(1) All offers by meta-fusion GmbH (hereinafter also referred to as “we”/”us” or Contractor) are made on the basis of the following general terms and conditions. They form the basis for all offers and agreements and are considered to be accepted for the duration of the entire business relationship as a result of the order being placed; they replace any previous versions of our terms and conditions. Deviating conditions of the Customer that we have not expressly accepted in writing will not form part of the contract even if we have not expressly objected to them.
(2) No oral side agreements outside this contract have been made.
(3) We offer our performance exclusively to entrepreneurs as defined in § 14 BGB [German Civil Code] and reserve the right to demand corresponding evidence.
(1) Within the framework of this contract – except to the extent agreed otherwise in writing in the offer - we provide services (within the meaning of §§ 611 ff. BGB) to the Customer and support the Customer in the creation of online-based media productions and concepts. Details of the performance are set out in our performance offer. Realisation of the productions requires the Customer's authorisation.
(2) The performance may in particular also include the storage of and/or provision of access to content and/or software.
(3) To the extent that, in the course of our performance for the Customer, we create works or parts thereof eligible for copyright protection, we or the natural individuals engaged by us in the course of the development are entitled to be named as the author. Upon consultation with the Customer we are entitled to attach a copyright notice in a way and using a design that is customary in the market.
(1) The agreed prices are exhaustive for the performance that is respectively bindingly contained in the offer and also include in particular the granting of any rights of use to the production.
(2) The Customer can only offset or exercise a right of retention against our claims if
a) their counter-claim is undisputed,
b) a legal title (e.g. final judgment) on the counter-claim exists, or
c) the counter-claim is in a synallagmatic relationship with the respective claim affected, i.e. if the counter-claim presents the precise contractual counter-performance to the claim with which it is to be offset.
(3) Except to the extent expressly agreed otherwise in the offer, Payments must be made within seven days of the invoice date without deductions. If the contractual partner is in default of payment, we are entitled to declare all claims to be due and payable. Financial claims due shall incur interest at 9 percentage points above the base interest rate. We reserve the right to raise further claims for damages. For the rest, the statutory provisions apply.
(1) Communicated performance periods are non-binding estimates, unless binding nature was agreed in writing.
(2) Force majeure and events that through no fault of their own temporarily prevent a party from complying with their obligations pursuant to this contract, entitle that party to delay the delivery or performance for the duration of the impediment in addition to a suitable start-up period.
(3) To the extent the performance also includes the storage of and/or provision of access to content and/or software, and unless expressly agreed otherwise in the offer, the term of such a storage/provision of access is 1 year from the last day of the event; it is extended automatically by a further year respectively, unless one of the parties objects in writing to such an extension at least 4 weeks before the end of the term.
(1) The Customer is obligated to fulfil the participation obligations required of them in accordance with the law and the contractual agreements (in particular the general production requirements enclosed with the offer). Our performance obligations only arise if and to the extent that the Customer has fully complied with their participation obligations.
(2) We will inform the Customer upon request at all times on the state of the services and provide information.
(3) To the extent the performance also includes the storage of and/or provision of access to content and/or software and unless expressly agreed otherwise in the offer, our performance is limited to the production of content and the granting of utilisation possibilities. Backup services are not a component of our general productions and are listed and ordered separately in the offers. Generally, the Customer should therefore ensure suitable backup of the contents themselves.
We are entitled to engage sub-contractors for the provision of our performance even without the express agreement of the Customer.
(1) To the extent the provision of works (within the meaning of §§ 632 ff. BGB) is expressly agreed in an offer, acceptance will take place promptly following the event, at the latest however three days after the work has been supplied or the event has ended, depending on which occurs earlier. Partial acceptances are possible if expressly agreed. Acceptance may not be refused due to insignificant defects.
(2) A written record of the acceptance of the performance to be provided is only made if expressly agreed in writing.
(3) Acceptance is considered to have been granted if it is not refused in writing for justified reasons within the period stated above.
(1) To the extent an offer expressly concerns the provision of a performance in accordance with the law on contracts to produce a work (§§ 632 ff. BGB) or lease contracts (§§ 535 ff. BGB), we warrant that our deliveries and performance bear the characteristics exhaustively agreed in the offer. Upon request by the Customer, we will remove defects concerning the deliveries and performance within a suitable time period that enables us to make at least three attempts, at our discretion either through replacement or correction of the defects. If the subsequent performance ultimately fails, the Customer can reduce the agreed remuneration in accordance with the reduced usefulness of the delivery/performance, or, if the delivery/performance is not economically usable by them rescind the contract (in the case of a performance to be provided at a particular point in time), or terminate the contract (in the case of a performance to be provided over a certain period of time) and demand compensation in accordance with the limitation of liability agreed below. There are no further warranty rights. In particular, the no-fault liability for initial defects of a rental item (§ 536a sec. 1, 1. Alt. BGB) is excluded.
