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Terms and Conditions

General Terms and Conditions of Mediaopt GmbH

Elbestr. 28/29, 12045 Berlin, +49 30 92102990, kontakt@mediaopt.de

01. Scope of application

a)   The following General Terms and Conditions (GTC) apply to all contracts concluded between an entrepreneur pursuant to § 14 BGB (German Civil Code) or a person under public law and Mediaopt GmbH (hereinafter referred to as “Mediaopt”).

b)   By placing an order, the client expressly recognizes these GTC. These GTC apply exclusively; conflicting or deviating terms and conditions of the client are not recognized unless Mediaopt has agreed to their validity in writing and/or has made individual contractual arrangements with the client.

c)   Mediaopt offers its customers in particular consulting services for digital distribution channels and software as services and works (hereinafter referred to as “services”).

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02. Conclusion of a contract

The offers submitted by us and the descriptions of the services and work contained therein are non-binding. Orders and commissions can be placed by the client in writing, as a scanned document with signature by e-mail. A contract between us and the client is only concluded when we send a written order confirmation or deliver the ordered software or when an individual contractual agreement is signed.

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03. Terms of service in consulting

a) The data required for the services in strategy and conception are either created by us or supplied by the client at his own expense and risk. We are not liable for the loss of transmitted data.

b) If the client rejects a concept proposal more than three times, in each case in a substantially modified version that takes account of the client's wishes, we shall be entitled to withdraw from the contract. The right to demand the remuneration agreed for the concept development phase shall remain unaffected by the withdrawal.

c) We shall provide the client with the subject matter of the contract either on a data carrier customary at the time or by remote data transmission, at the client's discretion. In principle, we are not obliged to deliver the open file or documentation of the development, unless otherwise agreed in an individual contract with the client. We reserve title to all deliveries and services or to all copies of the subject matter of the contract until the remuneration has been paid in full.

 

04. Performance conditions for software development

a) The scope of services for software development includes the provision of the software for program use in the contractually agreed scope and purpose.

b) Commissioning and description of the contractual services shall take place by means of individual contracts or order confirmations. If the scope of the order so requires, a specification sheet shall be drawn up. The specifications shall be drawn up by us on the basis of the client's requirements with the client's cooperation. The preparation of the specifications shall be remunerated separately according to the effort and scope involved.

c) If the parties waive separate remuneration in individual contracts or if the services requested by the client go beyond the services specified in the specifications, invoicing shall be based on time and effort. The hourly/daily rates shall be based on the respective order and its scope.

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05. Terms of service for software licensing

a) The scope of services is the provision and licensing of software.

b) Whether and to what extent support and warranty are offered for the selected software can be found in the respective product information in the online store.

c) If no support is offered, to the extent permitted by law, the warranty is excluded. The full risk regarding quality and performance lies with the customer. Should the software prove to be faulty, the costs for necessary service, repair or correction shall be borne by the client.

 

06. Terms of service for support

a) Our support is carried out in a test system; it is the client's responsibility to provide this. Access data must be transmitted in a secure manner and the validity of logins for support must be limited in time (support specifications).

b) The Support Recipient is obliged to take appropriate precautions to protect its data and programs, in particular to observe the support specifications (see above) and to regularly back up its own data. We shall not be liable for the loss of data or other damage caused by gross disregard of this obligation. Otherwise, liability is limited to the effort required to restore the lost data using existing backup copies.

 

07. Terms of service for software as a service

The following contractual conditions of Mediaopt apply to the use of software via the Internet (Software as a Service). (SaaS Mediaopt)

 

08. Obligations of the client to cooperate

a) The client is obliged to check all strategies, concepts, designs, software prototypes, etc. (hereinafter referred to as templates) delivered or produced by us before further processing and to notify us in writing of any errors within 7 working days of delivery. After expiry of this period, approval shall be deemed to have been granted unless a longer review period has been agreed.

b) We shall not be liable for damage caused by the client's failure to check the artwork. Liability shall be limited to the order value of the template if the error could not have been discovered even with proper checking and thus only becomes apparent during the production process or during the implementation of the software.

c) In order to meet the completion deadlines agreed with the client, the content and information to be provided by the client for the creation or adaptation of the software must be made available immediately after completion and approval of the concept.

