of M8 Media House GmbH for Deliveries and Services

These terms and conditions have been translated automatically. For the legally binding version, please read the German version.

Last change: 28.07.2022

§ 1 Scope of application; rejection of the customer’s own GTCs

(1) Our General Terms and Conditions of Business (hereinafter referred to as “GTC”) shall apply to all our offers and contracts for deliveries and services in the area of photo, graphic, audio and video productions of the customer/purchaser/client (hereinafter referred to as “Customer”). They shall also apply to future contracts with the Customer.

(2) The Customer’s own terms and conditions are contradicted.

(3) These General Terms and Conditions shall only apply to entrepreneurs as a natural or legal person or a partnership with legal capacity within the meaning of Section 14 of the German Civil Code (BGB) acting in the exercise of their commercial or independent professional activity and to legal entities under public law and special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).

§ 2 Placing and execution of orders; acceptance; delivery

(1) All orders shall be governed exclusively by the service descriptions contained in the most recent offer or our corresponding order confirmation. As a rule, the contract shall be concluded with our order confirmation at least in text form, otherwise by execution of the order.

(2) Delivery, production or completion deadlines and corresponding dates shall only be deemed to have been agreed approximately, unless we have given an express commitment in writing or at least in text form to be binding. The prerequisite for the commencement of such a period is always the clarification of all technical and other details of the order by the customer, the provision of any necessary documents and the payment of any agreed deposits.

(3) The deadlines in the sense of Paragraph 2 shall be extended appropriately - even if a delay has already occurred - in the event of force majeure and all unforeseen obstacles occurring after conclusion of the contract for which we are not responsible. This includes, in particular, operational disruptions, strikes, lockouts or disruptions to transport routes, insofar as they can be proven to have a significant influence on the planned production. The same shall apply if such circumstances occur at a service provider used by us in accordance with § 3. The customer may demand a declaration, setting a reasonable deadline, as to whether we wish to withdraw from the contract or deliver or perform within a reasonable period of time. If a declaration is not made within the deadline, the customer may withdraw; claims for damages shall be excluded in such cases.

(4) The contract shall be deemed to have been fulfilled upon delivery to the customer or the agreed location. If performance under a contract for work and services has been agreed, formal acceptance shall not take place. The customer shall inspect the service provided by us in accordance with the contract for conformity with the contract immediately after delivery and, if it considers the service to be defective, shall notify us of this immediately. Acceptance may be refused if there are significant defects. If such notification is not made within 48 hours of delivery of the finished material to the agreed location, the production shall be deemed to have been accepted. The same shall also apply if the customer uses the performance as intended.

§ 3 Use of vicarious agents; reference to customer protection agreement; commissioning of third parties

(1) We shall be entitled to commission service providers, in particular photographers and cameramen, as vicarious agents for the execution of orders at our own discretion. Any necessary coordination of details essential to the execution of the order shall take place directly between the customer and the service provider carrying out the order.

(2) The customer acknowledges that the service provider is prohibited from entering into direct business contact with the customer on the basis of the customer protection agreement existing between the service provider and us, and that the service provider may therefore act in breach of contract and be liable for damages.

(3) By placing the order, the customer authorizes us to act on his behalf and for his account as far as transactions are concerned which are related to the fulfillment of the concluded contract and for the receipt of third party services.

(4) Insofar as we commission third-party services on behalf of the customer, these respective contractual partners shall not be vicarious agents of us. If, in the course of providing the service, we obtain third-party offers but the order is placed elsewhere by the customer, we shall be entitled to invoice the customer for the services expended in obtaining the offer according to the time and costs incurred in accordance with our current price list.

§ 4 Prices; Due date; Partial invoices

(1) The prices stated in our most recent offer or the corresponding order confirmation shall apply. If neither an offer nor an order confirmation has been issued, the respective current price of our price list shall apply to all order components. Travel costs are charged at 0.45 EUR/km. Travel times are considered as working time to be invoiced. Any additional costs incurred due to delays or non-compliance with on-site appointments by the customer or third parties commissioned by the customer shall be borne by the customer.

