Contracting parties and scope of application of these General Terms and Conditions of Business (“General Terms and Conditions”):
These General Terms and Conditions apply to all contracts between the company referred to in the separate offer as “Customer” (as defined by section 14 of the German Civil Code (BGB) and
represented by the management, Local Court of Stuttgart (Amtsgericht) HRB 726609 Tel./Email/Fax. (“simpleshow”)
This also applies to future contractual relationships without the additional express inclusion of these General Terms and Conditions being required.
Any deviating general terms and conditions of the Customer or third parties do not apply even if simpleshow does not expressly object to their validity in the individual case. In particular, if simpleshow refers to letters of the Customer or third parties whichfor their part contain or refer to general terms and conditions, this does not suggest any agreement to the validity of such terms and conditions.
In addition to these General Terms and Conditions, the following documents are an integral part of the contract between the parties:
the Offer Letter (“Offer”),
the annex “Rights of Use” (in the version applicable when the Offer is submitted),
the annex “Price List and Work Stages” (in the version applicable when the Offer is submitted)
if the subject matter of the Offer is more than a Production: the annex “Timetable” (cf. 3.3.2) and the “Timeline” for the first project of the Offer.
These General Terms and Conditions and the annexes “Rights of Use” and “Price List and Work Stages” can be downloaded at https://simpleshow.com/terms_and_conditions/ and can be printed out and/or permanently saved. The Offer and, if applicable, the Timetable shall be prepared individually and sent to the Customer by email for printing out and/or for permanent storage.
simpleshow shall send the Customer an offer based on the preceding consultation and/or (in the case of the “simpleshow interactive”) the questionnaires completed by the Customer on learning content and technical requirements.
If the execution of several Productions is required and a timetable is already in place for the execution of those Productions, it will be sent with the Offer.
The Customer now has the opportunity to carefully check the Offer (and, if already stipulated, the relevant timetable). Unless otherwise noted on the Offer, simpleshow is bound by the Offer for 60 working days.
The contract is concluded as soon as the Offer signed by the Customer (and, if applicable, the Timetable signed by the Customer) is received by simpleshow as a fax or scanned PDF in clearly legible quality (acceptance of the Offer).
A “Production” as defined by this agreement is a video clip or an interactive application (e.g. “simpleshow interactive”) created in accordance with the Customer’s requirements.
Each Production starts with the agreement of an initial briefing meeting, in which the respective content of the Production is discussed. The Production is concluded with acceptance of the last working stage (cf. 5.4.3. below).
At each briefing meeting simpleshow also decides the binding timeframe for the contractual Production(s) in consultation with the Customer:
At the latest within the scope of the briefing meeting, a detailed schedule is agreed for carrying out each individual Production (“Timeline”).
If several Productions are the subject-matter of the contract, a timetable will also be decided for executing the whole order at the latest within the scope of the briefing meeting (“Timetable”). The Timetable specifies when the individual contractual Productions have to start and/or be concluded by designating the respective calendar weeks, which are binding. The Timetable is used by both parties to plan in advance the capacities to be provided. simpleshow sends the Timetable to the Customer by email after the briefing meeting. The Customer signs it and sends it by fax or scanned PDF to simpleshow in clearly legible quality.
simpleshow undertakes to carry out and/or provide the Production listed in the Offer or the contents taken from it (e.g. individual drawings). Unless the parties have agreed otherwise, the Production/provision shall take place as described in the Offer and at the prices stated therein. The Customer expressly recognises the editorial and artistic freedom of simpleshow (“simpleshow style”).
simpleshow is only obliged to comply with the Timeline and/or the individually stipulated Timetable if the Customer for its part fulfils the obligations to cooperate listed under 5. in full and on time.
simpleshow undertakes to grant the rights of use for the contractual contents to the extent selected as per the Offer and described in the annex “Rights of Use” and on the conditions listed therein.
