(1) The following General Terms and Conditions (GTC) of beech media GmbH – hereinafter referred to as “beech media” – constitute the contractual contents. Conflicting or deviating terms and conditions of purchase or other restrictions imposed by the client shall not be recognised unless beech media has expressly agreed to these in writing in individual cases.
(2) The contractual partners shall be free to decide whether and on what terms they conclude individual contracts. An individual contract is usually concluded through the signing of an offer by both parties. The contents of the respective individual contract subsequently result from the offer and has its basis in these GTC. Provisions of an individual contract take precedence over the GTC in the event of contradictions.
(3) Offers made by beech media expire no later than one month after they are made, unless their contents expressly state otherwise.
(4) “Last call option”: If the client obtains counter-offers from other companies for services which have already been offered to the same by beech media, the latter shall have the one-off right, but not the obligation, to submit a new binding offer to the client after viewing said counter-offer.
§2 Services of the provider
(1) The type and scope of the services shall be described as far as possible in the individual contract. The basis for this shall be the preliminary discussions between the contracting parties and the documents prepared on this occasion. On this basis, the services shall be developed continuously within the framework of the related project management.
(2) beech media shall be free to design and implement services as it sees fit, insofar as no concrete specifications have been agreed or the client has availed itself of an authorisation granted to it as regards project management and control.
(3) If the client wishes to make a subsequent change to a particular performance specification, it shall inform beech media of said alteration as soon as possible in a concrete and verifiable manner, taking the form of a change request.
(4) In the event of a change request, beech media may discontinue the further provision of services. beech media shall inform the client of this in each individual case. In the event that the client objects to the cessation of performance, beech media shall continue the originally agreed performance of services.
(5) beech media shall examine the change request with regard to both the technical feasibility and the additional expenditure in terms of estimated time and associated costs. If it emerges in the process that the additional expenditure can be quantified without further ado, this shall be communicated to the client. If, in the opinion of beech media, a detailed examination is initially necessary and is to be remunerated according to expenditure, beech media shall estimate the associated additional expenditure. The client shall then decide without delay whether it requires beech media to carry out the review subject to remuneration.
(6) The contractual partners shall reach a prompt decision regarding the implementation of the change request and the resulting consequences after the conclusion of the aforementioned review.
(7) If beech media renders more than insignificant additional services at the instigation of the client, these shall, in case of doubt, be remunerated on a time-based fee basis in accordance with the general rates of beech media. An additional service shall be deemed insignificant if it does not require more than 30 minutes of working time.
§3 External services, third-party service providers, subcontractors
(1) Insofar as third-party services, in particular standard software or media (e.g. images, photos, sounds, motion pictures, films, datafeeds) are provided by third-party suppliers, beech media shall be authorised by the client to procure or convey these on behalf of the client or beech media at the expense of the client (including any subsequent costs) in accordance with the conditions (including licensing conditions) of the manufacturer/supplier or their distribution partners. The client shall observe all relevant terms and conditions for third-party services (including open source, freeware or Creative Commons terms and conditions) and obtain any necessary contract or licence extensions independently. beech media is not obliged to advance the cost of third-party services. If the client engages additional service providers (hereinafter: third-party service providers), these shall be deemed to be vicarious agents of the client.
(2) beech media shall be entitled to engage subcontractors or freelancers, unless beech media objects to the same on justified grounds.
§4 Retention of title, rights of use and exploitation of services by beech media
(1) beech media shall retain ownership of its services until payment has been made in full.
(2) The granting of rights of use or exploitation by beech media shall be subject to the condition precedent that the services have been paid for in full by the client. Until full payment has been made, use shall only be revocably permitted within the scope of the actions to be performed by the client in accordance with the contract (e.g. tests). The revocable permission shall end automatically if the client is in arrears with the payment of a remuneration component, unless the arrears in payment are insignificant.
(3) Subject to deviating provisions in the individual contract, the client shall receive a simple, non-transferable right to use beech media’s services for the contractually intended purposes.
(4) beech media may, in particular, continue to use the components and elements (e.g. libraries, modules, construction kits, templates, tools) within the scope of its business operations and freely exploit them without client-specific details.
(5) No rights are transferred in the case of pitches, offers or cost estimates that are free of charge for the client. The client is not entitled to otherwise use or exploit beech media’s services contained therein or to use them or have them utilised.