(2) Our invoices are to be paid immediately without deduction after receipt of the invoice. If invoicing is made to a third party at the request of the customer, the customer shall nevertheless be liable for complete and timely payment and, in the event of late and/or incomplete payment by the invoice recipient, also for the damage caused by delay as well as any legal costs.

(3) We shall be entitled to issue partial invoices which, in particular, cover in advance the costs incurred in the execution of the order. We shall be entitled to invoice 50% of the basic fee already upon conclusion of the contract (order placement, order confirmation). Upon acceptance in accordance with § 2 para. 4, the outstanding remuneration shall be due for payment.

(4) All prices are net prices plus the value added tax applicable at the time of invoicing.

§ 5 Rights of Use; Third Party Rights

(1) The Customer shall obtain any necessary declarations of consent, such as rights to his own image, in advance. By placing the order, the customer shall transfer to us the rights of use necessary for the processing of the order and shall ensure that no third-party rights are infringed by the contractual service or its creation. The customer undertakes to indemnify us and the service provider(s) engaged by us to execute the order from any claims and demands of third parties based on infringements of third-party rights and to reimburse us and the service provider engaged to execute the order for all costs incurred for the necessary legal defense against such claims.

(2) We shall ensure that the service provider executing the order only uses its own material or material that is free of rights or freely available for the production at its own decision. If the customer wishes to use material that is protected by copyright by third parties (e.g. GEMA-protected music), he shall bear the costs associated with the approvals to be obtained; such costs are not included in the offer price. Editing that alters the meaning (e.g. in the case of photos) is also not included in the price, is therefore subject to additional remuneration and is the sole legal responsibility of the customer.

(3) We guarantee the existence of the rights of use necessary for the production as well as the publication and/or storage in our own systems (such as e.g. image database) in accordance with the order or the freedom from rights of the elements used.

(4) Subject to deviating provisions in the respective order, we grant the customer simple rights of use for the intended use of the work results delivered to him in accordance with the contract, such as images and videos, upon full payment of the agreed remuneration, while preserving our possible moral rights. The copyright notice must always be placed in a clearly visible position, unless this is unusual in the individual case. In particular, a use in the field of advertising as well as the right to change and edit requires our prior written consent and a separate remuneration agreement. In the event of infringement, the customer shall be obligated - irrespective of any claims for injunctive relief and damages on our part - to pay reasonable remuneration, the amount of which we shall be entitled to determine at our reasonable discretion. In order for us to be able to exercise our discretion properly, the customer shall be obliged to inform us of the exact extent of the use not permitted.

(5) Even after the service has been rendered, we shall remain entitled to use all images, videos and graphics created on behalf of the customer for our own advertising in all media.

§ 6 Retention of title

(1) We retain title to all goods subject to retention of title delivered or manufactured by us until full payment of our total claims arising from the business relationship with the customer. Upon conclusion of the contract, the customer already assigns to us by way of security the full amount of the claims against its customer to which it is entitled from the sale of the goods subject to retention of title or for any other legal reason, including all ancillary rights.

(2) In the event of default in payment or other conduct on the part of the customer in breach of contract, we shall be entitled to take back the reserved goods if we withdraw from the contract. After taking back the goods subject to retention of title, we shall be entitled to realize them; the realization proceeds, less reasonable realization costs, shall be credited against the customer’s liabilities.

(3) The customer shall be entitled to resell and/or process the reserved goods in the ordinary course of business, provided that we have permitted such processing in accordance with § 5 para. 4. He shall not be permitted to dispose of the goods in any other way, in particular by pledging them or assigning them as security. The resale may only take place under reservation of title, unless it takes place against immediate payment upon handover. The authorization to resell shall expire in the event of cessation of payments by the customer, as shall the authorization to collect the claims arising from the resale of goods subject to retention of title which have already been sold before.

