Framework Agreement for Creative Services
dated [DATE] ("EFFECTIVE DATE")
XXXXXX is â¦
The CONTRACTOR offers services in the field of [DESCRIPTION OF THE AREA OF BUSINESS].
XXXXXX intends to assign individual projects to the CONTRACTOR within the scope of the range of services he is offering. For this reason, the parties have decided to sign an agreement that will form the basis for executing the individual orders. The aim of this framework agreement is to subject all future orders to a uniform set of rules.
The actual services as well as their scope, the details of order execution will be defined in the individual orders and the framework agreement will be substantiated with regard to individual issues, if necessary.
IT IS AGREED AS FOLLOWS:
1. Hierarchy of provisions, applicability for individual orders
1.1 The conditions given below apply to each individual order even without an explicit reference, which the parties or affiliated companies of XXXXXX and the CONTRACTOR sign during the TERM of this framework agreement, unless otherwise explicitly agreed upon in the individual case.
1.2 Specific provisions agreed upon in the individual orders shall take precedence over the regulations of this framework agreement, in case of any conflict.
1.3 XXXXXX does not acknowledge any opposing, deviating or supplementary conditions of the CONTRACTOR, unless XXXXXX has acknowledged these explicitly in writing in each individual case.
2. Object of agreement
2.1 XXXXXX will occasionally assign individual orders to the CONTRACTOR from the range of services of the CONTRACTOR listed in Annex 1.
2.2 The actual scope of services for each individual order will be agreed upon by the parties in writing. In doing so, the parties will especially determine the object of service, the period of service and, if applicable, any special requirements and quality features. The parties agree that the adherence to the dates and timelines agreed upon is of essential contractual importance for XXXXXX.
2.3 XXXXXX will make available to the CONTRACTOR the data, product information and templates necessary for providing the services on a strictly confidential basis as defined in Clause ... of this agreement.
2.4 The CONTRACTOR does not have any right to claim the placing of individual orders by XXXXXX. XXXXXX is in particular entitled to also sign agreements for the contractual services (Annex 1) with third parties.
2.5 The CONTRACTOR is not obliged to accept offered individual orders.
3. Remuneration of the contractor
3.1 The parties shall decide upon the remuneration for the services of the CONTRACTOR separately for each individual order. For this, the CONTRACTOR will submit to XXXXXX a binding cost quote beforehand, which is to be approved in writing by XXXXXX. In doing so, the CONTRACTOR will take the conditions agreed upon in Annex 2 as the basis for the remuneration.
3.2 The agreed remuneration contains everything necessary for a proper, complete and on-schedule execution of the services, as well as all costs that accrue to the CONTRACTOR for fulfilling the contractual obligations. This also especially includes the costs of a possible involvement of a third party in providing the services or the use of third party products ("THIRD PARTY COSTS").
3.3 Reimbursement of expenses for THIRD PARTY COSTS or expenses of the CONTRACTOR, in particular transportation, duplication and travel expenses, shall be made only upon submission of copies of the original invoices and when the THIRD PARTY COSTS or expenses are explicitly mentioned in the cost quote approved by XXXXXX. The same also applies to the fees of collecting societies and other settlements under copyright law, artistâs social insurance contributions and custom duties.
3.4 The CONTRACTOR has no duty to disclose THIRD PARTY COSTS in case aforementioned THIRD PARTY COSTS are incurred due to the performance of such services which constitute the CONTRACTORÂ´s core competency under this agreement â“ the production of movies.
3.5 The remuneration agreed upon in each case becomes payable after a defect-free delivery or, as far as service object is a service within a works- or works supply contract, after acceptance within 30 days of receiving a proper invoice. A payment does not constitute an acknowledgement of the service as being in conformity with the agreement.
3.6 If the CONTRACTOR has submitted the copy of a signed bank guarantee or an equivalent security to secure his obligations under an individual order, 70 percent of the remuneration agreed upon in this case becomes payable after acceptance of the binding cost quote (sec 3.1). The other 30 percent of the remuneration becomes payable in accordance with sec. 3.5.
3.7 The parties agree that the remuneration agreed upon also includes the transfer and granting of all rights according to Clause ..., the transfer of a file of the final version of the video featuring all the creative means agreed on in the respective individual order (âEnd Videoâ), the transfer of a video file that does not have added graphics and or text (âClean Feedâ), the transfer of all the documents, files, photographs, graphics, etc. prepared in the context of the order. Notwithstanding the foregoing open data files shall not be transferred unless explicitly agreed in the respective individual order.
