1. Area of Application, Subject of the Contract
a) As terms and conditions of business between INTEGR8 media GmbH, Kurfürstendamm 234, 10719 Berlin, (hereinafter "INTEGR8"or "agency") and the principal (hereinafter "customer") exclusively these terms and conditions shall apply in the version applicable at the time of contract conclusion. Deviating conditions shall only apply insofar as INTEGR8 agrees to their application in writing (via post, mail or fax).
b) The specific subject of the contract and the duties of the parties are provided in the individual service offers from INTEGR8.
c) Insofar as not expressly included in the offer from INTEGR8 are services that are not directly performed by INTEGR8 are not a component of the contractually agreed remuneration but are to be paid separately by the customer. This includes the granting of rights to third party content (e.g. stock material), legal examinations, production costs (audio/visual), translations and other comparable third part services, as well as unforeseen travelling expenses when preparing the offer.
d) There is no obligation on the part of INTEGR8 to issue editable original data. This shall only occur at the request of the customer against a payment that is to be agreed separately.
e) INTEGR8 has the right at its own discretion to deploy vicarious agents to fulfil the contract without there being a corresponding duty to inform the customer.
f) These terms and conditions exclusively apply to agreements with companies under the terms of Sect. 14 German Civil Code.
2. Offer, Conclusion of Contract
a) Service offers from INTEGR8 are subject to change which means that the price and scope of the offered services may change.
b) Insofar as INTEGR8 provides the conditions for an order this therefore does not represent a legally binding offer. First when the customer accepts the conditions offered by INTEGR8 an offer is issued by the customer to conclude a contract.
c) A contract is therefore first concluded insofar as INTEGR8 accepts this offer from the customer. This can occur via post, fax or email.
3. Contractual Duties
a) The customer shall provide INTEGR8 with the content required to perform the service in digital form. INTEGR8 is not obligated to examine the content provided by the customer, particularly not in regard as to whether this is suitable to achieve the purpose strived for in the subject of the contract. Furthermore INTEGR8 is not responsible for all content that the customer provides in the scope of the contract and the preparation of the contract. In particular, INTEGR8 is not obligated to examine the content for any possible legal infringements (e.g. trademark and copyrights or other protected rights); this is the duty of the customer.
b) INTEGR8 endeavours to delete advertising content if there are indications that this is illegal or infringes third party rights. Indications for illegal or infringing content are particularly given if authorities or other third parties initiate measures, irrespective of type, against partners, providers and/or INTEGR8 and these measures are founded on the allegation of an illegal act or infringement of rights through the advertising content.
c) In the event that third parties should assert claims against INTEGR8 on the grounds of possible infringement that arise through the content provided by the customer, this undertakes to release INTEGR8 from all liability and to refund INTEGR8 the costs that the agency incurs through the possible infringement.
d) For design services INTEGR8 is obligated to provide at least 2 rounds for the master layout. For the design of print materials up to 3 drafts are included. If following the second round or third design the customer remains unsatisfied, both the customer and INTEGR8 have the opportunity at this point to cancel the project. In the event of a termination INTEGR8 voluntarily waives the payment of the remaining project fee. All other already performed services (e.g. the conception, design and programming phases) hereby remain unaffected and are to be remunerated on the part of the customer in accordance with the contract.
4. Term, Termination
a) The term of the contract is provided in the individual contract between the parties.
b) For contracts with a stipulated term, termination is to be issued upon three (3) months‘ notice to the end of the agreed term for both parties, otherwise the contract shall be extended by the agreed term.
c) Upon termination of the contract the customer is to independently secure its data. A sending of the content and data stored on the computer on a data medium or via electronic mail is not a duty of INTEGR8 and is therefore to be agreed separately.
d) In the event of a premature termination by one of the parties, INTEGR8 has the right to demand the costs incurred for the customer’s data stored on the computer to be sent to the customer in the scope of the issuing of the data.
e) The contract can only be terminated prematurely by both parties for cause without the adherence to a notice period. Conduct that is significantly in breach of contract despite warning applies as cause.