Obligations to cooperate
The quick and professional creation of individual contents for the Customer is subject to its reliable participation in the production process particularly in accordance with the following provision:
The Customer shall nominate a contact person who is familiar with the subject-matter of the contract and authorised to make decisions for the duration of the cooperation. Appropriate replacements shall be appointed in the event that the contact person is (temporarily) unable to carry out his/her duties when compliance with the respective Timeline and/or Timetable would otherwise be jeopardised. The latter must especially be able and authorised to check and accept the current work stage (cf. 5.4. below).
The Customer and simpleshow shall communicate by email if possible. The Customer shall therefore ensure that it can actually access emails from simpleshow (and that they are not, for example, diverted to a spam folder or the like). The parties may additionally communicate with each other by phone.
At simpleshow’s request any information and/or materials required for the Production that are missing shall be sent without delay and any outstanding decisions by the Customer shall be taken immediately and disclosed.
The Customer shall point out to simpleshow any problems it is having in relation to the implementation of the contract at once without being prompted.
The Customer is personally responsible for the content of the Production it has commissioned. It is its responsibility to ensure that no rights of third parties (especially trademark rights, personality rights) or statutory provisions (especially competition rights) are infringed by the Production and/or its publication due to statements required by the Customer and/or materials which it has provided.
Owing to the large demand and accompanying widerange of parallel and/or consecutive productions, the production of contents requires a high level of organisation and (advance) planning by simpleshow:
If the Customer fails to fulfil its obligation to cooperate (on time) despite an express request by simpleshow (by email) and compliance with the timeline(s) and/or timetables of the productions of third parties (other customers) appears to be at risk as a result, simpleshow is entitled to cancel the Timeline agreed with the Customer and/or the agreed Timetable by means of a unilateral declaration.
In this case, a new Timeline and/or a new Timetable shall be set by the parties, which will, however, be treated as a new project in the simpleshow project plan with respect to the Timeline and/or the Timetable. In other words, the Production will be suspended in that case and only continued when it is feasible again pursuant to the capacity plan of simpleshow that will then have to be redefined in consultation with the Customer. The Customer is informed that this may lead to considerable delays.
If the Customer is responsible for infringement of the obligation to cooperate and therefore for cancellation of the original Timeline and/or Timetable, it shall herewith undertake to compensate simpleshow for the expense incurred as a result of having to redefine the capacity plan. The Customer is at liberty to prove that the expense incurred by simpleshow was smaller than that claimed by simpleshow. The Customer is informed that simpleshow is entitled to invoice any still outstanding remuneration for the respective Production in the event that the respective Production’s completion is delayed by four weeks or more pursuant to 5.5.3. below.
If the Customer wants a production set-up that requires the purchase of rights of use of third parties (e.g. acquisition of a font licence, music licence, licence for use of copyright-protected works or trademarks or designs of third parties), the Customer shall bear the resultant costs.
If the Production of contents pursuant to the annex “Price List and Work Stages” takes place in several stages, simpleshow shall send the respective completed work stage for acceptance. The Customer shall then check without delay whether the current work stage corresponds to what was agreed.
The Customer shall inform simpleshow of any specificcomplaints without delay in writing (by email). Unless the complaints relate to minor deviations, simpleshow shall revise the work stage and present it to the Customer again for acceptance as soon as possible. Deviations are minor if they are objectively not liable to distort or weaken the informative value of the Production and/or harm the Customer’s reputation.
If the work stage meets the requirements, the Customer shall declare acceptance without delay in writing (by email). If the Customer does not submit a declaration within three (for simpleshow interactive: seven) working days (starting from the day after the work stage has been sent), the work stage shall be deemed accepted (assumed acceptance). simpleshow shall separately point out the particularsignificance of silence when sending the work stage.
Corrections to a work stage will only be made free of charge before the respective work stage is accepted. Changes to a work stage that has already been accepted shall be remunerated separately by the Customer in accordance with the annex “Price List and Work Stages”.
