The firm „mediadefine GmbH“ will be labelled in short form as „mediadefine“ in the following. The party concluding a contract with mediadefine will be labelled as contracting party and customer respectively.
mediadefine renders all deliveries and services exclusively on the basis of these terms and conditions. The following general terms and conditions are part of all contracts between mediadefine and the contracting parties. The general terms and conditions can be called up freely on the internet under http://www.mediadefine.com or http://www.mediadefine.net or http://www.mediadefine.de. The general terms and conditions can if necessary be supplemented and concretised by product additional terms and conditions of mediadefine.
§2 Basis of contract
A contract over delivery or service and the utilisation of services of mediadefine comes about with the countersignature of a treaty between mediadefine and the contracting party or an assignment by the contracting party and the acceptance of order, delivery or the following implementation of the order by mediadefine.
§3 Deliveries and services
1. mediadefine develops and distributes solutions – products, services and ASP services – especially in the enterprise areas consultancy and enterprise management, software, IT, communication, media design and production.
2. The service content, scope of services and the prices of mediadefine and it’s solutions arise from the service descriptions and price lists of products and services and/or from an offering as well as the contractual agreements referring to this. Service descriptions can be requested from mediadefine.
3. mediadefine basically guarantees an accessibility of 97% on average for it’s ASP services.
4. mediadefine reserves the right to extend, change and improve services which are standardised. mediadefine furthermore is entitled to diminish the services of ASP services.
5. Services and merits potentially offered gratis can be ceased anytime and without advanced notices. A diminution, refund or claim for damages does not derive from this.
6. Individual agreements which differ from the standardised service descriptions need to be written down and become operate when mediadefine countersigns them.
7. mediadefine reserves the right to reject assignments or single assignment positions anytime without giving reasons.
8. mediadefine is entitled to render part-deliveries and part-services anytime unless the contracting party proves that the part-delivery or part-service is not sufficient for the provision of the contractual agreed utilisation or of a part of the contractual utilisation of the matter.
9. When the deliveries take place the peril skips to the contracting party as soon as the mailing is handed to the person implementing the transport or has left the office premises of mediadefine for the purpose of shipment. In case the shipment is not possible without fault of mediadefine, the peril skips to the contracting party with the announcement of the supply readiness.
Contracting parties of mediadefine are bound to:
1. pay their contractually agreed services and payments respectively plus the goods and services taxes accounting for it in due time.
2. communicate potential defects and defaults (fault report) immediately and take all measures which enable an identification of defects or damages and their causes or ease and accelerate the abolition of defaults. Furthermore, the contracting party is bound to compensate the expenditures originated from the check after the cession of a fault report as far as the check shows that the defects and defaults respectively were caused by the contracting party.
3. enable mediadefine to access his infrastructure when this is necessary for the service provision, especially the utilisation of ASP services, and the contracting party cannot handle it on his own.
4. not misuse the access possibilities to ASP services and especially refrain from illegal actions.
5. ensure the fulfilment of statutory provisions and licensing requirements as well as care for the issue of official permits as far as they are or will be necessary now or in the future for the attendance at the service necessary.
6. to allow for the accepted principles of the data security especially keep passwords a secret and change them or have them changed respectively at once if there is the assumption that unauthorised third persons got to know them.
7. announce changes in their company master data, belonging address data, appropriate contact persons and potential bank data of direct debit mandates.
§5 Disposal, further leasing and utilisation
1. A direct or indirect disposal or utilisation of merits and services of mediadefine by a third party is only allowed with a previous written approval by mediadefine.
2. If the utilisation by third parties is permitted, the contracting party has to introduce them correctly into the utilisation. If the utilisation by third parties is not allowed, no claim for diminution, refund or damages derives from it.
3. The contracting party also has to pay the reward, which came into existence by third parties´s permitted or disapproved utilisation of the service in the scope of the provided access and utilisation possibilities.