(6) The client shall refrain from making alterations to copyright (e.g. copyright notices) or other references to beech media in or in association with services.
§5 Remuneration and payment terms
(1) The respective remuneration shall be stipulated in the individual contract.
(2) Subject to the regulations in § 2 (change requests), fixed prices stipulated explicitly in the individual contract shall neither be undercut nor exceeded. If beech media indicates anticipated expenses for services (e.g. as a cost overview in the offer), this shall constitute a cost estimate (CE).
(3) If the CE is exceeded by more than 15% – whereby beech media shall advise the client of the same – the client may terminate the corresponding order on said grounds within two weeks of knowledge of the breach; beech media shall subsequently receive remuneration for the services actually rendered and costs incurred.
(4) For services which beech media, in agreement with the client, does not perform at its registered office, travel times, costs and expenses shall be invoiced separately in the amount of the respectively valid maximum tax rates or against individual proof. Travelling time shall be considered 50% working time.
(5) beech media may demand advance payments to a reasonable extent. In the case of invoicing on a time-fee basis, beech media shall be entitled to invoice on a monthly basis. Unless otherwise agreed in the individual contract, in the case of CEs or fixed prices, 50% shall be due upon conclusion of the contract and 50% upon handover; in the case of services under a contract for work and services, the client shall be entitled to withhold 15% of the remuneration due thereon until acceptance.
(6) All prices are subject to the applicable statutory value added tax. Payments are due upon invoicing. No discounts shall be granted. From 30 days after the due date and receipt of an invoice, beech media may charge interest in the amount of 8 percentage points above the respective ECB base rate. The assertion of further damages remains unaffected.
§6 Client obligations
(1) The client shall support beech media without being requested to do so within a reasonable scope in the provision of services, in particular by issuing instructions and approvals without delay and by responding to enquiries. The client shall provide the necessary (technical) information, test data, materials and documents (hereinafter collectively referred to as “material”) . The client shall only supply such material that has the formats required by beech media and is quality-assured with regard to contents and carrier (including checking for viruses or other technical problems).
(2) The client shall retain a copy of the material during the cooperation. beech media is entitled to use the material in accordance with the purpose of the contract, unless it is expressly marked otherwise by the client.
(3) The client shall ensure and be responsible for ensuring that the material provided by it does not violate statutory or official provisions (e.g. regarding the protection of minors, data protection or competition law) and is free from third-party rights (in particular personal rights or copyrights) that could restrict use in accordance with the intended purpose. Insofar as the client has undertaken to procure materials for beech media within the scope of the execution of the contract, the client shall make these available to beech media without delay and in a conventional, directly usable, preferably digital format. The client shall ensure that beech media obtains the rights required for the use of these materials. If a claim is made against beech media, irrespective of the legal grounds, by third parties on the basis of an infringement of property rights which results from materials which the client has made available to beech media, the client shall indemnify beech media against all claims.
(4) Any necessary name and trademark research, corresponding registrations as well as the examination of legality (e.g. according to data protection, competition and/or trademark law) shall be the responsibility of the client, unless otherwise agreed in the individual contract.
(5) If the client is in default with the fulfilment of an act of cooperation or fails to fulfil it properly, beech media shall be entitled to demand reasonable compensation. Other rights of beech media shall remain unaffected.
(6) The client shall fulfil its obligations in accordance with the present Art. 6 at its own expense.
§7 Contract duration and termination
(1) The provisions of these GTC shall remain in force for all individual contracts concluded under them even after their termination.
(2) If a specific duration is provided for in the individual contract, the contractual relationship may not be terminated ordinarily until its expiry. If no extension is stipulated therein, the contractual relationship shall end with the expiry of the stipulated period. If the individual contract does not provide for a specific duration, each contracting party may terminate the contractual relationship by giving 3 months’ notice to the end of a calendar month. In the case of any contracts for work and services, the statutory provision shall apply exclusively.
(3) Any termination must be made in writing to be effective.
(4) At the contract’s conclusion, beech media shall offer the client its own data for download in the condition in which it is available at beech media by providing the client with the corresponding access data for a period of one month. After expiry of this period, beech media shall be entitled to delete the data. Any further services shall only be provided against separate remuneration.
(5) In the event of termination of contracts – for whatever reason – the provisions which by their nature continue to have effect, in particular Art. 4, 10 and 11 of these GTC, shall remain in force.