The Customer undertakes to pay on time the remuneration owed according to the Offer (if applicable in conjunction with the Timetable) and invoiced, and to pay for as any additional services pursuant to the Offer (e.g. changes after acceptance of a production stage).
If in doubt, simpleshow is entitled to invoice 50% of the remuneration for the respective Production after conclusion of the contract and the remaining 50% after completion of the respective Production.
If the completion of a Production project is delayed by more than four weeks (over and above the completion date originally planned according to the Timeline) for reasons for which the Customer is responsible, simpleshow is entitled to terminate the contract for good cause and invoice the Customer for any part of the agreed remuneration that is still outstanding at that time. The provisions pursuant to 6. below shall remain unaffected thereby.
The Customer shall undertake to grant the rights of use to simpleshow required for producing and archiving the contractual contents (e.g. the right to represent the Customer’s company logo in the typical simpleshow style and insert it in a video clip), cf. 2. of the annex “Rights of Use”. The Customer guarantees that the materials it sends to simpleshow for this purpose are free of rights of third parties.
The parties may withdraw from this contract in whole or in part in accordance with the statutory provisions, particularly those relating to the service contract. Termination of the contract prior to completion of the Production or completion of the work is only permitted for good cause.
Good cause that entitles simpleshow to terminate the contract particularly exists if the Customer fails to perform a required obligation of cooperation, despite a deadline having been set, or fails to make a due payment (payment default).
If the contractual relationship for a Production project is terminated prematurely for reasons for which the Customer is responsible, the Customer shall be obliged to compensate simpleshow for all the damage resulting from the premature termination.
Notwithstanding the provision in 6.3., simpleshow is entitled vis-à-vis the Customer in all cases in which the contractual relationship for a Production project is terminated prematurely for reasons for which the Customer is responsible to remuneration for the services already rendered (completed work stages), which is calculated as a percentage of the agreed total net price according to the annex “Price List and Work Stages”, and in relation to the services not yet rendered (uncompleted work stages) to a liquidated compensation claim of 10% of the still outstanding remuneration of the agreed total net price. This means, for example, that in the event of production of a “classic”, “custom”, “premium”, “line” or “wheel” video clip being terminated prematurely, the Customer owes the following payments:
If the briefing meeting has already been held when the contract is terminated and as a result the “text concept “work stage has already been prepared: 50% of the agreed total net price of the respective product for the services rendered plus a lump sum of a further 10% of the remaining difference compared with the total net purchase price in relation to unfinished services/work stages;
If a storyboard has already been created when the contract is terminated: 80% of the agreed total net price of the respective product for the services rendered plus a lump sum of a further 10% of the remaining difference compared with the total net purchase price in relation to unfinished services/work stages.
If the actual video production (i.e. filming of the storyboard) has been carried out when the contract is terminated, the Customer owes the full agreed net price of the respective product.
For products other than video clips (e.g. “simpleshow interactive”), the deviating work stages and percentages listed in the annex “Price List and Work Stages” apply.
The Customer is at liberty to prove that simpleshow incurred no or a smaller amount of damage or expense or that the remuneration is unreasonably high or that another acquisition took place. Conversely, simpleshow is at liberty to prove that it incurred greater damage or that the adequate remuneration is higher.
The obligation to pay the liquidated compensation does not apply if the premature termination is based on reasons for which simpleshow alone is responsible.
6.5 All declarations in connection with the termination and/or dissolution of the contract must be in writing in order to be legally valid.The cause must also be stated.
simpleshow shall always issue its invoices in paper form.The Customer agrees, however, that it will only receive invoices by email as applicable.
Invoices are due for payment immediately after invoicing and must be settled in full by transfer within the specified term of payment.
simpleshow is entitled to initially offset payments by the Customer against its older debts. In this case the Customer shall be informed about the type of offsetting that has occurred. If costs and interest have already been accrued, simpleshow shall be entitled to first offset payment against the costs, then the interest and lastly the main receivable.