(4) Upon request, the customer shall disclose to us the assigned claims and their respective debtors, provide all information required for collection, hand over to us the associated documents and notify the debtor of the assignment.

(5) The processing or transformation of the reserved goods by the customer shall only be permitted if the customer is entitled to the corresponding rights of use and shall always be carried out for us within the scope of the reservation of title. If the reserved goods are processed or inseparably mixed with other material not originating from us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods supplied by us to the rest.

(6) The customer shall be prohibited from entering into any agreements with its customer or a third party which may exclude or impair our rights in any way, in particular agreements which nullify or impair the assignment in advance. In the event of seizure or other interventions by third parties, the customer shall notify us immediately, handing over the documents necessary for an intervention.

§ 7 Set-off; Right of retention; Assignment

(1) Offsetting against our claims with counterclaims shall be excluded unless the counterclaims are undisputed or have been legally established.

(2) The customer may only exercise a right of retention if the counterclaim on which he bases the right of retention is undisputed, has been finally adjudicated or is ready for decision and is based on the same contractual relationship.(3) The assignment of the rights and/or the transfer of the obligations of the customer arising from contracts concluded with us shall not be permitted without our prior written consent.

§ 8 Elimination of defects

(1) If our performance exhibits obvious defects, faulty performance or wrong deliveries or such defects are recognizable upon proper inspection, any warranty for the defects affected thereby shall be excluded if the period for giving notice of defects pursuant to § 2 para. 4 is missed.

(2) Deviations in dimensions, contents, color shades or the like due to manufacturing are permissible within the tolerances customary in the industry and do not constitute a defect.

(3) In the event of further utilization and/or permitted processing of the delivered contractual performance despite the customer’s knowledge of the defectiveness, any warranty claim shall expire unless the customer has previously expressly reserved warranty claims or we have assumed a guarantee for the quality of the material.

(4) Insofar as there is a material defect for which we are responsible, we shall be obligated to subsequent performance at our discretion by means of subsequent delivery or subsequent improvement, unless we are entitled to refuse subsequent performance on the basis of statutory regulations. The customer shall grant us a reasonable period of time for subsequent performance. In the event of rectification of defects, we shall bear the necessary expenses within the scope of reasonableness.

(5) Subsequent performance in the case of defects of title shall be effected by us providing the customer with a legally unobjectionable possibility of use. In this context, we may replace the affected contractual item with an equivalent item that complies with the contractual provisions if this is acceptable to the customer. If third parties assert property rights against the customer, we must be informed immediately in writing. If we are responsible for the infringement of rights, we shall, at our own discretion and in consultation with the customer, at our own expense, defend or satisfy the claims and indemnify the customer against all reasonable costs and damages associated with the defense of the claim. The customer may not acknowledge claims by third parties on its own initiative.

(6) If the subsequent performance has failed, the Customer may, at its option, demand a reduction of the remuneration (abatement) or, in the case of significant defects, declare its withdrawal from the contract. The rectification of defects shall be deemed to have failed with the third unsuccessful attempt, unless further attempts at rectification are reasonable and acceptable to the Customer due to the subject matter of the contract. In the event of fraudulent intent and in the event of a guarantee assumed by us, the statutory provisions for material defects and defects of title shall remain unaffected.

(7) The limitation period shall be one year from delivery/acceptance of the contractual service, subject to the provisions in para. 6 sentence 3 for claims for rectification of defects due to material defects or defects of title and any claims for damages. In the case of an existing claim for supplementary performance, the recognition of the claim by us in accordance with Section 212 (1) No. 1 of the German Civil Code (Bürgerliches Gesetzbuch - BGB), which accompanies the supplementary performance, shall only apply to those defects which were the subject of the customer’s request for supplementary performance or which are caused by a defective supplementary performance. Otherwise, the limitation period for the original contractual performance shall continue to run.

