A. These General Terms and Conditions of Trade (“GTCT”) apply to all agreements between the Customer indicated on the simpleshow asia order form (“Customer”) and simpleshow asia. The definition of Customer shall include all of its parent company, subsidiaries and affiliate companies. Any general terms and conditions of trade of the Customer that differ from the agreement are expressly debarred.
B. Together with the separate order form completed and legally signed by the Customer or by a representative of the Customer authorised to form agreements, the separate price list, the separate Licences and Rights To Use (LRTU) document and any separate (associated) additional agreements signed by both parties, the GTCT form an integral component of the agreement.
C. “Materials provided (by the Customer)” comprise all marks, logos, slogans, pictures, information etc. sent to simpleshow and simpleshow asia by the Customer for the purpose of inclusion in the video clip.
D. simpleshow asia is a registered company in Singapore (Reg. 201222610Z), Hong Kong (Reg. 1372146) and Malaysia (Reg. 1099388V).
E. Agreement formation: The Customer sends the completed and signed order form to simpleshow asia. This represents an offer. The agreement is formed with the express acceptance of this offer by simpleshow asia in written form.
II. Obligations of simpleshow asia:
A. simpleshow asia is obliged to deliver the video clip designated on the order form in accordance with this agreement. The Customer expressly acknowledges the editorial and artistic freedom of simpleshow asia (“simpleshow style”).
B. Granting rights of use:
1. simpleshow asia is obliged to grant the Customer the rights of use selected by the same on the order form and described in detail in the “Licences and Rights To Use” document enclosed for the purpose indicated on the order form and exclusively for use by the user indicated on the order form. In the event that the Customer and user are not identical, simpleshow asia already consents to the transfer to the user of the rights of use to be acquired by the Customer in accordance with this agreement, although with the proviso that the Customer retains no rights of use in this case and that the user is in turn permitted to transfer none of these rights of use to third parties.
2. The object of any granting of rights to the Customer is exclusively the video clip comprising the subject of the agreement in its respective unaltered final version accepted by the Customer. However, the Customer shall have the right on its own cost to modify, add or remove any content of the video clip after informing such intention to simpleshow asia.
3. The rights of use are granted only if both of the conditions listed below are fulfilled: a) simpleshow asia’s receipt of the acceptance form signed by the Customer after completion of the video clip and b) receipt of the complete payment on time.
4. The parties agree that all work results (particularly text and style concept, storyboards, video clip including preliminary stages) transmitted by simpleshow asia in connection with the production enjoy copyright protection or, in the event that no copyright protection exists, that the regulations of copyright law apply accordingly to such work results.
5. It is hereby indicated to the Customer that the background music provided by simpleshow asia for the video clip is royalty-free. Should the Customer nonetheless desire the use of different background music for which music licensing rights might have to be paid, then the Customer is independently responsible for obtaining the required licences and paying the all fees incurred. Queries about this can be addressed to simpleshow asia before the start of production.
C. Non-disclosure: simpleshow and simpleshow asia are bound by non-disclosure with respect to all information that is identifiable as business or trade secrets of the Customer and that comes to the knowledge of simpleshow and simpleshow asia in the course of the performance of the agreement.
III. Obligations of the Customer:
1. The Customer is obliged to contribute to the production in accordance with the agreement. As such, agreed appointments must be kept or canceled in time (at least 48 hrs. in advance) by e-mail. In the event of cancellation at shorter notice, simpleshow asia reserves the right to claim damages. The Customer is obliged to immediately send missing information or materials requested or to provide binding information of when such can be sent.
2. Production proceeds in several stages (cf. IV.). The Customer is hereby obliged to promptly examine work results presented (text concept, storyboard, video clip) and to either express specific alteration requests in written or textual form within three days or to declare acceptance in written or textual form in the event that there are no amendments required. simpleshow asia is obliged to make alterations only if the alteration requests are in line with the requirements expressed during the initial briefing, and the alteration requests are expressed in due form and time and include a clear and comprehensible description of any required amendment (simple subjective dissatisfaction does not justify an alteration request).
