The firm “mediadefine GmbH“ will be labelled as „mediadefine“ in short form 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 basis of these terms and conditions. The following general terms and conditions are part of all contracts concluded between the business partners and mediadefine. The general terms and conditions are freely accessible on the internet under http://www.mediadefine.com or http://www.mediadefine.net or http://www.mediadefine.de. The mediadefine can as the case may be complete or concretise the general terms and conditions by product adding terms and conditions.
§2 Basis of contract
A contract about delivering and service and the utilisation of mediadefine´s services is accomplished with the countersignature of a contract between mediadefine and the contracting party or an assignment by the contracting party and the acceptance of order, deliverance or the following accomplishment of the order by mediadefine.
§3 Deliverances and services
1. mediadefine develops and sells solutions – products, services and ASP-services- particularly in the business areas management consultancy and entrepreneurial management, software, IT, communication, media design and media production.
2. The service description, scope of services and the prices of mediadefine and its solutions result from service descriptions and price lists of the products and services and/or from an offer as well as the agreements in the contract referring to this matter. Service descriptions can be required from mediadefine.
3. mediadefine basically provides an accessibility of 97 % annual average for its ASP-services.
4. mediadefine reserves the right to extend standardised services, change them and improve them. mediadefine is entitled to reduce the accomplishments of ASP-services.
5. Services and accomplishments potentially offered for free by mediadefine can at all times and without advance notice be ceased. A claim for diminution, refund or damages does not derive from this.
6. Individual agreements, which depart from standardised service descriptions, need to be written down and will only be active with the countersignature of mediadefine.
7. mediadefine reserves the right to reject assignments or single points of the contract at all times and without giving reasons.
8. mediadefine is at all times entitled to render part deliverances and part services, except the contracting party verifies that part deliverances and part services are not sufficient for rendering the utilisation concluded in the contract or for a part of the utilisation concluded in the contract.
9. The danger is transferred to the contracting party as soon as the mailing is delivered to the person delivering it or as soon as the mailing has left the premises of mediadefine. If the transmission is impossible without guiltiness of mediadefine, the danger is transferred to the contracting partner with the advice of supply readiness.
Contracting partners of mediadefine are bound to:
1. Paying their services and payments respectively agreed on in a contract plus the apportionable purchase tax in due time.
2. Informing potential deficiencies and defaults (fault reports) immediately and taking measures, which enable a conclusion of deficiencies and defaults (fault reports) and their causes or relieve and advance the abolition of defaults. Furthermore, the contracting party is embodied to make good the expenses come into existence by the inspection when he has reported on a default, in case that the inspection proves that the deficiencies or defaults were caused by the user.
3. Enabling mediadefine access on their infrastructure, if it is necessary for rendering service, especially for the utilisation of ASP-services, and the contracting party cannot do it on his own.
4. Using the access possibilities on ASP-services not abusingly and especially refraining from illegal actions.
5. Securing the fulfilment of all legal prescriptions and licensing requirements, as well as taking care that the licensed permits are issued, as far as they will be necessary for taking part in office now and in the future.
6. allowing for accepted principles of data security, especially keeping code words a secret and changing them immediately respectively or cause them to be changed, in case there is the assumption that unauthorised other parties got to know them.
7. Announcing changes in the master data of the firm, appropriate address data, competent contact persons and potential banking accounts of direct debit mandates.
§5 Disposal, further renting and utilisation
1. A direct or a indirect disposal or utilisation of accomplishments and services of mediadefine by a third party is only allowed when mediadefine consents to it in written form.
2. If utilisation by a third party is allowed, the contracting party has to introduce the third party into the utilisation. If the utilisation by a third party is not allowed, a claim for diminution, refund or damages does not derive from this.
3. The contracting party has to pay hires, which came into existence by authorised or unauthorised utilisation of access and utilisation possibilities provided for him by third parties.
§6 Contract period and cancellation
1. Both contracting parties can cancel the contractual relationship within a term of four weeks to the end of quarter, when the contracts do not have a minimum term.
2. When the contracts have a minimum term of twelve months or longer, the contractual relationship can be cancelled at the earliest to the expiration of the minimum term. The cancellation has to be received by mediadefine six months before it is supposed to operate.
3. When the contract has a minimum term and is not cancelled, it prolongs itself for further twelve months.
4. mediadefine is entitled to cancel the contractual relationship without keeping to a term, when
a. the contracting party offends against the general terms & conditions, especially the duties of §4.
b. the person of the contracting party is changed by succession or other universal succession.
c. the contracting parties are trading companies incapable of holding rights, communities of heirs, associations incapable of holding rights, civil law associations or communities of contracting parties when people appear or leave.
d. every change in the name of the user or the appellation, under which they are administrated in the business documents of mediadefine.
e. an essential change takes place in the relationships of the proprietor or the management of the other party, and because of this an impairment in the interests of mediadefine is to be feared.
f. insolvency or composition proceeding or a comparable proceeding is opened on the property of the contracting party ort he claim for opening such a proceeding is rejected because of a lack of mass.
