These terms and conditions (“Agreement”) set forth the general terms and conditions of your use of the mitomedia.com website (“Website” or “Service”) and any of its related products and services. This Agreement is legally binding between you (“client”, “you” or “your”) and this Website operator (“Michael Baumgardt (Mitomedia)”, “we”, “us” or “our”). If you are entering into this agreement on behalf of a business or other legal entity, you represent that you have the authority to bind such entity to this agreement, in which case the terms “client”, “you” or “your” shall refer to such entity. If you do not have such authority, or if you do not agree with the terms of this agreement, you must not accept this agreement and may not access and use the Website and Services. By accessing and using the Website and Services, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement. You acknowledge that this Agreement is a contract between you and the Operator, even though it is electronic and is not physically signed by you, and it governs your use of the Website and Services.
§1 Scope of Application
- The General Terms and Conditions apply to all services provided by Mitomedia.
- Supplementary or deviating terms and conditions of the Contractual Partner shall apply only after written confirmation by Mitomedia.
- Written form is required for all terms and conditions between Mitomedia and the Contract Partner, individual contract contents shall take precedence over the GTCs.
§2 Conclusion of contract
- Offers by Mitomedia are non-binding; the contract shall become valid only upon written confirmation by Mitomedia (also in the form of e-mail).
- In the event of typographical or printing errors in the order confirmation or an offer or a transmission error, Mitomedia may contest the order, but must prove the error.
§3 Subject matter of the contract
- The subject matter of the contract is the contractually agreed service contained in the order confirmation.
- Changes and additions or drawings, graphics or other descriptions and consulting services shall be binding only if confirmed in writing.
- Contractual services which are not included in the order confirmation shall not be the subject matter of the contract until Mitomedia has confirmed this in writing.
- Mitomedia is entitled to involve third parties in the fulfillment of the service, either in part or in whole.
- Deadlines for completion shall be deemed binding only after written confirmation by Mitomedia.
- Mitomedia is not responsible for delays in performance due to force majeure and circumstances caused by the Customer and gives the Customer the right to postpone the performance of the service for the duration of the impediment and the inclusion of a reasonable extension.
- In the event of the transfer of openly licensed third-party software which is the subject matter of the contract, the terms and conditions of the software concerned shall apply. Upon request, Mitomedia will state which software has been used. There is no guarantee from Mitomedia of permanent use free of charge.
§5 Obligations of the Customer
- The Customer is obligated to make available without delay all information, access data, and documents which are necessary for the performance of the service. This includes e.g. texts, photos, graphics, etc.
- The Principal is obligated to provide one or more contact persons (complete contact data) who are authorized to provide the necessary information and to answer design questions or similar.
- The Customer shall indemnify Mitomedia against all claims arising from an infringement of the rights of third parties in connection with the content provided. This also includes reimbursement of the costs of legal defense in a reasonable amount.
- After completion of the service and transfer to the Customer's sphere of control, the Customer is obligated to accept the service within 7 days.
- Mitomedia waives formal approval by the Customer, who may also accept the service by conclusive behavior (e.g., putting the service into use or payment of the final invoice).
- Mitomedia is entitled to present parts of the service to the Customer for premature acceptance. Once parts have been accepted, they may not be rejected or changed by the Customer at a later date, provided that the Customer was aware of all the circumstances at the time of the partial acceptance.
- If the Client does not raise any objections within the aforementioned period, the service shall be deemed to have been tacitly accepted.
- The service shall be rendered according to the price stipulated in the contract. In the case of services at fixed prices, neither party shall be entitled to demand an adjustment in the event of increases or decreases in expenditure. Budget plans or similar from Mitomedia are non-binding.
- In addition, all travel expenses and third-party compensation claims incurred in the course of the provision of services shall be included in the compensation, upon presentation of proof thereof, and must be paid by the Customer.
- In the event of failure to agree on payment for a service provided by Mitomedia, the Customer must pay a customary fee for such service. In case of doubt, the rate of remuneration demanded by Mitomedia shall be deemed customary.
- The Customer is obligated to inspect the service received for obvious defects. Obvious defects are defects which can be noticed by an average Customer. Obvious defects include recognizable functional limitations of the service, significant, easily visible damage and provision of a different item or provision of an insufficient quantity. Such obvious defects shall be notified to the Contractor in writing directly after performance in accordance with §377 of the German Commercial Code (HGB).
- Defects that only become apparent later must be reported to the Contractor in writing in accordance with §377 HGB.
- In the event of a breach of these obligations, the performance together with the defects shall be deemed to have been accepted and approved.
- Notifications of defects must include a precise description of the problem and the Contractor shall be entitled to verify this. In addition, the Customer shall assist Mitomedia in identifying and remedying the defect and shall grant access to the documents concerned.
- If the defect is unjustified and services have been rendered, Michael Baumgardt (Mitomedia) is entitled to compensation in the customary amount. The burden of proof lies with the Customer (§254 BGB applies accordingly).
