1. Scope
The general terms and conditions of the company Motion Media apply to all contracts of the company Motion Media. The terms and conditions of the client only apply if this has been expressly agreed in writing in advance. These general terms and conditions apply exclusively in the B2B area.
2. Subject of the contract and offer
The subject of the contract is only the activity and service described in Motion Media’s offer or in the customer’s order/inquiry. All contracts require written confirmation from Motion Media. The prices quoted are net prices, so that the applicable value-added tax will also apply unless it is openly stated in the agreed price. If Motion Media’s remuneration is not defined by a written offer, the applicable calculation basis of Motion Media shall apply as agreed. Motion Media is entitled to have third parties fulfill its obligations towards the client.
3. Order processing, transfer of risk, delivery, delivery times
3.1 Order processing and delivery / delivery deadlines, withdrawal
The delivery conditions are agreed in the order confirmation. If a delivery date is not met and the delay is exceeded by more than 4 weeks, the client is entitled to set Motion Media a grace period of 4 weeks. If the delivery obligation or execution obligation is not fulfilled by the end of the grace period, the customer has the right to withdraw from the contract. The withdrawal must be declared in writing to Motion Media within one week of the expiry of the grace period at the latest.
However, due to the many possibilities of delays in delivery, delivery times are always non-binding. Claims for damages due to late delivery or due to withdrawal from the contract are excluded, with the exception of intent or gross negligence. The delivery time is interrupted for the duration of the inspection of the imprints, production samples, clichés, etc. by the customer, namely from the day of dispatch to the customer until the day on which his statement is received.
3.2 Passing of Risk
In all cases, the risk passes to the customer upon dispatch of the goods. Unless otherwise agreed, deliveries are ex works excluding shipping and packaging.
Dispatch takes place without exception at the expense and risk of the customer. Transport insurance is only taken out on the express instruction of the customer and must be communicated in advance.
3.3 Remedy, Defects
If the service is not satisfactory, there is a right to rectification. If these deviate significantly from the original order or if an order has been properly completed and handed over to the client and changes are subsequently requested by the client, then Motion Media may invoice the resulting additional expenses separately.
As soon as the customer becomes aware of the defects, he is obliged to report these defects or change requests in writing within a maximum of 10 days after receipt of the delivery/service. In the case of obvious defects, a delivery or service is deemed to have been accepted free of defects if a written complaint about the defect is not made within this ten-day period.
4. Termination
The contracts in this case are project-related, a proper termination is therefore excluded. The possibility of termination for important reasons remains unaffected. If one of the parties violates individual agreements with gross negligence or intentionally, this entitles the contract to be terminated for good cause.
5. Terms of payment
Payments are due immediately upon receipt without deduction, unless otherwise agreed. If the payment period of 30 days is exceeded, Motion Media is entitled to demand interest of 4% above the key interest rate of the European Central Bank (ECB), but at least 8%, without a reminder.
Interim invoices can be submitted. The client is not entitled to assert a right of retention.
6. Retention of title and industrial property rights
The delivered goods of all kinds, as well as proposals, texts, drafts, etc., remain the property of Motion Media until full payment has been made. In this case, even after payment of the fee or the lump-sum payment, all property rights to the services of Motion Media that have not been expressly transferred to the client remain. In particular, the client may only use services for the purpose for which they were ordered and purchased. Federkiel & Partner GmbH, as the owner of the copyright, is authorized and entitled to use the advertising material it has created for self-promotion, unless this is expressly excluded.
The client is not entitled to change or add to suggestions, texts, drafts, etc. without the consent of Motion Media or to have third parties change or add to them.
7. Orders from third parties
Insofar as Motion Media places orders with third parties, the third parties are not considered to be its vicarious agents. However, Motion Media assigns all warranty claims or claims for damages that it is entitled to against third parties to the client. Any further liability for the work results of third parties is waived.
8. Distribution of advertising material
If Motion Media is commissioned with the distribution of tariff-based advertising material, eg the placement of advertisements (job advertisements), etc., billing will be based on the conditions and list prices of the advertiser. The associated work is remunerated by the brokerage commission that the publishers or institutions pay to Motion Media in their capacity as an agency
.
