1. Scope

1.1.
These General Terms and Conditions (hereinafter ‘GTC’) shall apply to all agreements and contracts between movingimage EVP GmbH(hereinafter ‘CONTRACTOR’) and the contractual partner (hereinafter ‘CLIENT’).

1.2.
In addition to these GTC, agreements between the CONTRACTOR and CLIENT shall be subject to any special general terms and    conditions of the CONTRACTOR applicable to the respective services under the respective agreement (such terms and conditions hereinafter also ‘SPECIAL TERMS OF AGREEMENT’). SPECIAL TERMS OF AGREEMENT shall include, in particular, the ‘Terms and Conditions of Use and Licensing VideoManager’ applicable to agreements regarding the provision of the VideoManager, the ‘Terms of Agreement for the Production of Videos or Other Multimedia Products’ applicable to agreements regarding the production of videos or other multimedia products, and the ‘Terms of Agreement – Video Placement’ of the CONTRACTOR applicable to the placement of videos on Internet or Intranet pages. The applicable SPECIAL TERMS OF AGREEMENT can be accessed in full on the website of the CONTRACTOR at ‘www.movingimage.com/gtc.’ The CONTRACTOR shall provide CLIENT with a copy at the latter’s request. These GTC and the SPECIAL TERMS OF AGREEMENT are hereinafter also referred to as the ‘GENERAL TERMS OF AGREEMENT of movingimage EVP GmbH.’

1.3.
Deliveries, services, and offers of the CONTRACTOR – including in the future – shall be provided exclusively on the basis of the GENERAL TERMS OF AGREEMENT of movingimage EVP GmbH. Deviating, opposing, or supplementary general terms and conditions of the CLIENT shall become part of the agreement only where and to the extent that the CONTRACTOR consents to their applicability in express terms. The GENERAL TERMS OF AGREEMENT of movingimage EVP GmbH shall apply exclusively even if the CONTRACTOR, in the knowledge of opposing, supplementary, or deviating general terms and conditions of the CLIENT, provides deliveries and services to the CLIENT without reservations. Any individual agreements entered into with the CLIENT on a case-by-case basis (including collateral agreements, additions, and amendments) shall take precedence.

1.4.
Where the SPECIAL TERMS OF AGREEMENT of the CONTRACTOR deviate from these GTC or contain provisions contradicting these GTC, the respective provisions under the SPECIAL TERMS OF AGREEMENT shall take precedence.

 

2. Order Placement, Agencies, Assignment

2.1.
The CONTRACTOR shall be bound by offers that it submits for 30 days.

2.2.
A contract shall be created when the CLIENT accepts the CONTRACTOR’s offer in writing. A modified written acceptance of the CLIENT regarding the offer of the CONTRACTOR shall be deemed a new offer, which will result in a contract only if the CONTRACTOR confirms it in writing.

2.3.
Where the CLIENT submits a written offer, a contract shall be created upon the CONTRACTOR’s written acceptance thereof. Where the CONTRACTOR’s acceptance modifies the offer of the CLIENT, a contract shall be created on the basis of such modification if the CLIENT fails to object in writing within one week of receipt of such modified acceptance. Silence on the part of the CLIENT shall be deemed acceptance upon expiry of such period. The CONTRACTOR undertakes to instruct the CLIENT about these legal consequences upon the start of such period.

2.4.
Orders from agencies shall be accepted only if the customer of the agency is properly identified and if it is evident that the agency places the order on behalf of the customer thus identified. The CONTRACTOR may request from the agency evidence of the order and the customer’s written authorization for the agency. Invoices shall be issued to the agency. In the event of agency bookings, the CONTRACTOR may request that the agency’s customer place an appropriate order in lieu of the agency.
Where, by way of exception in an individual case, the CONTRACTOR accepts an order from an agency in the agency’s own name, but for a properly identified customer, the agency shall assign its receivables from the customer under the agency contract underlying such receivables to the CONTRACTOR as security upon conclusion of an agreement between the agency and the CONTRACTOR. The CONTRACTOR hereby accepts such assignment. The CONTRACTOR may collect on the receivables thus assigned if the agency fails to settle the secured receivables with the CONTRACTOR within 30 days of maturity. At any rate, the agency shall not, without the express and written consent of the CONTRACTOR, transfer to another customer or a third party services booked for a specific customer.