§8 Performance dates and acceptance
(1) Dates for the provision of services are binding only if agreed definitively. Otherwise, they constitute target deadlines which are developed further within the framework of project management. In the case of target deadlines, the client may request the provision of the outstanding services in writing one month after expiry, setting a reasonable deadline; upon expiry of this deadline, the client’s claim to this service is due.
(2) Disruptions to performance in the area of responsibility of the client (e.g. failure to provide cooperative services on time) or due to force majeure (e.g. strike, lockout, official orders, general disruptions to telecommunications, etc.) shall entitle beech media to postpone the affected services for the duration of the hindrance plus a reasonable re-initiation phase.
(3) Deadlines for the provision of services may only be guaranteed by beech media in writing or in text form. Deadlines, the non-observance of which causes a contractual party to be in default without a reminder pursuant to Art. 286 (2) of the German Civil Code (binding deadlines), shall always be stipulated in writing or in text form and deemed binding. Performance disruptions due to force majeure (e.g. strike, lockout, official orders, general telecommunication disruptions, etc.) and circumstances in the area of responsibility of the client (e.g. non-timely provision of cooperation services, delays by third parties attributable to the client, etc.) shall not be the responsibility of beech media and shall entitle beech media to postpone the provision of the affected services by the duration of the hindrance plus a reasonable re-initiation phase. beech media shall notify the client of service disruptions due to force majeure.
(4) Insofar as beech media is responsible for bringing about a certain success (obligation under a contract for work and services), the contractual partners shall regulate the prerequisites and the procedure for acceptance in the respective individual contract. The client shall inspect and test the service handed over to it in accordance with the agreed procedure; beech media may also hand over independently reviewable partial services for this purpose. An overall acceptance shall only take place insofar as no partial acceptances have taken place.
(5) The client shall ensure that the services of beech media are not used productively before completion of the tests and acceptance, unless otherwise agreed between the contractual partners.
(6) If the services or partial services of beech media meet the agreed requirements or if there are only insignificant deviations, the client shall declare acceptance without delay; the acceptance shall take written form. In particular, such deviations which only impair functionality slightly shall be deemed insignificant. If the client fails to declare acceptance within one month after handover of a service and if it has not notified beech media of any significant defects within this period, the services or partial services of beech media shall be deemed to have been accepted.
(7) Acceptance may also be effected by way of conclusive conduct on the part of the client, in particular by productive use of the performance, by unconditional payment or call-off of further performances based on the performance or the performance result.
§9 Warranty and liability
(1) In case of doubt, technical data in the offer or individual contract constitutes quality specifications and is not the subject of a guarantee or warranty.
(2) The obligation to inspect and give notice of defects pursuant to Art. 377 of the German Commercial Code (HGB) shall apply, in particular with regard to approval pursuant to Art. 377, paras. 2 and 3 HGB. Any warranty claims issued by the client shall become statute-barred one (1) year after delivery or acceptance, insofar as acceptance is provided for by law.
(3) Warranty claims issued by the client shall be excluded if the client has made changes to the services of beech media without prior consent, if instructions issued by beech media are not followed by the client, if the services are handled improperly or if assumptions from the individual contract are not adhered to, unless the client proves that the defects are not due to the same, or that the warranty work is not or only insignificantly impeded by this.
(4) If possible, the client shall report defects in writing, describing the circumstances of their occurrence and their effects. The client shall support beech media to a reasonable extent in the determination and elimination of defects and shall grant access to documents from which further information can be obtained.
(5) In the event of a defect, beech media shall be entitled to remedy the defect or to make a new delivery (supplementary performance) in accordance with its choice to be made at its due discretion.
(6) Further claims of the client shall remain unaffected. All guarantees must be made in writing to be deemed effective.
