The present Terms and Conditions form the legal basis for the relations between Adversign Media GmbH, Immermannstraße 12, 40210 Düsseldorf (“Adversign Media”) and you (“Customer”) with regard to the product viewneo.
The Terms and Conditions apply only in respect of businesses. Adversign Media GmbH will not conclude any agreements pursuant to these Terms and Conditions with consumers as de-fined in Section 13 German Civil Code. Further information about contact de-tails and legal representatives of Adversign Media can be found in the imprint (Impressum).
Registration and Conclusion of the Agreement
The contract is concluded by accepting an offer which is typically available on the website of Adversign Media, by explicit acceptance or offer accordingly ordering. The order of services requires an effective registration of the customer; therefore the customer needs to have an account.
Completing the registration form on the platform is mandatory for registering. All requested data shall be specified accurately and updated upon changes immediately.
The registration is confirmed by Adversign Media by email. To accomplish this, a key is sent (string as a link to click) to the specified email address. Only by clicking on the link inside the user is unlocked and finishes the registration process. If the link is not confirmed within four (4) weeks, the entered data will be deleted.
Adversign Media reserves the right to refuse registrations. Therefore there is no entitlement to the registration.
Description of Services, Subject of the Agreement
All services provided by Adversign Media in connection with the viewneo service are provided exclusively on the basis of these Terms and Conditions. The version valid on the date of the conclusion of the respective agreement is applicable.
Any provision that deviates from these Terms and Conditions, in particular any Terms and Conditions of the Customer, is only valid if confirmed in writing by Adversign Media.
Features of viewneo
viewneo offers various features to allow publishing of content on digital signage systems operated by the customer. Such content can either be own content of the Customer or content chosen by customers.
a) Media Database
Adversign Media offers a media database as part of viewneo to store postings or drafts or parts thereof (e.g. texts, images or videos) (“Media-Database”). The Media-Database can be used to store content and files to be used in viewneo.
b) Availability via Internet
Adversign Media offers viewneo as an ASP solution. The Customer therefore has access via its log-in data to the software running on the Adversign Media server and providing the aforementioned functions; the Customer does not receive binaries that are to be installed locally or the source code of the solution. The use of viewneo requires internet access. The obligation to provide viewneo is fulfilled if the use of viewneo is available to the user for an annual (365 days) average of 98 % on the WWW-side output of the Adversign Media router.
Impairments for which Adversign Media cannot be held responsible, in particular changes that the operator has made to the functionality of a service, or faults in transmission through the Internet, or faults in the Customer’s Internet connection, are not taken into account.
Free or Professional Package
Adversign Media offers different options for using viewneo (“Packages”). Such Packages differ with regard to number of screens, storage quota of the Media-Database, number of playlists, user rights management and other services.
With the Free Package, Adversign Media provides viewneo with reduced features (see website). The offer of this free Package can be suspended or modified at any time and without notice, and without statement of reasons.
With the Professional Package, the Customer can use viewneo in its full extent. Features and prices of this Package are outlined in detail on the website at the time when the agreement is concluded.
Licence and Copyright of Adversign Media Material
Right of use
The acquisition of rights is contingent on the respective type of Adversign Media material, as specified in this Sec. 4.
Right of use for images and texts
The User acquires a simple, fee-based right of use that is limited in time and subject-matter to texts and images. The User may use texts and images for temporary publication by way of reproduction. In this case, publication or electronic storage is limited to four weeks after delivery by Adversign. The User is not permitted to edit texts or images, nor may the right of use be transferred or sublicensed.
Right of use for video material
The acquisition of rights to video material differs depending on the presentation on the platform, as follows:
In the case of a permanent transfer in exchange for a one-time payment, the User acquires a simple, fee-based right of use for the respective video material. This right of use is perpetual, i.e., it does not depend on the duration of this agreement. However, it is limited in terms of subject-matter. The User may use video material for publication indefinitely by way of playback.
However, in the case of a recurring payment, the User acquires a simple, fee-based right of use for the respective video material. This right of use is limited to the duration of the agreement and is limited in terms of subject-matter.