3. simpleshow asia has no obligation to begin the next production stage before the previous stage has been accepted by the Customer.
4. The Customer is obliged to pay separately for alterations that represent a subsequent intervention into a work piece already accepted, subject to the cost being agreed in advance between the parties.
5. The Customer is hereby obliged to grant simpleshow and simpleshow asia the necessary rights of use for the materials provided by the Customer for the production of the video clip and particularly the right to edit (including the rendering of logos in the simpleshow style), to film, to reproduce and to make publicly accessible as a simple right of use unlimited by time or space if this is necessary for the production of the video clip. The right shall be granted by the sending of the materials. If the Customer has consented on the order form to use of the video clip by simpleshow and/or simpleshow asia for reference purposes then the rights of use listed in the LRTU document under II. B. remain with simpleshow and/or simpleshow asia. The Customer hereby guarantees that no third party rights prohibit production and/or use. If, at the request of the Customer, background music is used for which licensing by Performance Rights Organizations (PRO) such as GEMA in Germany is required, then the Customer is independently responsible for obtaining the licences and paying the fees incurred (see under II. B. 5. above). In the event of any reference use by simpleshow and/or simpleshow asia, simpleshow and/or simpleshow asia themselves are responsible for obtaining the licenses required from the relevant PRO for the reference use and payment of the fees incurred for such.
6. If third parties take legal proceedings (e.g. by means of warnings, interim legal protection etc.) against simpleshow and/or simpleshow asia to assert (alleged) own rights in connection with the production or use of the video clip by the parties then the Customer is hereby obliged to indemnify and hold simpleshow and/or simpleshow asia harmless from such claims and to reimburse all costs and expenses incurred by simpleshow and/or simpleshow asia as a result of such proceedings, including but not limited to, solicitors fees on an indemnity basis. In such cases, simpleshow and/or simpleshow asia is entitled to demand advance payments from the Customer in respect of the costs and expenses to be reimbursed to simpleshow and/or simpleshow asia by the Customer. In the case of cancellation before acceptance of the storyboard, the Customer must pay simpleshow asia the full fee agreed.
7. The Customer hereby grants simpleshow and simpleshow asia the simple right unlimited by time or space to digitally archive the video clip and preliminary production stages including the materials provided by the Customer.
8. The Customer is obliged to pay the fee agreed on the order form on time after invoicing by simpleshow asia. The fee is calculated from the selected product, the selected licence and the current price list at the time when the order form is sent to simpleshow asia. If the Customer wishes to purchase further licences or to make alterations at a later date then simpleshow asia will invoice this separately.
IV. Production Process:
The following provisions apply only for the “simpleshow classic” product and only in the case of a video clip of which the original version is in English. Other languages require greater production and therefore time outlay, which is determined on the order form as agreed. A separate set of General Terms and Conditions of Trade apply for the production of the “simpleshow custom” product.
1. Immediately after formation of the agreement, simpleshow asia will send a questionnaire to the Customer, which is to be completed and returned by the Customer.
2. simpleshow asia will offer the Customer a briefing meeting as soon as possible (although no earlier than three working days after receipt of the completed questionnaire).
3. In the briefing meeting, the wishes of the Customer and the intended message of the video clip will be discussed comprehensively. The Customer must answer all questions until the facts to be represented are sufficiently clear, so that development of the text concept can be started. The text concept bindingly determines precisely what the narrator says on the video clip.
4. The initial text concept is presented to the Customer for review within seven working days after the briefing meeting.
5. Development of the storyboard begins only after formal approval of the text concept. The storyboard is strictly based on the text concept and determines which visual elements appear in which order in the subsequent video clip. The storyboard is presented to the Customer within ten working days after formal approval of the text concept.
6. Only after formal approval of the storyboard, actual production of the video clip begins. This is presented to the Customer within ten working days after formal approval of the storyboard. Any alteration requests of the Customer arising subsequently can be incorporated free of charge only if the finished video clip actually contains a noticeable content or aesthetic deviation from the text concept or storyboard already previously accepted.