§6 Contract period and cancellation
1. In contracts without a minimum contract period the contractual relationship can be cancelled by both contracting parties with a term of four weeks to the end of the quarter.
2. In contracts with a minimum period of twelve months or longer the contractual relationship can be cancelled earliest to the expiration of the minimum contract period. The cancellation has to be received by mediadefine six months before it is supposed to become operative.
3. If a contract with a minimum contract period is not cancelled, it extends itself for further twelve months automatically.
4. mediadefine is entitled to cancel the contractual relationship without keeping to a term when
a. the contracting party offends against the general terms and conditions especially against the duties in §4.
b. at every change in the person of the contracting party caused by succession or another universal succession.
c. at trading companies, communities of heirs, clubs, civil law associations, or communities of contracting parties when persons appear or retire which are incapable of holding rights.
d. every change in the name of the user or the indication under which he is mentioned in the enterprise documents of mediadefine.
e. there is an essential change in the holder or management relations of the other party and a detraction of the interests of mediadefine is to be dreaded from this.
f. when insolvency proceedings or composition proceedings or a comparable proceeding is opened on the capital of the contracting party or the claim for such a proceeding is denied because of a lack of matter.
5. The right of an exceeding cancellation because of an important reason is reserved to mediadefine.
6. Every contract cancellation requires the written form.
7. If the cancellation explanation is transmitted as certified mail, it counts as received, too, when the delivery attempt was effectless and a transmission note has been left for the receiver or when it took place as certified mail put into the post box.
§7 Liability and limitation of liability
1. In the greatest, by the German right permitted scope mediadefine refuses any liability for any damages or consequential damages.
2. Claims for damages because of impossibility of the service, guilt in the contract conclusion and disapproved action are excluded both towards mediadefine and towards the relationship to its auxiliary persons as far as there is no intentional or gross careless action.
3. mediadefine is not liable for the information transmitted via the services, namely neither for their completeness, correctness or up-to-dateness nor that they are free of third parties´s rights nor that the transmission of this information is illegal.
4. When there is a blackout in the services because of defaults beyond the range of mediadefine´s responsibility no refund of services takes place. Delays in deliveries and services and blackouts because of acts of God and because of occurrences which exacerbate the merit of mediadefine essentially – to them do especially acts of God, terror acts, war, fault of third parties, strike, lockout, official directives, the breakdown of communication networks and communication nodes to other communication networks carriers, dysfunctions in the area of telecommunication carriers or their subcontractors belong – mediadefine does not deputise in bindingly agreed terms and appointments. These entitle mediadefine to postpone the service and delivery for the duration of the encumbrance plus an adequate start time. Downtimes will only be compensated if mediadefine or one of its auxiliary persons is responsible for the mistake or causes it at least carelessly and the period of downtime ranges over more than three workdays.
5. The contracting party can only charge up with undoubted or valid ascertained claims against claims of mediadefine. The contracting party is only entitled to assertion of a lien because of counterclaims from this contract.
6. Unless other clauses in this terms and conditions exclude a liability, it is limited to an amount of EUR 400.00 at damages which emerge from the availment of services, from the transmission and storage of data or because the necessary storage or transmission of data by mediadefine did not take place unless there is no intention or gross carelessness on hand.
7. Contracting parties of mediadefine are liable for all consequences and disadvantages which might emerge for mediadefine from the abusive or illegal use of a service or from the contracting party not fulfilling its other commitments.
8. The contracting party is solely liable when rights, especially copyrights of third parties, are violated by the fulfilment of his assignment. The contracting party implicitly releases mediadefine from all claims of third parties because of such a violation of rights.
§8 Copyright & Retention of title
1. All ownerships and copyrights remain reserved.
2. mediadefine and content2project are registered brands of mediadefine GmbH. The contracting party receives no copyrights and source codes in the content2project solutions (products, services, ASP services), brands, patents, design patents, Corporate Identity, Corporate Design or other solutions of mediadefine. Any utilisation of brands, patents, design patents, Corporate Identity, Corporate Design by the contracting party is forbidden.
