A.1.1. Divimove GmbH (hereinafter "DIVIMOVE") markets the productions of web video artists under contract with DIVIMOVE, known as creators, and supports creators in the design, production and distribution of their content by means of various activities.
A.1.2. Among other things, DIVIMOVE acquires, designs and produces projects, in areas including promotional video, product placement, branded entertainment, social media integration, testimonials, sponsorship and production design, all for distribution via Internet platforms, in particular on video or social media platforms (hereinafter "Special Marketing Projects").
A.1.3. The Counterparty in DIVIMOVE's Special Marketing Projects may be an agency or the term may refer directly to an advertiser (hereinafter "Company"). Where the term "Counterparty" is used below, the corresponding provision applies to both an agency and a Company.
A.2.1. These General Terms and Conditions govern the contractual relations between DIVIMOVE and its Counterparties with regard to the booking of integrated advertising and the implementation of Special Marketing Projects.
A.2.2. Unless otherwise agreed in writing, DIVIMOVE's General Terms and Conditions will form the sole basis for the Special Marketing Project. General terms and conditions of the Counterparty are hereby expressly excluded. This applies even if the Counterparty's terms and conditions have not been expressly objected to and/or DIVIMOVE provides its services without objection.
A.3. Establishment of a contract between DIVIMOVE and the Counterparty
A.3.1. If DIVIMOVE submits a provisional "Proposal" (i.e. a detailed quote setting out the nature and scope of the services) to the Counterparty during the contract negotiations, the conditions laid down therein will be non-binding. DIVIMOVE will give the Counterparty a deadline within which to confirm the Proposal. A contract will only be established upon written acceptance by DIVIMOVE of the Proposal confirmed by the Counterparty or upon actual provision of the service by DIVIMOVE.
A.3.2. In the case of orders from agencies, exact details of the advertising Company must be provided (name, full address and contact details, VAT ID). DIVIMOVE has the right to request proof of a mandate from the agency. In such cases the agency remains the Counterparty. Invoices will be sent to the agency. In the event that an agency is the Counterparty, when the order comes into effect the agency shall assign to DIVIMOVE, by way of security, the payment claims against its client arising from the contract under which the sum in question is owed. DIVIMOVE hereby accepts this assignment. DIVIMOVE will be entitled to disclose said assignment to the agency's client if the amount owed has not been paid one month after the due date.
A.3.3. In the case of agency bookings, DIVIMOVE reserves the right to forward booking confirmations to the agency's client as well.
A.4. Classification under advertising regulations
The Counterparty acknowledges that Special Marketing Projects may fall into a range of different classifications under advertising regulations. The Counterparty agrees that DIVIMOVE will operate entirely in accordance with the applicable legal requirements (in particular media and advertising regulations) and in those cases in which the Counterparty is not considered to be the distributor of the Special Marketing Project, DIVIMOVE alone can and will decide which classifications to apply.
A.5. Service provision
DIVIMOVE is free to determine the manner and method of providing the agreed service. In particular, DIVIMOVE is entitled to involve third parties in all phases of a Special Marketing Project. This does not affect the performance relationship between DIVIMOVE and the Counterparty.
A.6. Service acceptance and warranty
A.6.1. Provided that the Counterparty has a right of acceptance by law or contract, the Counterparty shall check the services provided by DIVIMOVE for defects immediately after delivery, and within 48 hours at the latest, and where appropriate shall communicate in text form (an email will suffice) the specific reasons that preclude acceptance. The Counterparty will be granted one revision procedure for each content piece. If no declaration is made within 48 hours to the DIVIMOVE contact person stated in the Proposal, the service will be deemed to have been accepted.
A.6.2. If contractual obligations cannot be fulfilled or cannot be fulfilled in a timely or correct manner by reason of force majeure, DIVIMOVE will be exempted from its performance obligation for the duration of the force majeure event. "Force majeure" refers solely to events whose causes are beyond DIVIMOVE's control. DIVIMOVE shall make good on the contractual obligation as soon as the force majeure event is over.
A.7. DIVIMOVE's liability
A.7.1. DIVIMOVE will only be liable for damage incurred by the Counterparty:
• which was caused by DIVIMOVE or its legal representatives or senior agents either intentionally or through gross negligence;
• if, in the case of DIVIMOVE contracts of sale or contracts for work and services, a guarantee regarding the qualities of the item was given or fraudulently misrepresented.
A.7.2. DIVIMOVE will be liable in full for damage caused intentionally or through gross negligence or in case of loss of life, bodily injury or damage to health. Furthermore, any claim for damages will be limited to foreseeable loss or damage which is typical for the contract, and in case of default to 5% (five per cent) of the contract value. Insofar as DIVIMOVE is only liable in the amount of typically foreseeable loss or damage, it is not liable for indirect damage, consequential damages or loss of profit. Liability under the German Product Liability Act remains unaffected.
A.7.3. DIVIMOVE's liability is excluded other than in the aforementioned cases, irrespective of the legal basis. Insofar as DIVIMOVE's liability is excluded, this also applies to the personal liability of DIVIMOVE's officers, employees, staff, representatives and agents.
A.8. Counterparty's liability
The Counterparty undertakes not to publish or make reference to any illegal or immoral content within the context of the cooperation. If and insofar as the Counterparty provides content or material for the Special Marketing Project, the Counterparty shall ensure that no rights of third parties, in particular personality rights, trademark rights, property rights, copyrights and design rights, are infringed. The Counterparty undertakes to indemnify DIVIMOVE in full against any disadvantages upon first being asked to do so and to compensate it for any loss or damage that DIVIMOVE incurs from a failure to observe the foregoing. This applies in particular in the case of claims by third parties, irrespective of the legal basis, and the resulting costs of legal defence.
A.9. Reservation of rights
All rights arising in connection with the Special Marketing Project and which are not granted or transferred to the Counterparty in writing will remain with DIVIMOVE. In particular the Counterparty shall not use, or allow third parties to use, all or part of the web video on any video platforms or social media channels other than those that have been agreed and/or use, or allow third parties to use, excerpts from the video for PR and/or merchandising purposes. Furthermore, no rights for the promotional use of images and/or names of actors or contributors or other participants in the Special Marketing Project will be transferred without express written agreement.
A.10. Term and termination
A.10.1. Unless otherwise agreed, the statutory provisions on termination will apply.
A.10.2. The right to terminate without notice for good cause will remain unaffected by any agreement. Good cause for which DIVIMOVE may terminate the contract without notice will be deemed to exist, in particular, if:
• DIVIMOVE can no longer be expected to adhere to this agreement for another reason related to the person of the Counterparty in consideration of the circumstances of the individual case and the mutual interests of the parties, in particular, if circumstances related to the person of the Counterparty exist, which suggest that the Counterparty can no longer fulfil its obligations under this agreement on a permanent basis;
• the Counterparty decides to liquidate its Company or actually ceases its business operations;
• a warning and/or preliminary injunction resulting from the conduct of the Counterparty has been issued against one or both parties and/or a company of DIVIMOVE GmbH in connection with a contractual service;
• measures taken or orders issued by authorities or other government bodies preclude performance of the services by DIVIMOVE;
• DIVIMOVE has the reasonable suspicion, which the Counterparty is unable to refute, that the Counterparty or the offers and/or content provided by the Counterparty in connection with the cooperation is/are in violation of legal provisions, in particular the German Criminal Code or the German Interstate Treaty on the Protection of Minors from Harmful Media (Jugendmedienschutz-Staatsvertrag). Reasonable suspicion will be deemed to exist where DIVIMOVE has fact-based evidence indicating a violation of legal provisions, in particular the opening of a preliminary investigation against the Counterparty or the Counterparty being asked by other bodies (e.g. state media authorities) to submit a statement.
A.10.3. The Counterparty shall pay for any services rendered by DIVIMOVE up to the date on which notice of termination is received, according to the extent of the service provision. Furthermore, any remuneration already paid up to this date will be set-off against the aforementioned open claims. Any claim for damages by DIVIMOVE against the Counterparty remains unaffected. This Sec. 10.3 shall apply for termination with cause and without cause.
