General Terms and Conditions (GTC)

1. Contractual Object
1. a) Basic Information

These General Terms and Conditions (“GTC”) govern all contractual relationships between Lucky Shareman GmbH, Holstentwiete 15, 22763 Hamburg, Germany (“Lucky”) and contractual partners in the entrepreneurial sector (“Client”), regardless of whether they are merchants, legal entities under public law or special funds under public law.

All offers made by Lucky are subject to change, unless otherwise agreed in writing. If the Customer places an order with Lucky on the basis of an offer, this shall be deemed to be a new offer which shall only be accepted by Lucky upon confirmation of the order (in writing or by e-mail).

Delivery dates and deadlines, if they are to be agreed as “binding”, i.e. as such or with an equivalent designation (“firm”, “fixed” or similar) shall be provided in text form. Deadlines shall commence on the date of the order confirmation.

The order confirmation and these GTC are decisive for the content of the contract between the Customer and Lucky.

1. b) Services

Lucky’s services may include: communication consulting and design, advertising placement and / or brokerage (online and offline), photo design, product design, event organisation, hosting and other services and works in the field of advertising.

In the case of advertising placement and/or brokerage, the General Terms and Conditions of the respective advertising media (including the management and the influencers) shall apply in addition insofar as they do not contradict these GTC.

Lucky is entitled to engage subcontractors to perform the assigned work. The transfer of so-called “open files” is not owed, unless otherwise agreed.

Lucky’s services shall be deemed to have been rendered upon express or implied acceptance by the Client, in the case of communication and / or product design upon delivery of the drafts, in the case of advertising placement and / or communication upon delivery of the advertising material to the advertising medium, in the case of photo design upon delivery of the photos.

Any use of presentations, scripts or documents of any kind whatsoever is only permitted with the prior consent of Lucky (in writing or by e-mail).

1. c) Cooperation Obligations

The Client agrees to provide Lucky with all information within his sphere of knowledge and to grant approvals which are necessary for the proper performance of the services by Lucky.

This includes in particular, but is not limited to: general company information, detailed briefing for the respective orders, advertising material, contact details for the respective contact persons, notification of deadlines as soon as they are known.

2. Compensation / Terms of Payment
2. a) Services

All services (in particular presentations and additional expenses) provided by Lucky shall, unless otherwise agreed, be compensated at an hourly rate of at least EUR 100,- net.

Insofar as fixed fees have been agreed or work exceeds the (anticipated) duration of 1 month, 100% of the total compensation is due for payment 14 days prior to the start of the work.

In the case of advertising placement and / or brokerage, Lucky is entitled to demand advance payments of up to 100% of the (anticipated) costs of the advertising placement and / or brokerage. In the event of cost estimates being exceeded by more than 20%, the Client will be notified.

Unless otherwise agreed, rights of use to the work created by Lucky shall be compensated separately (see also under “Copyright and Rights of Use”).

All amounts are net amounts plus the statutory value added tax.

2. b) Special Services / Additional Costs / Expenses

Special services and additional costs such as the processing of advertising material or photographs ready for acceptance or their post-processing, print monitoring, additional expenditure due to changed briefings (author’s corrections) or the like will be charged by Lucky in the amount of EUR 100,- net per hour.

Consumables and costs for technical elaborations are charged by Lucky according to the actual expenditure.

Travel and travel expenses, including the costs of the necessary insurances for this, will be charged to the usual extent. For the use of a car, the average of a mid-range car with depreciation, according to the current ADAC car cost calculation, will be applied.

2. c) Payment Terms / Cheques and Bills of Exchange

Lucky shall issue an invoice for all services. Payments are due immediately and must be made within 10 days of the invoice date. The Client shall be in default at the latest 30 days after receipt of the invoice without the need for a reminder.

Lucky reserves the right to issue partial invoices. Cheques and bills of exchange will only be accepted after prior confirmation by Lucky in text form on account of performance at the expense of the Customer.

Non-compliance with the terms of payment, deterioration of the Customer’s assets, in particular protests of bills of exchange and cheques, shall lead to the immediate maturity of all claims of Lucky against the Customer.