(7) The regulations on the liability of beech media in Art. 9, paras. 2 and 3 apply to all claims for damages and cases of liability irrespective of the legal grounds on which they are based (e.g. warranty, delay, impossibility, any breach of duty, existence of an obstacle to performance, tort, etc.) except for: claims of the client due to damages from injury to life, body and health, rights and claims of the client in the event of fraudulent concealment of a defect by beech media or due to the absence of a quality for which beech media has assumed a guarantee, claims and rights of the client which are based on intentional or grossly negligent conduct of beech media itself or its legal representatives, claims of the client according to the Product Liability Act as well as claims which are covered by Art. 44 or Art. 44a of the German Telecommunications Act (TKG). For the aforementioned exceptions, the statutory regulation shall remain in force. (8) beech media is liable for slight or simple negligence only in the event of a breach of essential obligations, i.e. obligations that enable the proper performance of the contract or the purpose of the contract or on compliance with which the contractual partner may regularly rely. In the event of a breach of essential obligations due to slight or simple negligence, beech media’s liability shall be limited to compensation for the typical damage foreseeable by beech media at the time of the conclusion of the contract. Otherwise, the liability of beech media for slight or simple negligence shall be excluded.
(9) beech media shall be liable for grossly negligent causation of damage by its vicarious agents limited to compensation for the typical damage foreseeable for beech media at the time of conclusion of the contract.
(10) The strict liability of beech media in the area of tenancy law and similar usage relationships for errors already existing at the time of conclusion of the contract is expressly excluded.
(11) beech media shall not be responsible for service disruptions due to force majeure (in particular strike, lockout, official orders, natural disasters, failure of communication networks or gateways, disruptions in the services of carriers).
(12) The liability for damages in case of financial loss is limited in each individual case to a total of EUR 25,000. Further claims are excluded.
(1) The contractual partners mutually undertake to treat all information regarding the other contractual partner which becomes accessible to them in connection with the individual contracts and which is marked as confidential or which is recognisable as business or trade secrets of the contractual partner according to other circumstances with the strictest of confidence for an unlimited period, and to neither record nor pass on nor otherwise utilise it – insofar as this is necessary in order to fulfil the purpose of the contract. A legally binding confidentiality agreement shall be concluded separately by the contracting parties.
(2) The obligation to maintain confidentiality shall not apply to information which is already known to the receiving contracting party or which becomes known without any connection with the contractual relationship.
(1) The contracting parties shall observe the statutory provisions on data protection, in particular the provisions of the Federal Data Protection Act (BDSG), and shall oblige their employees accordingly. The contractual partners shall inform each other in each case insofar as the use of personal data is necessary for the provision of services. The contracting party transmitting the data in each case shall ensure that the necessary permits are available in accordance with the provisions of data protection law and shall inform the other contracting party if it is concerned that this is not the case.
(2) The client agrees that beech media may collect, store, process and otherwise use the personal data accruing in the course of the performance of the contract for the purposes of the same. The client shall obtain the corresponding consent of the persons concerned, if required. If beech media provides commissioned data processing in the sense of Art. 11 of the Federal Data Protection Act (BDSG), the client shall specify in writing the use of the data in accordance with the order, insofar as this has not already been stipulated in the contract.
§12 Final provisions
(1) beech media may name the client as a reference. The contractual partners may also publicly report on their services for the purpose of self-promotion, insofar as there is no conflict with the duty of confidentiality or data protection.
(2) beech media shall be entitled to refer to its involvement in the production in a suitable manner on the contractual products. For example, such a reference may be made in the source code of internet pages, in the imprint or footers of print products. The client may object to this if its legitimate interests are impaired significantly by the mention and copyright or other references to beech media are otherwise retained unchanged.
(3) The assertion of a right of retention or offsetting shall only be possible for the client with counter-claims that have been legally established or are undisputed by beech media.
(4) The legal relationship between the contractual partners shall be subject exclusively to the law of the Federal Republic of Germany.
(5) The place of performance for all obligations arising from the legal relationship between the contractual partners shall be the registered headquarters of beech media.
(6) All disputes arising from and in connection with the contractual relationship shall be decided exclusively by the state courts responsible for the registered headquarters of beech media. However, beech media may sue the client at its general place of jurisdiction.
(7) Should individual provisions of these GTC and/or the individual contracts be invalid or unenforceable in whole or in part, or should they lose their legal validity or enforceability at a later date, the validity of the remaining provisions of these GTC and/or the individual contracts shall not be affected thereby. In place of the invalid or unenforceable provision, a provision shall be agreed which, as far as legally possible, comes closest in terms of place, time, scope and economic objective to what was intended by the contracting parties in accordance with the original meaning and purpose of the invalid or unenforceable provision. The same applies accordingly to the filling of gaps in these GTC or the individual contracts.