GTC

GENERAL TERMS AND CONDITIONS - new media labs

1. scope of application

Our company Steven Megerle & Timo Schweiger GbR (hereinafter referred to as new media labs) provides customers with the ordered services, deliveries, performances, offers and developments exclusively under the following conditions.

new media labs is represented by:
Steven Megerle & Timo Schweiger GbR
Wahlholzer Str. 32
54516 Wittlich

2. general information

2.1 Our General Terms and Conditions (GTC) are an integral part of all contracts and all documents in text form, as well as electronic form of the company new media labs. Acceptance of our services shall be deemed to be acceptance of our General Terms and Conditions.

2.2 Deviating GTC of national or international contractual partners and customers shall not become part of the contract even in the event of delivery, even without express objection. Unless new media labs agrees to the inclusion of these GTC in text form.

2.3 Subsidiary agreements are only binding if they have been accepted by us in text form or by e-mail. Verbal statements and offers are generally non-binding.

3 Conclusion of contract and offer

3.1 The basis of the business relationship is the respective offer or a contract drawn up in which all agreed services and objectives, as well as the remuneration, are set out.

3.2 Orders shall only be deemed accepted by confirmation in text form or electronic form, unless we indicate by taking action that the order has been accepted by us.

3.3 Offers from new media labs are subject to change and non-binding, particularly with regard to prices, quantity, delivery time, delivery options and ancillary services.

3.4 Drawings, illustrations, dimensions, weights or other performance data shall only be binding if this has been expressly agreed in text form.

3.5 The sales employees of new media labs are not authorised to make verbal collateral agreements or to give verbal assurances that go beyond the content of the contract in text form.

3.6. new media labs reserves the right to withdraw from offer documents or order confirmations due to the consideration of mandatory deviations caused by legal or technical standards.

4 Scope of services, prices and payment

4.1 Subject to the provisions of these Terms and Conditions, the contract may be terminated in accordance with the statutory provisions. The right of the parties to terminate the contract extraordinarily for good cause remains unaffected by this. In particular, either party may terminate the contract if the performance of the contract or the purpose of the contract is jeopardised by culpable behaviour of the other party to such an extent that the terminating party can no longer reasonably be expected to maintain the contractual relationship.

4.2 If the client exercises his right of objection after the order has been placed, we reserve the right to invoice services rendered up to this point in time.

4.3 We undertake, taking into account the reservation of title, to release all services to the client after receipt of all claims.

4.4 The client shall receive an invoice for each payment transaction at the address provided by him. Unless otherwise agreed, the invoice is due immediately and without deduction. After 10 days from the invoice date, the client shall automatically be in default. Unauthorised discount deductions shall not be recognised. We are authorised to issue partial invoices at our discretion.

4.5 If the customer fails to pay his invoice within the payment period stated on the invoice, we reserve the right to block access to services rendered. If the customer does not fulfil the claims even after a reasonable period of more than 10 days after the payment deadline stated on the invoice, new media labs can terminate the contractual relationship without notice. In this case, we also reserve the right to commission a debt collection company or to initiate legal dunning proceedings, the costs of which shall be borne by the defaulting payer.

4.6 We are entitled to charge interest in the amount of 8 percentage points above the respective statutory base interest rate p.a. from the due date.
In addition, we shall be entitled to declare all our outstanding claims against the client due and payable after the occurrence of default of payment and to perform services owed by us only against advance payment or equivalent securities. The same shall apply in the event of a deterioration in the creditworthiness of the client which occurs after conclusion of the contract or which becomes known to us after conclusion of the contract and which jeopardises the fulfilment of existing payment obligations towards us.

4.7 The client shall only be entitled to contest our right of retention or right to refuse performance if undisputed or legally established counterclaims have been asserted.

4.8 Offsetting and retention of payments by the customer are only permitted on the basis of counterclaims of the customer that are recognised by new media labs or have been legally established.

