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avidly Terms

Avidly Plc. Terms and Conditions

20th of May, 2021

1. Scope of application

1.1. These General Terms and Conditions apply for all legal transactions and other services of Avidly Germany GmbH (hereinafter referred to as the “Contractor”) with its contract partners (hereinafter referred to as the “Client”).

1.2. Conflicting or diverging General Terms and Conditions of the Client shall not apply unless the Contractor has expressly consented to their application. These General Terms and Conditions shall also apply if the Contractor performs the services without reservation with knowledge of terms and conditions of the Client contrary to or in deviation from these General Terms and Conditions. Deviating agreements or supplements and agreements made verbally or by telephone shall only be binding if they are confirmed in writing by the Contractor.

1.3. These General Terms and Conditions shall apply as a framework agreement for all future transactions with the Client without a further express agreement being required.

1.4. The Contractor provides services and consulting in the areas of sales, marketing and technology.

1.5. The Contractor is entitled to amend or supplement these General Terms and Conditions with an appropriate notice period. These amendments shall enter into force in accordance with the notice if the Client has not objected in writing by the date on which the amendment enters into force as stated in the notice. If the Client objects within the notice period, the contract shall be terminated and excess amounts already paid shall be repaid when the amended General Terms and Conditions enter into force. This shall not apply in the case of amendments that are exclusively positive for the Client or if the General Terms and Conditions for existing contracts are not amended.

 

2. Scope and reporting obligation

2.1. The offers of the Contractor are non-binding and subject to change without notice. Agreements and orders, verbal ancillary agreements and assurances on the part of the Contractor only become binding upon receipt of the corresponding confirmation signed by the Client.

2.2. The services to be provided are described in greater detail in the order confirmation or the offer signed by the Client, the corresponding appendices and any service specifications. All stated documents are components of the contract concluded between the Contractor and Client.

2.3. Force majeure events that make the service significantly more difficult or temporarily impossible or impairments due to non-cooperation on the part of the Client entitle the Contractor to postpone fulfilment of its service for the duration of the impairment and a reasonable start period. Force majeure shall include all unforeseeable events as well as such events whose consequences for the fulfilment of the contract are beyond the control of any of the contracting parties. These events include in particular legal industrial action, including at third-party companies, administrative measures, failure of communications networks and gateways of other providers, interruptions in the area of service providers, other technical failures, even if these circumstances fall under the responsibility of subcontractors, sub-suppliers or their subcontractors or the operators of sub-host computers authorized by the provider. The parties shall inform each other immediately of the occurrence of such circumstances. The Client shall indemnify the Contractor against all claims arising from and in connection with such temporal delays.

2.4. The Contractor does not accept any liability for direct or indirect damages due to technical problems, loss of service, data loss, transmission errors, data insecurity or other grounds unless it can be shown that the Contractor acted intentionally or at least with gross negligence in this regard. The Client is responsible for securing its own data. The Contractor only creates backup copies of data for data losses in the area of the Contractor.

2.5. At the request of the Client, the Contractor is to provide information on the status of the execution of the order. If the Contractor is to prepare a comprehensive written report, in particular for submission to third parties, this must be separately agreed.

2.6. The Contractor has the right to use third parties for the provision of service at any time and to any desired extent. This shall not constitute an entitlement to reduction or other claims on the part of the Client.

 

3. Amendments to the order

3.1. Amendments or supplements to the order require the written form.

3.2. As long as amendments are not laid down in writing, the Contractor shall perform the work without taking the requested changes into consideration.

3.3. The Contractor is obliged to take into account change requests of the Client insofar as it is reasonable to do so within the context of its operational capacities, especially with regard to cost and time planning. Additional costs incurred shall be compensated in accordance with Clause 4.2 of these General Terms and Conditions.

3.4. Regardless of the previous provisions, however, the Contractor reserves the right to extend, change and improve services, especially if this change is customary in the industry, appears necessary, to prevent misuse or if the Contractor is obliged to do so due to changes in the law or jurisprudence. Voluntary services and performances provided by the Contractor free of charge can be stopped at any time without prior notice. Such voluntary services and performances provided free of charge shall not constitute any entitlements for the Client. The Client shall also grant the Contractor an annual price adjustment in the amount of a maximum of 5 %. The Contractor shall only exercise this right of price adjustment if it is necessary to compensate for increased costs.

 

4. Remuneration

4.1. If there is no separate contractual agreement, the general remuneration is 160 Euro/hour (this corresponds to a daily rate of 1,200 Euro). Otherwise, the contractually agreed remuneration shall apply. In the absence of separate contractual agreements, payments shall be due for payment immediately upon invoicing and without any deductions. The Contractor is also entitled at any time to provide services in whole or in part against advance payment, even in the context of an ongoing business relationship. Default in payment shall occur ten days after receipt of the invoice at the latest. As per the date of delay, the Contractor is entitled to interest on arrears in the amount of 10 % above the respective base interest rate. The right to assert claims for further damages remains unaffected.

4.2. If the Client alters or discontinues orders, works, planning and the like or changes the prerequisites for the provision of service, it shall reimburse the Contractor for all costs incurred due to this and indemnify the Contractor against all obligations toward third parties.