 

3. Remuneration

All prices are quoted exclusive of the respective statutory value-added tax. Where prices and other remuneration are not agreed individually, the price lists of the CONTRACTOR in effect at the time that an agreement is entered into shall apply.

 

4. Acceptance of Work Performance

4.1.
Where the CONTRACTOR’s performance involves the production of a work, such work shall be accepted by the CLIENT under the provisions of this Clause 4 of these GTC and pursuant to applicable statutory provisions, unless the SPECIAL TERMS OF AGREEMENT of the CONTRACTOR contain provisions to the contrary.

4.2.
The CONTRACTOR shall notify the CLIENT in writing when the work is ready for acceptance, possibly after a successful test to be agreed individually. The CLIENT shall commence the acceptance inspection within five business days.

4.3.
If acceptance fails, the CLIENT shall provide the CONTRACTOR with a list of all defects that prevent acceptance. Upon expiry of an appropriate period, the CONTRACTOR shall provide a version of the work that is free of defects and ready for acceptance. As part of the subsequent inspection, only the documented defects will be checked to the extent that their functions allow them to be inspected individually.

4.4.
Upon successful inspection, the CLIENT shall notify the CONTRACTOR of the acceptance of the work in writing within three (3) days.

4.5.
The CLIENT shall not withhold acceptance due to immaterial defects.

4.6.
If acceptance fails at least two times, the CLIENT may assert its statutory rights, such as, in particular, withdrawal from the Agreement.

 

5. Terms of Payment, Default

5.1.
The invoiced amount is derived from the total of prices of the individual services over the accounting period, as well as from the other components agreed upon for the price calculation.

5.2.
Unless agreed otherwise, the invoices shall be payable by the CLIENT without deductions within 14 days of the date of the invoice or, in case CLIENT receives the invoice later than that, to the account specified in the invoice by the CONTRACTOR. Timely payment is determined by the date on which the CONTRACTOR receives payment. If the payment is not credited to the account in a timely manner, the CLIENT will be deemed in default of payment, without there being a need for the CONTRACTOR to remind the CLIENT and/or set a time limit.

5.3.
In the event of default on payment on the CLIENT’s part, the CONTRACTOR may withhold further performance until the CLIENT has paid all outstanding payments in full or has provided an appropriate security. The CONTRACTOR shall also have a right to withhold performance if it becomes clear upon entering into the agreement that the CONTRACTOR’s payment claim is at risk due to the CLIENT’s lack of solvency. Any rights assigned to the CLIENT by the CONTRACTOR and/or rights of use granted to the CLIENT shall be deemed non-assigned and/or non-granted for the duration of the default; insofar, the effects of any assignment of rights/grant of rights of use to the CLIENT shall thus be suspended.

5.4.
Bank fees shall be borne by the CLIENT. Checks and bills of exchanges will be accepted only by way of provisional performance. Unless agreed otherwise in express terms, payment shall be made in Euro by bank transfer.

5.5.
The CLIENT shall be entitled to set-off and/or retention only on the basis of uncontested counterclaims or counterclaims affirmed by declaratory judgment.

5.6.
Unless agreed in writing otherwise, title to the objects to be delivered shall remain reserved until all present and future payment claims of the CONTRACTOR under the agreement and any ongoing business relationship have been fulfilled to full extent. The transfer of rights and/or granting of rights of use shall be subject to full payment of the remuneration as a condition precedent.

 

6. CONTRACTOR’s Liability, Limitation

6.1.
In the event of willful or gross negligence, as well as in the event of negligent injury to life, limb, or body, the CONTRACTOR shall have unlimited liability for all damages caused thereby, unless the law provides otherwise.

6.2.
In the event of gross negligence on the part of non-executive employees, the CONTRACTOR’s liability with respect to property damage and financial loss shall be limited to the foreseeable damages typical of the agreement. This shall not apply to a breach of substantial contractual obligations. Substantial contractual obligations are obligations the performance of which renders the proper execution of the agreement feasible in the first place, the breach of which jeopardizes the attainment of the contractual purpose, and on the compliance with which the contracting parties may regularly rely.

6.3.
In the event of minor negligence, the CONTRACTOR’s liability in connection with property damage and financial losses shall be limited to the foreseeable damages typical of the agreement, but only where a breach of a substantial contractual obligation is concerned. This shall also apply to lost profits and forgone savings.