In any case, the User may only edit video material and transfer rights of use (i.e., transfer the acquired right of use on a one-time basis, thereby losing the right to use the video material) if Adversign Media expressly grants these rights for such video material in describing the same on the platform. By way of clarification, by transferring the right of use, the Customer can only transfer the right of use once and thus to a single third party. In any case, (multiple) sublicensing is prohibited.
The copyright to the entire Adversign Media material remains the property of Adversign Media or the third-party sources, in so far as such have been identified. Where no copyright notices are present, the User is obligated to display the copyright of Adversign Media or the respective third-party sources conspicuously in appropriate locations. Furthermore, the User must use its best efforts to protect the copyright of Adversign Media and/or the third-party sources from unauthorized use by third parties. Any use of the Adversign Media material for other purposes and/or in another manner is prohibited. In the event of unauthorized use, duplication, alteration, editing, reconfiguration, or transfer of the material and failure to observe the copyright notice, the User must release Adversign Media from any and all third-party claims resulting from the same. However, this will not affect the right of Adversign Media and/or any third parties to assert claims for damages.
Images and video material
If images and/or video material are used without the templates created by Adversign Media, the images and/or video material must be clearly and distinctly labelled with the copyright and/or agency notice “Photo: Adversign Media” for images and “Video: Adversign Media” for video material or with the agency notices duly included, in so far as copyright notices are not already present.
As a rule, in the case of images and video material, only the simple right of use to the copyright is transferred. No representation is made that the holders of the rights to depicted works of fine or applied arts or the holders of trademarks and other proprietary rights have granted their consent to any public reproduction, in particular, for use in advertising. The User is responsible for obtaining the consent necessary in each individual case. In this respect, the User must hold Adversign Media harmless from third-party claims and, as between the User and Adversign Media, the User must bear all legal consequences of any violation of the law.
Images and video material, particularly in which persons are identifiable, may only be used in conjunction with the accompanying text supplied by Adversign Media. Adversign Media material is not to be used in a manner that distorts or falsifies the original meaning. Any manipulation of images or video material that exceeds the normal amount of editing (clips, colour corrections, technical quality improvement), any use that contradicts the message inherent in the material, any falsification, and any use that may result in the disparagement of the persons depicted are prohibited, and the User is liable for damages resulting from any such use. Adversign Media assumes no liability in such cases.
The use of fragments of Adversign Media messages is prohibited.
If the User uses Adversign Media material beyond the extent for which it is licensed, then the User is obligated to pay Adversign Media a contractual penalty for every business day of unauthorized use. This penalty is calculated as follows: (i) in the case of permanent transfer that has been made in exchange for a one-time payment, 0.25% of the one-time payment, or (ii) in the case of a recurring payment, 0.25% of 12 times the last monthly license payment due under the agreement. The total contractual penalty to be forfeited is not to exceed 5% of the purchase price or 5% of 12 times the monthly license payment due. Adversign Media has the right to claim the contractual penalty in addition to performance and as a minimum amount of the compensation owed by the User in accordance with law. The foregoing is without prejudice to Adversign Media’s right to assert any additional losses.
Provision of the Content
Publishing with viewneo
The Customer may license Adversign Media material in viewneo to access such material for publishing. Such licences can be limited to a certain number of simultaneously used displays. Additionally, licences are limited to the duration of this viewneo agreement (see. Sec. 14) but not exceeding twelve (12) months. Upon expiration of these twelve months, the licence with regard to the respective Adversign Media material shall be extended for additional twelve months at the Customer’s expense, unless the Customer unsubscribes at least three months prior to the twelve (12) month’s period in text form (e-mail sufficient); due to organizational reasons, the term always extends to the end of the respective last month of the term, even if the purchase has been made in the middle of the month.
Retrieval via the Internet
The User is fully responsible for retrieving the Adversign Media material. The database and/or platform may be operated by Adversign Media itself or by an agent. The Adversign Media material, as content of the databases and platforms, is updated continuously. Adversign Media is at liberty to modify, delete, or add to the existing content at any time.