7. The Customer is obliged to declare final approval of the video clip within three working days of delivery of the finished video clip by sending the legally signed acceptance form delivered with the finished video clip by fax or e-mail (scan of the form). If the Customer fails to declare acceptance within the aforementioned period of three working days then the video clip is considered accepted nonetheless.
V. Cancellation by the Customer or Interruption of Production
1. The Customer may cancel the agreement at any time after formation of the agreement. However, the Customer must nonetheless reimburse simpleshow asia as follows and irrespective of the actual outlay of simpleshow asia up to that time (“extraordinary rules governing payment”):
a) In the case of cancellation before acceptance of the storyboard, the Customer is obliged to pay simpleshow asia 50 % of the agreed fee. This applies irrespective of the actual outlay of simpleshow asia up to that time. b) In the case of cancellation after acceptance of the storyboard, the Customer must pay simpleshow asia the full fee agreed.
2. If production is adjourned for six months or longer (measured from the last correspondence from the Customer on the basis of which simpleshow asia was able to proceed with production) then these extraordinary rules governing payment apply accordingly.
3. In the event of cancellation or in the event of interruption of production in the sense described above under V. 1. and 2., the Customer acquires no rights of use whatsoever over the work results created or accepted up to that time.
1. simpleshow asia is not responsible for the content of video clips if the Customer has accepted the respective work stages and the video clip.
2. The Customer is responsible for obtaining third party approvals required (if any) for the use of any materials provided by the Customer. Under no circumstances do simpleshow and/or simpleshow asia accept responsibility (particularly with respect to obtaining any third party approvals required) for the use of the materials provided by the Customer. From the time of final acceptance, responsibility for publication and other use of the video clip rests solely with the Customer. This also applies in the event that the Customer permits simpleshow and/or simpleshow asia to use the video clip for its own promotional and reference purposes according to the order form.
3. simpleshow asia is not liable if any expectations of the Customer in terms of advertising effect in connection with the use of the video clip are not fulfilled.
4. simpleshow asia’s total liability arising out of or in connection with this agreement, including without limitation liability for negligence, is limited to the amount invoiced or the total price paid by the Customer for the purchase of Products and/or Services (whichever is lower).
5. In no event will simpleshow and/or simpleshow asia be liable to the Customer for any consequential, indirect, special, incidental or punitive damages, regardless of the form of action, whether in an agreement, tort, strict product liability or otherwise, even if advised of the possibility of such damages and even if the damages were foreseeable.
VII. Concluding Provisions
1. Singapore, Hong Kong or Malaysia law is applicable exclusively to this agreement and all its components to the express exclusion of the UN convention on contracts for the international sale of goods.
2. The non-exclusive place of jurisdiction for all disputes based on this agreement is Singapore, Hong Kong or Malaysia.
3. With the exception of simpleshow, a person who is not a party to this agreement has no right under the Contracts (Rights of Third Parties) Act (Chapter 5B) or any subsequent enactment thereof to enforce or enjoy any terms of this agreement.
4. There are no verbal side agreements or addenda. Side agreements or addenda are binding only if composed in writing and legally signed by both contractual partners. This also applies for the revocation of this written form requirement.
5. The illegality, invalidity or unenforceability of any provision of this agreement or part thereof under the law of any jurisdiction shall not affect its legality, validity or enforceability under the law of any other jurisdiction nor the legality, validity or enforceability of any other provision or part thereof.
6. Any provision of this agreement or any part thereof which is illegal, invalid or unenforceable shall to the extent that it is illegal, invalid or unenforceable be severed from this agreement. Should individual provision(s) of this agreement or part(s) thereof be void or unenforceable, the parties are obliged to agree a provision that is as close as possible to the economic and legal purpose of the void or unenforceable provision. This principle applies accordingly for a regulatory gap.
Section 1: Applicability, Definition of Terms
(1) The following General Terms and Conditions in the version valid at the time of ordering the service package exclusively apply to the business relationship between simpleshow asia, with offices at 2A Q Sentral, 50470 Kuala Lumpur, Malaysia (hereinafter referred to as “simpleshow”) and the customer (hereinafter referred to as “Customer”). These General Terms and Conditions solely apply to the use of the simpleshow video maker Enterprise software product (hereinafter referred to as “Software”) and not to any other simpleshow video maker products. Divergent terms and conditions of the customer are not part of these General Terms and Conditions unless simpleshow expressly affirms their applicability writing.