9. Insertion
orders Insertion orders are issued in the name and for the account of Motion Media and settled directly with the publishers or institutions. The customer pays the amount due in advance into one of Motion Media’s accounts so that the funds are available to Motion Media at the latest when the order is placed with the publisher or the Motion Media agency. Motion Media will request the corresponding amounts from the client 14 days before they are due
10. Approval of the samples
Motion Media undertakes to obtain the approval of the customer or one of his representatives or authorized representatives before producing advertising material. This is done by the drafts for the advertising material being signed by the client or his authorized representative at the designated place.
11. Support fee
For advertising material in the form of printed matter, it is agreed that the commissioned printer or manufacturing company must pay Motion Media a support fee for the work associated with processing. This fluctuates between 10% and 20% depending on the object size and difficulty.
12.
Confidentiality Motion Media undertakes to maintain secrecy towards third parties about all details of the organisation, production and distribution of the client that it becomes aware of, insofar as these details are to be treated confidentially by their nature.
13. Insurance, storage costs
Motion Media accepts no liability for the transport and storage of the client’s property, particularly manuscripts, originals, printing blocks, reproducible templates, negatives, etc., unless Motion Media is accused of gross negligence. If the client wishes to insure against fire or theft, he must obtain it himself. This also applies to the client’s printing blocks that are stored at the printers.
14. Authorization to place orders
Motion Media is authorized to place orders for the implementation of agreed advertising measures on behalf of the client.
15. Legal review
The client assumes the obligation to review the legal admissibility in words and images of all advertising material proposed and designed by Motion Media. If such a check is not carried out and this leads to damage, Motion Media is only liable if it can be accused of gross negligence. In this case, Motion Media’s liability is limited to the value of its own contribution to the
object or part of it.
16. Warranty
Motion Media provides a warranty for recognizable and hidden defects or for the lack of guaranteed properties within 3 months after the date of delivery exclusively in such a way that, at its discretion, the goods are repaired free of charge or goods free of defects are subsequently delivered. Other claims of the customer due to defects or the lack of guaranteed properties are excluded. Defects in part of the delivery or service cannot lead to complaints about the entire delivery or service. Notices of defects must be remedied in writing within 8 days of delivery of the goods at the latest and in the case of hidden defects within 8 days of the defect becoming apparent at the latest. If these deadlines are missed, warranty claims can no longer be asserted.
Motion Media is not obliged to rectify the defect or to make subsequent deliveries as long as the customer does not fulfill his contractual obligations. The warranty obligation expires if the delivered goods are modified, improperly handled or processed. Motion Media is in no way liable for third-party products.
However, it assigns any warranty claims against the supplier of the third-party product to the customer.
17. Privacy and Data Security
(1) The protection of personal data is an important concern of Motion Media. The relevant personal data is address data, communication data, customer history data as well as contract billing and payment data from users and interested parties.
Motion Media will only collect and process the data transmitted by the customer for the duration of this contract (§ 6). The object of the order for data processing results from the service agreement of this contract (§ 1 + § 2). The processing and use of the data takes place exclusively in Spain, in a member state of the European Union or in another contracting state of the Agreement on the European Economic Area. Motion Media obliges its employees or those commissioned as independent service providers (freelancers) to maintain data secrecy.
(2) The handling of the data, in particular its correction, blocking and deletion, is only carried out according to the customer’s instructions. The customer’s right to issue instructions is not restricted with regard to the type, scope and method of data processing. (Remote) verbal instructions must be confirmed immediately in text form. If Motion Media is of the opinion that an instruction violates data protection regulations, it will inform the customer immediately.