4.9 Unless a fixed price has been agreed, services shall be remunerated in accordance with the price list valid at the time the order is accepted. Value added tax shall be charged additionally at the statutory rate.

4.10. If, in agreement with the client, we provide services or deliveries that go beyond the scope of our contractual obligations, or if we provide services that have only become necessary due to breaches of duty or obligations on the part of the client, we shall be entitled to charge reasonable additional remuneration for this.

4.11. Cost estimates, concepts, presentation documents and design drafts used for acquisition or presentation (pitches) shall remain our property and may not be made accessible to third parties

5. delivery time

5.1 Delivery dates or deadlines shall be promised by us after precise agreement and description of the project and confirmed in text form in the contract or offer. Delivery dates or deadlines that are agreed as binding or non-binding must be in text form.
Delivery periods shall commence on the day of order confirmation. If information from the customer is required to fulfil the order, the delivery periods shall commence at the earliest at the time at which we receive the required information.

5.2 We reserve the right to extend dates and deadlines if waiting times arise that we cannot influence. (For example, a delayed delivery of data on the part of the client leads to an extension of the deadline).

5.3 In the event of delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for new media labs, including in particular strikes, lockouts, official orders and incorrect or delayed delivery by the supplier or the customer, claims for damages by the purchaser are excluded, even in the case of binding deadlines and dates.

5.4 In the case of print orders, we reserve the right to make reasonable deviations in quantities for production-related reasons. Excess or short quantities will be invoiced accordingly.

6. content provided

6.1 The developments created by new media labs as part of the project are protected by copyright and may not be reproduced or passed on to third parties. Fundamental changes to our developments are only authorised by agreement in text form.

6.2 Fundamental changes to the source codes of our developments are prohibited and are only authorised by agreement in text form. Reproduction or disclosure to third parties is also prohibited.

6.3 Graphics and photos created or licenced by us are made available exclusively within the scope of the project. Reproduction or disclosure to third parties is also expressly prohibited. We will assert financial claims in the event of an offence. In the case of authors (e.g. licensed photos) other than new media labs, any claims asserted against us will be passed on to the client.

7. responsibility of the customer

7.1 The client is responsible for the content of the developments created for him and releases new media labs from any liability. A general monitoring of the content by new media labs does not take place.

7.2 We do not check developments to determine whether claims by third parties are justified or unjustified. We develop to the best of our legal knowledge, but do not guarantee the legal security of the content supplied by the customer.

7.3 The customer is responsible for checking the content of linked websites. new media labs does not check these.

7.4 If the customer has not commissioned a legal website check from new media labs (this is carried out by our partner, a law firm specialising in IT law, due to the Legal Services Act, which prohibits agencies such as new media labs from providing legal services), the obligation to provide and check any legal texts such as e.g. terms and conditions, imprint, data protection declaration, revocation instructions and any website content, in particular website structure (case example "button solution for online shops") lies solely with the customer! GTC, imprint, privacy policy, cancellation policy as well as any website content, in particular website structure (case study "button solution" for online shops) is the sole responsibility of the customer!

7.5 The client shall indemnify new media labs against all costs and detrimental consequences, waiving any defence, arising from points 7.1, 7.2, 7.3 and 7.4.

7.6 If the customer is in default with the acceptance of ordered goods or services, new media labs is entitled, after setting a reasonable grace period of no more than 14 days, to withdraw from the contract or to demand compensation for non-fulfilment. If new media labs demands compensation, this shall amount to 30 % of the order value, unless the customer proves lower damages or new media labs proves higher damages.
If no defects are reported in text form within the aforementioned period, the goods or services shall be deemed to have been accepted. Acceptance may not be refused on design grounds.

7.7 The client is obliged to provide us in good time with all information necessary for the fulfilment of the order and to supply the necessary images, texts, logos etc.

7.8 The client is obliged to ensure sufficient data backup himself.

7.9 The client is obliged to inform new media labs immediately and in text form if he becomes aware of legal violations of any kind with regard to his product from new media labs.