- Mitomedia is not liable if the Customer has made changes to the service provided by Mitomedia, insofar as these changes had an influence on the occurrence of the defect.
- Mitomedia shall not be liable for defects due to incompatible hardware and software.
- In the event of material defects, Michael Baumgardt (Mitomedia) shall initially have the right to subsequent performance at its own discretion, in the form of replacement or elimination of the defects with the granting of the necessary time and opportunity. If subsequent performance is not possible, the Customer shall be entitled to a reduction of the purchase price or withdrawal from the contract and reimbursement of the purchase price.
- Claims for damages shall only be admissible in accordance with §9.
- Mitomedia assumes liability in accordance with the statutory provisions in the case of claims for damages based on intent or gross negligence on the part of the representatives of Mitomedia.
- In the case of simply negligent violations of cardinal obligations (the obligations that enable the contract to be performed), Mitomedia assumes liability in accordance with statutory provisions.
- Mitomedia assumes no liability for simply negligent violations of non-essential contractual obligations.
- Compensation will only be paid for foreseeable damages, in particular the purchase price. Consequential damages, such as lost profits, expected savings, and damages from claims and demands of third parties (e.g., software manufacturers) will not be assumed.
- Claims for damages have a statute of limitations of 1 year, unless they are legal violations, especially in case of injury to life, body or health.
- The client has the obligation to secure the data and protection against damage software. Damages in such cases will not be taken over.
§10 Rights of the Customer with regard to the use of the software
- Mitomedia owns the copyrights for all software as well as for all integrated elements, if any. Mitomedia grants the Customer all rights of use without restriction as to content, space, or time.
- The Customer may transfer and sublicense all rights in whole or in part.
- The Customer will receive the rights only after payment of all invoices in accordance with §158 Paragraph 1 of the German Civil Code (BGB).
- The Customer is entitled to assert any infringement of his rights in his own name and to take action against it.
- Mitomedia has the right to use the performance specified in the contract at any time for demonstration purposes and as a reference of its work. Mitomedia shall show consideration for the rights of the Customer.
- Mitomedia has the right to mention your name as the copyright holder in the form of a note in the software and on created web pages, etc.. This also applies to a copyright notice. These may not be removed by the Customer unless this has been expressly permitted by Mitomedia.
§11 Confidentiality and data protection
- The contracting parties undertake to keep confidential all trade secrets and confidential information brought to their attention by the other contracting party, in particular all information concerning customer relationships and their details, other essential information, e.g. service descriptions, product specifications, information on product processes and also other confidential information provided and/or disclosed by the parties in written or other form, to be treated as highly confidential in accordance with the principles of a prudent businessman and in particular not to be used directly or indirectly in business dealings and/or for competitive purposes and/or to be passed on to third parties in business dealings and/or for competitive purposes and/or otherwise brought to the attention of third parties directly or indirectly themselves or through third parties.
- The non-disclosure agreement shall not apply if information is publicly known (e.g. publications in the media), was already known to the other party at the time of receipt, is made available to a party by third parties without breach of a duty of confidentiality, is disclosed by virtue of statutory provisions, an official order or a judicial order, or is disclosed to a third party directly or indirectly.
- The contracting parties shall oblige all persons whom they employ to provide the service or who otherwise come into contact with confidential information within the meaning of Art. 5 (1) f, Art. 32 (4) of the GDPR to maintain confidentiality in accordance with Art. 5 (1) f, Art. 32 (4) of the GDPR.
- The contracting parties shall maintain data secrecy within the meaning of the DSGVO and shall only use vicarious agents who are obliged to maintain data secrecy when executing the order.
§12 Final provisions
- The business relationship between the Contractual Partner and Mitomedia shall be governed exclusively by German and European law, even if the Contractual Partner has his place of residence or registered office outside the borders.
- Although the Website and Services may contain links to other resources (such as websites, mobile applications, etc.), we do not imply, directly or indirectly, any authorization, affiliation, sponsorship, endorsement, or affiliation with any linked resources, except as expressly stated herein. We assume no responsibility or liability for the actions, products, services, and content of other third parties. Your linking to other external resources is at your own risk.
- Changes and additions are only effective in written form. The written form requirement can only be waived in writing. In particular, e-mail and other digital means shall suffice as written form.
- The Customer may assign the claims arising from this contract to third parties only by written confirmation from Michael Baumgardt (Mitomedia), insofar as this is not described in the scope of §354 a of the German Commercial Code.
- In the event of differences between this contract and a translation of this contract, the German version of the contract shall prevail.
§13 Severability clause
- Should one or more of these terms and conditions be or become wholly or partially invalid, incomplete or in need of supplementation, this shall not affect the validity of the remaining clauses.
- In this case, the parties undertake to agree on a provision that comes as close as possible to what was economically intended. Any loopholes shall be dealt with in the same way.