Payments shall be deemed to have been made when they have been credited to simpleshow’s account.
In the event of payment default simpleshow may charge the Customer a flat fee of five euros per justified reminder.
The Customer is only entitled to offset if the counterclaims have been finally established in law or are undisputed. Liability of the parties
After acceptance of the respective work stage or finished Production by the Customer, the Customer alone is responsible for the informative value of that Production.
If the Customer collects and/or stores user data when using an interactive application (e.g. “simpleshow interactive”), it is personally responsible for compliance with the statutory data protection regulations.
On no account will simpleshow bear responsibility (especially with respect to obtaining any necessary approval of third parties) for use of the materials provided by the Customer and/or for statements made during the Production.
Should the contents of a Production project prove unlawful (e.g. due to a breach of industrial property rights or personality rights of third parties or due to a competition violation) and should third parties therefore take legal action against simpleshow, the Customer has an obligation to simpleshow to compensate the resulting damage in accordance with the statutory regulations.
simpleshow is not liable if any expectations linked to use of the Production by the Customer in terms of its advertising effect are not met.
simpleshow and its vicarious agents shall only be liable for wilful intent and gross negligence, unless it involves loss of life, personal injury or illness, claims arising from the Product Liability Law, or a breach of such essential contractual obligations, where compliance with these is necessary so that the contractual purpose can be achieved and on the observation of which the client can regularly rely (cardinal obligations). In the event of a breach of cardinal obligations any compensation claims are limited to typical and foreseeable damage.
If, in the course of implementing the contract, the parties gain knowledge of internal matters of the other respective party that have not already been published or are not already known, they agree to keepsuch information confidential.
German law applies exclusively to this contract and to all its components to the express exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
If the Customer is a merchant within the meaning of the German Commercial Code (HGB), the parties agree that Berlin will be the place of jurisdiction for all disputes based on this contract, with the exception of disputes relating to copyright or trademark law. They agree that Hamburg will be the place of jurisdiction for disputes relating to copyright or trademark law.
No verbal ancillary agreements or additions have been reached. Ancillary agreements or additions are only binding if they have been drawn up in writing and have been signed by both contracting parties with legally binding effect. This also applies to the waiver of this written form requirement.
Should individual provisions of this contract be invalid or unworkable, this will not affect the validity or workability of the remaining provisions. In such a case the parties are obliged to agree on a provision that comes as close as possible to the economic and legal purpose of the invalid provision. This principle applies accordingly to a contractual omission.
Unless otherwise stipulated in these provisions, the statutory regulations of the German Civil Code (BGB) on service contracts (section 631 et seqq. BGB) apply accordingly and additionally, as applicable.
1 .Rights of the Customer
The subject-matter of any rights of use that simpleshow grants to the Customer is always the unmodified final version of the finished Production accepted by the Customer pursuant to 5.4.3. of simpleshow’s separate General Terms and Conditions of Business. Therefore, no rights of use for preliminary stages (especially for text or style concepts, storyboards, preview versions) and/or for isolated elements of products (e.g. the soundtracks of a video clip) will be granted.
The parties agree that all work results sent by simpleshow in connection with the Production (especially text, layout or style concepts) will enjoy copyright protection or they hereby agree that if no copyright protection exists, the provisions of copyright law will apply accordingly to such work results.
Any granting of rights of use will be exclusively for use of the Production by the user specified in the Offer and for use to the extent stated in the Offer (i.e. standard licence and/or extended licence and/or scribble licence and/or simpleshow interactive licence). In the event that the Customer and user are not identical, simpleshow hereby agrees to the transfer of all rights of use to be acquired by the Customer under this contract to the user, but on the proviso that inthis case no rights of use may remain with the Customer and that the user for its part may not pass these rights of use onto a third party.
