1) Scope of Application / Conclusion of the Contract
1.1 The following General Terms and Conditions (GTC) are an integral part of all contracts with Fish Blowing Bubbles GmbH. These GTC are deemed tacitly accepted upon the client's placement of an order. Conflicting GTC or differing conditions from the client will only be recognized if Fish Blowing Bubbles GmbH has given its written consent to their validity.
1.2 These General Terms and Conditions apply to all current and future business relationships with the client.
1.3 Unless a specific binding period is assured, our offers are non-binding and subject to change.
1.4 Contracts require our written confirmation to be valid. However, requests are deemed accepted even without our written confirmation if we provide the requested service.
1.5 Upon the creation of an offer, the submission of data by the client (e.g., 3D such as CAD data, Max or Maya files, etc.; 2D such as construction drawings, etc.) or material samples as well as material scans or photos related to the project shall be considered as an order placement, unless explicitly stated otherwise.
1.6 Further agreements, particularly verbal side agreements and subsequent changes to the contract, require written form to be effective. This requirement also applies to any renunciation of the written form requirement itself.
2) Collaboration
2.1 The contracting parties shall appoint representatives and their deputies, who shall responsibly and expertly manage the execution of the contractual relationship for the respective contracting party they represent. The parties shall promptly notify each other of any changes in the appointed individuals. Until receipt of such notification, only the previously appointed representatives and/or their deputies shall be deemed authorized, in addition to legal representatives, to make and receive statements within the scope of their existing authority.
2.2 Die Vertragspartner informieren sich in regelmäßigen Abständen über Fortschritte und Schwierigkeiten bei der Vertragsdurchführung, um bei Bedarf lenkend in die Durchführung des Vertrages eingreifen zu können.
2.3 The contracting parties regularly inform each other about progress and difficulties in executing the contract, in order to be able to intervene in the execution of the contract if necessary.
3) Obligation of the Client to Cooperate
3.1 The client supports Fish Blowing Bubbles GmbH in the contractually regulated services. In particular, they provide all information, data, hardware, or software in a timely manner, to the extent that the obligation to cooperate requires it.
3.2 For the implementation of the contractual relationship, the client provides the necessary number of their own employees, who possess the required expertise.
3.3 To obtain data, the client shall promptly provide it to Fish Blowing Bubbles GmbH in a common, immediately usable, and preferably digital format.
3.4 The client carries out cooperation actions at their own expense.
3.5 The client bears full responsibility and liability for the content of the materials and data provided to Fish Blowing Bubbles GmbH, as well as their accuracy. This applies particularly to content that violates competition and copyright laws or is otherwise inappropriate. The client ensures that Fish Blowing Bubbles GmbH obtains the necessary rights for the use of these materials and data.
The client declares, by placing the order, that they hold all rights regarding the order placement and utilization of the service. Fish Blowing Bubbles GmbH is exempt from verifying these rights; the client is liable for their existence. This includes all rights necessary for the production, editing, reproduction, and presentation of images and audio recordings for any purpose whatsoever. Additionally, this includes copyright and usage rights relevant to the order. The client is also liable for any claims made by third parties due to the execution of the order and agrees to indemnify and hold us harmless in this regard. This applies even to rights managed by collecting societies. Within the framework of legal and/or contractual regulations, we are entitled to provide reports to collecting societies when requested by them. The client expressly releases us from any claims by collecting societies.
4) Involvement of Third Parties:
The client shall be liable for third parties who act on the instruction or with the tolerance of the client within the scope of Fish Blowing Bubbles GmbH's activities, similar to agents. Fish Blowing Bubbles GmbH shall not be responsible towards the client if Fish Blowing Bubbles GmbH is unable to fulfill its obligations to the client, in whole or in part, or in a timely manner due to the actions of one of the aforementioned third parties.
5) Deadlines
5.1) Deadlines for the provision of services may only be promised by the legal representatives, the designated contact person, or, in their absence, by their deputy on behalf of Fish Blowing Bubbles GmbH.
5.2) Fixed delivery dates and deadlines are only valid if they are confirmed in writing and expressly designated as binding.
5.3) Adherence to deadlines and dates presupposes the possibility of service provision, as well as the proper and timely fulfillment of obligations assigned to the client. Delays in performance due to force majeure (e.g., strike, lockout, general disruption, government order, telecommunication disturbances, etc.) and circumstances within the client's responsibility (e.g., untimely provision of cooperation services, delays caused by third parties attributable to the client, etc.) shall not be attributed to Fish Blowing Bubbles GmbH. Fish Blowing Bubbles GmbH is entitled to postpone the provision of affected services for the duration of the impediment plus a reasonable lead time. Fish Blowing Bubbles GmbH undertakes to notify the client of delays in performance due to unforeseeable circumstances.