3. The right of use in project results and conceptions can only be assigned to third parties with approval of mediadefine. The approval can already be agreed explicitly or impliedly in a contract in which the implementation of the particular project is agreed on.
4. If the development of material and immaterial assets especially conceptions, software and ASP services is owed, the contracting party will only receive the absolute and exclusive right of use and disposal for the whole result of the works implemented by mediadefine when this is explicitly agreed. The disposal of source codes only takes place if this was agreed explicitly.
5. The right of use in one of the assets developed by mediadefine especially conceptions and software contains the utilisation and duplication in the scope of the agreement with the contracting party. The contracting party may not access them to third parties neither in parts nor as a whole.
6. Conceptions and designs – also in the scope of presentations and announcements – underlie the copyright and other rights for the protection of intellectual property. Their utilisation is strictly forbidden until the contract is signed.
7. If it is aberrantly agreed that the right of use for software can be assigned to a third party, all copies have to carry the original annotation as well as all other protection annotations.
8. In case that claims because of a patents´s violation or another exclusiveness claim are asserted in coherence with the particular subject of the contract, the contracting party is obliged to inform mediadefine about this immediately. The contracting party will not take any essential process action without a written approval by mediadefine and leave the defence against such claims especially the conduct of the case inclusive a composition conclusion on demand to mediadefine.
9. If the utilisation of the subject of the contract or of parts of it is forbidden by a decree or, in mediadefine´s judgement, a claim is threatening because of a violation of protection rights, mediadefine has the choice between the following measures:
- change the subject of the contract that way that it no longer violates any protection rights,
- redress the contracting party to go on using the subject of the contract,
- replace the subject of the contract by one which does not violate any protection rights and which either accords the requirements of the contracting party or is equivalent to the replaced subject of the contract.
- cancel the subject of the contract and compensate the paid reward minus an adequate amount fort he utilisation and the obsolescence to the contracting party.
10. The preceding commitment is omitted for such subjects of the contract in which the violation protection rights is based upon a concept coming from the contracting party or the subject of the contract being changed by the contracting party or being operated with subjects of a contract not delivered by mediadefine.
§9 Payment, Suspension, Retention of title
1. Rewards for services have to be paid immediately after the provision of the service and become due with the admission of the bill.
2. Unless the contracting party takes part in the debit advice procedure, the invoice amount has to be credited at the latest on the seventh day after the sending of the bill on the account given in the bill.
3. Regular rates like rents from ASP services have to be paid particularly in full amount beginning with the first day of the rent unit and become due with the admission of the bill immediately. Regularly, one rent unit amounts six months.
4. Until the full payment of a service is made, mediadefine reserves the property of the service rendered and/or the right of use in its service until the full payment of the invoice amount is made. The pledge or security interest by the contracting party is forbidden. If the (co-)ownership of mediadefine expires by alliance or disposal, it is considered to be agreed that the claims of the contracting party resulting from this devolve to mediadefine – in an alliance in accordance with the value percentage. mediadefine is entitled to insure the delivery item against theft, breakage, fire loss, water damage and other damages on the contracting party’s costs unless the contracting party has demonstrably effected insurance himself. The contracting party has to inform mediadefine immediately about pledges as well as confiscation or other decrees of third parties.
5. If the contracting party maintains that the services invoiced to him especially in ASP services he has to account for have not been caused by him or a third party, he has to prove this coherently and legally acceptably.
6. The contracting parties of mediadefine agree to receive documents in correspondence like confirmations, bills, payment reminders and repeated reminders in digital form and to disclaim the classical paper form.
7. In a default of payment by the contracting party mediadefine bills overdue fines. If the reminder is communicated as certified mail, it is considered as received, too, when the delivery attempt has been effectless and a note has been left for the receiver or when it took place as an opening certified mail. The costs for the dunning process will be paid by the contracting party.
