General Terms and Conditions

General Terms and Conditions (GT&C) of Patrick Moelleken

 

I. Scope of Application

1. The following General Terms and Conditions apply to all contracts, deliveries, and other services, including acquisition and consulting services, unless expressly and in writing amended or excluded by Patrick Moelleken’s explicit and written consent.

2. General terms and conditions of customers, external companies, or clients of Patrick Moelleken shall not become part of the contract, even if Patrick Moelleken does not expressly object to them again.

 

II. Offer and Conclusion of Contract

1. Offers are always subject to change, and contract conclusions as well as other agreements become binding only upon written confirmation by Patrick Moelleken; this specifically applies to agreements concerning the type and scope of exploitation rights to be transferred to the client or customer.

2. Patrick Moelleken’s offers are exclusively directed at commercial customers.

3. The items and documents belonging to the offer, such as manuscripts, drafts, and demo recordings, may only be examined by the client as examples of the advertising services offered by Patrick Moelleken and must be immediately returned to Patrick Moelleken upon request.

4. Upon placing an order, the client must provide information about the advertising client, the product, the area of application, and the duration of use for the production or service. Changes must be promptly communicated to Patrick Moelleken.

 

III. Copyright and Usage Rights

1. Every contract granted to Patrick Moelleken is a copyright agreement aimed at granting usage and exploitation rights to the advertising productions and services created by Patrick Moelleken. The usage and exploitation rights to the recordings, productions, and services created by Patrick Moelleken, such as radio, audio-visual recordings, TV productions, advertising, and infotainment events, as well as individual services related thereto, exclusively transfer to the client to the agreed extent, for the agreed duration, and for the agreed purpose.

1. b) Any use of the mentioned recordings, productions, and services beyond the agreed extent, duration, and purpose is excluded. The use of recordings and data in the field of »Artificial Intelligence«, such as for training or generating artificial voices (e.g., voice cloning), is expressly prohibited. Archiving of recordings and data for such purposes is also expressly prohibited.

2. All drafts and finished productions are subject to copyright law. Its provisions apply even if the required level of creativity according to § 2 UrhG (German Copyright Act) is not reached. Client’s suggestions or participation do not result in a reduction of compensation and do not establish co-authorship.

3. Neither the order placement nor the payment for the ordered advertising production or service establishes exclusivity or a non-competition obligation to the detriment of Patrick Moelleken. Exceptions require an explicit and written individual agreement. Otherwise, Patrick Moelleken retains the right to exploit the advertising productions and services it has created elsewhere after the client’s time-limited exploitation rights have expired, unless the client’s personality rights or related rights oppose such exploitation.

4. The agreed usage and exploitation rights transfer to the client only upon full payment of the agreed compensation for this purpose. Otherwise, Patrick Moelleken is entitled to immediately prohibit the client from further using or exploiting an advertising production or service created by Patrick Moelleken if the client is more than 20 days overdue with payment owed in connection with the business relationship established with Patrick Moelleken or a speaker or company mediated by Patrick Moelleken.

5. Patrick Moelleken is entitled to use all productions and services or parts thereof created on behalf of clients for the purpose of self-promotion without compensation, without any time or geographical restrictions, in all media. Patrick Moelleken is entitled to mention the name of the client or the speaker for this purpose.

 

IV. Scope of Exploitation and Usage Rights of the Client in Detail – Rights and Obligations of the Client in Exploitation

1. Industrial films and radio broadcasts within the meaning of contracts concluded by Patrick Moelleken and these General Terms and Conditions are image films, product presentations, sales videos, in-store radio, educational and instructional films, training videos, technical films, and all similar films that are conventionally not used as films for radio, TV, and cinema advertising or as commercials in such mass media. Industrial films or audio segments thereof must not be presented to an audience other than the agreed purpose, nor to an audience other than the contractually defined viewers, and especially not be published in a mass medium or used there for advertising purposes. Deviating agreements are only possible through a written individual agreement; in such cases, the following General Terms and Conditions for broadcasting and distribution rights of radio, TV, and cinema advertising, especially commercials, apply accordingly.

2. The following exploitation and usage regulations apply to radio, TV, and cinema advertising and commercials that can or should be presented in comparable mass media:

a) Drafts (layouts) serve the client as a basis for deciding whether to use a commercial designed according to this layout. Commercials (spots) are radio, TV, or cinema final recordings that are suitable for broadcasting immediately or after adjustment to the chosen mass medium and are approved by Patrick Moelleken and the client; the approval of the layout and its authorization as contractually compliant is to be assumed if it has actually been broadcast with the knowledge and intention of the client.

b) The client is entitled to use layouts provided or created by Patrick Moelleken for voice recordings for presentations and market tests, as well as to create images required from the voice material. However, without approval from Patrick Moelleken, the layouts must not be broadcasted or otherwise made accessible to the public, for any purposes, even in parts; this also applies to the use of parts of the layout.