He is entitled to suspend their implementation until it is confirmed or changed by the person responsible at the customer. If a user or interested party should contact Motion Media directly for the purpose of correcting or deleting their data, Motion Media will immediately forward this request to the customer. (3) Motion Media generally carries out the data processing itself. Insofar as subcontractors of the provider are to be involved in the processing or use of the customer’s personal data, this will be approved if the following conditions are met:
In principle, the involvement of subcontractors is only permitted with the prior written consent of the customer. Motion Media must design the contractual agreements with
the subcontractor(s) in such a way that they comply with the data protection provisions in the contractual relationship between the customer and the provider. This also includes the right of the customer to request information from the provider on the essential content of the contract and the implementation of data protection-related obligations in the subcontracting relationship, if necessary through inspection
in the relevant contract documents. Services that Motion Media uses from third parties as an ancillary service to support the execution of the order are not to be understood as subcontract relationships within the meaning of this provision. These include e.g. B. Telecommunications services, maintenance and user service, cleaning staff, auditors or the disposal of data carriers.
However, Motion Media is obliged to make appropriate and legally compliant contractual agreements and to take control measures to ensure the protection and security of the customer’s data, even if ancillary services are outsourced.
(4) The
e-mail marketing system used by Motion Media offers the option of collecting personal or anonymous data. The customer is expressly informed that the collection, processing and use of personal usage data requires the valid consent of the user or interested party. If such consent is demonstrably not given, Motion Media reserves the right to only make certain functions available to a limited extent or not at all. Motion Media is not liable for claims that are asserted due to the lack of consent from the user or interested party.
(5) Motion Media documents its technical and organizational measures to enforce data protection in a log. This log
(“Measures for data protection”) shall become the basis of the order for data processing and an integral part of this contract after examination by the customer. Motion Media ensures that the security level of the specified measures is not undercut during the term of this contract and that it is adjusted if necessary; significant changes must be documented. At the customer’s request, Motion Media must provide the information in accordance with Section 4g, Paragraph 2, Sentence 1 of the Federal Data Protection Act. If the customer requests subsequent changes to the agreed procedure or additional security measures or logs, he must pay for any additional expenses separately after invoicing by Motion Media.
(6) The customer has the right to carry out the order control provided for in No. 6 of the appendix to Section 9 BDSG in agreement with Motion Media or to have it carried out by an inspector to be appointed in the individual case. He has the right to convince himself of compliance with this agreement by the provider in his business operations by means of spot checks, which must be reported in good time. Upon request, Motion Media undertakes to provide the customer with the information required to comply with his obligation to monitor the order and to make the corresponding evidence available. With regard to the control obligations of the customer according to § 11 para. 2 sentence
Before data processing begins and during the term of the order, Motion Media ensures that the customer can satisfy himself that the technical and organizational measures that have been taken are being complied with. For this purpose, Motion Media will provide the customer with evidence of the implementation of the technical and organizational measures of the system on request. Evidence of the implementation of such measures, which not only relate to the specific order, can also be provided by submitting a current certificate, reports or report excerpts from independent bodies (e.g. auditors, auditing, data protection officers, IT security department, data protection auditors, quality auditors ) or a suitable certification by IT security or data protection audit (e.g. according to BSI basic protection).
(7) Motion Media will inform the customer immediately of violations of data protection regulations that affect the customer. This obligation to provide information specifically refers to control actions and measures by the supervisory authorities as well as investigations by the competent authorities within the framework of §§ 43 and 44 BDSG. After consultation with the customer, the provider takes appropriate measures to secure the data and to reduce possible adverse consequences for those affected. Insofar as the customer has obligations according to § 42a BDSG, supports him in this.
(8) With the termination of the contract, Motion Media
the customer’s data and deletes its corresponding data stocks no later than 1 month after the end of the contract, unless the customer informs us within this period that the data provided to him is illegible or incomplete. The omission of such a notification is deemed to be consent to the deletion of the data. At the customer’s request, Motion Media must submit the log of the deletion. If the customer’s data carriers were made available to the provider, they will be returned or destroyed in accordance with data protection regulations. Documentation that serves as proof of order and proper data processing will be sent to the customer at the end of the contract
hand over.
(9) Motion Media will inform the customer of the contact details of his data protection officer.
18. Jurisdiction, place of performance and applicable law
The parties agree that the seat of Federkiel & Partner GmbH is decisive for the place of jurisdiction, the place of performance is the seat of Motion Media.
The contracting parties agree to the application of the law of the Republic of Spain to the exclusion of private international law.