All rights of use will only be conferred on condition that the rights of use under 2.1. and furthermore, in the event of the Customer’s agreement to reference use by simpleshow, the rights of use listed under 2.2. will remain with simpleshow. simpleshow will, however, under no circumstances surrender the Production created for the Customer to other customers to advertise their product or service! Individual scribbles (drawings, e.g. symbol for “clock” or “money”, etc.) as well as design templates for interactive applications used repeatedly in various productions are excluded from this prohibition of multiple use by simpleshow.
The respective rights of use shall only be granted to the Customer as soon as the final version of the respective Production pursuant to 5.4.3. of the General Terms and Conditions of Business has been accepted by the Customer and the agreed full remuneration has been received in time by simpleshow.
For the sake of clarification it is pointed out that in the event that the Customer expressly requires background music that expressly differs from the recommendations of simpleshow and is therefore not royalty-free, GEMA fees will be payable to GEMA (Society for Musical Performance and Mechanical Reproduction Rights). All the necessary information can be accessed at https://www.gema.de/musiknutzer/. Any questions on this subject prior to the start of production can be addressed to simpleshow and/or addressed to GEMA directly at any time at www.gema.de/kontakt.
Standard licence for video clips
Should the Customer choose the “standard licence” pursuant to the Offer or should the Customer acquire it at a later date through a separate written agreement, the following rights of use for the contractual Production shall be granted to it as exclusive, temporally and spatially unlimited rights:
Online right (public accessibility)
The right to make the video clip available to the public on behalf of the user specified in the Offer (i.e. the right to make the video clip accessible to the public via the internet or a company’s own intranet in such a manner that it can be viewed by members of the public and/or its own employees at times and at venues of its choice). This includes the right to draw attention to the video clip in whatever form (e.g. via social networks such as Facebook, Twitter or Xing) by providing a link and/or embedding information.
Right to reproduction on screen
The right to publicly present the video clip on behalf of the user specified in the Offer on all types of screens and/or projections (but not in cinemas within the scope of normal cinema advertising or by broadcasting it on TV).
Right of reproduction and distribution(“merchandising”)
The right to reproduce the video clip on behalf of the user specified in the Offer on all types of data carriers (especially DVD, Blu-ray, CD, flash memory data carriers (e.g. USB sticks, SD cards)) and to distribute such reproduced items without charge.
Extended licence for video clips
Should the Customer choose the “extended licence” pursuant to the Offer or should the Customer acquire it at a later date through a separate written agreement, the rights of use listed above under 1.2. and also the following rights of use for the contractual Production shall be granted to it as exclusive and temporally unlimited (but spatially limited) rights:
The Customer shall acquire the exclusive, spatially unlimited right (but temporally limited to 12 months from acquisition of the right) to broadcast or have broadcast the Production on behalf of the user specified in the Offer as often as it wishes via whatever TV channels it wishes (private channels; public channels; Free TV; Pay TV; web broadcasting within the meaning of public accessibility, in the case of which the end of the broadcast alone determines the time on which the Production can be viewed by members of the public; via cable; via satellite; via terrestrial and digital broadcasting).
The Customer shall acquire the exclusive, spatially unlimited right (but temporally limited to 12 months from acquisition of the right) to have the Production shown publicly on behalf of the user specified in the Offer in whatever kinds of cinemas as often as it likes.
Licence for “simpleshow interactive”
The Customer shall acquire the following rights of use for the “simpleshow interactive” created for it (hereinafter also referred to as “Application”) as exclusive, temporally and spatially unlimited rights:
Online right (public accessibility)
The right to make the Application available to the public on behalf of the user specified in the Offer (i.e. the right to make the Application accessible to the public via the internet or a company’s own intranet in such a manner that it can be viewed by members of the public and/or its own employees at times and at venues of its choice). This includes the right to draw attention to the Application in whatever form (e.g. via social networks such as Facebook, Twitter or Xing) by providing a link to the Application.
