1. Subject of the Agreement:
(1) The subject of the General Terms and Conditions of Business are contracts with Brodos AG, business division MyStore TV (“Contractor”), concerning the placing of electronic advertising (“Contract”) using the MyStore TV Box via the server instore.brodos.net.
(2) The Contract concerns the broadcasting of advertising images, commercials and other contents on electronic media (“broadcast”).
2. Placing and accepting orders:
(1) The Contract shall only be concluded once the order placed by the Client (“Client”) is accepted in writing by the Contractor, any amendments must be stipulated in writing. Offers made by the Contractor are non-binding and subject to change.
(2) The name of the advertising company (“Advertiser”) shall be stated explicitly in orders placed by agencies /intermediaries. Unless expressly stipulated otherwise when an order is placed by agencies / intermediaries, the Contract shall be concluded between the agency / intermediary and the Contractor. Agents / intermediaries shall at the request of the Contractor provide proof that they have been commissioned by the Advertiser to act on its behalf.
(3) The Contractor reserves the right to refuse to accept – all or part of – orders on the grounds of their content, origin or technical form and in line with uniform, objective and justified principles adhered to by the Contractor if the contents of the advertising are inacceptable (e.g advertising which is political, ideological or religious, racist, distasteful or offends common decency), or if they violate laws or official provisions or infringe the interests of the people / companies in whose premises the electronic advertising is shown. In the case of contracts which have already been concluded, the Contractor is entitled to rescind the Contract in the event that one or more of the above-mentioned instances applies. If during the broadcast justified legal or moral objections arise against the advertising on account of its contents, origin or form or if the advertising contravenes the provisions stipulated above in this paragraph, the Contractor shall be entitled to end the broadcast immediately and terminate the Contract without notice.
(4) Rights and obligations arising from this Contract or the Contract itself may not be assigned to third parties without first obtaining the written consent of the other Party to the Contract. The Contractor is entitled to transfer rights and obligations from the Contract as well as the Contract itself to an affiliated company pursuant to § 15ff. German Stock Corporation Act without first obtaining the consent of the Client.
(5) The Client’s General Terms and Conditions of Business shall not apply.
(6) The Client is not entitled to require the advertising to be shown in any particular order or in any particular editorial environment.
(7) The Client can withdraw from the Contract by filing a written declaration until such time as the Brodos MyStore TV Box has been set up. In this case, the Contractor shall be entitled to demand a lump sum in compensation, making allowance for any own expenses saved. This compensation shall amount to 5% if the Client withdraws from the Contract up to 8 weeks before the commencement of the broadcast, to 10% if the Client withdraws from the Contract up to 4 weeks before the commencement of the broadcast and thereafter 25 % of the charge for broadcasting the advertising.
(8) The Mediabox shall remain the property of Brodos AG and shall be returned without being asked upon termination of the Contract. If the box is lost or deliberately damaged, Brodos AG reserves the right to charge the Client for the value of the box, amounting to € 649.
(9) The Client is entitled to test the Mediabox for one month without being charged the connection fee for a one-off test fee of 10 euros. Thereafter he can return the box without giving reasons. If the box is not returned, the Contract shall become valid and the 190 euros connection fee shall be charged in the following month.
(10) Once advertising starts to be broadcast, the Contract can be terminated by the Client on a monthly basis. The Contract can only be terminated by returning the Mediabox. The termination shall take effect from the first of the following month. The set-up fee cannot be reimbursed.
(1) The Client undertakes to switch off both the Mediabox and the connected screen at the same time in the event of deliberate interruptions to the broadcast time. The box may not be left switched on without content being broadcast on the screen.
3. Broadcast time:
The service shall commence when the Brodos MyStore TV Box is used for the first time and shall finish when the Mediabox is returned by the Client.
4. Exclusion of competition:
No guarantees are given that competitors of the Advertiser will be excluded.
(1) The contents of the standard channels shall be designed and determined by Brodos AG. By signing the Contract, the Contractor agrees to broadcast these contents without any change.
(2) The Client has the option of ordering an individual channel. The Client is responsible for determining the contents. The Client shall provide the Contractor with suitable reproduction material at his own expense (material / templates) at least one week before the date agreed for commencing the broadcast. The Contractor shall inform the Client immediately of any obviously unsuitable or damaged reproduction material. If so requested by the Client, and at the Client’s expense, the Contractor shall create advertising material or alter unsuitable reproduction material accordingly. If the Client fails to provide the reproduction material in time and the broadcast is delayed as a result, this shall not release the Client from the obligation to pay. The Contractor shall allow any expenses saved to be deducted from the payment due.