6.4.
In case of loss of data, the CONTRACTOR’s liability for damages shall be limited to the expenses and effort that would be necessary for the recovery of the lost data assuming that the CLIENT had properly and regularly stored data backups of the affected data. Aforesaid limitation of liability shall not apply where and insofar as the PARTIES, by concluding a corresponding individual agreement, have made the proper and regular storage of data backups part of CONTRACTOR’s contractually agreed service performance obligation.

6.5.
The CONTRACTOR’s strict liability for damages under Section 536a BGB (German Civil Code) for defects at the time that the agreement is entered into shall be excluded.

6.6.
Further liability for damages – without regard to the legal nature of the claim asserted – shall be excluded. This shall apply particularly to tortious acts pursuant to Sections 823, 831 BGB.

6.7.
However, any unlimited liability of the CONTRACTOR under the provisions of the German Product Liability Act or due to fraudulent intent, absence of a warranted quality, acceptance of guarantee, or due to any mandatory statutory provisions shall remain unaffected.

6.8.
The limitation period for warranty claims for defects, including damages, shall be one year, unless mandatory law prescribes a longer limitation period. For damages not based on defects, only the statutory limitation periods shall apply. The mandatory limitation periods under the German Product Liability Act, however, shall remain unaffected at any rate.

 

7. Force Majeure, Withdrawal, Termination, and Cooperation

7.1.
In the event of force majeure, none of the parties is obligated to perform the contractual obligations for the duration of such force majeure. Examples of force majeure include, in particular, riots, fire, loss of electricity, storm damage, strike and lockouts, damage caused by construction, technical problems with the Internet beyond the control of the respective party, and other circumstances for which the respective party is not responsible. Each party shall notify the other party in writing of an occurrence of force majeure without undue delay.

7.2.
The right of the parties to terminate without notice for just cause shall remain unaffected in any case. In particular, the CONTRACTOR may terminate the agreement without notice on substantial grounds if the CLIENT (in the event of a continuing obligation) is in arrears on the payment of the remuneration, or a substantial portion thereof, during two consecutive months or over a period of more than two months during which the CLIENT is in arrears on the payment of an amount that is equivalent to payment of the remuneration for two months.

7.3.
The CLIENT’s withdrawal from the agreement and/or cancellation shall be excluded subject to an express provision in the GENERAL TERMS OF AGREEMENT of movingimage EVP GmbH, other individual contractual agreements, and mandatory statutory grounds for withdrawal. Should the CONTRACTOR agree to a request for withdrawal in exceptional circumstances, the CLIENT shall pay the CONTRACTOR a cancellation fee of 30 percent in connection with a request for withdrawal submitted up to four weeks prior to the scheduled commencement of services. If the CLIENT’s request for withdrawal is submitted after such date, the CLIENT shall pay the full contractual remuneration. The CLIENT shall be entitled to demonstrate greater savings in terms of expenditure or reduced services on the part of the CONTRACTOR.

7.4.
The CLIENT shall provide to the CONTRACTOR all information and indications that are necessary for performing the contractually agreed services.

7.5.
Insofar as the object of the performance of services by the CONTRACTOR involves the transfer of use and/or provision of software (‘CONTRACTOR SOFTWARE’), the CLIENT shall create, set up and maintain on its computing systems of its operations a secure and functioning hardware and software environment for the duration of the installation and use of the CONTRACTOR SOFTWARE that complies with the requirements agreed with the CONTRACTOR (particularly the contractually agreed system requirements), so that neither the security and integrity nor the availability of the CONTRACTOR SOFTWARE is impaired. The CLIENT further undertakes not to install any such software and/or uninstall from the computing systems of its operations such software as impairs the functionality of the CONTRACTOR SOFTWARE or as, in combination with the CONTRACTOR SOFTWARE, results in the impairment of or damage to other software used or installed by the CLIENT or stored data. Furthermore, the CLIENT shall regularly implement all reasonable state-of-the-art measures to secure its data and computing systems, particularly regular data backups as well as the installation and maintenance of sufficiently current software to protect against viruses and other malware.