f) In the event that the customer should terminate for cause for reasons for which INTEGR8 is not responsible, the agency is entitled to the full contractually agreed sum without deduction for any save services and costs.
g) In the event that the customer should terminate for cause and INTEGR8 is responsible for this ground, the agency is only entitled to the agreed fee for the services rendered up to this point.
a) The payment amount (irrespective of whether this concerns a lump sum or hourly rate) is provided in the offer from INTEGR8. Stipulated amounts are excluding statutory VAT (net price).
b) INTEGR8 reserves the right to demand advance and/or partial payments upon the achievement of significant interim performance. Interim invoices are also payable within 10 days.
c) In the event of a temporary project stop upon grounds for which INTEGR8 is not responsible, INTEGR8 is entitled to demand partial payment for services rendered. In accordance with this INTEGR8 may demand a payment for services already rendered if the customer has exceeded a bindingly agreed performance date by 10%. If this is exceeded by 50 % of the agreed term on the part of the customer or the project is halted for an unspecified period, INTEGR8 may issue an invoice for the entire project amount.
a) The customer is obligated to accept the provided services insofar as these correspond to the contractual requirements. Acceptance is to be declared in writing (via email or in text form). If acceptance is not issued despite demand and contractually rendered services within 14 days in writing on the part of the customer and no objections to acceptance are issued in writing, the performance is deemed implicitly accepted.
b) During the completion phase, INTEGR8 has the right to present the customer with individual components of the rendered performance for acceptance. The customer is obligated to partial acceptance insofar as the performance concerned corresponds to the contractual requirements.
c) The use of the contractual performance on the part of the customer also represents an implicit acceptance.
d) The servicing and maintenance of contents following the conclusion of contract must be commissioned separately from INTEGR8. Small content amendments such as the replacement of individual images and texts are free during the first three months following acceptance. In total, 2 hours of work are included.
e) If the customer requests INTEGR8 to launch a website online, he assures that he has legally examined the website in advance.
7. General Description of Services and Contractual Duties for the Provision of Services
a) INTEGR8 is obligated to enable the customer to access the data stored in the provided storage space on the server. For this purpose, INTEGR8 shall issue the corresponding access data to the customer.
b) The parties are agreed that the customer shall not receive a specific, spatially separate storage space. INTEGR8 is however obligated to provide a permanent storage space to the agreed scope on the server for the customer’s use.
c) INTEGR8 reserves the right to extend services and to make improvements insofar as these serve technical advances, appear necessary, to prevent misuse or INTEGR8 is obligated to do so on the grounds of statutory regulations.
d) The customer shall receive no access to the system configurations or software components of the server system. The responsibility for this hereby clearly lies with INTEGR8. In consultation with the customer, this may deviate in certain points. In this case the responsibility for the components concerned shall be transferred to the customer.
e) INTEGR8 guarantees a contractually agreed accessibility of the server on an average of 99% of the year. Hereby excluded are times in which the server is inaccessible on the grounds of technical or other problems that are outside the influence of INTEGR8 (force majeure, third party culpability, etc.). If the security of the network operation or integrity is endangered for reasons outside the influence of INTEGR8, INTEGR8 may temporarily limit access to the service as required.
f) To the areas “accessibility, response times and maintenance” apply the following:
(1) For the provided services INTEGR8 guarantees the aforementioned average annual availability. Maintenance shall commence immediately upon the establishment of a fundamental problem in the server operation. A fundamental problem is any problem that obviously restricts the use of the server (e.g. inaccessibility of the server service, severely decreased performance in comparison to normal operation).
(2) All disruptions shall be accepted and processed by the INTEGR8 support during business hours.
(3) Due to the complexity of hardware and software applications, networks and specific configurations, INTEGR8 cannot guarantee the success of the rectification of the error, i.e. despite the best efforts of INTEGR8 it may occur that the error through the implementation of support at the customer cannot be rectified. All support services shall insofar be performed as a service contract.
g) If the customer should use more server capacity (CPU) than agreed between the parties, INTEGR8 has by continuing restriction despite issuing a warning the right to invoice for a more high power package. If the customer should not expressly object to the amendment of the contract within two weeks of notification regarding the necessary adjustment, then the adjustment shall apply as accepted. If the customer should object to the adjustment INTEGR8 has the right to terminate the contract without notice.
