the greatest possible care.
(2) Defects in the design covered by the contract or in the delivered motif/ print files must be made known to ornament control in written form—at the very least in the form of an e-mail or telefax—within four working days. The client is obliged to give appropriate instructions to the producer. Any delay in reporting defects shall lead to the exclusion of applicable warranty claims. The exclusion period includes hidden defects and those defects, whose reporting the client could not reasonably perform within the notification period, only after ornament control has been made aware of the defects.
(3) Conditional upon the exceptions described in the following, our liability for contractual breach of obligations as well as for offences is limited to cases of intent and gross negligence; in the absence of a guaranteed, ornament control is liable for any resulting damages.
(4) Ornament control is fully liable in cases of minor negligence in cases of injury to life, body, or health or in cases in which contractual obligations have been violated. Should our own minor negligence lead to a delay in carrying out the contract, the contract becomes impossible to carry out, or in instances in which we fail to carry out our obligations, our liability is limited to the material or financial losses that could reasonably have been expected to occur when the contract was agreed. An essential contractual obligation is defined as an obligation whose fulfillment can only be first made possible once the contract has properly been carried out, whose breach jeopardizes the attainment of the purpose of contract, and the due performance of which the user may regularly rely upon, in particular our obligation to fulfill the services stipulated in the contract.
(5) Ornament control enters into an agreement solely with the client. We therefore are not liable for damages to third parties claimed against the client unless mandatory legal regulations require otherwise or other written arrangements have been agreed upon. In the event of damages to a third party or these can be expected to occur, you are required to notify us in detail and in writing without delay and do everything necessary to minimize our liabilities and to hold us harmless to the greatest extent possible.
(6) For damages arising from our delayed performance, we are only liable to the extent of the foreseeable loss.
(7) Regardless of its form, any complaint is to be made known to ornament control in written form within 14 days of receiving the duplicated materials.
(8) Ornament control is only liable for its own actions. Should ornament control contract necessary outside services to third parties, the contractor is not a vicarious agent of ornament control. This is particularly true for the producers of duplicated materials.
(9) Should ornament control itself contract subcontractors, we hereby assign all claims to warranty and damages as well as other claims arising from faulty, late, or non-delivery to the subcontractor. Before ornament control makes a claim against the subcontractor, the subcontractor is obligated to make every attempt to assert the assigned claims.
§ 7 Termination of the contract
(1) The order is binding once the client has confirmed the order. This means that the agreed upon price is to be paid for our services. The contract can only be rescinded and/or revoked within the framework of statutory provisions.
(2) Should the client revoke a contracted service in accordance with statutory provisions, ornament control is entitled to claim the agreed compensation for already completed services as well as the basic fee for design at issue. The right to claim further damages remains unaffected.
(3) Should the client cancel the contract, he or she receives no usage rights for the design.
(4) Should the client revoke the contracted service, all data carriers are to be returned immediately to ornament control and all data copies are to be deleted.
§ 8 Final provisions
(1) Places of fulfillment for both parties is Berlin as place of business for ornament control.
(2) The contractual relationship is governed by the unharmonized law of the Federal Republic of Germany.
(3) Contradictory terms and conditions of purchase, business, and delivery are not a component of the contract in the case of service/delivery, even without our explicit objection thereof.
(4) All changes or amendments or the partial or entire annulment of these general terms and conditions must be made in writing.
(5) In addition to the provisions above, the contractual relationship is governed by the provisions of the German Copyright Act and the German Design Act.