8. reservation of title

8.1 All developments belonging to a project remain our property until the agreed total amount has been paid in full. This includes graphics, scripts, code snippets, logos, texts, etc.

8.2. new media labs reserves the title to the delivered goods and the delivered programme carriers as well as the right to use the software contained therein until the purchase price has been paid in full. If the customer is a registered trader, the above reservations shall apply until all claims arising from the business relationship have been paid in full. This shall also apply if individual or all claims of new media labs have been included in a current invoice and the balance has been struck and recognised. Upon full acquisition of ownership of the programme carriers, the customer acquires the rights of use specified in the offer.

8.3 The customer hereby assigns to new media labs all claims arising from the resale of the goods or the sublicensing of the software. He is irrevocably authorised to collect these claims. At the request of new media labs, he must disclose the assigned claims and their debtors. new media labs is authorised to disclose the assignment to the customer's debtor.

8.4 Any processing or further processing of the goods delivered by new media labs shall be carried out for new media labs. The company new media labs acquires ownership rights in the amount of the market value of the reserved goods existing at the time of processing and further processing.

8.5 If the reserved goods are combined with other items, new media labs shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other items at the time of processing.

8.6 In the event of behaviour of the customer in breach of contract - in particular default of payment - or expected suspension of payment, new media labs is entitled to take back the reserved goods at the customer's expense or to demand the assignment of any claims for restitution of the customer against third parties. These rights also exist if the secured claims are time-barred. new media labs is entitled to utilise the reserved goods if necessary and to satisfy them from the proceeds of the sale by offsetting them against outstanding claims.

8.7 If new media labs is entitled to take back the goods in accordance with the above paragraph, new media labs is authorised to collect the reserved goods still in the customer's possession. The customer must allow the employees of new media labs authorised to collect the reserved goods access to the business premises or access to servers during office hours, even without prior notification.

8.8 The exercise of rights arising from the retention of title or a demand for surrender shall not be deemed to be a cancellation of the contract.

8.9 The retention of title shall be released at the customer's request if the security value exceeds the claims to be secured by more than 20 %.

8.10. If the customer is in default of payment or does not fulfil his obligations arising from the retention of title, new media labs may demand the return of the object of purchase from the customer and, after giving notice in text form with a reasonable period of notice, sell it by private sale at the best possible price, offsetting the proceeds of the sale against the purchase price. In the case of instalment transactions by a buyer who is not entered in the commercial register as a merchant, this repossession shall be deemed a withdrawal. In this case, the provisions of the instalment law apply. If new media labs demands the return of the object of purchase, the customer is obliged to return the object of purchase to new media labs immediately, excluding any rights of retention, unless they are based on the purchase contract. The customer shall bear all costs of taking back and realising the object of purchase. The realisation costs amount to 10 % of the realisation proceeds including VAT without proof. They are to be set higher or lower if new media labs proves higher costs or the purchaser proves lower costs. The proceeds will be credited to the purchaser after deduction of the costs and other claims of new media labs in connection with the purchase price.

9 Copyright, copyright and assignability of claims

9.1 The copyright of our developments remains with new media labs until full payment has been made. After fulfilment of the requirements on the part of the client, the client receives copyrights to the project commissioned by him. The copyright of our developments remains with new media labs.

9.2 The customer is not authorised to assign his claims from contracts concluded with new media labs or to transfer other rights or obligations from contracts concluded with new media labs to third parties in whole or in part without the consent of new media labs. This also applies to warranty claims.

10. limitation of liability, warranty and claims for damages

10.1 Any liability of new media labs for damages of the customer for any legal reason - including delay, impossibility, poor performance and non-contractual (tortious) liability - is excluded, unless the damage is based on the breach of a material contractual liability obligation (cardinal obligation) by new media labs or was caused by gross negligence or wilful misconduct by new media labs.