(3) Any advertising ideas developed by the Contractor for placing the electronic advertising and the computer graphics used to implement them are protected by copyright pursuant to the Copyright Act. The Client may not use these works without first concluding a separate User Agreement.
(4) The reproduction material delivered by the Client shall be returned if so requested in writing by the Client at the latest 4 weeks after the broadcast is ended. Reproduction materials which are not asked to be returned within this period shall become the property of the Contractor without any additional payment being made and can be disposed of by the Contractor.
(5) The Client is responsible for the form and contents of the motives and advertising spots of the individually designed channel and for ensuring that they do not infringe any copyright or competition provisions. The Client shall indemnify the Contractor from any claims of third parties and all costs incurred for the Contractor as a result. The Contractor is not obliged to verify that all applicable provisions have been complied with.
(6) The Contractor is entitled until further notice to use the motive free of charge as a sample print and/or for his own advertsing purposes, and in particular to use it in the form of a web-based database.
(1) Unless agreed otherwise, the Contractor’s list prices valid at any particular time shall apply. These can be found in the media data.
(2) All prices are quoted excluding applicable VAT.
(3) Claims can only be set off against undisputed claims or claims that have been recognised by a court of law.
(4) The Client can only exercise a right to refuse performance or a right of retention if the counter-claim is also based on the same contractual relationship and has been recognised by a court of law or the Contractor.
(5) Any charges incurred for Gema, GEZ or any other charges shall be paid directly by the Client or shall be invoiced from the Contractor to the Client.
7. Payment terms:
(1) Invoiced amounts shall be payable within 2 weeks. Invoices shall be issued in advance by the Contractor. The day on which payment is received is decisive for determining whether payment has been made in time.
(2) If the Client falls into default with payment and in the event of justified doubts as to the Client’s ability to pay, the Contractor is entitled to make the continued execution of the Contract, even during the agreed term of the Contract, dependent on the amount being paid in advance, no matter which payment date had originally been agreed, and on all unpaid invoiced amounts being settled without the Client becoming entitled to any claims against the Contractor as a result.
8. Breach of Contract / Liability:
(1) Claims to compensation based on a breach of duty shall only be incurred in the event of intent and gross negligence on the part of the Contractor. The Contractor shall not be liable for slight negligence. This restriction shall not apply to damage arising from harm to life, limb or health or in the event of a breach of fundamental contractual obligations.
(2) With regard to businessmen, liability for material and financial damage incurred as a result of gross negligence on the part of a simple vicarious agent shall be limited to typical, foreseeable damage relevant to contracts of this type.
(3) No liability shall be accepted for indirect damage, in particular lost profits.
(4) The Contractor shall not be liable if the broadcast fails to be made, or is delayed, interrupted or ended for reasons for which he is not responsible (e.g. strike; force majeure; construction / demolition works carried out or ordered by official institutions; interruptions or disruptions to online and mobile communication traffic due to internal or external influences; programme outages due to technical defects beyond the Contractor’s scope of influence). In the event that the broadcast fails to be made, or is delayed, interrupted or ended for reasons for which the Contractor is responsible, the Client shall be provided with a substitute broadcast for the duration of the down time. If the purpose of the advertising cannot be achieved with a substitute broadcast, the Contractor shall reimburse the Client the remuneration already paid for the lost time. The Client shall not be entitled to any further claims to compensation.
(5) Written notice of any obvious faults shall be filed with the Contractor immediately after the commencement of the broadcast, but at the latest up to one week after the broadcast has ended.
9. Service Level Agreement
The service shall be available 96% of the time 365 days a year, 24 hours a day. Notice of technical updates and maintenance work is usually given up to 24 hours before they are scehduled to take place. Maintenance work is not covered by the 96% service availability.
The place of jurisdiction shall, as far as legally permissible, be Baiersdorf.
11. Saving clause
Any amendments to this Agreement shall be made in writing in order to be effective. The above shall also apply to any waiver of the requirement for the written form. Should all or part of individual provisions of this Agreement or a provision included in the Agreement in future be or become invalid, void or unenforceable or if the Agreement includes omissions, this shall not affect the validity or enforceability of the other provisions. In place of the invalid provision, the Parties shall agree on a valid provision which corresponds to the purpose and intent of the invalid provision. In the event of omissions, the Parties shall agree on a provision corresponding to what would reasonably have been agreed in view of the intent and purpose of this Agreement if the matter had been considered from the outset. This Agreement and the interpretation thereof shall be governed by the laws of the Federal Republic of Germany, without regard to provisions governing the conflict of laws.