6) Performance modification
6.1) If the client wishes to modify the contractually defined scope of services to be provided by Fish Blowing Bubbles GmbH, they shall express this request in writing to Fish Blowing Bubbles GmbH. The subsequent procedure shall be governed by the following provisions. For change requests that can be quickly reviewed and implemented within 8 working hours, Fish Blowing Bubbles GmbH may forego the procedure outlined in Clauses 6.2 to 6.5.
6.2) Fish Blowing Bubbles GmbH assesses the impact of the requested change, particularly regarding compensation, additional effort, and deadlines. If Fish Blowing Bubbles GmbH determines that services cannot be performed or will be delayed as a result of the assessment, it informs the client and advises them that the change request can only be reviewed if the affected services are postponed for an indefinite period. If the client agrees to this postponement, Fish Blowing Bubbles GmbH proceeds with the review of the change request. The client is entitled to withdraw their change request at any time, thereby terminating the initiated change process.
6.3) After reviewing the change request, Fish Blowing Bubbles GmbH will explain to the client its impact on the existing agreement. The explanation will either include a detailed proposal for implementing the change request or specify if the change request is not feasible. The parties will promptly coordinate on the content of a proposal for implementing the change request and add the result to the text of the agreement, to which the change relates, as an addendum.
6.4) If an agreement is not reached or if the change process ends for any other reason, the original scope of services remains unchanged. The same applies in the event that the client does not agree to a postponement of the service for further examination as per 6.2.
6.5) Dates affected by the change process will be postponed, taking into account the duration of the review, the duration of the vote on the proposed change, and, if applicable, the duration of implementing the requested changes, plus an appropriate lead time (if necessary). Fish Blowing Bubbles GmbH will inform the client of the new dates.
6.6) The client shall bear the costs arising from the change request. These include, in particular, the review of the change request, the creation of a change proposal, and any downtime that may occur. If an agreement on daily rates has been made between the parties, the costs will be calculated according to these rates or the usual fees of Fish Blowing Bubbles GmbH.
6.7) Fish Blowing Bubbles GmbH is entitled to modify or deviate from the contractual services if the modification or deviation is reasonable for the client, taking into account the interests of Fish Blowing Bubbles GmbH.
7) Compensation
7.1) If there is no explicit agreement between the parties regarding the compensation for Fish Blowing Bubbles GmbH, and the client could reasonably expect the service to be provided only for compensation, the client shall pay the usual compensation for this service. In case of doubt, the usual rates charged by Fish Blowing Bubbles GmbH for their services shall apply.
7.2) The calculation of time-dependent services is based on our work records. The client acknowledges the time records of Fish Blowing Bubbles GmbH as binding. When billing by daily rates, a workday at our production sites includes up to ten working hours. In the administrative area, a workday includes eight working hours.
7.3) For firmly booked appointments that are not utilized and could not be otherwise allocated, the client will be charged the full order amount unless cancellation was made at least 36 hours before the appointment start time.
7.4) Our prices are exclusive of the applicable statutory VAT, net from delivery, and do not include packaging, freight, customs, and shipping insurance. Travel expenses, encoding, the creation of copies, and any material costs that may arise will be invoiced separately.
7.5) Invoices from Fish Blowing Bubbles GmbH are due for payment 14 days after the invoice date without any deductions.
7.6) If the client is a merchant or a legal entity under public law, withholding payments due to any counterclaims not recognized by Fish Blowing Bubbles GmbH is not permissible, nor is offsetting with such claims.
7.7) For projects of extended duration, Fish Blowing Bubbles GmbH is entitled to request reasonable advance payments.
7.8) Objections to invoices from Fish Blowing Bubbles GmbH must be raised immediately upon receipt of the invoice, but no later than two weeks after the billing or invoice date, without affecting the due date. Failure to make timely objections shall be deemed as approval.
8) Rights / Property Reservation
8.1) Fish Blowing Bubbles GmbH grants the client the non-exclusive, spatially and temporally unrestricted right to use the provided final image data in accordance with the contract. Section 69 d and e of the Copyright Act apply if software is the subject of the services.