(2) simpleshow is entitled to update these General Terms and Conditions from time to time. When this occurs,simpleshow shall notify the Customer By Email. All Changes to these General Terms and Conditions will be effective as of the date of such notice. By continuing to use the software,the Customer consents to the applicability of the updated General Terms and Conditions.
Section 2: Offers, Conclusion of Contract
(1) simpleshow shall make the Customer an offer based on the preceding consultation. The customer shall have the opportunity to scrutinize the offer, including the description of the Software and its functionalities as part of the Enterprise Service Package (hereinafter referred to as “Service Description”), these General Terms and Conditions, and other addenda. Unless the offer specifically stipulates otherwise, simpleshow shall remain bound by the offer for 60 (sixty) working days unless simpleshow provides notice of its earlier withdrawal of suchoffer.
(2) The contract is concluded the moment the original offer, including its addenda, as signed by the Customer, is received by simpleshow as a fax or PDF scan in legible quality (acceptance of offer).
Section 3: User Account
(1) Using the software requires one or more user accounts to be created on simpleshow’s website. The login details for one or more user accounts, which the Customer can use to invite additional users (“Team members”) to the Customer’s team (“Team”), are to be provided to the Customer after the conclusion of the contract. User login credentials should not be shared among team members.
(2) The Customer shall treat the login details associated with its user accounts confidentially and ensure that login details for additional user accounts set up and provided by the Customer are treated confidentially. In the event of login details being lost, the Customer must notify simpleshow immediately.
Section 4: Prices and Payment Conditions
(1) The fees and payment deadlines are specified in specific contract. All prices are net and are subject to applicable tax.
(2) simpleshow shall invoice the Customer for the agreed upon usage fee. In general, simpleshow shall send the invoices via e mail. However, the Customer can also consent to receive invoices by mail only.
(3) Invoices are immediately due upon issuance and are to be paid in full by the specified payment deadline. Payments are considered completed when they have cleared to simpleshow’s bank account and no earlier.
(4) The Customer is not entitled to offset or retain any amount owed hereunder except if the Customer’s counterclaims have been found to be indisputable or legally binding.
Section 5: Use of the Software
(1) The Software is to be used via simpleshow’s website and does not require any additional software besides the Customer’s Internet browser. Compatibility with specific Internet browsers is not guaranteed. Downloading the Software or using the Software offline is not authorized.
(2) The Software is to be used by a Team appointed by the Customer; the Team may include at maximum the number of users stipulated in contract. The Team members are to be named and invited by the Customer through the user account. Subsequently, invited Team members may set up their own user accounts after registering. Only the Team members are authorized to use the Software and such Team members shall be considered as vicarious agents of the Customer with regards to the fulfillment of the Customer’s obligations. Customer shall remain liable for use of the Software under Customer’s login credential as well as compliance with the terms set forth herein by such additional users.
(3) To the extent that the Software permits, Users may submit photographs, images, videos, information, comments, suggestions, graphics, drawings, designs, or other similar materials (collectively, “User Content”) to simpleshow via the Software. By uploading or submitting any User Content to simpleshow, User represents and warrants that User is the original author, owner, or licensee such User Content And All rights thereto, and that User has the right to upload or submit the User Content. To the extent that the Software permits, User may submit photographs, images, videos, information, comments, suggestions, graphics, drawings, designs, or other similar materials (collectively, “User Content”) to simpleshow via the Software. By Uploading or submitting any User Content to simpleshow, User represents and warrant that User is the original author, owner, or authorized licensee of such User Content with all relevant rights thereto, including (without limitation) that User has the right to upload or submit the User Content and use such User Content in connection with the creation and distribution of videos by the User using the Software, together with the authority, which is hereby provided by the User to simpleshow, for simpleshow to incorporate such User Content into videos created by the User using the Software.