(2) The warranty does not include damages and/or disruptions caused as a result of the Customer culpably violating the provisions of this contract, in particular their duties of participation (in particular the general production conditions attached to the offer). Upon request, we will however support the Customer to the best of our ability in finding and removing the respective defect. The detailed procedure is to be mutually agreed.
(3) The warranty period is 12 months. It begins at the end of the event and/or, if applicable, upon acceptance of the performance. To the extent the service contains the storage of or provision of access to content or software for a limited period of time, the warranty is limited to the term of the respective agreement.
We are exhaustively liable for damages within the framework of this contract as follows:
(1) Our liability in the case of intent and gross negligence as well as for damages to life, limb and health, in case we have granted a guarantee (expressly to be identified as such), and in the case of mandatory statutory liability, in particular pursuant to the German Product Liability Act, is unlimited.
(2) In all cases not covered by item (1) above, we are liable in the case of slight negligence only where a significant contractual obligation has been violated (“Cardinal Obligation”), and then only limited to damage typical for the contract and foreseeable at the time of the contract. A Cardinal Obligation for the purpose of these terms and conditions is an obligation that must be fulfilled for the purpose of the contract to be reached and on the fulfilment of which the other party may therefore generally rely.
(3) In other respects we are not liable for slight negligence.
(4) Unless a data backup was expressly agreed in the offer, the Customer is responsible for the suitable, regular backup of their data (see § 5 (3)). If we are liable for a loss of data in accordance with the above, the liability is limited to the sum that would be required for the restoration of the data had such adequate, regular backups been made.
(5) These limitations of liability also apply for the benefit of the officers, legal representatives, employees, freelance staff, representatives, performing and vicarious agents of the Contractor and their sub-contractors.
(1) Both parties, including all employees and third parties involved in the project who have access to information regarding the other contractual party and/or the contractual performance, mutually undertake to treat all such information with complete confidentiality towards third parties not involved in the project and to protect this confidentiality without reservation. This does not apply to information that is generally accessible, is published by the other contractual party itself or has been made known by a third party. The burden of proof for such an exception is borne by the party that relies on the exception.
(2) The Customer grants the Contractor the rights required for the provision of the performance to any content of the Customer that has copyright protection (in particular video and/or audio material, video and/or audio signals and contents of the event).
To clarify: The Contractor is in particular entitled, to the extent required for the provision of the performance, to reproduce, process, circulate, make publicly accessible, perform publicly, transmit, distribute and use these contents and adaptations in whole or in part.
(3) The Customer ensures that they are able to grant the rights stated in item (2) above effectively and that no third parties’ rights are violated as a result of the performance to be provided and that, where applicable, necessary authorisations are obtained prior to the provision of the performance; Customer releases the Contractor from all claims, damages and costs (including appropriate legal fees) incurred by the Contractor as a result of third parties raising a claim for violation of their rights due to the performance to be provided. The Contractor reserves the right to demand suitable evidence, in particular filming permits or consent declarations of the acting individuals and to withhold performance for as long as such evidence considered necessary by the Contractor in its equitable discretion has not been provided.
(4) The parties are mutually obligated to inform each other in writing immediately if claims for violation of copyrights or personality rights in connection with the deliveries and performance that are the subject matter of the contract are raised against them.
(1) Both contractual parties are entitled to extraordinary termination if
one of the contractual parties cannot reasonably be expected to adhere to the contract due to serious or multiple breaches by the other party,
the relevant contractual breaches have been raised in writing in a warning notice at least once, with a deadline being set and
the contractual breach persists regardless or is repeated.
(2) A serious contractual breach also exists if insolvency proceedings are applied for regarding the other contractual party's assets and are not rejected within four weeks due to being unfounded, and if insolvency proceedings are opened or are rejected due to a lack of assets.
The Customer is only permitted to transfer the rights and obligations arising from this contract to a third party with our prior written agreement.
After the fulfilment or premature termination of the contract, both parties will immediately return all items they received that were not expressly assigned and hand over all information and/or partial performance that is technically, commercially and legally relevant for the respective other contractual party, providing they were also entitled to this during the period of validity of the contract, or if this entitlement was created when the contract ended. The protective and warning obligations must also be observed once the contract has ended. Data archived electronically or as hard copy and information provided by the other contractual party must, at their discretion, either be destroyed or handed over, unless the transfer is expressly an object of the contract.
(1) This contract is subject to German law, excluding the CISG.
(2) The place of fulfilment is - unless agreed otherwise - the location of our head office.
(3) Where the Customer is a merchant pursuant to the HGB (German Commercial Code), a legal entity under public law or a special fund under public law, or if the Customer does not have a place of jurisdiction in Germany, the place of jurisdiction is the location of our head office (Cologne). We are however also entitled to bring legal action against the Customer at their local court.
Version: October 2015