Databases and platforms may only be accessed with a valid user name and password. The User is responsible for safeguarding the access data provided to it (user ID and password) and must treat such data confidentially. The User is prohibited from disclosing its personal access data to third parties, making it available to them in any form, or enabling third parties to access such data. The User itself is responsible for safeguarding the access data and for all retrievals made by means of this access. If the User becomes aware that the access data is being used in an unauthorized manner, the User must inform Adversign Media of this situation immediately. If the access data is misused through a fault of the User, then the User is liable for the resulting loss.
The availability of the databases and/or platforms will be at least 98% per month. However, Adversign Media makes no warranty that any particular results can be achieved through their use.
Pursuant to the German Federal Data Protection Act, the User is advised that Adversign Media and its agents store the User’s data and/or log files in machine-readable form and process the same in accordance with the purpose of the agreement existing in relation to the User. The details of database searches will be treated confidentially.
Adversign Media assumes responsibility for the reliability and availability of the transmission channels and the correct transmission of the content in so far as the transmission channels are part of Adversign Media’s infrastructure. The User is solely responsible for receiving actively transmitted services, retrieving Adversign Media material from the Adversign Media website, and integrating and publishing the Adversign Media Material.
The applicable prices are indicated in the price list available at our website, http://www.viewneo.com. Apart from that, the User bears its own costs for obtaining the material (e.g., maintaining the Internet connection, any traffic-based billing by the User’s own provider, etc.).
The Customer is responsible for the confidentiality of the log-in data and will keep these secret, will not pass them on without the prior written agreement of Adversign Media (with the exception of the options envisaged in Clause 8.1), will not tolerate or facilitate any other noting of its log-in data by third parties, and will take the necessary measures to guarantee confidentiality.
In the event of any misuse or loss of the log-in data, or in the event of suspicion of such misuse or loss, the Customer will inform Adversign Media by email at firstname.lastname@example.org.
According of rights
Adversign Media grants to the Customer, as of the date of the provision of viewneo and for the duration of the agreement, the non-gratuitous, non-exclusive (simple), non-transferable, non-sublicensable right to use viewneo on the server of Adversign Media. For clarity it is noted that the Customer may not allow third parties any economically independent use thereof but may make its log-in data available to external service providers, such as advertising agencies or other third parties as and when they perform tasks for the Customer; with the user management included in the Professional Package, the Customer can also set up user accounts for its own employees or for third parties that are acting on its instructions.
Insofar as Adversign Media provides new versions, updates or upgrades of viewneo during the term of the agreement, by implementing these on its own server, the above right of use applies in respect of such versions, updates or upgrades in the same way. However, Adversign Media is not obliged to provide new versions, upgrades or updates if it is not absolutely necessary to do so for the purpose of rectifying defects.
Prices and payment
The applicable fees for viewneo and for optional Adversign Media material stated on the website www.viewneo.com at the time of the conclusion of the agreement are binding. All fees are ex. VAT.
Payments can be made via credit card, debit (Lastschrift), advance payment or via PayPal.
An agreed monthly remuneration for using viewneo is due at the beginning of the term for the whole minimum term. After the minimum term, the monthly remuneration is due at the beginning of each month, no lather then on the third working day of the respective months.
The monthly remuneration for actually licensed Adversign Media material (see Sec. 5.2) is due at the beginning of each month, no lather then on the third working day of the respective month.
Other agreed fees/remunerations are due upon performance of the services and receipt of the invoice by the Customer.
The Customer has the right to set off a claim or assert a right of retention only in the case of legally determined or undisputed claims. Customer may assign rights under this contract to a third party only with the written approval of Adversign Media.
For the duration of any default of the Customer, Adversign Media is entitled to block access to viewneo. In this case, the Customer is still obliged to pay the remuneration. The block will only be lifted when the customer is up to date with all payments.
If the Customer is in delay for two successive months with the payment of the remuneration pursuant to Clause 9, or a not-insignificant portion thereof; or in any period extending beyond two months is in delay with the payment of the remuneration in an amount that is equal to the remuneration for two months, Adversign Media is entitled to terminate the agreement without ob-serving any notice period and to require a lump sum compensation payable immediately in the amount of one quarter of the remaining monthly fee up to the expiry of the normal contractual term. The amount of damage is to be set higher if Adversign Media proves the damage to be greater, or lower if the customer proves the damage to be less.