5. The right to cancel exceedingly because of important reasons is reserved to mediadefine.
6. Every cancellation of a contract has to be done in written form
7. If the cancellation is sent as certified mail, it will be regarded as delivered, too, when the deliverance has failed and a notice about the deliverance has been left for the receiver or when it took place as a certified mail put into the mailbox.
§7 Liability and custody restriction
1. mediadefine refuses any liability for any damages or consequential damages in the widest range the applicable German law allows.
2. Claims for damages because of impossibility of the service, default at contract conclusion and illegal actions are excluded towards mediadefine and it’s auxiliary persons and assistants as far as there is no deliberate or grossly negligent action on hand.
3. mediadefine is not liable for the information transmitted by services, neither for their completeness, correctness or up-to-dateness, nor for them being free of authorisations of third parties or illegal action by transmitting information.
4. In case there are failures of services because of an error lying beyond the field of responsibility of mediadefine, there will be no rebate of services. Mediadefine will not take the responsibility for delay of deliverance and of services and failure because of an act of God and because of occurrences, which exacerbate the service or makes it impossible – especially acts of God, terrorist attacks, war, default of third parties, strikes, lockouts, official orders, failure of communication networks and communication burls to other operators of communication networks, errors in the field of telecommunication carriers or their subcontractors- despite binding agreed terms and dates. These authorise mediadefine to postpone the service and the deliverance for the duration of the interference plus an adequate start-up time. Inactive periods will only be repaid when mediadefine or one of it’s auxiliary persons or assistants has made a mistake or at least has acted negligently and duration of the inactive period stretches over more than three days.
5. The contracting party can only charge up against requirements of mediadefine with indisputable or valid detected requirements. The contracting party is only entitled to assert a right of retention because of counterclaims from this treaty.
6. Unless other terms in these terms and conditions exclude a liability, it is confined to an amount of Euro 400.00 at damages, which have come into existence by an availment of services, by a transmission and storage of data or because the demanded transmission or storage by mediadefine has not taken place, as far as there was no intent or gross negligence.
7. Contracting parties of mediadefine are liable for all consequences and disadvantages, that come into existence for mediadefine because of a abusing or illegal utilisation of a service or because the contracting party does not fulfil its other allegiances
8. The contracting party is solely liable when rights, especially copyrights of third parties are harmed, when its assignment is executed. The contracting party releases mediadefine implicitly from all requirements of third parties because of such a infringement.
§8 Copyright & retention of title
1. All property rights and copyrights stay reserved.
2. mediadefine and content2project are trademarks of mediadefine GmbH. The contracting party gets no copyrights and source codes of 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 and Corporate Design by the contracting party is forbidden.
3. The right of use of project results and concepts can only be transferred to third parties with approval of mediadefine. The approval can already be agreed on explicitly or impliedly in the contract, in which the execution of a particular project is agreed on.
4. If the development of material and immaterial assets, especially concepts, software and ASP-services is owed, the contracting party will only get the absolute and exclusive right of use and of disposal for the whole result of the work done by mediadefine, when this was explicitly agreed on.
5. The right of use of an asset developed by mediadefine, especially concepts and software, comprehends the utilisation and duplication in line with the agreements with the contracting party. The contracting partner may not access these, neither in parts nor as a whole, to third parties.
6. Concepts and designs – within the limits of presentations and bidding, too- underlie the copyright and other laws for protection of intellectual property. Their utilisation is strictly forbidden until the contract is signed.
7. If it is agreed on variationally that the right of use for software can be transferred to a third party, all copies have to carry the original annotation as well as all other protection annotations.
8. In case requirements in coherence with the particular subject matter of the contract are asserted because of the violation of a patent or because of another Ausschließlichkeitsanspruch, the contracting party is obliged to inform mediadefine at once. The contracting partner will not take any fundamental action concerning lawsuit without written approval of mediadefine and it will leave the defence against such requirements, especially the conduct of the case including the conclusion of the composition, to mediadefine when it demands it.
9. When the utilisation of the subject matter of the contract or of parts from it is forbidden by a court decision or when mediadefine thinks that a complaint impends because of an violation of protection rights, mediadefine has the right to choose between the following measures: to change the subject matter of the contract, so that it does not violate protection laws anymore. to provide the right fort he contracting party to use the subject matter of the contract anymore. to replace the subject matter of the contract by one that does not violate protection rights and which accords to the requirements of the contracting party or is equal to the replaced subject matter of the contract. to withdraw the subject matter of the contract and repay the paid consideration minus an adequate amount for the utilisation and the loss of worth to the contracting party.
10. The preceding allegiance is not applied for those subject matters of the contract, in which the violation of the protection law is based upon a concept deriving from the contracting party or on a change made in the subject matter of the contract by the contracting party or on the subject matter of the contract being operated with matters of a contract not delivered by mediadefine.
§9 Payment, inhibition, retention of title
1. Hires for services have to be paid right after the provision of the service and become due when the bill arrives.
2. Unless the contracting party takes part in the direct debiting system, the invoice amount has to be credited on the denoted account at the latest seven days after the sending of the bill.
3. Regular rates like rents from ASP services have to be paid respectively in full amount beginning with the first day of the rent unit and are due with the sending of the bill. Regularly, one rent unit consists of six months.