8. Duties of the Customer for Server Performance
a) The customer shall ensure that the internet sites or data of other customers of INTEGR8, the server stability, performance or availability is not impaired through a breach of the contractually stipulated use. This also includes the duty on the part of the customer that he only uses software with up to date security standards, in order not to endanger the server stability through security gaps. This also means that the customer is responsible for updating the software he uses. The customer is obligated in the scope of the statutory provisions, in particular to comply with the Telemedia Act to place the required information on his website.
b) The content that can be called up from the webserver, stored data, banners and the keywords used for entry into search engines may not breach legal prohibitions, good conduct or third party rights (in particular logos and copyrights).
c) The customer is not permitted to offer erotic or pornographic content, to only operate a download server, send unauthorised email adverts, or use scripts that could endanger server stability insofar as these exceed the storage space provided by INTEGR8.
d) To maintain his site, the customer shall receive the corresponding access data. He is obligated to treat these as confidential and is liable for all misuse that results from the unauthorised use of these data. If the customer should acquire knowledge that unauthorised third parties have knowledge of the access data, he shall notify INTEGR8 immediately. In the event of a culpable act on the part of the customer and unauthorised third parties should use INTEGR8 services; the customer is liable to INTEGR8 for the user fee and compensation. In the event of a suspicion the customer therefore has the opportunity and the duty to request new access data.
e) Insofar as not otherwise contractually agreed, the duty of the customer to back up all his data and software settings that he can access on a regular basis. Data backups should be performed every time prior to the customer making changes and prior to servicing by INTEGR8, insofar as this is announced in a timely manner. The customer undertakes not to store his created backup on the server.
f) The customer undertakes to release INTEGR8 from third party claims that arise through illegal content that the customer has stored in the contractual storage space and/or that result from the misuse of the provided server services in breach of contract. The obligation to release INTEGR8 from liability also includes costs for a legal defence (e.g. court and lawyers’ fees).
9. Service Disruptions
a) INTEGR8 is solely responsible for disruptions insofar as these concern the service obligations provided in the contract between the parties. INTEGR8 is particularly not responsible for the functioning of the actual website of the customer consisting of the data placed on the webserver (e.g. HTML data, Flash data, scripts etc.) unless a deviating agreement has been concluded.
b) INTEGR8 is to rectify disruptions in the scope of its technical and operative possibilities without delay. The customer is obligated to notify INTEGR8 of any disruptions he establishes. If the disruption is not removed within a reasonable term, the customer shall set INTEGR8 a subsequent deadline.
c) If the functioning of the webserver is disrupted on the grounds of content outside the contract or use beyond the scope of the contract, the customer cannot assert any rights on the grounds of the disruption. In the event of force majeure INTEGR8 is released from its duty to provide a service. This particularly includes legal strikes also in third party companies and official measures unless these arise through the actions of the provider.
10. Blocking of Content
a) INTEGR8 has the right to block access to the content stored on the server subject to this contract by the customer if a sufficient suspicion arises regarding the distribution of illegal content.
b) INTEGR8 has the right to terminate the contractual relationship without notice by way of a justified blocking. Hereby it must initially request the cooperation of the customer without success. Such a warning may be waived in the event of a serious breach. Termination is to be declared within a reasonable term following knowledge of the ground for termination. Services rendered by INTEGR8 hereby remain unaffected and shall be invoiced to the customer.
c) INTEGR8 is also entitled to block content if the customer delays settling his account with INTEGR8 and has already received two payment demands with an express notice regarding a block in the event of a continuing delay.