8. In a default of payment mediadefine is entitled to collect the delivery item after an unsuccessful reminder. The contracting party is bound to release it.
9. In a default of payment by the contracting party mediadefine is entitled to take adequate measures to avoid further emerging costs for mediadefine or the contracting party (among others cessation of services especially ASP services, blocking of accesses). In this case the contracting party remains bound to pay the due rewards.
10. In a default of payment by the contracting party mediadefine furthermore is entitled to bill interests of an amount of 3% higher than the particular base lending rate of the European Central Bank from the date of the maturity onwards, unless mediadefine proves a higher interest burden and a higher risk adjusted interest burden arises because of creditworthiness disclosures about service providers respectively. 11. If the contracting party is behind schedule for more than two sequent months with the payment of the rewards and a not irrelevant part of the reward respectively, mediadefine can cancel the contractual relationship without keeping to any terms.
12. If the fulfilment of the pecuniary claim is endangered by solvency difficulties of the contracting party after the conclusion of the contract, mediadefine can demand a prepayment or an immediate payment of all open and not due bills, too. Not yet delivered services can be retained and the further work at still current assignments can be ceased.
13. The assertion of further claims because of a default of payment is reserved to mediadefine.
§10 Secrecy, Privacy
1. If there is not another agreement made explicitly in written form, the information submitted to mediadefine are considered to be not confidential.
2. The contracting party herewith is informed according to §33 paragraph 1 of the Federal Data Protection Act as well as §4 of the teleservice data protection decree that mediadefine memorises his address in machine-readable form and machinably converts it for tasks which derive from the contract.
3. mediadefine is entitled to disclose contracting party data which are necessary for the securing of the operation as far as mediadefine uses third parties for the provision of the offered services.
4. mediadefine accounts for all persons who are involved in the processing knowing the relevant data protection determinations and keeping to them. The contracting party on his part is not entitled to enforce information which is not determined for him or third parties with the means of the services rendered by mediadefine for him or third parties.
5. As far as this is intended in the internationally accepted standards and the contracting party does not contradict, information about him will be accessed for third parties.
§11 Other determinations
1. These general terms and conditions serve as base for any contract conclusions with mediadefine. They count for all future business connections, too, even if they are not explicitly agreed again.
2. With the first countersignature of a contract, acceptation of a service or merit or the payment of a bill these determinations are considered to be accepted.
3. Two-way determinations of contracting parties with hint to his business terms or other determinations are herewith contradicted.
4. Any aberrating agreements need to be written down. Additional agreements have not been made. Any additions to the contracts need to be written down and signed by mediadefine and the contracting party for their effectiveness.
5. If a point which has to be ruled is not included in the wording between mediadefine and the contracting party, the legal requirements of §§84 ff. HGB and the principles developed by the jurisdiction count respectively.
6. The inanity of a prescription of these general terms and conditions and/or a contract does not lead to the inanity of these general terms and conditions and/or the particular contract. The inane prescription has to be replaced by an agreement which comes the closest to the contract’s purpose and the will of the parties.
7. The limitation period for all claims from contracts towards mediadefine amounts six months. The deadline begins with the maturity of the claim and with getting to know about the claim emergence respectively.
§ 12 Place of fulfilment
Place of fulfilment for all deliveries and services of mediadefine as well as for all payment obligations of the contracting party is the domicile of mediadefine.
§ 13 Jurisdiction
Jurisdiction for all contracts concluded on the base of these terms and conditions, for all claims and litigation deriving from the contractual relationship inclusive changing and summary procedures is Essen (in the federal state North Rhine-Westphalia of the Federal Republic of Germany in the European Union).
§ 14 Applicable right
All contracts are subordinated to the legal right of the Federal Republic of Germany. The application of the United Nations´ agreement about contracts in the international sale of goods is excluded.