4.3. If the Client withdraws from a placed order before the project begins, the Contractor shall charge the Client the following percentage rates based on the original contractual remuneration as a cancellation fee:

  • up to four weeks before the beginning of order processing 20 %,
  • from four to two weeks before the beginning of order processing 25 %, 
  • from two weeks before the beginning of order processing 30 %.

4.4. All amounts payable are understood as being exclusive of statutory value added tax.

4.5. The Contractor is to be reimbursed for third-party costs, expenses and fees subject to the submission of corresponding receipts.

4.6. If the provision of service extends over a longer period of time, the Contractor can invoice the Client for partial payments for the portions of the services already provided. These portions of the services do not have to be available in usable form for the Client and can also be available purely as a working basis on the part of the Contractor.

4.7. Claims of the Client disputed by the Contractor or not assessed by the court shall not entitle the Client to any offsetting. The same applies for the exercise of a right of retention and the exercise of a right to refuse performance.

4.8. The Contractor is entitled to assign its claims against the Client to third parties. The Client, however, is not entitled to assign its claims against the Contractor to third parties.

4.9. Insofar as a discount has been granted, it is not the date of sending but rather the date of receipt of payment by the Contractor or crediting or payment to the paying agent stated by the Contractor that shall be decisive for timely payment.

 

5. Obligation to cooperate and liability of the Client, indemnification of the Contractor

5.1. The Client is obliged to support the Contractor to the best of its ability in the spirit of trust-based cooperation and to establish all necessary prerequisites for proper contract fulfilment; in particular, it is to make all necessary and important documents and information for the execution of the order available in a timely manner. The Client shall inform the Contractor immediately of any circumstances that occur during the course of order fulfilment and that may impact the processing.

5.2. At the request of the Contractor, the Client is to confirm in writing the correctness and completeness of the documents it provides as well as its information and verbal explanations.

5.3. The Client shall only engage or commission other service providers in connection with this order in agreement with the Contractor.

5.4. The Client shall be liable for the material it provides. The Client expressly indemnifies the Contractor against third-party claims asserted against the Contractor on the grounds of the use of the materials (e.g. images/texts/videos) provided by the Client.

5.5. The Client shall be liable for all consequences and disadvantages incurred by the Contractor and/or third parties due to the misuse or illegal use of services of the Contractor by the Client or which occur due to the Client’s failure to meet its other obligations.

5.6. The Client shall indemnify the Contractor upon first request against all damages, costs (including legal defence costs) and/or expenses incurred by the Contractor due to the assertion of third-party claims against the Contractor in connection with the measures of the Client.

5.7. Neither the Client not any other affiliated company of the Client shall recruit employees of the Contractor within a period of 24 months after the cooperation has ended; this shall not apply for employees whose employment relationship with the Contractor was terminated.

 

6. Liability of the Contractor

6.1. According to the legal provisions, the Contractor shall only be liable for damages caused intentionally or through gross negligence by it or its vicarious agents. Liability due to culpable injury to life, body or health remains unaffected.

6.2. Liability for minor or medium negligence only applies in the case of violation of essential contractual obligations. An essential contractual obligation is an obligation that has to be fulfilled in order for proper execution of the contract to be possible and the fulfilment of which the Client regularly relies on. Insofar as the Contractor is not accused of any intentional contract violation, the liability for damages shall be limited to the foreseeable, typically occurring damages.

6.3. In cases of only minor or medium negligent violation of obligations, the Contractor shall not accept any liability for consequential damages incurred by the Client or a third party. Furthermore, the Contractor shall not be liable for only negligent violation of obligation with the exception of gross negligence for such damages against which the Client is insured or can ordinarily be insured. Liability for damages incurred due to injury to life, body or health is unlimited.

6.4. The contractual entitlement of the Client to claim damages against the Contractor shall expire within two years of the date on which the entitlement to claim damages occurred.

 

7. Loyalty, confidentiality and data protection

7.1. The Contractor and Client mutually undertake to behave with respect, good conduct and loyalty toward each other and are obliged to take into consideration the interests warranting protection of the respective other party, especially their reputation and standing. The stated obligations shall continue to apply after the contract has ended.

7.2. The Contractor and Client undertake to handle the content of this contract and all information associated with it, especially the services still owed here, as confidential with regard to third parties. The disclosure of contractual agreements in any form to third parties is only permitted with the prior express written consent of the other contracting party, to safeguard the interests warranting protection of one or both contracting parties or on the basis of mandatory statutory provisions. This obligation shall continue to apply after the contract has ended.

7.3. The processing of personal data of the Client is necessary to fulfil the contract between the Contractor and Client or to implement pre-contractual measures performed at the request of the Client. Such processing shall only be performed insofar as and for as long as these purposes continue to apply; the data shall not be used for other purposes or disclosed to third parties. Insofar as a review of the creditworthiness of the Client is necessary in the pre-contractual or contractual area on the basis of justifiable interest, data can be obtained - in compliance with the legal provisions - from credit agencies (e.g. SCHUFA Holding AG).