(4) User agrees not to do any of the following: (i) transmit through the Software material that is copyrighted, unless User is the copyright owner or have the permission of the copyright owner to send it; (ii) send material that reveals trade secrets, unless User is the copyright owner or have the permission of the copyright owner to send it; (ii) send material that reveals trade secrets, unless User owns them or have the permission of the owner to reveal them; (iii) send material that infringes on any intellectual property rights of others or on the privacy or publicity rights of others; (iv) send material that is obscene, defamatory, threatening, harassing, abusive, hateful, or embarrassing to another person or entity; (v) send sexually-explicit images; (vi)
send spam; (vii) impersonate another person or entity; (viii) post, upload or share any content or information that is false, inaccurate or misleading; or (ix) post, upload or share any content or information that contains any virus, worm, malware or other potentially damaging programs or data.
Section 6: Rights to the Software and the Customer Videos
(1) All rights to the Software are retained exclusively by simpleshow. The provision of the Service Packages grants the Customer the non-exclusive, revocable, non-transferable license to use the Software to create customized videos (“Customer Videos”) online within the scope of the “Enterprise” service package. To the extent necessary for use, the Software may be loaded into the active memory of the Customer’s computing device. More extensive duplication, permanent storage, or any other usage of the Software is not authorized. simpleshow retains all rights in this respect. The Software shall not be provided for offline use, such as by download or on a storage medium.
(2) With the exception of restrictions stipulated in the individual contract and in these General Terms and Conditions, the customer retains therightstoCustomer Videos produced using the Software. This does not include “Scribbles” (illustrations generally included in the Software, e.g. the symbol for “clock” or “money,” etc.) or any other templates for interactive applications that the Software suggests to the Customer as design elements and that the Customer may include. simpleshow retains all rights to such Scribbles and other templates provided by simpleshow. Consequently, the Customer is not entitled to use or take advantage of the Scribbles apart from the Customer Videos, such as by integrating them into other media. The same holds for cases in which Customer Videos or clips thereof are restricted to displaying Scribble effects or other templates.
(3) The following provisions apply to the Customer Videos produced using the Software:
a) The Customer Videos may only be downloaded and saved in the qualities and formats specified in the Service Description.
b) The Customer is entitled to make commercial use of the Customer Videos it has created using the Software. Commercial use encompasses all uses of the Customer Video that relate to the Customer’s business activities, including the use of the video for promoting the Customer’s own business, for performing promotional services for third parties, and for creating Customer Videos to be transferred to third parties for a fee or another favor in return (e.g. training videos, animations to be included in third-party videos, etc.).
c) The Customer has the option to identify its copyright in the “description” field or on the “closing frame” or “outro screen.”
Section 7: Guarantee
(1) simpleshow solely provides the Customer with the ability to use the Software to create Customer Videos itself. Accordingly, simpleshow’s scope of service extends exclusively and solely to the functionality and availability of the Software, but not to a particular outcome from use of the Software. Within the “Enterprise” service package, simpleshow’s scope of service also includes providing final video files for the Customer to download.
(2) The Customer may use the Software via standard Internet browsers. Further details are listed in the Service Description. The provision of thebrowser inadequately fast Internet connection is the Customer’s responsibility and not part of simpleshow’s scope of service. The Software is provided by making the Software accessible on simpleshow’s servers. The service’s reachability over the Internet is not simpleshow’s responsibility.
(3) The Software is provided on an “as is,” “as available” basis with- out any warranties of any kind. simpleshow disclaims all warranties, express and implied, with respect to the services and software, including, but not limited to, the implied warranties of non-infringement, title, quality of information, and fitness for a particular purpose. simpleshow does not warrant that: (i) The quality of any information, products, services, or other material that user obtains from the services or software will meet user’s expectations; (ii) the Software will operate uninterrupted and error-free; (iii) the Software will be free of viruses, worms or other harmful material; or (iv) the Software will operate in perpetuity. Particularly, the Software may temporarily be unavailable due to maintenance works or software updates.
(4) simpleshow’s provision of service shall only be considered deficient if it diverges negatively from the Service Description in core areas. simpleshow is entitled to further develop the software provided that the scope of use for the Customer is not significantly altered.