4. mediadefine reserves the property of the rendered service and/or the right of use until the payment has taken place completely. The pledge or the Sicherheitsübereignung by the contracting partner is illegal. When (co-)ownership of mediadefine forfeits by conjunction or alienation, it passes for agreed that the hence resultant requirements – with conjunction according to the value percentage- devolve to mediadefine. mediadefine is entitled to insure the delivery item against thievery, breakage, fire damage, water damage and other damages at the expense of the contracting party, unless the contracting party can prove that it has insured the delivery item itself. The contracting party has to inform mediadefine at once when there is a distraint, a confiscation or another disposal by a third party.
5. When the contracting party maintains that services calculated for him, especially ASP services he is responsible for, have not been caused by it or a third party, it has to prove it coherently and legally acceptably.
6. Contracting parties of mediadefine agree that documents in correspondence, like acceptances of order, bills, payment reminders and admonitions, can be sent in digital form and that they dispense with the conventional hard copy.
7. When the contracting party delays the payment, mediadefine will bill overdue fines. If the admonition is sent as certified mail, it is considered to be delivered, too, when the delivery has failed and a notice about the deliverance has been left for the receiver or when the certified mail has been put into the mailbox. The costs of the dunning procedure will be taken over by the contracting party.
8. When the payment is delayed, mediadefine is entitled to collect the object of delivery after a unsuccessful admonition. The contracting party has to release.
9. When the payment is delayed, mediadefine is entitled to take adequate measures to avoid further arising costs for mediadefine or the contracting party ( among other things abandonment of services, especially of ASP services, blocking of accesses). The contracting party is still entitled to pay the due consideration.
10. When the payment is delayed, mediadefine is also entitled to calculate inerests of 3% per year above the particular base lending rate of the European Central Bank from the date of the due date onwards, unless mediadefine detects a higher interest burden and because of credit information over service providers a higher risk adjusted interest loan arises.
11. When the contracting party is behind schedule with the payment of considerations or a considerable part of the consideration for more than two months in a row, mediadefine can cancel the contractual relationship without keeping a term.
12. When the fulfilment of the pecuniary claim is endangered by problems of liquidity of the contracting partner after the contract was concluded, mediadefine can demand a prepayment or an immediate payment of all open bills, but of undue bills, too. Services, which are not delivered yet, can be retained and further work at assignments, which are still due, can be cancelled.
13. mediadefine reserves the assertion of further requirements because of delayed payment.
§10 Secrecy, data protection
1. If there is no other explicit written agreement, the information put to mediadefine are not considered to be confidential.
2. Herewith, the contracting party is informed according to §33 clause 1 of the German Data Protection Act as well as §4 of the Teledienst Datenschutzverordnung, that mediadefine records its address in machine-readable form and treats it mechanically for the tasks deriving from the contract.
3. mediadefine is entitled to reveal data of the contracting party, which are necessary to secure the business. to render the offered service as far as mediadefine uses third parties.
4. mediadefine is responsible for all persons, who are consigned with the handling, to know the appropriate clauses considering the data protection, and keep to them. The contracting partner is not entitled to provide information that is not destined for him or third persons by using mediadefine´s services.
5. The information about the contracting party will be accessed to third persons, as far as this does not inflict with internationally accepted norms and the contracting party’s will.
§11 Other clauses
1. These general terms and conditions are the basis for all contracts concluded with mediadefine. They are valid for all future business relations, too, even if they are not agreed on explicitly again.
2. These clauses are considered to be accepted with the first countersignature of a treaty, acceptance of a service or payment of a bill.
3. Herewith mediadefine contradicts to counter clauses of contracting parties with hint to its business clauses or other clauses.
4. Any differing agreements need to be done in written form. Additional agreements have not been made. Any additions to contracts need to be written down and signed by mediadefine and the contracting party to be valid.
5. In case there is an item that has to be regularised and is not acquired in the text of the contract, between mediadefine and its contracting party, the legal clauses of §§ 84 ff. HGB and the axioms developed by the jurisdiction respectively are valid additionally.
6. The invalidity of one prescript of these general terms and conditions and/or of a contract do not lead to an invalidity of the general terms and conditions and/or the contract. The invalid prescript has to be replaced by an agreement, which gets the closest to the purpose of the contract and the will of the parties.
7. The limitation period for all requirements of contracts towards mediadefine amounts to six months. The expire date begins with the due date of the requirement and the achievement of the knowledge of the appearance of a requirement respectively.
§ 12 Place of performance
Place of performance for all deliveries and services of mediadefine and for all liabilities to pay of the contracting partner is the domicile of mediadefine.
§ 13 Place of jurisdiction
Essen is the place of jurisdiction for all contracts concluded on the basis of these terms and conditions, for all requirements and legal disputes deriving from the contractual relationship, including processes for changes and documents ( in the Federal State North-Rhine Westphalia of the Federal Republic of Germany in the European Union) .
§ 14 Applicable law
All contracts are subjects to the effective law of the Federal Republic of Germany. The application of the agreement of the United Nations about contracts in the international sale of goods is excluded.