7.4. Both contracting parties must keep passwords secret and change these immediately as soon as it is suspected that unauthorized third parties have gained knowledge of a password. The Client shall inform the Contractor immediately if such a suspicion exists. Conversely, the same applies for the Contractor if it changes passwords of importance to the Client and its activities. As agreed between the contracting parties, new passwords are only to be provided to employees of the respective contracting party specifically authorized for this purpose.

7.5. The inventory data shall be deleted at the latest at the end of the calendar year following termination of the contractual relationship, insofar as there are no specific reasons preventing this in individual cases. Insofar as the Client has raised an objection to the amount of the invoiced remuneration, the invoicing data can be stored until the objection raised has been conclusively clarified. Furthermore, the inventory data can be stored until two years have expired insofar as complaint processing and other grounds make this necessary for proper execution of the contractual relationship. Otherwise, inventory and invoicing data may not be deleted if this is provided for in statutory regulations or necessary for the pursuit of claims.

 

8. Protection of intellectual property

8.1. Any reports, plans, designs, lists, scripts, sound and image material and authorizations prepared by the Contractor may only be used for the contractually agreed purposes. Any non-contractual use of these services, especially their publication, shall require the prior written consent of the Contractor. This shall also apply if the service provided is not the object of special legal rights, especially copyright.

8.2. In the case of violation of the provisions of Clause 8.1, the Contractor shall be entitled to an additional fee in an amount appropriate to the circumstances.

 

9. Term of contract, notice periods

9.1. The contract between the Contractor and Client shall come into force upon signing or sending of a written confirmation signed by the Client or the offer signed by the Client.

9.2. If not otherwise agreed, a contract without a fixed term can be terminated after a minimum term of six months with a notice period of three months to the end of the month. The right of termination on important grounds remains unaffected. Any termination requires the written form.

9.3. If a term with automatic extension is agreed, the notice period is three months to the end of the term of contract. If a term with no automatic extension is agreed, the contractual relationship between the Contractor and Client ends upon expiry of the term of contract.

9.4. For recurring, unspecified services that are invoiced according to a so-called retainer, a term of twelve months applies respectively. This retainer can be terminated with a notice period of three months to the end of the respectively decisive term.

9.5. If licence contracts from third-party providers have a different term than the contract between the Contractor and Client, these are to be paid by the Client until the end of their term.

9.6. The Contractor is to be informed in writing (transmission by e-mail is sufficient) of withdrawal from a placed order.

 

10. Right of retention and record retention

All work documents, records and electronic data that are prepared in the context of order processing by the Contractor and do not include the owed service itself (the work result) are retained by the Contractor. The Client cannot demand that these documents and data be handed over. The Contractor owes the agreed services upon payment of the agreed fee but not the documents and data leading to this result

 

11. Granting of rights of use

11.1. The services of the Contractor are calculated and provided individually at the request of the Client.

11.2. Rights of use and in particular licence rights are only part of the contract concluded between the Contractor and Client insofar as they are included in the order confirmation or the written offer signed by the Client.

11.3. If a restriction of the provision of service by the Contractor is threatened due to the use of images, texts and/or third-party contributions provided by the Client to the Contractor, the Client must inform the Contractor of this in the context of contract initiation. The same shall apply for auxiliary material provided by the Client. The Client is obliged to inform the Contractor of restrictions to the use and processing of the materials provided.

 

12. Restrictions of use

12.1. In general, all audio-visual services of the Contractor may not be distributed to third parties either for payment or free of charge and in particular may not be given away, rented, leased or sub-licenced.

12.2. Use in part shall require the express and written consent of the Contractor. In the case of violations, the Contractor reserves the right to claim damages against the Client; furthermore, the Contractor reserves the right to withdraw the granted rights of use. Discontinuation of audio-visual services on partner websites and the websites of business partners of the Client does not come under the ban on distribution free of charge.

12.3. If the Client works with a hosting or streaming service, it is permitted to commission the service with distribution/transmission.

12.4. Services of the Contractor may not be used in such a way that suggests the acceptance of or intellectual association with political or religious views. Any connection with pornographic, illegal, immoral, degrading or inadmissible topics must be avoided. In case of doubt, the definition of what is deemed inadmissible in this regard is at the discretion of the Contractor.

 

13. Final provisions, severability clause

13.1. Amendments and supplements to these General Terms and Conditions or the contract between the Contractor and Client require the written form and must be expressly marked as such.

13.2. The law of the Federal Republic of Germany shall apply exclusively, the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. The place of fulfilment is Ottobrunn. The place of jurisdiction shall be in accordance with the statutory provisions. If the Client is a merchant or legal entity under public law or a public law special fund, Ottobrunn is the exclusive jurisdiction for all disputes arising either directly or indirectly from the contractual relationship. The Contractor also reserves the right to take action against the Client in its general place of jurisdiction or any other statutory place of jurisdiction.

13.3. Should a provision of these General Terms and Conditions or a provision in the context of other agreements be or become void or invalid, this shall not affect the validity of the remaining provisions or agreements. The void or invalid provision shall be replaced by a valid provision that would have been agreed by the parties to achieve the same economic result.