7.6.
Where the performance of services owed under the agreement requires the cooperation of the CLIENT, the CONTRACTOR shall initially attempt to arrange a time and/or period of cooperation with the CLIENT. Such date or period shall be so far ahead of the date of the CONTRACTOR’s performance that the CONTRACTOR can render its services in a timely manner. If an agreement on such time or period of cooperation is not reached in a timely manner, or at any rate not within four weeks of the parties’ entering into the agreement, for reasons for which the CONTRACTOR is not responsible, the CONTRACTOR shall propose to the CLIENT three dates, requesting that the CLIENT accept one of the proposed dates within an appropriate period of no more than two weeks, and informing the CLIENT that the CONTRACTOR will terminate the agreement if the CLIENT fails to accept such date within the above period of time. If the CLIENT does not accept any of the proposed dates within the period, it will be deemed a breach of agreement on the part of the CLIENT. Upon expiry of such period, the agreement, pursuant to Section 643 Sentence 2 BGB (German Civil Code), shall be deemed cancelled, allowing the CONTRACTOR to demand the agreed remuneration, while setting off expenses that the CONTRACTOR saves and/or acquires pursuant to Section 649 Sentence 2 BGB.

7.7.
The CLIENT shall report in writing to the CONTRACTOR any defects or problems in the contractual services of the CONTRACTOR without undue delay.

7.8.
If the CLIENT fails to comply with its contractual or statutory obligations of cooperation, or if the CLIENT fails to report, without undue delay, defects or problems in the contractual services of the CONTRACTOR in contravention of its obligation under the above Clause 7.7 of these GTC for reasons for which it is responsible, such failure will be deemed contributory causation and/or negligence. Where the CONTRACTOR was unable to remedy the situation due to the CLIENT’s breach of its obligation to cooperate or due to the CLIENT’s omission or delay in reporting defects or problems, the CLIENT shall not be entitled to a full or partial reduction of the remuneration and/or compensation for damages caused by the defect, nor may the CLIENT terminate the agreement without notice for just cause as a result of the defect. The CLIENT shall explain that it is not responsible for the failure to notify the CONTRACTOR of the defect and/or for the failure to take the measures that the CLIENT is required to take to comply with its respective obligation to cooperate.

 

 

8. Rights of Use and Exemption

8.1.
Rights and/or rights of use will be assigned and/or granted to the CLIENT by the CONTRACTOR, if at all, only to such extent as is necessary to execute the agreement. The CLIENT acknowledges that it does not acquire any rights of its own from the temporary use of trademarks or attributes of the CONTRACTOR. The CLIENT shall not modify or remove trademarks or attributes that the CONTRACTOR uses in connection with the execution of the agreement.

8.2.
Where for the purposes of the execution of the agreement the CLIENT uses or introduces own or external materials, contributions, data or other content, such as, in particular, videos, graphics, logos, texts, music, etc. (hereinafter also ‘CONTENT’), which at any rate have not been supplied by the CONTRACTOR, the CLIENT shall indemnify and hold the CONTRACTOR harmless from any and all indirect and direct damages, claims, costs (including costs of an appropriate legal defense), expenditure, and other disadvantages that may arise for the CONTRACTOR as a result of the fact that a third party asserts any claims against the CONTRACTOR due to the actual or alleged infringement of third-party rights or a violation of statutory provisions in connection with the use of the services, particularly the dissemination of CONTENT (such claims hereinafter also ‘THIRD-PARTY CLAIMS’). The CLIENT shall assist the CONTRACTOR in any and all judicial and extra-judicial assertion of THIRD-PARTY CLAIMS, and shall provide the CONTRACTOR, if and when so requested, with all data, documents, and other materials that the CONTRACTOR deems necessary or helpful in the context of defending against THIRD-PARTY CLAIMS without undue delay. Moreover, in the event of justified THIRD-PARTY CLAIMS, the CONTRACTOR shall be entitled to withdraw from the agreement or to terminate the agreement without notice for just cause.

 

9. Consent to Being Named as Reference Customer

9.1.
The CLIENT shall give its express consent to the CONTRACTOR’s referring in its business transactions, for reference, marketing, and advertising purposes, to its existing business relationship with the CLIENT in information and advertising materials in electronic or text format (particularly on the CONTRACTOR’s website, in product sheets, presentations, and other advertising and production information materials), naming the CLIENT as one of its customers and using, particularly duplicating and disseminating, exclusively for this purpose also logos or trademarks of the CLIENT for an unlimited period of time and free of charge. Such consent shall apply only on condition that the use of logos and trademarks of the CLIENT does not result in the risk of confusion or dilution or the unfair taking advantage of a reputation with respect to the logos and trademarks of the CLIENT.
The CLIENT agrees that the CONTRACTOR may use the technical solution which have been installed for the CLIENT – whether it is a Cloud-based SaaS solution or an One-premise-solution – as a case study in information and advertising materials for new customers. Upon express demand of CLIENT, the description of the technical solution will be shown without any reference to CLIENT.