10.2 In the case of domain registrations, we do not check the collision with trade mark, name or other rights of third parties and cannot be held liable for the infringement of such rights.

10.3. new media labs shall not be liable for consequential damages, such as loss of profits due to faulty developments or developments not completed on time. new media labs shall in no case be liable for atypical and therefore unforeseeable consequential damages. new media labs shall also not be liable for damages if the customer could have prevented their occurrence by reasonable measures - in particular programme and data backup and sufficient product training of the user.

10.4 The amount of claims for damages is generally limited to the amount of the order value and can therefore not exceed the fees already paid for an order.

10.5 Unless otherwise agreed in text form, the warranty shall comply with the legal provisions currently applicable at the time the customer places the order.

10.6 The warranty period shall commence on the invoice date. If the seller's operating or maintenance instructions are not followed, or if modifications are made to products or parts that do not comply with the original specifications, any warranty shall be void.

10.7 The Buyer must notify the Seller of defects in text form without delay, but at the latest within one week of receipt of the invoice. Defects that cannot be discovered within this period, even after careful inspection, must be reported to the seller in text form immediately after discovery. If the customer is a registered trader, he is obliged to test delivered software or software parts for errors immediately upon receipt and to notify new media labs immediately of any recognisable errors.

10.8 If the rectification of defects fails after a reasonable period of time, the buyer may, at his discretion, demand a reduction of the remuneration or cancellation of the contract.

10.9 Warranty claims against the seller are only available to the direct buyer and are not transferable.

10.10. The above paragraphs conclusively contain the warranty for the products and exclude other warranty claims of any kind.

10.11. The customer is aware that standard software cannot generally be delivered error-free in view of the wide range of possible applications and in view of its complexity. new media labs makes no promises of compatibility in particular.

10.12. If new media labs installs software in accordance with a separate agreement, the customer shall immediately test this together with an employee of new media labs at the request of new media labs. If the software essentially runs in accordance with the contract, the customer shall immediately declare acceptance in text form.

10.13. new media labs can rectify defects at its discretion by repair or replacement with faultless goods in accordance with the following paragraph. In addition, new media labs can rectify defects in the software by providing a new release. If the rectification or replacement finally fails, the customer has the right to demand a reduction in payment or cancellation of the contract.

10.14. Warranty claims must be made in text form; they must contain a precise description of the defect complained of. After receipt of the notice of defect, new media labs will, at its own discretion, either provide information on how to rectify the defect or take other measures suitable for rectifying the defect, such as sending data carriers or information sheets that enable the defect to be rectified.

10.15. The warranty is excluded if the customer does not fulfil his obligation to inspect and give notice of defects contrary to the above clause 10.14. If changes are made by the customer or third parties, in particular to the design and programming, the warranty claim shall lapse unless the customer proves that the defect is not attributable to the changes. If, in the course of troubleshooting, it becomes apparent that the problems are due to operating errors or improper use by the customer, we may demand reasonable compensation for the expenses incurred.

10.16 All claims of the customer due to material defects, in particular for subsequent fulfilment, reimbursement of expenses in the event of self-remedy, withdrawal, reduction and reimbursement of futile expenses shall lapse within one year. This also applies to claims for defects of title.

10.17. Insofar as our liability is excluded or limited in accordance with the above provisions, this shall also apply to the personal liability of employees, representatives or vicarious agents.

11. design templates

11.1 As part of an order, we create a design template, the realisation of which must be confirmed by the customer. We create further templates according to the customer's instructions or change requests. If the client wishes to make changes during or after development, we reserve the right to charge additional costs.

11.2 We reserve the right to offer design templates rejected by the client to third parties.

12. regulation for programming & software development

12.1. new media labs retains the copyrights and industrial property rights as well as the exploitation rights to the delivered software, unless expressly agreed otherwise in text form. The property rights notices - including those of third parties - attached to the offer or the packaging must be observed.