c) Commercials may be broadcasted by the client for a period of 12 months, calculated from the approval of the spot for broadcasting by Patrick Moelleken, or at the latest, from the first broadcast, using the agreed medium within the agreed broadcasting area. If no broadcasting area is indicated on the order, it is assumed to be based on local or regional usage or the typical area of use of the client. The client must verify this based on the invoice and promptly inform Patrick Moelleken if the spot is used in broadcasting areas other than those indicated on the invoice. The current price list of Patrick Moelleken is to be used for verification.
If the broadcasting area agreed upon is the Federal Republic of Germany, the client also obtains the right to broadcast on pan-European channels that are receivable in Germany; if additional countries are included in the contractual broadcasting area, the above regulation regarding the significance of the broadcaster’s location applies accordingly.

d) The client is not authorized to use a spot or parts of a spot created by Patrick Moelleken to produce another or new spot, or to use it in a different medium or utilizing new media such as the internet, other multimedia applications, etc., without the approval of Patrick Moelleken; a further exploitation fee is due for such approval. The same applies if industrial films and radio broadcasts within the meaning of these terms and conditions are broadcast or published via a medium other than the one originally agreed upon, possibly even a new medium.

3. Television reports, television and radio moderations, as well as the moderation of public events, are created by Patrick Moelleken based on individually agreed arrangements with the client or event organizer. The same applies to participation in the production of videos, CD-ROMs, and multimedia applications offered for purchase or used for advertising purposes. If there is no individual agreement or it does not contain regulations on the client’s broadcasting and distribution rights, the conditions laid down above for commercials apply accordingly. Moreover, the client undertakes not to make sound and/or image recordings of moderations or events accessible to a wider audience or to broadcast them in the media.

4. It is the client’s responsibility to inform Patrick Moelleken before the first broadcast when an advertising production created by Patrick Moelleken, whether in its entirety or in parts, whether in the original form or in a modified form, will be broadcasted. This information obligation applies both for the first broadcast using the originally agreed medium and for the first broadcast using another medium, including new media; it also applies to a first broadcast within a new area or a first broadcast beyond the agreed period. If information before the first broadcast has not occurred, it must be provided at the latest within twelve days after the initial broadcast.

5. If the client is a merchant, they commit to pay Patrick Moelleken a contractual penalty equal to four times the originally agreed exploitation fee for each instance of infringement, excluding the defense of continuity, if they distribute or use works of language, layouts, or spots created by Patrick Moelleken beyond the contractually agreed extent – without contractual agreement or without Patrick Moelleken‘s consent or without timely information to Patrick Moelleken as per the preceding Clause 4. The client is equally liable for actions of third parties involved in the production, in terms of distribution and exploitation, and relied upon by the client.

 

V. Mediation of Services

1. External companies and individuals (e.g., agencies, speakers, studios), hereinafter referred to as ‘external companies,’ who are booked by the client via Patrick Moelleken or booked by Patrick Moelleken on behalf of the client, undertake not to directly approach the client themselves. If a client with whom the external company has already worked due to Patrick Moelleken‘s mediation approaches the external company directly and not through Patrick Moelleken, the external company is obligated to inform Patrick Moelleken immediately. In this case, the commission is also due.

2. If agreed accordingly, Patrick Moelleken invoices the services booked on behalf of the external company to the client, receives the payment, and forwards it to the external company after proper invoicing by the external company. Patrick Moelleken acts solely in his capacity as an intermediary. This does not establish any payment obligations of Patrick Moelleken. Payments to the external company are made no earlier than after receiving full payment from the client. If the client only pays a portion of the claim or if Patrick Moelleken incurs additional bank fees for payment by the client, the external company will receive only a portion of its claim accordingly. Patrick Moelleken is entitled to deduct claims from Patrick Moelleken against the external company from the payments owed to the external company. The external company will receive an invoice for these claims. If the external company is located abroad, it bears the costs incurred for international transfers. If the client fails to fulfill its payment obligation, Patrick Moelleken assumes payment reminders and reminders on behalf of the external company. Further legal steps are the responsibility of the external company unless otherwise agreed. The costs for legal (or other) enforcement of claims are to be borne by the external company.

3. The external company undertakes to be loyal to Patrick Moelleken. Business secrets are to be treated confidentially, even after the termination of cooperation. In particular, the names and data of clients from whom the external company has gained knowledge through Patrick Moelleken must not be disclosed to third parties.

 

VI. Advertising Productions

1. Patrick Moelleken creates advertising productions based on the client’s specifications. Texts provided by the client for production are deemed approved. Texts created by Patrick Moelleken based on the client’s specifications require approval with a legally binding signature of the client before production begins. Patrick Moelleken is not liable for errors in texts provided or approved by the client.

2. The client must promptly review the advertising productions created by Patrick Moelleken upon receipt and confirm receipt, broadcast readiness, and freedom from errors in writing. Complaints regarding advertising productions created by Patrick Moelleken must be submitted promptly upon receipt of the productions.