8.2) The creation and processing of process data provided to or developed by Fish Blowing Bubbles GmbH represent its proprietary know-how. All rights to the entire process data (non-final deliverables) remain with Fish Blowing Bubbles GmbH.
8.3) Audio rights are the responsibility of the client and are typically not provided by Fish Blowing Bubbles GmbH. Deviations from this arrangement must be agreed upon in writing and separately compensated for.
8.4) The client is only permitted to use the provided services revocably until full payment has been made. Fish Blowing Bubbles GmbH may revoke the use of such services for the duration of the client's default in payment.
8.5) The items supplied and/or processed by Fish Blowing Bubbles GmbH remain the property of Fish Blowing Bubbles GmbH until full payment of all claims arising from the business relationship with the client, including interest and ancillary costs. The client is not permitted to resell or otherwise dispose of the goods during the existence of the retention of title without the written consent of Fish Blowing Bubbles GmbH, which would render such actions invalid.
8.6) Fish Blowing Bubbles GmbH has the right of retention for items provided by the client, which are stored at Fish Blowing Bubbles GmbH or have been produced for the client. This right exists until all claims arising from the business relationship with the client have been settled.
9) Infringements of intellectual property rights
9.1) Fish Blowing Bubbles GmbH shall absolve the client at its own expense from all claims by third parties arising from infringements of intellectual property rights (patents, licenses, and other proprietary rights). The client shall promptly inform Fish Blowing Bubbles GmbH of any claims made by third parties. If the client does not promptly inform Fish Blowing Bubbles GmbH of the claims made, the indemnification claim shall lapse.
9.2) In the event of intellectual property rights infringements, without prejudice to any claims for damages by the client, Fish Blowing Bubbles GmbH may, at its own discretion and expense, ensure, following prior consultation with the client, that no infringement of intellectual property rights exists regarding the affected services or acquire the necessary usage rights for the client.
10) Warranty / Duty to Inspect and Give Notice of Defects / Liability
10.1) To the extent that the client has not provided precise written instructions, subjective aspects of artistic design, such as color or tones, cannot be the subject of defect notices. Commercially customary tolerances apply to material, process, or system-related color or tone variations.
10.2) Fish Blowing Bubbles GmbH will rectify any defects in the delivery upon proper notification by the client. As long as Fish Blowing Bubbles GmbH fulfills its obligation to remedy, particularly by rectifying defects or delivering a defect-free item, the client has no right to demand a reduction in compensation or to rescind the contract.
10.3) The client may, at their discretion, demand a reduction or decrease in compensation or withdraw from the contract if the defect cannot be rectified within a reasonable period or if rectification or replacement delivery is deemed to have failed for other reasons. Rectification is deemed to have failed only when Fish Blowing Bubbles GmbH has been given sufficient opportunity for rectification or replacement delivery without achieving the required success (if rectification or replacement delivery is impossible, or if it is refused or unreasonably delayed by Fish Blowing Bubbles GmbH, or if reasonable doubts exist regarding the likelihood of success, or if it is unreasonable for other reasons).
10.4) The client is obliged to inspect the delivery for obvious defects. These obvious defects include the absence of manuals as well as significant defects that are easily visible. This also includes cases where a different item or an insufficient quantity is delivered. Such obvious defects must be reported to Fish Blowing Bubbles GmbH in writing no later than 21 days after delivery.
10.5) Defects that only become apparent later must be reported to Fish Blowing Bubbles GmbH in writing within 21 days after their discovery.
10.6) In case of breach of the duty to inspect and/or notify of defects, the delivery shall be deemed accepted with regard to the respective defect.
10.7) Fish Blowing Bubbles GmbH is only liable for intent and gross negligence. For slight negligence, Fish Blowing Bubbles GmbH is only liable for breach of a material contractual obligation and for damages resulting from injury to life, body, or health.
10.8) In the case of slight negligence, liability is limited to the amount of foreseeable damages that can typically be expected to occur.
10.9) Fish Blowing Bubbles GmbH shall not be liable for the loss of data and/or programs if the damage arises from the client's failure to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
10.10) The preceding provisions also apply to the benefit of the agents of Fish Blowing Bubbles GmbH.
10.11) The mandatory provisions of the Product Liability Act remain unaffected.
10.12) Fish Blowing Bubbles GmbH shall not be liable for damages arising from the use of materials provided by the client or its agents, as specified in section 3.5 of these terms and conditions.
10.13) All rights of the client shall expire within one year from delivery or acceptance.