12.2 Unless expressly agreed otherwise, the customer acquires a simple right of use to the software provided. These may only be copied - insofar as technically necessary - for the purpose of backup and installation. Addition: The client undertakes to use the software exclusively in accordance with the contract and neither to pass it on to third parties nor to make it accessible to third parties in any other way. Furthermore, the client is prohibited from reproducing and distributing the software.

12.3 The processing of the contractual software is not permitted, unless this is contrary to mandatory statutory provisions or otherwise agreed in the licence agreement or applicable terms and conditions. New media labs offers the elimination of software defects within the scope of its standard maintenance contracts.

12.4 The decompilation or disassembly of the contractual software (reverse engineering) is also not permitted. new media labs reserves the right to provide the customer on request with information required to establish the interoperability of the contractual software with other programmes in return for appropriate remuneration. When using this information, the customer must observe the restrictions stipulated in § 69e Para. 2 of the Copyright Act. The customer guarantees that the software will be stored in such a way that unauthorised reproduction of the software by third parties is prevented as far as possible.

12.5 The client shall receive the executable programme files of the software from us. The source code of the software developed by us is not part of the contract and scope of delivery.

The software may contain components that are licensed as open source software. The respective licence conditions also apply to the client and must be observed by the client. The licence conditions of the open source software are not restricted by these General Terms and Conditions.

12.6 We grant the client a non-exclusive and non-transferable right to use the contractual software.

12.7 In the event of non-compliance with the above terms of use, we shall be entitled to terminate the contract in whole or in part without notice. In this case, we also reserve the right to assert claims for damages against the client arising from the breach of contract.

13. regulations for care and maintenance contracts

13.1 We shall provide the maintenance services in accordance with the latest state of proven technology. In doing so, we shall take into account general process descriptions and industry standards as well as any specific provisions, methods and application practices of the Client. We are authorised to provide the support services by means of remote maintenance or remote diagnosis, provided that this does not represent a disadvantage for the client, in particular does not exceed the time frame for the provision of the corresponding support service on site, there are no risks to IT security and the technical requirements are met at the client's premises.

13.2 Insofar as we provide the client with software on a permanent basis within the framework of the maintenance contract, we shall grant him rights of use in accordance with Section 12, Clauses 12.1. and 12.2. Section 12. shall also apply accordingly in other respects.

13.3 The fee for software maintenance and servicing is set out in the contract. The fees shall be invoiced in advance. We are authorised to increase the monthly fee appropriately with a notice period of three months. The increase is permissible for the first time at the beginning of the 13th month after conclusion of the contract.

13.4 At the request of the client, we will carry out other troubleshooting and customisation services at a separate charge, in particular:
- Changes to the software that are not the subject of the maintenance services, in particular adaptation to new products and services and to changes in the client's operating procedures;
- Adaptation of the software to a changed hardware and/or software environment of the client, including new programme versions of third-party software used in the system;
- Elimination of malfunctions caused by improper operation of the software by the client, force majeure, intervention by third parties or other influences not caused by us;
- other adaptations, additions and extensions to the software as requested by the client;
- Consultancy services.

14. web hosting & domain services

14.1 The following paragraphs apply to contracts for web hosting (provision of storage space for websites, e-mail mailboxes and FTP access) and domain services (registration, connection and maintenance of domains).

14.2 new media labs forwards the data for the registration of a domain to the responsible registry on behalf of the customer. The forwarding takes place in an automated process, whereby new media labs has no influence on whether the domain is ultimately allocated to the customer or not. In this respect, new media labs does not guarantee that the domain will actually be allocated.

14.3 The customer must avoid placing an excessive load on the server system. An excessive load can be caused in particular by scripts that are not included in the Host's programme library. In the event that the customer's content impairs or acutely jeopardises the functionality, security or availability of the server system, new media labs is entitled to block the customer's account.