4. Transfer and granting of rights
4.1 Rights as defined in this section are copyrights and related intellectual property rights, trademark- and domain name rights, know-how and all other rights and inventions that are eligible to legal protection, including all legal positions to ideas, designs and blueprints, whether registered or unregistered, applied for or not yet applied for.
4.2 The CONTRACTOR grants XXXXXX the exclusive, irrevocable, transferable and sublicensable right of use and exploitation, unrestricted in region, time and content,free of any third party rights at the time of their creation, latest by the time of their acquisition. These rights especially include the right of exploitation, duplication, distribution, public disclosure and making publicly accessible of all works arising in the context of the activity for XXXXXX or other services and contents in all types of uses and media known and unknown at the time of formation of the agreement, including the right to processing and further developing and the use of the results thus arising in the mentioned scope for the purpose of advertising, presentation, for trainings, lectures, as customer reference material, for press releases, PR documents and files, company profile and other corporate presentations, each including the right to edit and use the products that thus arise within the mentioned scope. This also includes the right to use individual images, sections or sequences of the videos.
4.3 The CONTRACTOR is obliged to undertake all the actions necessary for transfer and/or granting the aforesaid rights at any time upon request by XXXXXX and to make the necessary declarations.
4.4 XXXXXX reserves the right to use the work or other services and contents either in whole or in parts without, however, being obliged to do this. The CONTRACTOR waives his right to be named as author in the scope of utilising the rights covered under this agreement.
4.5 As far asthe CONTRACTOR already possesses the rights as defined in Clause ... for the area covered under the agreement ("BACKGROUND"), before providing the services, and the BACKGROUND is essential for utilising the services, the CONTRACTOR grants XXXXXX a royalty-free, non-exclusive, transferable, spatially and temporally unrestricted right of use to these rights for the commercial and non-commercial exploitation. The parties agree that this right of use remains unaffected by the expiration or termination of this agreement and continues to exist thereafter.
4.6 The CONTRACTOR shall not use the works, services and contents, especially all ideas, designs, blueprints, photos, sound recordings or graphics, arising in the context of the activity for XXXXXX, for other clients in the same or a modified form. Content arises in the context of the activity if the content is created without using existing material especially for the individual order.
4.7 The CONTRACTOR undertakes not to challenge, directly or indirectly, the rights arising on services either during or after the expiry of this agreement and also not support any third party in challenging these rights. The CONTRACTOR shall inform XXXXXX about any possible violation of the rights by a third party that become known to the CONTRACTOR in writing as soon as possible and will undertake reasonable endeavours to support the pursuing.
4.8 The CONTRACTOR assures that - even after the expiry of this agreement - he will inform XXXXXX immediately about all defects to the services and rights that become known to him.
4.9 If claims are asserted against XXXXXX in the context of violation of third party rights, the reason for which is that the CONTRACTOR did not fulfil one of the obligations under Clause ... of this agreement, the CONTRACTOR shall indemnify XXXXXX from these claims and from all costs, including possible costs for legal defence, upon first request and shall support XXXXXX to the best of his abilities in defending against them. In cases exclusive rights were granted (sec 4.2) XXXXXX has the sole right to litigate; this also includes conclusion of settlement agreements in and out of court and other measures for settling the dispute. This clause does not apply in case the infringing material was either delivered by, or used on explicit request of XXXXXX.
4.10If claims are asserted against the CONTRACTOR in the context of violation of third party rights, the reason for which is that XXXXXX delivered or explicit requested the use of infringing material, XXXXXX shall indemnify the CONTRACTOR from these claims and from all costs, including possible costs for legal defence, upon first request and shall support XXXXXX to the best of his abilities in defending against them.
5. Liability, conduct
5.1 The CONTRACTOR is liable according to the general legal regulations, especially for all damages arising out of defects, default or non-fulfilment of his obligations. The liability for damages especially includes, without being limited to, the costs for a new concept, planning and/or production in the scope of the respective individual order.
5.2 The liability of the CONTRACTOR is limited to the sum of the value of the individual orders of the foregoing calendar quarter.Â Â Â
5.3 The CONTRACTOR undertakes to carry out the work assigned to him with professional and business care according to the best of his knowledge and abilities and by following the generally accepted principles of the respective sector. The CONTRACTOR, acting as a prudent businessman shall promptly point out in writing any discernible significant risks to XXXXXX in connection with the project.Â
5.4 In order to provide the services under this agreement, the CONTRACTOR may revert to the engagement of third parties. In such cases, the CONTRACTOR is liable for the actions of the third party in the same manner as for his own actions.