3. Patrick Moelleken delivers the productions to the client according to the client’s preferences via email, internet, mail, or using another delivery service. The costs for this are to be borne by the client. Patrick Moelleken is not liable for loss or delay in delivery, whether directly incurred or resulting in consequential damages or losses.

 

VII. Fees

1. The amount of individual fees is primarily governed by written individual agreements between the parties or the order confirmation provided by Patrick Moelleken. Oral agreements are only binding if confirmed in writing by Patrick Moelleken. In the absence of a written agreement or order confirmation regarding the fee amount or if additional contractual services are added during order processing, the fee is determined based on the applicable price list of Patrick Moelleken at the start of order processing, which can be requested at any time.

2. Draft and layout work is generally subject to remuneration, even if a spot is not broadcasted. In the event of broadcast, a usage fee is to be paid in addition to the layout fee. If the client fails to fulfill its reporting obligation as defined in Section IV, Paragraph 4 of these terms and conditions, the owed usage fee is to be increased by an amount of 10% interest per annum for the period starting twelve days after the fee-establishing (if applicable, renewed) initial broadcast and ending with the invoicing by Patrick Moelleken, but no later than upon receipt of the information owed as per Section IV, Paragraph 4. The right to demand default interest in case of payment default remains unaffected by this provision.

3. If a client terminates an agreement or cannot meet a production deadline agreed upon between the parties without canceling it in advance, the client must pay Patrick Moelleken the agreed-upon fee minus saved expenses incurred by Patrick Moelleken. Patrick Moelleken may demand a flat fee of 40 % of the agreed-upon fee unless the client demonstrates that Patrick Moelleken has saved higher expenses. An appointment for production during business days is considered to be timely canceled if canceled at least 24 hours before the scheduled start; a later cancellation is considered timely only if the client is not responsible for the cancellation of the production appointment and an earlier cancellation was not possible.

4. If Patrick Moelleken cannot meet a scheduled production date due to illness, illness of the intended employee for the production, or mediated external company, or other reasons beyond their control (§ 616 BGB analog), Patrick Moelleken is not liable for the resulting costs and damages; the same applies if Patrick Moelleken is prevented from attending a scheduled production date due to other reasons not caused by them.

5. The agreed fee is always understood to be plus the statutory value-added tax at the respective statutory rate. Payments must be made within 20 days from the invoice date in a way that the invoice amount is available by the due date.

6. The set-off with any counterclaims disputed by Patrick Moelleken is not permissible unless the counterclaims have been established with legal force. The assertion of a right of retention due to unrecognized or not legally established counterclaims is excluded, unless these claims are based on the same contractual relationship.

 

VIII. Liability

1. Patrick Moelleken is not liable for the content of the productions. In this regard, Patrick Moelleken acts solely on instruction and in the interest of the client, without Patrick Moelleken having the possibility to influence the content of the productions. Therefore, Patrick Moelleken assumes no liability for competition, copyright, trademark, and other legal consequences of an advertising production that result from content and form prescribed by the client, neither in relation to the client nor to third parties. This also applies to productions that Patrick Moelleken handles for the client beyond its own advertising services or in which Patrick Moelleken directs.

2. In any case, liability of Patrick Moelleken for the breach of contractual ancillary obligations, culpability from the conclusion of the contract, or from legal bases of tort law or industrial property rights is excluded unless it is based on intent or gross negligence by Patrick Moelleken or one of its vicarious agents.

 

IX. Data Protection / Electronic Business Transactions

1. Patrick Moelleken treats the data of clients and speakers confidentially and only provides them to third parties to the extent permitted by data protection laws or with the consent of the client or speaker. Patrick Moelleken points out that it processes the data of its clients and speakers electronically.

2. Electronic media (internet, email) are used to handle business transactions. This also applies to the delivery of invoices, credit notes, and reminders. Clients and speakers have access to personal data with a username and password. Passwords must not be disclosed to third parties. Patrick Moelleken is not liable for damages arising from the abusive use or manipulation of data or files provided on the internet pages of Patrick Moelleken.

3. Further information on data protection and the handling of data at Patrick Moelleken is regulated by the privacy policy, which can be accessed in its current form at the internet address https://patrickmoelleken.com/data-privacy.

 

X. Final Provisions

1. The place of performance for the mutual contractual obligations is Düsseldorf, Germany. Payments must be made by clients to Patrick Moelleken‘s headquarter in deviation from § 270 BGB. If they choose a non-cash payment method, clients bear the risk of timely payment receipt.

2. The place of jurisdiction for all judicial disputes is Düsseldorf, Germany, as far as the client is a merchant, legal entity under public law, or public-law special fund.

3. The entire legal relationship between the contracting parties, including these general terms and conditions, is subject to the law of the Federal Republic of Germany.

4. If a clause of the above general terms and conditions or any other contractual provision within the scope of other agreements between the parties is or becomes ineffective, the effectiveness of all other provisions or agreements shall not be affected. The parties undertake to replace the ineffective provision with an effective provision that comes closest to the economic sense of the ineffective provision.

As of: July 27, 2023