Adversign Media reserves the right to assert further claims on the basis of delay in payment.
Adjustments, service modifications
Adversign Media perform additional services subject to an individual agreement in a particular situation. For the avoidance of doubt, Adversign Media is not obliged to perform customizing services with regard to viewneo under this present agreement.
Adversign Media may modify the services of viewneo at any time in any way that is reasonably acceptable to the Customer. Such modifications are reasonable if they become necessary for a reason for which Adversign Media cannot be held responsible, for example, in the event of disruption of the provision of services by subcontractors or by the hosting partner, provided the performance characteristics as described in the summary of services and user documentation continues to be fulfilled. Adversign Media will notify the Customer of the modification at least six (6) weeks before it comes into force, by letter or by email.
Irrespective thereof, Adversign Media is entitled, at any time, to make amendments or additions to the range of services or parts thereof where these do not affect any significant parts of the agreement. Adversign Media will notify the Customer of the amendment or addition not later than six (6) weeks be-fore they come into effect, by letter or by email. The Customer can object to the changes by letter or by email within an appropriate period following receipt of notification of the change. If the Customer does not object, the amendments and additions become part of the agreement. In its notification concerning the change, Adversign Media will expressly point out to the Customer the consequences of its behaviour. If the Customer objects to the change in a timely manner, Adversign Media can give ordinary notice of termination of the agreement per the next possible date.
In the event of breach of contract by the Customer, Adversign Media can, without notice, suspend or block ac-cess to the provision of viewneo, without prejudice to any other claims, if the breach of contract has not been rectified following written notice setting a reasonable period for this purpose (written warning). Adversign Media expressly reserves the right to assert further claims.
Adversign Media is liable for defects of the contractual services, in accordance with the present Clause 12 and within the limits set out in Clause 13.
A defect is deemed to exist if the fit-ness for use in accordance with the agreement is nullified or significantly reduced. If the fitness for use in accordance with the agreement is totally nullified, the Customer is released from the payment of the remuneration pursuant to Clause 9 until the defect is rectified. In the event of partial unfitness for use, the remuneration is reduced to an appropriate level, until the defect is rectified.
The Customer will immediately inform Adversign Media of any defects that have occurred, by letter or by email, and will support Adversign Media with-out remuneration in the rectification of the defects, and in particular provide all necessary documents, data, etc. that Adversign Media needs to analyse and rectify the defects.
The Customer does not have any claim to compensation on the basis of any defect in the software, whether present upon conclusion of the agreement or occurring subsequently, that is due to any circumstance for which Adversign Media cannot be held responsible.
If the contractual use of the contractual software is impaired by property rights of third parties, without any fault on the part of Adversign Media, Adversign Media is entitled to refuse to provide the services affected. Adversign Media will inform the customer of this immediately and enable the Customer to ac-cess its data in an appropriate way. In this case the Customer is not under any payment obligation. Other claims and rights of the Customer are not affected.
Other than the claims and rights expressly referred to in these Terms and Conditions, no claims and rights of the Customer apply in respect of defects in the contractual services, if Adversign Media does not have any further liability on the basis of mandatory statutory regulations.
Irrespective of the cause of action, Adversign Media’s liability shall be limited to damages caused by Adversign Media, its employees or subcontractors due to wilful misconduct, gross negligence or, in case of a violation of an essential contractual duty, simple negligence. Duties are being considered essential if necessary for the due execution of the contract so that the Customer can regularly expect proper observation.
If Adversign Media is held liable for gross or simple negligence under Clause 13.1, Adversign Media’s liability shall be limited to those typical damages that were reasonably foreseeable at the time the Agreement was concluded.
Adversign Media’s liability for any damages caused by the breach of a specific guarantee (Garantie) or for damages to be compensated under the Product Liability Act and for damages due to loss of life, injury or prejudice to health remains unaffected.