Section 8: Liability
(1) simpleshow assumes no responsibility or liability for any lost data, error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction, or unauthorized access to, or alteration of, any user communication. simpleshow is not responsible or liable for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, mobile devices, software, or failure of email due to technical problems or traffic congestion on the internet, including injury or damage to any computer or mobile device related to or resulting from use of the services.
(2) To the extent permitted by applicable law, simpleshow shall not, under any circumstances, be responsible for any direct, indirect, special, incidental, consequential, or punitive damages in any way arising from or relating to user’s reliance upon, or user’s use of or inability to use the services or the software or any user content, whether such claims are based in contract, tort, or any other legal theory, and whether or not simpleshow is advised of the possibility of such damages. The foregoing shall not limit simpleshow’s liability resulting from the breach of material contractual duties (principal obligations) as well as to liability for any other damages due to arising from any willful or grossly negligent violation of duties by simpleshow, its legal representatives, or vicarious agents. Material contractual duties shall be deemed such duties the fulfillment of which is necessary to achieve the object of the contract.
(3) In case any material contractual duties are violated, simpleshow shall be liable only for the direct and foreseeable damages which are typical of the contract, if such damages were caused by simple negligence, unless the claims for damages by the User are due to a violation of life, body or health.
(4) The limitations under paragraphs 1, 2 and 3 shall also apply for the benefit of the legal representatives and vicarious agents of simpleshow, if any claims are asserted directly against them.
(5) The limitations of liability under paragraphs 1, 2 and 3 shall not apply to the extent that simpleshow fraudulently concealed the defect or provided a guarantee for the condition of the service.
Section 9: Rights of Third Parties
(1) simpleshow guarantees that to simpleshow’s knowledge the Software is free of third-party rights. In the event that third parties make legitimate claims against the Software that compromise the Customer’s use of the software, simpleshow is entitled either to modify the software by its own judgment in a way that the Software no longer violates the third-party rights, to purchase the necessary licenses from the third party, or to provide alternative software. Should these options be unfeasible or unreasonable for simpleshow, simpleshow is entitled to cancel the affected service packages. In such an event, advance payments for usage periods during which the software can no longer be used due to the cancelation shall be reimbursed.
(2) The Customer guarantees that it is not violating the rights of any third parties or otherwise violating the law by creating the Customer Videos.Thisespeciallyapplies to the use of copyright, design, or trademark-protected content or any defamatory, criminal, or otherwise illegal content in Customer Videos. The Customer absolves simpleshow, its entities, employees, and agents of all costs and damages resulting from a violation of the Customer’s aforementioned duties. This also includes compensation for suitable legal costs.
Section 10: Term and Termination
(1) The contact’s term is indefinite and may be terminated with due notice of three months taking effect at the end of a contractual year. In the absence of a termination or if the termination is not timely, the contract automatically renews by an additional year.
(2) The right to terminate for good cause remains unaffected. Good cause for simpleshow to terminate is particularly present if:
(3) In the event of termination, the customer’s right to use the software expires. However, simpleshow shall enable the Customer to download previously created Customer Videos using administrative user accounts. However, this does not apply if simpleshow terminates for good cause or if the customer is in arrears on payments. The Customer has no entitlement to the permanent retrievability of the Customer Videos after termination.
Section 11: Concluding Provisions
(1) Contracts and legal relations between simpleshow and the customer shall be governed and construed in accordance with laws of the state of Delaware, without regards to its conflict of law principles and excluding the UN Convention on Contracts for the International Sale of Goods(CISG).
(2) The customer hereby consents to the exclusive jurisdiction of either Singapore, Hong Kong or Kuala Lumpur (Malaysia) with respect to any dispute arising under these General Terms and Conditions or any contractual agreement between the customer and simpleshow.
(3) In the event that individual provisions of the contract are legally invalid, the remaining provisions shall remain in force. The invalid provisions are to be replaced by the statutory rules, if applicable. However, if this would constitute unreasonable hardship for one of the parties to the contract, the entire contract is to be declared invalid.