3. Delivery / Approval / Impediments to Performance

Delivery dates shall be confirmed by Lucky in text form and shall only be binding if the Customer has fulfilled his obligations to cooperate. In the case of events which are not within the sphere of risk of Lucky and which are significant for compliance with the deadlines, they shall be extended by the duration of the event.

Lucky shall immediately notify the Client of the occurrence of such an event. The transmission risk shall pass to the Client at the time the work / data is made available on the Client’s own or a third party server. Deliveries are made “ex works”.

The costs of delivery (packaging, postage, freight, insurance or similar) will be charged to the Client. Approval of Lucky’s work may not be refused on artistic grounds. Claims for defects with regard to artistic design are excluded.

In the event of default Lucky shall be granted a reasonable period of grace. Compensation for damages caused by delay is limited to the amount of the order value. In the event of default of acceptance by the Client or the breach of duties to cooperate as well as in the event of impediments to performance for which the Client is responsible, Lucky shall be entitled to claim compensation for the damage arising therefrom.

4. Ownership Rights / Right of Retention / Offsetting Prohibition

Only rights of use, but no ownership, shall be transferred to the customer for photos, drafts, files, final artwork and other work results (e.g. negatives, models or original illustrations).

The transmission of files (including originals) shall only take place for the purpose of use by the client. Originals shall be returned undamaged after a reasonable period of time.

Any permanent surrender of the work to the Client shall be compensated separately by the Client. In this respect Lucky reserves the right to assert rights of retention, including the retention of documents and files. There is neither a duty to surrender nor a duty to retain.

Ownership of other products shall remain with Lucky until all claims of Lucky against the Customer have been paid in full.

5. Copyright and Rights of Use
5. a) Lucky

Copyrights and rights of use exist for the work of Lucky (incl. any purchased photo files). The copyrights always remain with the authors. They have granted Lucky comprehensive rights of use to their works.

Lucky therefore grants the Client – concurrently with full payment of the agreed compensation (fee plus royalties) – the rights of use necessary to achieve the respective purpose of the contract to the extent required in each case.

In the absence of any agreement to the contrary, only a simple right of use limited in time and space to the smallest possible scope shall always be granted. The work shall be entrusted to the customer within the meaning of Section 18 (1) UWG, subject to any rights of retention.

Any further transfer (even only in part) of rights of use and any granting of sub-licences to third parties by the Client as well as any processing, even of a minor nature, shall require the prior consent of Lucky in text form.

This also applies to the digitalisation or reformatting of originals, negatives or prints within the scope of photo design services. The Client shall always submit correction samples to Lucky prior to duplication.

5. b) Client

The Client assures that he is entitled to use all documents submitted to Lucky, in particular templates within the scope of photo design services, and in this respect indemnifies Lucky against all claims of third parties.

The Client shall provide Lucky with sample copies of all reproduced works free of charge, subject to any other agreement or contrary contractual purpose.

Lucky may use these sample copies in all media for its own advertising purposes, naming the Client as the principal, unless the Client’s interest in secrecy, which must be indicated in writing, or the purpose of the contract is opposed to this.

6. Name Credits

The author shall be entitled to have his or her name mentioned in the immediate vicinity of the reproductions or in direct connection with the public communication of the works, provided that the mention of the name is not unusual in the industry.

Subject to any agreement to the contrary, the Client therefore undertakes, when using Lucky’s work in accordance with these specifications, to add the note

“Agency: Lucky Shareman GmbH”

with a link to the current URL of Lucky’s website. This shall also apply within the scope of photo design services on the part of Lucky: the Client shall ensure that the aforementioned note is electronically linked to the image data and that the image data is provided with the current technical protection measures in consultation with Lucky.