Right to reproduction on screen
The right to publicly present the Application on behalf of the user specified in the Offer on all types of screens and/or projections (e.g. at trade fairs and other events or in the reception area of its own premises, etc., but not in cinemas or through broadcasting on TV).
The Customer shall acquire the rights listed above under 2.1. (“Standard licence for video clips”) for the videos integrated in the Application.
Licence for the acquisition of individual scribbles or scribble packages
The Customer shall acquire the following rights to the respective illustrations as simple, spatially and temporally unlimited rights:
Online right (public accessibility)
The right to integrate the illustrations for the purposes of designing the website(s) of the user specified in the Offer in websites in which the user is named as the responsible party in the disclaimer and therefore to make them accessible to the public. However, simpleshow GmbH must be referred toas follows in a suitable place, e.g. in the disclaimer under “Illustrations”: “© simpleshow ®”.
Right of reproduction and distribution (“merchandising”)
The right to use the illustrations for designing articles that can be printed on, but only if these articles also legibly name simpleshow GmbH (if necessary next to the user specified in the Offer itself (“advertising article”)) as follows:“© simpleshow ®”. The design may also not lead to the denigration of simpleshow or otherwise violate the applicable law or common decency. If the Customer scales the illustrations, it may only do so while retaining the initial proportions.
The right to produce any number of the advertising article designed according to the specifications above and to distribute it without making any profit (i.e. only at the manufacturing price or at no charge).
For the sake of clarification it is pointed out that any use (including any change) of the video clip and/or the illustrations contained therein thatsimpleshow has not expressly agreed to as well as any use by a party other than the user specified in the order form constitutes a copyright infringement. This also applies to the code sent for use of a “simpleshow interactive”. This code may not be used apart from for the contractually envisaged use. It may especially not be made available to third parties (also not in an abridged form) and/or duplicated and/or modified. If the Customer requires changes to be made to an existing Production, it is possible to commission simpleshow accordingly (cf. Offer).
Storage and duplication for archiving purposes simpleshow reserves the non-exclusive, temporally and spatially unlimited right to digitally archive the respective product as well as all preliminary stages (drafts, text concept, storyboard, etc.).
If the Customer allows simpleshow to use a Production to advertise simpleshow products and services at its special request (“reference use”), simpleshow shall retain the rights listed above under 1.2., 1.3. and 1.4. as non-exclusive, temporally and spatially unlimited rights of use. In other words: simpleshow is allowed to use the Production commissioned by the Customer parallel to its own use to advertise simpleshow;
the Customer agrees that the Production may be modified or edited for the aforementioned advertising purposes (e.g. to create showreels), especially by shortening it or combining it with other works (e.g. productions created for third parties and/or by replacing the soundtrack). To this end, individual elements (especially individual artwork or characters) may be separated from the video clip and used both online (especially on its own website) and offline (e.g. on postcards and other (printed) products) – the latter through as frequent a duplication as required and any sort of free distribution of such duplicated items. The Customer also agrees to the integration of the Production in a modified or unmodified form in applications for mobile end devices (“Apps”) of all manufacturers (e.g. on the basis of Apple iOS or Android);
it agrees that simpleshow may advertise on all the channels listed here (online and offline) about the fact that the Customer is a contractual partner of simpleshow and/or (if the Customer and user are not identical) that simpleshow has worked for the user. This also includes the granting of the nonexclusive, temporally and spatially unlimited right of simpleshow to reproduce or name the word mark and/or composite mark and/or picture mark of the Customer and/or (if the Customer and user are not identical) the user for all the advertising measures specified above under 2.2.
simpleshow reserves the right to allow third parties to offer services in their own name, but only using the “simpleshow” mark, that are identical to those of simpleshow (simpleshow licensee). Consequently, the Customer hereby also grants simpleshow the right to grant the rights listed here under 2.2 to simpleshow licensees to advertise their services. This also applies expressly in the event that such simpleshow licensees are based abroad and offer their services on their respective foreign markets.