14.4 The customer shall not publish any content that is not suitable for minors. Furthermore, the operation of download portals or comparable use of the storage space for the mass distribution of files as downloads is not permitted. The installation of software whose data transfer (traffic) is not measured by default (measured by default: www traffic, mail traffic and FTP traffic), in particular the installation of daemons, is not permitted. In the event of an offence, new media labs is entitled to block the customer's account.

14.5 The customer is prohibited from sending circulars or serial letters (messages by e-mail that are sent to several recipients with the same or almost the same content) if such a message is sent to more than 2,000 recipients per month. The customer is also prohibited from sending advertising messages without the prior express consent of the recipient ("UCE"). This also applies to advertising messages addressed to public newsgroups. In the event of an offence, new media labs is entitled to block the customer's account.

14.6 E-mail mailboxes that the customer maintains with new media labs or its hoster may only be used for the processing of e-mail traffic. In particular, the customer is prohibited from using an e-mail inbox as storage space for files. The customer must retrieve his e-mails at regular intervals of no more than three weeks and delete the e-mails on the hoster's server. In the event of an offence, new media labs is entitled to block the customer's account.

14.7 If possible, new media labs will threaten to block the customer's account in accordance with the above paragraphs in advance, otherwise it will inform the customer immediately of the blocking. If the customer remedies the situation and assures new media labs that the offence will not be repeated, new media labs will refrain from blocking the account or cancel it. new media labs will charge the customer € 69.00 per hour or part thereof for the time required to deal with the offence. This does not apply if the customer is not responsible for the offence. The customer is also free to prove that new media labs has not incurred any damage or that the damage is significantly lower than the flat rate. Conversely, new media labs is free to provide evidence of higher damages.

14.8 If the customer stores more files or e-mails on the server system of the Host or new media labs than the storage space in his service package permits, new media labs will request the customer to eliminate the excess space within a period of 4 weeks from receipt of the request. new media labs will classify the customer in the next higher service package of the Host, which offers sufficient storage space for the files and e-mails stored by him, if the customer does not either eliminate the excess space in due time or does not object to a higher classification within the period. If the customer does not remedy the space overrun in due time and objects to the upgrade, new media labs is entitled to delete the customer's files and e-mails to the extent necessary to remedy the space overrun. In the request, new media labs will inform the customer of this consequence as well as of the consequence of the failure to object in due time if the space overrun is not eliminated within the deadline; the information will also extend to the price and the scope of services of the package to which new media labs intends to categorise the customer.

15. other

15.1 We reserve the right to list developments and customers as references on our website or to use them in other advertising material as proof of our work.

15.2 The law of the Federal Republic of Germany shall apply to the warranty conditions and the entire legal relationship between the Seller and the Buyer.

15.3 If the requirements for an agreement on the place of jurisdiction pursuant to § 38 of the German Code of Civil Procedure are met, the place of jurisdiction for all claims of the contracting parties, including actions on bills of exchange and cheques, shall be the local court responsible for the branch office of new media labs.

15.4 If the contractual partner is not a registered trader within the meaning of the German Commercial Code, the place of jurisdiction for the dunning procedure is the local court responsible for the branch office of new media labs.

15.5 The place of fulfilment for all deliveries and services of new media labs is Wittlich. If the customer is a merchant or has its registered office abroad, Wittlich is agreed as the exclusive place of jurisdiction.

15.6 Should a provision in these terms and conditions or a provision of other agreements be invalid, this shall not affect the validity of all other provisions or agreements. In case of doubt, these Terms and Conditions shall remain binding in their remaining parts even if individual or several provisions are legally invalid. Should provisions be or become invalid in whole or in part, they shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision.

15.7 The client authorises the data required for order processing and invoicing to be processed and stored using EDP (§ 3 BDSG). The invoice (delivery note) shall also be deemed to be a notification within the meaning of Section 26 (1) of the Federal Data Protection Act. The client's personal data is stored for the purpose of data processing. This is done exclusively for our own purposes and only insofar as this does not conflict with the Federal Data Protection Act.

15.8 The rights of the client under this contract are not transferable.