§ 9 Liability

(1) The customer may only assert claims for damages due to a defect if the subsequent performance has failed. Otherwise, we shall grant compensation for damages or reimbursement of futile expenses, irrespective of the legal grounds, to the following extent:in the case of intent, to the full amount;in the case of gross negligence, to the amount of the typical and foreseeable damage that should have been prevented by the duty of care;in other cases, only in the case of breach of a material contractual obligation or in the case of default, and in each case, if applicable, only to the extent of the typical and foreseeable damage.

(2) Any further liability shall be excluded regardless of the legal nature of the asserted claim; this shall apply in particular to tortious claims or claims for reimbursement of futile expenses instead of performance.

(3) Liability for the absence of an assumed guarantee, for fraudulent intent, for damage to life, body or health and under the Product Liability Act shall be governed by the statutory provisions.

(4) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, representatives and vicarious agents, in particular service providers as defined in § 3.

§ 10 Liability of the customer in the event of cancellation, postponement of service provision or termination

(1) If the customer cancels (cancels - hereinafter: cancels) or postpones the order, the customer shall be liable to us as follows:Cancellation up to six working days prior to the date or Cancellation later than six working days before the start of the deadline or production: 100% of the agreed basic fee plus reimbursement of costs for services of third parties that can no longer be cancelled.

(2) In the event of termination by the customer after the start of production, the customer shall in any case pay us the agreed basic fee in full plus any costs already incurred that are to be borne additionally in accordance with the respective contract or these GTC, without prejudice to any additional statutory claims on our part.

(3) This shall not affect the right to terminate the contract without notice in the event of good cause.

(4) Any termination must be in writing in order to be effective.

§ 11 Changes to GTC

We are entitled to change the provisions of these GTC. The customer will be informed of any changes in writing without delay. The customer is entitled to object to the changes in writing within a period of two weeks. If the customer does not object within this period, the amended provisions shall become part of the contract. In the event of a timely objection, the original provisions shall remain unchanged.

§ 12 Confidentiality / Data protection / Reference designation

(1) The contracting parties undertake to keep secret all business and trade secrets or information designated as confidential which they receive or become aware of from the other contracting party during the performance of the contract, even beyond the end of the contract, and to oblige the respective employees accordingly.

(2) Information and documents which are generally known and accessible at the time of disclosure or which were already known to the receiving contracting party at the time of disclosure or which were legitimately made accessible to it by third parties shall not be covered by the duty of confidentiality.

(3) The Customer is hereby informed that we will collect, store, process and, if necessary, transmit to third parties its data to the extent necessary for the performance of the contract and on the basis of the data protection provisions. Both contracting parties are required to obligate their employees to maintain data secrecy in accordance with § 5 of the Federal Data Protection Act.

(4) We shall be entitled to name the Customer as a reference and to use its logo for this purpose.

§ 13 Written form; place of performance; place of jurisdiction; applicable law; other provisions

(1) There shall be no collateral agreements or verbal assurances. Agreements deviating from the General Terms and Conditions shall only be binding if expressly confirmed by us in writing or in text form; this shall also apply to any assurances given by our employees which go beyond the contract or our order confirmation documented in writing or in text form, but not to oral declarations made by persons who have unlimited authority to represent us or who have unlimited authority to represent us externally.

(2) The place of performance for our services, the place of subsequent performance and for payments by the customer shall be the registered office of our company.

(3) These GTC as well as contracts concluded between the customer and us on the basis of these GTC shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

(4) Should individual clauses of our GTC be invalid, the validity of the remaining clauses shall remain unaffected. The invalid clauses shall be replaced by the permissible rule that comes closest to the economic purpose of the invalid clause.

(5) The exclusive place of jurisdiction for disputes arising from this contract (including actions on checks and bills of exchange) shall be our registered office. However, we shall also be entitled to sue the customer at his general place of jurisdiction.