 

09. Copyright and rights of use

a) The creation of creative services such as the creation of strategies, concepts, designs, data sets, templates, software, etc. (hereinafter “work”) by us gives rise to copyrights. The provisions of the German Copyright Act (UrhG) shall apply irrespective of the required level of creation.

b) The client shall be entitled to use the work within the scope of the agreed contractual purpose and shall be granted a simple right of use, unlimited in terms of time and territory (excluding the USA). If software is the object of the services, §§ 69 d, 69 e UrhG shall apply.

c) The work created by us may only be used for the type of use agreed in the order and for the agreed purpose of use to the extent agreed. Any other or further use is only permitted with our express consent. An additional usage fee may be agreed for this.

d) Third-party resources used by us as operating objects for the production of our contractual work shall remain our property - even if invoiced separately. This applies in the same way to all other data received and possibly stored in connection with the execution of the order.

 

10. Order completion / acceptance

a) The contract shall end with acceptance or, if applicable, completion of the correction phase of the agreed service or after expiry of the agreed contract period.

b) If the order consists of several service phases, the client must accept each service phase separately (partial acceptance). We are entitled to make further work dependent on partial acceptance.

c) If the client does not accept the service rendered of its own accord, the client shall be set a reasonable deadline for acceptance or partial acceptance. If the deadline expires without result, acceptance shall be deemed to have taken place.

e) Contracts for regularly recurring services may be terminated in writing with a notice period of three months to the end of each month, unless otherwise agreed.
 

11. Payment modalities

a) The prices contained in the offer and the contractually agreed remuneration shall be decisive. All prices are subject to the applicable statutory value added tax.

b) If the parties have not agreed a fixed remuneration or if the services are outside the agreed scope of services, our remuneration shall be calculated on a time and material basis. In this respect, our hourly or man-day rates valid at the time the service is provided shall apply.

c) Invoicing shall take place immediately after delivery of the agreed services, unless otherwise agreed in the individual contract. The invoice amount is due for payment 7 days after the invoice date (at any time without any deduction).

d) We are entitled to demand advance payments and/or payments on account for project progress or for self-contained parts of the service in accordance with the statutory provisions.

e) All services shall remain the unrestricted property of Mediaopt until all claims have been settled in full. Therefore, no right of use and/or exploitation of the services rendered shall be granted until full payment has been made. Until full payment has been made, we are also entitled to a right of retention to all materials supplied by the client in accordance with § 273 BGB.

f) We shall provide the client with created websites/software on a suitable storage medium after full payment of the remuneration. The costs for the storage medium shall be borne by the client.

g) We shall instruct the personnel designated by the client in the use of the software and in the handling of the associated work equipment during the period specified in the separate time and process plan to be drawn up. We shall receive separate remuneration for this, which shall be stated in the offer or agreed separately in the event of subsequent commissioning.

h) If the client defaults on payment, Mediaopt is entitled to charge interest on the invoice amount from the date of default at a rate of 8 percentage points above the applicable prime rate if the client is acting as an entrepreneur. If the client is in arrears with the payment of interim invoices, Mediaopt shall also be released from its obligation to provide further services. Mediaopt reserves the right to assert further damages, in particular claims resulting from non-payment.

i) Counterclaims from the respective contractual relationship that are disputed by Mediaopt or have not been legally established do not entitle the client to offset, withhold or reduce payment.

 

12. Performance time and travel time

a) Fixed delivery dates shall be confirmed by us in writing. In the event of a delay in performance for which we are responsible, a reasonable period of grace must first be granted. The customer may only withdraw from the contract if this grace period has also expired without result.

b) In the case of fixed delivery dates, we shall not be responsible for delays in delivery and performance if these are due to force majeure. If the provision of own services or third-party services (whether of a material or non-material nature) promised by the customer is delayed, the deadlines promised by us shall also be postponed accordingly.

c) Travel time shall be considered working time and shall be remunerated accordingly.

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13. Warranty for material defects

a) If the client demands subsequent performance due to a defect, we shall be entitled to choose between rectification, replacement delivery or replacement performance.

b) The warranty period shall be one year. This does not apply to claims for damages due to defects. The following provisions on liability/compensation for damages (clause 14.) shall apply.

c) The client must grant us a reasonable period of time for rectification, depending on the scope of the rectification work.

d) Defects shall be notified in writing by means of a comprehensible description of the symptoms of the defect, as far as possible proven by written records, or other documents illustrating the defects. The notice of defects should enable the reproduction of the defect. The Client's statutory obligations to inspect and give notice of defects shall remain unaffected.

e) The limitation period for claims for defects is 12 months. The limitation period shall commence upon delivery of the work performance or, in the case of the purchase of standard software, upon the transfer of risk of the purchased item. In the case of the delivery of updates, upgrades and new versions, the period for these parts shall commence upon delivery. The statutory limitation periods for the right of recourse according to § 478 BGB remain unaffected by this.

f) The warranty with regard to the created or adapted software shall lapse if the client has made changes himself or had them made by third parties without this being necessary due to delays for which we are responsible and the fruitless expiry of a grace period set by the client or for other significant reasons.

g) Individual adaptations of standard software do not cover all functionalities of the standard software and this may lead to restrictions in the standard software.
 