7. Notification of Defects / Damage Compensation

The transmission of the work (files, designs, documents, photos or similar) shall be at the risk and for the account of the Client. The Client is obliged to immediately inspect the received work for completeness and quality and to notify Lucky in writing of any obvious defects within 10 working days of receipt.Timely dispatch of the notification to the following contact shall be sufficient to meet the deadline:

Lucky Shareman GmbH
Holstentwiete 15
22763 Hamburg

In the event of loss or damage to equipment or materials (photos) to be returned, Lucky is entitled to claim damages of up to EUR 1,000 for each original and EUR 200 for each duplicate. The Client reserves the right to prove a lower damage, Lucky the right to prove a higher damage.

8. Liability

Lucky shall only be liable for damages due to intentional or grossly negligent conduct. Damages resulting from injury to life, body or health remain unaffected by this, as do damages which are also based on an only slightly negligent breach of an essential contractual obligation (cardinal obligation) in accordance with clauses 1. and 2. of these GTC.

Lucky shall not be liable for deviations in the quality of the work that are customary in the industry, nor for defects that are not reported and/or not reported in due time.

Liability for obvious and recognisable, but not reported defects, is not applicable. Lucky shall not be liable for the legal permissibility of the use of the work. Lucky shall not be liable for any defective performance of the advertising media.

With regard to the activity of subcontractors, the liability of Lucky is limited to the fault of selection. The amount of Lucky’s liability is limited to the foreseeable damages typical for this type of contract.

The Client is liable for the (personal) data transmitted to Lucky and in this respect indemnifies Lucky against any claims of third parties.

The Client shall be liable in particular for the legal admissibility of advertising placements and/or brokerage commissioned by the Client as well as for other services commissioned by the Client from Lucky in the fields of communication consulting, communication design and advertising.

9. Termination

If the contract is structured as a continuing obligation (e.g. in the case of hosting), it can be terminated by either party with six months’ notice to the end of the year.

Termination for good cause is possible at any time in the event of a breach of material contractual obligations, for both parties in particular in the event of the existence of circumstances which prevent Lucky from fulfilling its contractual obligations and which are beyond the control of one of the parties.

A right to terminate for cause exists in particular, but not conclusively, if:

  • the customer does not meet his payment obligations
  • the customer does not grant the necessary approvals
  • insolvency proceedings have been opened against the assets of one party or have been rejected for lack of assets and / or information to this effect has not been provided to the other contracting party

If the customer terminates the cooperation for good cause, then:

  • in the case of presentation and conceptual services: 50% of the order sum shall be due for payment upon presentation of a concept
  • in the case of advertising placements and / or brokerage: in addition to the expenses to be proven by Lucky (costs of booking advertising material, expenses and costs), to reimburse the working hours incurred up to the time of the effectiveness of the termination on a pro rata basis as a fixed sum or, if a pro rata fixed sum calculation is not possible, on the basis of a proof of working hours

The right to further claims for damages and/or reimbursement of expenses and/or compensation for pain and suffering is reserved. Notice of termination must be given in text form, stating the reasons.

10. Limitation

In deviation from statutory provisions, the general limitation period for claims of the Client arising from material defects and defects of title shall be one year from the date of performance by Lucky.

This also applies to contractual and non-contractual claims for damages by the customer based on a defect in performance, unless the application of the regular statutory limitation rules would result in a shorter limitation period.

11. Secrecy and Privacy Protection

All information that Lucky obtains in the course of its cooperation with the Client will be treated as strictly confidential. This information will not be passed on to third parties.

Exceptions to this shall apply in the event that the information has to be passed on to third parties for the performance of the contract, that the customer has already published the information himself or that it has become public knowledge by other means.

(Personal) data is collected, processed and used in accordance with the provisions of the GDPR, the BDSG and other legal provisions. Insofar as Lucky acts as an order data processor for third parties, this shall apply accordingly. Further information is available on Lucky’s website under „Privacy Policy“.

12. Final Provisions

The place of performance and jurisdiction for all disputes for merchants, legal entities under public law or special funds under public law is the registered office of Lucky.

Lucky is also entitled to conduct legal disputes at the general or special place of jurisdiction of the Client.

German law shall apply exclusively.

Amendments to these GTC as well as verbal ancillary work must be made in writing (e-mail is sufficient) in order to be effective.

Should individual provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions.