General Terms and Conditions: pilot Screentime GmbH

Updated: November, 4th 2024

1. Scope of application

1.1 The following General Terms and Conditions (hereinafter referred to as “GTC”) apply exclusively to the entire business relationship between pilot Screentime GmbH (hereinafter referred to as “Agency”) and the respective customer. Our T&Cs apply only to companies as defined in Section 14 of the German Civil Code (BGB). They shall also apply to all future transactions with the customer.

1.2 Conflicting or deviating terms and conditions of the customer are expressly rejected. Our GTC shall also apply if the agency provides or accepts the service without reservation in the knowledge of conflicting or deviating terms and conditions of the customer, unless expressly agreed otherwise in writing.

1.3 Deviations from the terms and conditions listed here are only valid if we expressly agree to them in writing.

2. Services of the agency

2.1 The nature and scope of the Agency’s services to its customers shall be determined primarily in accordance with the individual contractual provisions in separate agreements and cost estimates, and otherwise in accordance with these GTC.  

2.2 The agency shall support the customer in the development, production, optimisation and expansion of its advertising and communication presence. This includes, among other things, digital screen communication at the POS/POI and internet presences including smart TV, mobile and web platforms.

2.3 All system and functional tests are carried out taking into account the current state of the art and the current operating systems.  Deviations and additional environments must be expressly agreed in writing in advance and are associated with additional costs, which the agency will offer to the customer on request.  

2.4 The monitoring of the functionality of such a project must be expressly agreed separately between the agency and the customer and is associated with additional costs. The restoration of functionality by the Agency is also associated with additional costs, insofar as this is possible at all due to the changes brought about by third parties (e.g. to interfaces or in the operating system). The agency is not responsible for the unlimited functionality of a project such as a website, app, digital display and the like.

2.5 If the agency creates an app or software as part of the contract or assignment that must be or is distributed via third parties (such as Apple/iTunes, Samsung, LG, Google, Facebook, etc.), the agency shall inform the customer about the regulations of this third party valid at the time the order is placed and point out possible risks. The agency cannot guarantee the distribution or approval of the app. Measures that lead to changes to the app or software as part of the approval process and thus lead to additional costs shall be calculated separately by the agency and, unless expressly agreed otherwise in advance, are associated with additional costs.

2.6 The scope of services and functions of the delivered software and/or hardware shall be determined by the product description of the agency or – in the case of third-party production – of the manufacturer.

3. Delivery

3.1 Unless otherwise agreed, delivery shall be made to the delivery address specified by the customer. Delivery shall only be made to addresses within Germany.

3.2 Insofar as information on the delivery period is provided, this is non-binding, unless the delivery date has been promised as binding in exceptional cases.

3.3 Partial deliveries and services are permissible (insofar as they are reasonable for the customer). Partial deliveries may be invoiced separately.

4. Software utilisation

4.1 The customer shall be granted the non-transferable and non-exclusive right to use the software created by the agency in unmodified form for the intended purpose of the contract. The right of use shall only apply to a single device specified in the order or in the order confirmation. Use on modified or multiple devices or in a network shall require the written consent of the Agency. The user documentation may be stored electronically. Reproduction of the user documentation in electronic and/or printed form is not permitted without the written consent of the Agency.

4.2 If the Agency supplies software from third-party manufacturers under these General Terms and Conditions, their licence conditions shall also apply in the relationship between the Customer and the Agency. The Agency shall make these licence conditions available to the customer. The customer shall be obliged to comply with the licence agreement provisions of the third-party manufacturers.

4.3 The responsibility for backing up software and data lies exclusively with the user. Property right or other legal owner notices on data carriers and documentation may not be removed.

5. Obligations of the customer to co-operate

5.1 The customer shall provide the Agency with all data and other information required for the provision of the contractual services, e.g. on marketing objectives, markets and products, in the form of a written briefing without being requested to do so. The Agency undertakes to treat such data and information as strictly confidential.

5.2 The client shall bear sole responsibility for the content of the contractual work.

5.3 The customer undertakes to indemnify the agency against all claims asserted by third parties against the agency due to infringements of rights by the customer’s advertising material. The agency is not obliged to check advertising for the infringement of third-party rights.

6. Remuneration of the agency

6.1 Payment shall be made in advance or on account. The method of payment can be found in the quotation or the order confirmation. Other methods of payment require a written agreement.

6.2 The delivered goods/products/services shall remain the property of the Agency until full payment has been made.

6.3 The Agency’s invoices are due for payment within 30 days of receipt and without deductions.

6.4 Fees are net amounts which are to be paid plus the statutory value added tax.

6.5 If the customer is in default of payment, all invoices shall become due immediately. In the event of late payment, the Agency may charge interest on arrears at a rate of 5 percentage points above the respective discount rate of the Deutsche Bundesbank. Higher default interest must be proven by the Agency by means of a simple bank confirmation. In the event of a delay in payment of more than 40 days, the Agency shall be entitled to revoke any right of use granted until the outstanding payment for this work/this software/this service has been settled.

6.6 Offers and cost estimates of the Agency are non-binding and subject to change. The contract shall only be concluded upon acceptance by the Agency. Acceptance shall be effected by delivery of the ordered goods or provision of the commissioned services or by a separate order confirmation within four weeks. The scope of the deliveries and services shall be determined by the written order confirmation and shall be decisive for the scope of the deliveries and services unless the customer objects within 5 working days; this shall also apply in the event of deviations between the order and the order confirmation.

6.7 The agreed remuneration shall include two correction iterations in the concept phase and one correction iteration in the implementation phase of the order, unless otherwise agreed in writing between the agency and the customer in individual cases.

6.8 The customer orders in writing by means of a signed order confirmation, which is sent to us in writting. The order is thus legally binding. We shall confirm the order by sending an e-mail. The order confirmation contains the data of his order. The contract is then effectively concluded.

6.9 An order is only possible if the customer has already reached the age of 18.

6.10. Costs for services and rights of third parties (text, image, etc.) or the creation of artwork for use as part of a campaign that goes beyond the scope of the order are not included and will be charged at a 15% agency surcharge. They will be offered and charged separately.

6.11. The remuneration for rights of use shall be governed by Section 12 of these provisions.

6.12. Cash expenses and special costs incurred by the agency at the express request of the customer shall be charged at cost price. These include, for example, extraordinary communication, dispatch or reproduction costs. GEMA fees, artists’ social security contributions and customs costs shall be invoiced to the customer net, even if they are only charged subsequently.

6.13. If the customer changes or cancels work commissioned outside the ongoing support, he shall reimburse the Agency for the fees and/or time spent up to that point and reimburse all costs incurred, including any fees and/or commissions not paid, and indemnify the Agency against any claims by third parties, in particular by the Agency’s contractors.

6.14. The technical dispatch costs of any mail or ad server, streaming or hosting services are not included in the remuneration for the production services and shall therefore be charged to the customer separately.

6.15. If the Agency does not have a valid VAT identification number (VAT ID number) for customers from other EU countries when the invoice is issued and the customer does not provide this within 2 calendar weeks upon request, the Agency shall be entitled to issue the relevant invoices plus the applicable statutory VAT.

7. Acceptance/ transfer

7.1 In the case of work services, the customer shall be obliged to accept a properly completed work service. Partial acceptances shall not take place. For this purpose, the Agency shall notify the customer of completion. The customer shall then declare acceptance within 14 days and collect the work; the obligation to collect the work shall not apply if delivery has been agreed or the work has been produced on the customer’s premises. In the case of ordered hardware or software for which the agency does not provide any work services, the customer shall be obliged to collect the goods within 14 days of receipt of a notification of readiness. If the customer remains in default of acceptance and/or collection for longer than 14 days from receipt of the notification of provision and/or completion, the agency may set a grace period of 14 days. If this period expires without result, the Agency shall be entitled to demand compensation in lieu of performance. If the customer refuses acceptance or is clearly not in a position to fulfil his payment obligations, the obligation to set a grace period shall not apply. Compensation shall amount to 20% of the price of the delivery item or service. The agency is entitled to prove and claim higher damages. The customer reserves the right to prove that the damages are lower than 20%. In the event of default of acceptance, the Agency may also demand additional expenses for the provision, storage and maintenance of the contractual object.

8. Transfer of risk

8.1 The risk shall pass when the delivery item is handed over to the carrier – even in the case of partial deliveries – even if the Agency has assumed other services or in the case of returns. At the customer’s request, the consignment will be insured against theft, breakage, transport, fire and water damage at the customer’s expense. Transport damage must be claimed directly by the customer from the transport company. If dispatch is delayed due to circumstances for which the customer is responsible (e.g. because he does not call for the goods), the risk shall pass to the customer from the day the goods are made available if and as soon as the agency has informed the customer of this. Delivered goods are to be accepted by the customer, even if they have insignificant defects; the buyer must reserve any rights.

9. Warranty  

9.1 The statutory provisions for liability for material defects shall apply.

10. Liability

10.1 The Agency’s liability – irrespective of the legal grounds – shall be limited to intent and gross negligence. Liability for indirect damages, in particular loss of profit, is excluded. This exclusion of liability shall not apply to damage to life, limb and health, damage resulting from a culpable breach of essential contractual obligations (cardinal obligations), any guarantees and claims under the Product Liability Act.

10.2 The Agency’s liability for loss of data shall be limited to the typical restoration costs that would have been incurred if backup copies had been properly made, provided that the Agency has made proper backup copies.

10.3 In the event that third parties assert claims against one of the parties in connection with the subject matter of this contract, the respective opposing party shall inform its contractual partner immediately. The parties shall support each other to a reasonable extent in the defence against such claims. If the claims of third parties are not based on a breach of the Agency’s performance obligations, the Customer shall indemnify the Agency against all claims of these third parties.

10.4 If the Agency considers a legal (e.g. competition law) examination by a particularly competent person or institution to be necessary for the realisation of the measures, the customer shall bear the costs after consultation. If the Agency has pointed out concerns and the customer nevertheless insists on realisation, the Agency shall not be liable for any resulting disadvantages and risks. The Client shall indemnify the Agency against third-party claims upon first request. The parties clarify that in no case shall the Agency be liable for damages that were not caused by the Agency’s services, e.g. text contributions in forums, chats, blogs, etc.

10.5 The customer’s claims for damages shall become time-barred after one year. The limitation period shall commence when the respective claim for damages arises and the customer has knowledge or grossly negligent ignorance of the grounds for the claim and the identity of the infringer.

10.6 The Agency shall not be liable for errors in advertising placement caused by server/computer, software and/or hardware and/or communication service failures of other companies, Internet providers and/or online services or which are due to disruptions in the communication networks of other operators, computer failure at Internet providers, online services, non-updated and/or incomplete offers from so-called proxy servers of commercial and non-commercial providers and online services, force majeure, strike, legal or official regulations or other circumstances beyond the Agency’s sphere of responsibility or influence. influence of the agency. 

11. Cancellation of the contract by the agency

11.1 The Agency may withdraw from the contract if this is permissible under the statutory provisions or the other provisions of this contract, or if the customer has made false statements about his creditworthiness or if the customer’s creditworthiness is lacking and this jeopardises the Agency’s claims for performance, in particular its claims for payment, and the customer cannot provide sufficient security within a reasonable period of time, whereby the Agency’s performance obligations shall be suspended during this period, or if the customer’s conduct is in breach of contract which violates the Agency’s essential interests, e.g. if the customer fails to comply with his duties of care, or if the Agency fails to fulfil its obligations under the contract. If the customer violates his duty of care with regard to the hardware delivered under retention of title.

11.2 If the Agency is unable to deliver the ordered hardware or software through no fault of its own because the manufacturer does not fulfil its contractual delivery obligations to the Agency, the Agency shall be entitled to withdraw from the contract vis-à-vis the customer. This shall not apply if the Agency is responsible for the non-delivery. The Agency shall inform the Customer without delay that the ordered goods are not available and shall reimburse any payments already made without delay insofar as they relate to the unavailable service. The above reservation of self-supply shall also apply to the availability of necessary spare parts and/or replacement equipment.

12. Transfer and remuneration of rights of use

12.1 The Agency shall transfer to the Customer the rights of use to the contractual services to the contractually agreed extent, subject to full payment of all remuneration due to the Agency. The rights shall be transferred exclusively with regard to services provided individually for the customer, otherwise non-exclusively, but unrestricted in terms of content, territory and time. The agency shall inform the customer in good time of any restrictions on rights that deviate from this. No rights of use shall be granted to the content of drafts (intermediate products etc.), documents from pitch and/or concept presentations, the briefing and/or idea sketches.

12.2 Source files (e.g. PSD files, FLA files, but also all other formats that are not listed separately here) and all programme codes and all associated rights shall remain with the agency unless a special regulation and remuneration for a rights buyout is agreed.

12.3 Claims by third parties for special remuneration to compensate for copyrights and neighbouring rights as well as the right to one’s own image shall be borne by the customer, unless the agency is not responsible for the infringement of rights asserted. In all cases in which such a claim by a third party becomes apparent, the Agency shall inform the customer in good time before using the material concerned and obtain authorisation.

12.4 The editing or modification of content created by the Agency shall only be permitted with the consent of the Agency. Rights of use for designs rejected or not executed by the customer shall remain with the Agency.

12.5 If the customer intends to use the content designed by the agency outside the originally agreed campaign, the customer shall agree a special fee with the agency for this. If this agreement does not materialise, a copyright amounting to 35% of the Agency’s original total remuneration shall be deemed to have been agreed.

12.6 The further transfer or licensing of the rights of use by the customer to third parties shall require the prior written consent of the agency in order to be effective. Excluded from this is the assignment or licensing to subsidiaries or affiliated companies within a group.

12.7 The Agency shall charge an additional buyout fee for the transfer of source files (e.g. PSD files, FLA files, but also all other formats that are not listed separately here) and programme codes, provided this was agreed between the Agency and the Client at the latest when the order was placed:

12.7.1. FLA and Scala files: EUR 600.00 per file

12.7.2. PSD files: EUR 600.00 per file

12.7.3. other files (e.g. source codes): 50 % of the total cost estimate of the underlying project, but at least EUR 1000.00

12.8 If such a transfer of source files is only agreed between the agency and the customer after the customer has placed the order, additional costs will be incurred for the data search and preparation for transfer, depending on the effort involved, about which the agency will inform the customer on request. This does not include image rights, unless these have already been transferred as part of the order. The customer assumes responsibility for any additional territory or duration licensing of image or audio rights that may be necessary. The Agency accepts no liability for statutory claims by authors for subsequent increases in remuneration in accordance with §§ 32, 32a UrhG; the customer shall indemnify the Agency against such claims upon first request, provided the Agency is not responsible for the sub-licensing.

13. Cancellation

13.1 Notwithstanding any individual contractual agreements between the Agency and the Client, either party shall be entitled to terminate the contract at any time without notice for good cause. Both parties shall also have an extraordinary right of termination if the other party repeatedly breaches material obligations which it is obliged to fulfil under this contract and fails to restore the contractual situation within 14 days of receiving a written request to do so. In all other respects, the statutory provisions of the BGB shall apply.

14. Self-promotion, naming of authors

14.1 The Agency shall be permitted to use its work results or excerpts thereof free of charge for the purpose of self-promotion, in particular on its website or blog – even after the end of the contract period – with the prior express written consent of the Customer.

14.2 The Agency shall retain the right to name the author; if it wishes to make use of this right, it shall be entitled to use its name or logo or other customary business designation on the Customer’s advertising material discreetly and after consultation with the Customer regarding the form.

15. Confidentiality/data protection

15.1 Insofar as confidential information required for the fulfilment of the contract is disclosed, both parties undertake to take all necessary measures during the term of the contract and for a period of two years after its termination to prevent the confidential information from becoming known and to ensure its confidentiality. The use of this confidential information is only permitted for the fulfilment of contractual obligations, and the applicable measures must at least correspond to the measures taken by the receiving party to protect its own confidential information. The parties are entitled to make confidential information available to their own employees and consultants insofar as this is necessary for the fulfilment of the contract and insofar as they have undertaken to maintain confidentiality.

15.2 Both parties undertake to comply with the applicable data protection regulations.

15.3 If, after the end of the contract, the customer requests that the data still in the Agency’s possession be deleted, this obligation shall only apply to the Agency’s work servers and directly connected archive servers used, but not to backup tapes, unless the parties have previously agreed otherwise. The Agency shall inform the customer of the costs for the deletion of the backup tapes upon request.

16. Force majeure

16.1 Delays in delivery and performance due to force majeure and due to events that make delivery or performance unreasonably difficult or impossible for the Agency – this includes in particular strikes, lockouts, or impairment due to environmental disasters, official orders, failure of communication networks and gateways of other operators and disruptions in the area of line providers (e.g. DSL connections of Deutsche Telekom and disruptions at the data centre operator), etc., even if they occur at the Agency’s suppliers or their subcontractors, shall not be the responsibility of the Agency, even in the case of bindingly agreed deadlines and dates. They shall entitle the Agency to postpone the service or delivery for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract. If the hindrance lasts longer than three months, the customer shall be entitled, after setting a reasonable grace period, to withdraw from the part of the contract that has not yet been fulfilled. If the delivery time is extended or if the agency is released from its obligation to perform, the customer cannot derive any claims for damages from this. The Agency may only invoke the aforementioned circumstances if it notifies the customer thereof.

17. General 

17.1 The customer’s rights or obligations under this contract may not be transferred to third parties without the Agency’s prior written consent.

17.2 If one or more provisions of these GTC are or become invalid, this shall not affect the validity of the remaining provisions. The parties shall replace the invalid provision with a provision that comes as close as possible to the purpose of the invalid provision. The same shall apply in the event of a loophole in these GTC.

17.3 The Agency shall be entitled to amend these General Terms and Conditions unilaterally during the term of the contract. The Agency shall only make amendments if this is objectively justified, in particular due to changes in case law, recent technical developments or other equivalent reasons. The agency shall inform the customer of the amended General Terms and Conditions and of his right of objection and the consequences of failing to object. If the customer does not object within two weeks, the changes shall be deemed to have been recognised.