14. Warranty for defects of title

a) The software supplied or provided by us is free of third-party rights that prevent use in accordance with the contract.

b) If there are defects of title, we shall be entitled to take lawful measures to eliminate the rights of third parties that impair the contractual use of the software or to assert such rights, or to modify or replace the software in such a way that it no longer infringes third-party rights, if and insofar as this does not significantly impair the owed functionality of the software.

c) If the defect of title or an infringement of third-party rights is based on content or materials that the client has handed over to us during the collaboration, the client alone shall be responsible for these; in this respect, the indemnification shall be in our favor should a third party assert claims against these. In this case, the other claims in clause 12 shall also apply in reverse at the expense of the client.

 

15. Liability/compensation

a) Mediaopt's liability for contractual breaches of duty and tort is limited to intent and gross negligence. This does not apply to injury to life, body and health of the client, claims for breach of cardinal obligations and compensation for damages caused by delay (§ 286 BGB). In this respect, liability exists for any degree of fault.

b) We shall not be liable for the patent, design, copyright and trademark registrability and protectability of the services supplied by us in accordance with the contract.

c) We shall be liable for product liability damages in accordance with the provisions of the Product Liability Act.

d) Insofar as liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of employees, workers, staff, representatives and vicarious agents.

e) Insofar as liability for damages that are not based on injury to life, limb or health of the client is not excluded for slight negligence, such claims shall become time-barred within one year from the time the claim arises or, in the case of claims for damages due to a defect, from the time the item is handed over.

f) Risks of legal admissibility of advertising measures and/or publications shall be borne by the client. We are under no obligation to check our services for their subsequent legal harmlessness. The client is obliged to hand over the templates approved for publication. Under no circumstances shall we be liable for any statements made about the client's products or services.

g) Orders placed with third parties in the name and for the account of the client, where we act merely as an intermediary, shall not give rise to any liability or warranty claims by the client against us.

h) In cases in which we ourselves act as the client of third parties, we shall be free to assign to the client all warranty claims, claims for damages and other claims against the third party to which we are entitled. Before any claims are asserted against us, the client undertakes to first use all legally permissible means to enforce the assigned claims.

i) The client assures that he is authorized to use all templates handed over to us. If, contrary to this assurance, he is not authorized to use them, the client shall indemnify us against all third-party claims for compensation.

j)    Should liability be considered, then up to the amount that would have been incurred if the data had been properly and regularly backed up in order to restore it.

k) Any further liability of Mediaopt is excluded on the merits, unless liability is mandatory due to intent. In particular, we are not liable for lack of economic success, loss of profit, indirect damages, consequential damages. Liability for breach of the General Data Protection Regulation shall be governed by the statutory provisions.

l) In the event of violations of the General Data Protection Regulation (GDPR), liability shall be governed by the statutory provisions.

 

16. Right of set-off and retention

The client may not assert any right of retention against Mediaopt from other orders. Offsetting against a Mediaopt claim is not permitted unless the client's claim is undisputed or has been legally established.

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17. Confidentiality and data protection

a) Mediaopt and the client mutually undertake to treat as confidential all data and information that is expressly designated as confidential or that is obviously not intended for the knowledge of third parties. This obligation also applies to employees and other auxiliary persons of the parties. The duty of confidentiality shall of course apply beyond the end of the contract and also in the event that the contract is not concluded.

b) We are entitled to make working copies of the files and documents provided by the client. The client may demand the return or destruction of all copies after completion of the order.

c) The client is hereby informed that our currently valid data protection declaration applies to every order.

 

18. Final clauses

a) All rights and obligations of the contracting parties are regulated in these GTC. Amendments and additions to the contract, including this clause, must be made in writing. No ancillary agreements have been made.

b) These General Terms and Conditions and all legal relationships between Mediaopt and the client shall be governed by the law of the Federal Republic of Germany with the exception of the UN Convention on Contracts for the International Sale of Goods.

c) The place of performance for all contractual and legal claims is the respective registered office of Mediaopt. Unless otherwise stated in this contract, the place of fulfillment and payment is the place of business.

d) Berlin is agreed as the place of jurisdiction.

e) The invalidity of individual provisions of this contract shall not affect the validity of the remaining provisions in case of doubt. Rather, in the event that a provision is invalid, it shall automatically be replaced by a valid provision that comes as close as possible to the economic purpose pursued by the parties with the invalid provision.

 

State: 01. November 2018

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