Adversign Media’s Liability under Clause 13.1 for loss of data shall be limited to typical recovery costs which arise if backup copies are regularly made in appropriate relation to the risk of such loss.
In other respects the liability of Adversign Media – irrespective of the cause of action – is excluded. This applies in particular in respect of liability that is independent of fault in respect of initial defects pursuant to Section 536a (1) Alt. 1 German Civil Code and in respect of damage arising as a result of unauthorized access by third parties at the user’s premises.
Contractual term, termination
The contractual term and the termination provisions vary according to the Package selected, as follows:
The agreement starts upon conclusion in accordance with Clause 2, and is concluded for an indefinite period. The agreement can be terminated by both parties at any time without observance of any notice period.
The agreement starts upon conclusion in accordance with Clause 2 and is initially concluded for a period of 36 months (minimum term). If the agreement is not terminated subject to observance of a notice period of at least three (3) months per the end of the contractual term, it is extended by periods of one (1) year at a time, the same notice period being observed.
In addition the agreement can be terminated in writing for a serious reason by either party without observance of any notice period. A serious reason that would entitle Adversign Media to terminate the agreement in this way is in particular if the Customer violates rights of use of Adversign Media by using the software in an extent beyond what is permitted under this agreement, or enters illegal content that would justify a fine or penal sanctions or violate the general right of privacy, and/or does not cease such violation within a reasonable period following a warning issued by Adversign Media.
Notice of termination must be in writing or in text form.
In the event of termination, Adversign Media will deactivate access. The Customer must give up the use of the soft-ware.
The reiceved delivery is to be examined carefully immideately after receipt (this also counts for deliveries to a third party e.g. customer’s customers’). Any deficiencys are to be reported immediately in writing (“reproach”). Discernible transport damages are to be reported to the dispatch person. In force is § 377HGB. Ih there is no report, the delivery counts as flawless. If there is a defect, which could not be spotted whitin the first examination, it is to be reported immediately after it is discovered.
The resale, installation or any other use of faulty delivery shall be deemed their approval and as contractual performance and encludes warranty claims.
By negotiating over reproaches, we do not relinquish the objection that these complaints were not in time, unfounded or otherwise insufficient.
Material deviations from the agreed quality and extent, as well as changes in the delivery in the course of technological progress, in the construction, the design, the dimensions, the weight or the color are within the customary tolerances allowed, unless they do not limit the usability for the contractually intended use , no guarantee exists and the customer is reasonable from an objective appreciation of all the circumstances.
If the goods are defective, we are initially obliged to subsequent performances and will provide those as our own option by removing the defect (improvement) or delivery of flawless goods (delivery). To the extent necessary, warranty claims against third parties (for example, the manufacturer) are made, the customer will assert those – on request with our support. The existence of warranty claims remain unaffected by this. We may refuse a type of remedy or the whole if it is possible only at disproportionate cost.
Should we opt for the replacement, so this is done, if we wish, gradually against the return of the defective delivery. Replaced parts become our property. We carry the necessary expenses to remedy the defect, in case these will not increase due to the delivery to a place other than the place that was determined.
If subsequent performance fails or both kinds of cure of us are denied, the customer can withdraw after a reasonable extension of the contract and / or claim damages. The right to reduce the contract is impossible, unless there exists only a non-essential defect which defect was fraudulently concealed or relates to a guarantee of quality.
The law of the Federal Republic of Germany applies, to the exclusion of CISG. Düsseldorf is agreed as the place of jurisdiction in the event of any disputes brought before the courts.
If individual provisions of these Terms and Conditions are or become invalid and/or contradict the statutory regulations, the validity of the Terms and Conditions in other respects is not affected. The invalid provision is replaced by mutual agreement between the contracting parties by a provision that in a legally valid way approximates as closely as possible to the economic purpose of the invalid provision. The above regulation applies accordingly in the event of any omissions in the agreement.
Amendments and additions must be in writing; this applies also in respect of the waiver of the requirement as to the written form.
The German language version is decisive in case of deviations; the English version serves as a convenience translation.
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