11) Provided Items / Data Material
11.1) Fish Blowing Bubbles GmbH shall not be liable for provided items of any kind. Such items are stored at the client's expense and risk at Fish Blowing Bubbles GmbH. Fish Blowing Bubbles GmbH is entitled, upon prior written notice, to store such items at third-party facilities at the client's expense. In the event of loss and/or damage to materials provided for processing, Fish Blowing Bubbles GmbH's liability is limited to the replacement delivery of raw materials equivalent to the lost or damaged materials.
11.2) There is no obligation for Fish Blowing Bubbles GmbH to have insurance for these types of items.
11.3) After the project is completed, the transfer and/or working materials (handover of final data files) generated during the provision of services at Fish Blowing Bubbles GmbH will be retained for a period of one month. Fish Blowing Bubbles GmbH reserves the right to delete transfer and working data, as well as transfer and working tapes, after this period. Upon the client's request, these data can be stored in Fish Blowing Bubbles GmbH's internal data backup system. They can then be restored in the event of a follow-up project. The costs for restoration shall be borne by the client according to the current price list.
12) Non-solicitation clause
12.1) The client undertakes not to solicit or employ any employees of Fish Blowing Bubbles GmbH during the period of cooperation between the parties and additionally for a period of one year thereafter, without prior consent.
12.2) Für den Fall der schuldhaften Zuwiderhandlung verpflichtet sich der Auftraggeber, eine von der Fish Blowing Bubbles GmbH der Höhe nach festzusetzende und im Streitfall vom zuständigen Gericht zu überprüfende Vertragsstrafe zu zahlen.
13) Confidentiality/Press Release
13.1) The documents, information, and experiences provided to the other contracting party may only be used for the purposes of this contract. They may not be made accessible to third parties unless they are intended for such purposes or are already known to them by their nature.
13.2) Third parties do not include auxiliary persons engaged to perform the contractual relationship, such as freelance employees, subcontractors, etc.
13.3) Furthermore, the parties agree to maintain confidentiality regarding the content of this contract and the insights gained during its execution.
13.4) The obligation to maintain confidentiality also applies beyond the termination of the contract.
13.5) Upon request of a contracting party, documents provided, such as strategy papers, letters, data, etc., are to be returned to them upon termination of the contractual relationship, unless the other contracting party can demonstrate a legitimate interest in these documents.
14) Termination for material breach
14.1) Fish Blowing Bubbles GmbH is entitled to terminate the contract prematurely for good cause.
A particularly important reason includes:
- a material breach of contract
- change in the company's circumstances or significant deterioration of the financial situation of the client, especially in the case of persistent, substantial payment arrears or default regarding other essential obligations
- dishonoring or protest of checks or bills of exchange
- insolvency- application for the opening of insolvency proceedings
14.2) In the event of termination by Fish Blowing Bubbles GmbH for good cause, Fish Blowing Bubbles GmbH is entitled to invoice for the services provided, regardless of their usability by the client. For services not rendered, §649 Sentence 2 BGB applies.
15) Other
15.1) Assignment of claims is only permissible with the prior written consent of the other contracting party. The consent must not be unreasonably withheld. The provisions of § 354a HGB remain unaffected by this.
15.2) The contracting parties can only set off claims that are undisputed or legally determined.
15.3) Fish Blowing Bubbles GmbH is permitted to mention the client as a reference on its own website or in other media. Additionally, Fish Blowing Bubbles GmbH may publicly reproduce the services provided for demonstration purposes (e.g., in a portfolio) or refer to them, unless the client can assert a legitimate opposing interest.
16) Final Provisions
16.1) All changes and additions to contractual agreements must be documented in writing for evidentiary purposes. Any amendment to this requirement for written form must also be in writing.
16.2) Terminations must be sent in writing by registered mail.
16.3) If individual provisions of the party agreements are or become wholly or partially invalid, the validity of the remaining provisions shall not be affected thereby. In this case, the parties shall replace the invalid provision with a valid provision that best achieves the economic purpose of the invalid provision.
16.4) The same applies to any gaps in the agreement.
16.5) The general terms and conditions of the client shall not form part of the contract, even if not expressly objected to.
16.6) The laws of the Federal Republic of Germany apply to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.
16.7) The place of performance for all services of Fish Blowing Bubbles GmbH is its registered office.
16.8) The exclusive place of jurisdiction for all legal disputes arising from or in connection with this contract shall be the registered office of Fish Blowing Bubbles GmbH, provided that the contractual partner is a merchant or a legal entity under public law.