9.2.
The CLIENT may demand that the corresponding information and advertising materials be submitted to it for approval prior to their use by the CONTRACTOR. Furthermore, the CLIENT may revoke, with future effect, the consent given under the above Clause 9.1 of these GTC at any time, in full or in part, for individual or all information and advertising materials, or in respect of a specific representation of the logos or trademarks of the CLIENT. Insofar as the CLIENT revokes its consent to the CONTRACTOR, the CONTRACTOR shall destroy and/or irretrievably delete the information and advertising materials affected by the revocation and shall provide the CLIENT with written confirmation of such destruction and/or deletion.

 

10. Other Provisions

10.1.
The CLIENT may transfer to a third party rights and obligations under or in connection with the GENERAL TERMS OF AGREEMENT of movingimage EVP GmbH, including these GTC and/or agreements

10.2.
Legally relevant declarations and notifications to be submitted to the CONTRACTOR by the CLIENT upon entering into the agreement (such as setting of deadlines, notices of defects, rescission notices, or reduction) shall be made in writing to become effective.

10.3.
Changes and additions to the GENERAL TERMS OF AGREEMENT of movingimage EVP GmbH, including these GTC or agreements subject to these, shall be made in writing where and insofar as no stricter form is prescribed by applicable mandatory law. This shall also apply to changing or waiving this provision regarding the written form. The provisions of Clause 10.4 below of these GTC shall remain unaffected.

10.4.
The CONTRACTOR may modify the content of the GENERAL TERMS OF AGREEMENT of movingimage EVP GmbH, including these GTC, with the consent of the CLIENT where such change is considered reasonable from the CLIENT’s point of view and in consideration of the CONTRACTOR’s interests. The consent to such change shall be deemed given if the CLIENT fails to object to the change within four weeks of receipt of the notice of change. The CONTRACTOR undertakes to include in the notice of change instructions for the CLIENT about the consequences of failure to object.

10.5.
Unless the GENERAL TERMS OF AGREEMENT of movingimage EVP GmbH, including these GTC, provide otherwise in express terms and where and insofar as no stricter form is prescribed by applicable mandatory law, the requirement of written form under the GENERAL TERMS OF AGREEMENT of movingimage EVP GmbH, including these GTC, shall be met by sending and receiving documents signed in manuscript by fax or scanned by e-mail. Electronic declarations shall also satisfy the requirement of written form under the GENERAL TERMS OF AGREEMENT of movingimage EVP GmbH, including these GTC, if the receipt and content of such declarations is mutually confirmed electronically.

10.6.
If the CLIENT is an entrepreneur, the GENERAL TERMS OF AGREEMENT of movingimage EVP GmbH, including these GTC, and agreements subject to these, including all legal disputes about or in connection with the conclusion, effectiveness, and execution thereof, shall be governed exclusively by the substantive law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980.

10.7.
If the CLIENT is an entrepreneur, the venue of exclusive – and also international – jurisdiction for all disputes arising from or in connection with the GENERAL TERMS OF AGREEMENT of movingimage EVP GmbH, including these GTC, or agreements subject to these, including all legal disputes about or in connection with the conclusion, effectiveness, and execution thereof, shall be Berlin, Germany. The CONTRACTOR may bring legal action also before any other legally competent court of law.

10.8.
Should a provision of the GENERAL TERMS OF AGREEMENT of movingimage EVP GmbH or agreements subject to these be or become ineffective or unenforceable, the remaining provisions thereof shall in no way be affected. In the event, the parties agree to replace such ineffective or unenforceable provision(s) with enforceable and effective provisions that shall come as close as possible to the economic purpose of the provision(s) to be replaced. The above provision shall apply accordingly to unintended omissions or gaps.

10.9.
In any case of doubt, conflicting or contradicting provisions in the German language version (“Allgemeine Geschäftsbedingungen der movingimage EVP GmbH”) and this English language version of the “General Terms and Conditions movingimage EVP GmbH”, the provisions contained in the German language version shall prevail.

Last update: 27 August 2018

movingimage EVP GmbH
Stralauer Allee 7
10245 Berlin