Ask a lawyer on the topic of Media law

Examination of the terms and conditions passage

October 11, 2009 | 50,00 EUR | answered by Michael Vogt

Dear Sir or Madam,

As a creative agency, we have secured the right in the terms and conditions (following passage) to also receive the presentations of competitors for viewing in the case of a competition presentation. What options do we have if the client does not want to provide us with these?

Best regards

Here is the passage from the terms and conditions:

Section X. Participation in Competition Presentation / Agency Pitch

After agreeing on a compensation for expenses, or a "pitch fee," the agency can be commissioned with a competition presentation - a so-called "pitch." In no case does the client receive the rights to use or exploit the work results and ideas of the contribution presentation. It does not matter whether the agency receives a fee for the competition presentation or works and presents without compensation. The fee for a competition presentation / a pitch is only considered as compensation for expenses. Therefore, usage rights can only be transferred to the client in the form of separate follow-up orders outside of the competition presentation.

In the event that the agency loses the competition or another agency is awarded the contract, the agency has the right to obtain the names (and contact details) of the participating agencies after the competition is concluded. The agency also has the right to request the contributions and competition presentations of the participating competitors (in copy or electronically) immediately after being notified of the competition result. The client must provide the requested information to the agency no later than 3 working days after the announcement of the competition result. The names of the participants as well as the contributions and presentations will be treated strictly confidentially by the agency.

The agency can evaluate with the help of the names as well as the competition presentations / contributions of the competitors and also monitor in the future whether the work results of the agency are being unlawfully used or exploited by the client and/or other competition participants.

In the event of a violation of the rights of use and copyright of the agency, the agency is entitled to appropriate compensation from the client. In this case, a contractual penalty of EUR 10,000 is payable to the agency. In addition, the respective services / works and user fees will be invoiced retrospectively and possibly also retroactively according to the current valid collective agreement for design services (AGD).

Michael Vogt

Dear advice seeker,

Your question may be answered based on the facts you have provided and considering your input as follows:

In General Terms and Conditions, according to § 305 BGB, it refers to pre-formulated contract terms for a multitude of contracts, which one party imposes on the other when concluding a contract.

However, these terms only become part of the contract if the user expressly points out the applicability of the terms to the other party at the conclusion of the contract and if the other party had the opportunity to become aware of the content of the terms.

If these conditions are met, you have a right to fulfillment regarding the provisions of the terms and conditions, just like any other contractual provision, which may need to be enforced in court if necessary.

In your case, you have the right to request your customer to provide you with the relevant information about the competitor within three working days.

If he fails to do so, you must take legal action to enforce fulfillment, although it would need to be examined in each individual case whether the terms and conditions have become valid part of the contract. Unfortunately, this cannot be done within the scope of this online legal advice.

I hope that my answer has given you an initial overview of the legal situation.

I would like to point out that this answer, based on your information, is only a first legal assessment of the situation. It cannot replace a comprehensive legal review. Adding or omitting relevant information can lead to a completely different legal assessment.

You are welcome to contact me through the follow-up option on this platform or via my email address.

For legal representation beyond this initial consultation, my law firm is also available to assist you.

I wish you a pleasant Sunday.

Best regards,

RA Michael Vogt