5.5 The CONTRACTOR ensures that while providing the services he follows the conduct principles of the United Nation Global Compact (available at: www.unglobalcompact.org), and he will also commit his employees and any possible involved third party to do the same.
6. Non-Competition Obligation
6.1 The CONTRACTOR undertakes for the term of this framework agreement and until the completion of all orders pursuant to this framework agreement
a. not to work for clients which are competitors of XXXXXX ("COMPETITORS") in the business segment âMedicalâ as outlined in Annex 3 without the written consent of XXXXXX, which may be withheld for substantiated reasons only;
b. not to work for clients which are COMPETITORS of XXXXXX in the business segments âMicroscopyâ, âIndustrialâ, âAudio/Dictation Systemsâ, Photographyâ as outlined in Annex 3 without giving a prior written notice to XXXXXX.
6.2 COMPETITORS are mainly such clients that develop, manufacture or sell products, which are the same as or comparable to the products developed, manufactured or promoted by XXXXXX or the subsidiaries of XXXXXX. These especially include the companies listed in Annex 3.
7.1 "CONFIDENTIAL INFORMATION" denotes all information, in particular - but not limited to - operational, economic, technical and scientific information, which is disclosed by XXXXXX or by an affiliate of XXXXXX to the CONTRACTOR in writing or in any other way regardless of the medium of transmission, such as data, drawings, blueprints, plans, descriptions, specifications, measurement values, calculations, know-how, methods, designs, etc.
7.2 The disclosure of CONFIDENTIAL INFORMATION by XXXXXX to the CONTRACTOR only serves the purpose of supporting the CONTRACTOR in the execution and fulfilment of the agreement. The CONTRACTOR undertakes to keep all CONFIDENTIAL INFORMATION secret, which he receives or comes to know while implementing the agreement. This also applies to the time after completion of this agreement.
7.3 Excluded from this obligation is CONFIDENTIAL INFORMATION, which
(a) can be proven to have already been known to the CONTRACTOR at the time of formation the agreement or later became known to it from a third party without a violation of a confidentiality agreement, legal regulations or governmental orders;
(b) is in the public domain at the time of formation of the agreement or is made publicly known after the hereafter, as long as this is not based on a violation of this agreement;
(c) has to be disclosed on the basis of statutory or governmental obligations. As far as permitted and possible, the CONTRACTOR will inform XXXXXX beforehand and give it the opportunity to proceed against the disclosure.
7.4 The CONTRACTOR may make available the CONFIDENTIAL INFORMATION to those persons only that are directly involved in the execution of this agreement and must be aware of the CONFIDENTIAL INFORMATION for this purpose. The CONTRACTOR shall make available the CONFIDENTIAL INFORMATION to these persons only if they have been subjected to secrecy accordingly. Each violation of confidentiality by the aforesaid persons shall be ascribed to the receiving party as breach of duty.
7.5 Documents and data, which the CONTRACTOR receives from XXXXXX and which are, for instance, marked as "top secret" or "strictly confidential", may be sent to the contractual partner only via secure information paths. This especially means that such information may not be sent unencrypted via e-mail and may be stored in a manner that only persons have access which are directly assigned with the execution of this agreement and need the strictly CONFIDENTIAL INFORMATION for this purpose.
7.6 For each culpable violation of the aforesaid confidentiality obligations, the CONTRACTOR shall pay to XXXXXX a contractual penalty amounting to EUR 25.000. The claim for specific performance and the possibility of asserting a higher damages remain unaffected. The contractual penalty will be offset against further damages.
7.7 It is the duty of theCONTRACTOR to inform XXXXXX truthfully and completely in the scope of his activities about all circumstances, which, in his opinion could be important for the decisions of XXXXXX - whether positive or negative -, unless the information of XXXXXX by the CONTRACTOR violates contractual or legal requirements. To the same extent the CONTRACTOR is also committed to correct originally accurate information that later becomes incorrect as soon as possible, as far as this is relevant to XXXXXX.
8.1 The CONTRACTOR shall retain all documents (drawings, photos, copies, etc.) for the duration of five years after the completion of the individual order and thereafter offer the delivery of these documents to XXXXXX in writing. Regardless of this, XXXXXX has the right to demand delivery of all the documents prepared and/or created in the scope of each individual order, as soon as the individual order or the entire contractual relationship comes to an end - for whatsoever reason. The CONTRACTOR shall deliver the documents to XXXXXX within ten days after receiving a corresponding request. If requested by XXXXXX, the CONTRACTOR will destroy the aforesaid documents within 30 days of request, instead of handing them over. Technical drawings shall be destroyed immediately after completion of the production process.
8.2 All documents made available by XXXXXX to the CONTRACTOR, especially, but not restricted to, characters, logos, trademarks, merchandising articles and ideas of all kinds, are and will remain the property of XXXXXX. XXXXXX can demand these back at any time without specifying a reason.
8.3 A right of retention, for whatever legal reason, of the CONTRACTOR for documents and/or objects in accordance with the aforesaid Clause Â REF _Ref364238866 \r \h 8.208D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003300360034003200 330038003800360036000000 is explicitly excluded.
9. Term and termination
9.1 This agreement comes into force on EFFECTIVE DATE and remains in force until 31.12.2017("TERM").
9.2 At the end of the period under clause 9.1 this agreement ends automatically without any termination being required.
9.3 XXXXXX has the right to terminate an individual order signed under this framework agreement. Work already completed or bindingly ordered by CONTRACTOR at the time of termination may be invoiced by the CONTRACTOR on a pro-rata basisunless the respective order can be cancelled free of charge. Advance payments shall be refunded in case the respective order can be cancelled free of charge. A regular termination with due notice of an individual order already signed under this framework agreement is not permissible on part of the CONTRACTOR.
9.4 The right of either party for an extraordinary termination of the framework agreement as well as the individual orders signed under this remains unaffected.
9.5 The following are especially considered as important reasons for a termination by XXXXXX or the CONTRACTOR:
(a) material and/or repeated contractual violations that lead to a loss of mutual trust or the basis of business, for XXXXXX especially the violation of the duties mentioned in the Clauses ...
(b) the occurrence or the threatened occurrence of a material deterioration in the financial situation endangering fulfilment of the obligations under this agreement.
9.6 The CONTRACTOR has the right to terminate this agreement with 30 days prior written notice to the end of a calendar quart if the number of the individual orders in the foregoing calendar quarter are less than â¦ or the sum of the value of the individual orders are less than â¦
9.7 If the important reason (except in the cases of Clause ... (a)) exists in the violation of a contractual obligation, the termination is permitted only after a reasonable grace period set to remedy the breach or after an unsuccessful reminder, unless this is obsolete due to the special circumstances of the individual case.
9.8 The provisions of this framework agreement shall remain effective for individual orders not yet completed, even if the framework agreement expires or is terminated prior to the completion of an individual order.
10. Amendments, notifications, contact person
10.1 All contractual declarations and other notifications in the context of this agreement shall be sent to the respective receiver, unless a different form is prescribed by the mandatory law, in text form (a) delivered by hand, (b) by registered letter, (c) through a recognised courier service, (d) by fax or (e) via e-mail at the address/fax number/e-mail address given below.
10.2 Only the following contact data shall be used for sending notifications to XXXXXX:
10.3 Only the following contact data shall be used for sending notifications to the CONTRACTOR:
10.4 Changes of the contact person or contact data are to be notified to the other party in writing or in electronic form.
11. Applicable law and venue
11.1 This framework agreement as well as its individual orders and their execution are subject to German law under exclusion of reference to other jurisdictions.
11.2 Venue for all disputes arising out of or in connection with this agreement or in the context of the individual orders concluded under this agreement is Hamburg, Germany.
12. Concluding provisions
12.1 Annexes to this agreement, whether attached at the time of formation of the agreement or agreed upon thereafter, constitute an integral part of this agreement.
12.2 There are no verbal side agreements for this agreement. All amendments of this agreement and its annexes as well as of the individual orders must be made in writing. This also applies to a waiver of the existing written form requirement.
12.3 None of the parties has the right to assign or transfer this agreement or an individual agreement completely or individual rights or obligations resulting from it. However, such a transfer or assignment of rights and obligations resulting from this framework agreement or the individual agreements signed under it to affiliates of XXXXXX is permitted without the approval of the CONTRACTOR.
12.4 The CONTRACTOR is not entitled to make any legal declarations in the name of XXXXXX or to conclude any transactions with business partners.
12.5 Should a regulation of this framework agreement or of an individual order concluded hereunder be or become ineffective, then the validity of the framework agreement / the individual order as a whole remains unaffected. The parties are obliged to replace the ineffective regulation by an effective one that most closely reflects the economic purpose of the one being replaced.
Range of services
Conditions for remuneration