11. Registration of Domains
a) In the event that the customer commissions INTEGR8 to register a domain, the customer must ensure that the domain does not infringe third part rights or contravene applicable laws in advance. The customer assures that he has fulfilled this duty and no indications of an infringement were found.
b) INTEGR8 has no influence on the provision of a domain by the respective provider. INTEGR8 assumes no liability that the domain requested by the customer will also be granted and/or the issued domain is free from third party rights and/or will permanently exist. Information from INTEGR8 as to whether a specific domain can be registered occurs through the provider on the basis of third party information and only applies to the time that information is obtained by the provider.
12. Usage Rights
a) INTEGR8 assigns the customer exclusive, unlimited usage rights to the use of the service under the terms of this contract. Further exploitation rights to documents such as print templates, drawings, graphics, images, audio and/visual recordings, software data etc. also drafts in conjunction with the service under the terms of this contract shall only be assigned to the customer subject to an express agreement.
b) The usage rights granted by INTEGR8 include the right to modification and transfer to third parity companies.
c) In the scope of the granting of the rights INTEGR8 does not waive the right to naming unless otherwise expressly declared (Sect. 13 Copyright Act).
d) The granting of the usage rights first applies upon the full payment of the agreed fee.
e) In the event that INTEGR8 commissions a third party to fulfil the contract, the agency shall purchase the unlimited copyrighted usage rights in accordance with their purpose and all other aspects on behalf of the customer at its expense and transfer these in their full scope to the customer. The customer has the right to examine contracts concluded with third parties that are required to fulfil this contract.
f) INTEGR8 reserves the right to provide the service provided with the naming of the customer and his logo as a reference.
13. Limitation of Liability, Warranty
a) INTEGR8 is liable without restriction,
- in the event of a culpable act or gross negligence for the loss of life, endangerment to health or personal injury,
- in accordance with the provisions of the Product Liability Act and
- to the scope of a warranty assumed by the provider.
b) In the event of a soft negligent breach of a duty that is important to achieve the contractual purpose (cardinal duty), the liability of INTEGR8 is limited to the amount that is foreseeable and typical for the type of the business in question.
c) INTEGR8 assumes no further liability.
d) The aforementioned limitation of liability also applies to the personal liability of employees, agents and bodies of INTEGR8.
e) INTEGR8 assumes no liability for provided data mediums, templates and other materials that are not requested one month after the assignment has been completed.
f) For defects to the rendered service INTEGR8 is liable in accordance with the statutory provisions. The term of limitation for warranty claims on the part of the customer is one year
14. Amendment of these Terms and Conditions
a) INTEGR8 has the right to amend these terms and conditions. An amendment shall only be undertaken upon important and factual grounds and when this shall not disrupt the contractual balance between the customer and INTEGR8. Such grounds may for example be legal or technical changes, experience with customer conduct or unforeseen loopholes in the clauses. The customer shall be notified by email of any amendments.
b) The customer has the right to object to any amendments. In the event of an objection INTEGR8 reserves the right to terminate the contractual relationship without notice.
c) The amendments apply as acknowledged and binding if the customer has not expressly objected to the amendments within 14 days.
a) All information that INTEGR8 acquires in the scope of the cooperation shall be treated with strict confidence and only forwarded to a third party where required to execute the project.
b) The customer undertakes in return to treat all information regarding INTEGR8 to which he requires access during the cooperation with INTEGR8 as strictly confidential unless the forwarding to a third party has been agreed in advance. This agreement applies beyond the term of the cooperation.
16. Assignment, Off-setting, Written Form
a) The user may only assign claims against INTEGR8 to a third party upon its written agreement.
b) The user may only off-set undisputed or legally established claims.
c) Additions and amendments to this contract are required to be in writing. This also applies to an amendment or waiver of this clause. Electronic documents in text form do not fulfil the requirement for the written form.
17. Legal Venue, Place of Performance, Applicable Law, Contractual Language
a) Berlin is the stipulated legal venue and place of performance insofar as legally admissible.
b) German law applies under exclusion of the UN-CISG as agreed.
c) Contractual language is German.
18. Severance Clause
In the event that one or more provisions of this contract should be or become invalid this shall not prejudice the validity of the remaining provisions. The contracting parties are obligated to replace the invalid provision with a valid provision with which the desired result of the contract is achieved.