A.10.4. In the event of Counterparty‘s termination of this agreement prior to the end of the agreement DIVIMOVE shall be entitled to claim the agreed remuneration. DIVIMOVE shall nevertheless allow for set-off of the amount of the saved expenses due to the termination of the contract as well as the amount DIVIMOVE acquires or maliciously refrains to acquire by other use of its work force and services. There is a presumption that DIVIMOVE is entitled to claim 15 % of the remuneration accounted for by the part of the work and services not yet provided. DIVIMOVE and Counterparty shall be entitled to rebut this presumption.
A.11. Payment terms
A.11.1. Unless separate agreements are made, payments will be due in full 14 days after receipt of the invoice. DIVIMOVE may also charge for individual services at any time, in which case it will specify the service concerned on the invoice.
A.11.2. In the case of Special Marketing Projects with a contract value of €100,000 net or more, DIVIMOVE may require an advance payment of one-third of the contract value at the time the contract is concluded.
A.11.3. Bank charges are payable by the Counterparty. DIVIMOVE only ever accepts cheques as conditional payment, with payment conditional on the cheque being honoured. Payments by the Counterparty will only be deemed to have been made when DIVIMOVE
has the amount at its disposal.
A.11.4. In the event of a delay in payment, DIVIMOVE may defer further performance until the invoice has been paid. DIVIMOVE also has the right to withhold performance in all cases where there is a substantial deterioration in the Counterparty's financial circumstances and also, if the Counterparty is an agency, where there is a substantial deterioration in the financial circumstances of the agency's client. This does not remove the entitlement to payment, including for any services that have not yet been rendered. DIVIMOVE may demand late payment interest at 10 percentage points above the base rate. The right to claim additional damages is expressly reserved. This is without prejudice to the Counterparty's right to furnish proof that less damage was caused by late payment.
A.11.5. The Counterparty only has a right of set-off if its counterclaims are legally established, undisputed or recognised by DIVIMOVE. Furthermore, the Counterparty is only entitled to assert a right of retention if its counterclaim is based on the same contractual relationship and is legally established, undisputed or recognised by DIVIMOVE.
A.12.1. The parties undertake to handle all information and data that they receive from the other party in connection with the performance of the contract in a confidential manner and to make it accessible to third parties only to the extent necessary for the performance of the agreed services. This applies in particular to price lists and contracts. This obligation will continue to apply after completion of the contract.
A.12.2. Affiliated companies in the same group as DIVIMOVE are not considered as third parties in this context.
A.12.3. If the Counterparty is an agency, said agency shall, by means of appropriate confidentiality agreements, ensure that its clients do not divulge to third parties any information obtained during performance of the contract. Disclosure by the agency to an auditor appointed by the agency's clients for media auditing and benchmarking purposes is permissible provided the auditor makes a written undertaking to maintain confidentiality, to safeguard privacy and data security and to comply with anti-trust rules. In the course of an audit or benchmarking, the agency or auditor shall not disclose any information which would allow the recipient to draw conclusions about the terms applying to individual advertising clients. On no account may the information be disclosed or otherwise made accessible to DIVIMOVE's competitors.
A.13. Final provisions
A.13.1. This contract is governed by the law of the Federal Republic of Germany to the exclusion of conflict-of-law rules. It is agreed that the exclusive place of jurisdiction for any disputes arising from this contractual relationship is Berlin.
A.13.2. DIVIMOVE has the right to transfer its rights and obligations with respect to the Counterparty to companies in which DIVIMOVE has a direct or indirect interest and/or to its affiliates.
A.13.3. The Counterparty shall be notified by email or fax of any changes to these General Terms and Conditions. Said changes will be deemed to be approved if the Counterparty does not submit a written objection to DIVIMOVE within one month of being notified of the changes.
A.13.4. Should one or more provisions of these General Terms and Conditions be or become invalid, this will not affect the validity of all other provisions or agreements.
A.13.5. There are no verbal agreements. Any prior agreements are void. Amendments and additions to this agreement, including amendments to this clause, must be made in written form. Declaration of termination or any other unilateral declaration must be made in written form. "Written form" for the purposes hereof is as defined in Section 126(1) and (2) of the German Civil Code. However, written form also includes fax.