Area of application

The Trivid GmbH and Clipgenerator, called „Trivid“ in the following, produce all deliveries and services exclusively on the basis of these terms of business.

TRIVID is entitled to change or complement these general terms of business with an adequate period of notification. The notification occurs exclusively through publication on the Internet on the TRIVID site (http://www.trivid.com). If the customer does not contradict the changed or supplemental conditions within 4 weeks after their publication on the Internet, the changed or complementary conditions become effective.  If the customer dissents within the deadline, TRIVID is entitled to discontinue the contract at the time in which the changed or complementary terms of business should come into force. Divergent, impeding or complementary general terms of business do not become valid contract components, even if they are recognized, unless TRIVID has agreed expressly in writing to their validity.

Contract Offer, Contract Termination

The contract comes into effect with acceptance of the customer application by TRIVID or with the first fulfilment action of TRIVID. If the customer falls under the consumer i. s.d. §13 Civil Code, the access of the customer offer is immediately confirmed electronically by TRIVID. The access confirmation shows no obligation to accept the customer application. The access confirmation can be connected with the notice of acceptance.  If the customer falls under the enterpriser i. S.d. §14 Civil Code, the explicit access confirmation and notice of acceptance are not required.  Changes or supplements of the contract offer or these general terms of business by the customer are considered to be a new offer.

The customer assures that information about himself and other circumstances relevant to the contract and law are complete within the scope of the contract offer or the contract termination.  The customer undertakes to inform TRIVID immediately in each case about changes of the data; upon appropriate request from TRIVID, the customer must confirm [the accuracy of] the data. Upon violation, TRIVID is entitled to terminate the contractual provisions immediately.

Cancellation Right according to the Distance Selling Act

The consumer has the right to cancellation of his end of the directed declaration of intention of the contract. The cancellation term amounts to two weeks and does not begin before receipt of this instruction and fulfilment of the informational obligations according to §312 c paragraph 2 of the Civil Code; for the deadline the timely sending of the cancellation explanation suffices. The explanation needs no grounds and is to be explained in text form to TRIVID Customer Support, post office box 135, D-72135 Dettenhausen, fax +49 (0) 7157/5643-90.

A fax or letter including the customer number as well as an original signature [of the concerned customer] suffices for the text format.  In case of already granted and enlisted services, the cancellation right does not apply.

Content, use of Internet Pages and Data Traffic

The customer may not violate legal bans, on his Internet pages and provided V-Cards by form, contents or for the purpose of persecution against the morality and rights of third parties (Name, originators, data protection rights etc.). In particular the customer undertakes to show no pornographic, power-glorifying or inciting contents within the scope of his presence, not to appeal for criminal offenses or to show instructions for this, nor to offer such services or have them offered that have pornographic content.  The same applies to the transfer of video clips that were created using TRIVID software.

The customer may not send or store on a TRIVID data storage device any data  that in its own way or characteristics (e.g., viruses), size or duplication (e.g., Spamming) are created to endanger the condition or functioning of the computer center or data network of TRIVID.

For every case of offense represented by the customer against the preceding obligation, the customer promises the payment of a contract penalty at the rate of 5,000.00 EUR (in words: 5,000 euros) in view of a continued relationship.  The assertion of other damages claimed by TRIVID is not thereby excluded.

If TRIVID obtains knowledge of offenses against legal bans/orders, rights of third parties or common morality from the content of  Internet pages of the customer and/or the e-mail traffic of the customer in form or purpose of persecution, TRIVID is entitled to remove the illegal information or to terminate the access to these.

If the customer’s internet pages and/or the reserved or used Domain names of the customers or e-mail addresses or his e-mail traffic violate the named bans, the moral customs or rights of third  parties, and the customer represents this, the customer is liable to TRIVID for remediation of all damages originating out of this. The customer releases TRIVID, in its internal relationship, from any claims resulting from this offense on the third party.

TRIVID sends e-mails, SMS or other news on the Internet. TRIVID makes no guarantee for the forwarding of e-mails, SMS or other news to the receiver, just as for the correct reproduction of the Internet pages of the customer in Internet presence, unless, TRIVID can be charged for intentional or gross carelessness.

Provided that the data transfer volume (Traffic) or the data memory volume exceeds the maximum capacity allowed by contract for the respective month, TRIVID can close the sites and/or accounts and/or require additional remuneration  to be provided by the customer for the service for excessive volu

Customer Obligations

TRIVID is entitled to delete stored and already transmitted video-files in the customer account after a period of 1 week after transference.

The customer is required to maintain and preserve top secret passwords from TRIVID for the purpose of accessing their services, and to immediately inform TRIVID, as soon as he has knowledge that the password is known by an unauthorized third party.  Should third party use of TRIVID’s services through the use of passwords as a result of the customer’s fault, the customer is liable to TRIVID for remuneration of usage and damage remediation.

The customer is required in particular to guarantee the strictest confidentiality, not to provide to third parties any TRIVID documentation to the customer in regard to the publication of interfaces.  In addition, the customer, together with his employees is committed, to use all data and facts of TRIVID, its activities and business partners who become known within the scope of the consultation discussions with strict confidentiality (discretion obligation) and not to use for other purposes than for the integration of TRIVID products in his own homepage as well as by the adoption of resolutions for the realization by it of resultant orders (use ban).

The customer is committed to pay a penalty for every violation against the confidentiality obligation at the rate of 10,000.00 EUR (in words ten thousand euros) regardless of fault, and for every violation of the use ban a contract penalty of 10,000.00 EUR (in words: to pay ten thousand euros) no matter whether the offense was committed by the customer or his employees or by an enterprise linked to him.  The assertion by TRIVID of further compensation by TRIVID remains unaffected by this.

The customer is made aware of  the fact that it is incumbent upon him to carry out data backup at regular intervals, and the data which are filed on the TRIVID servers may not become backup storage. In particular, the customer must carry out an complete data backup before every start of work on the computer system or before the installation of hardware.

The customer also thoroughly tests every program for flawlessness and usability in his actual setting, before he begins with operational use of the program. This also applies to programs which he receives within the scope of the guarantee and care from TRIVID. The customer is expressly notified to the fact that every - even the smallest singular change in the software can eliminate the proper functioning of the whole system. The customer alone carries this risk.

Termination of Rights of Use

As long as the customer‘s right of use of TRIVID programs is allowed for a limited period  of time or the right of use ends on account of notice, [the following] applies:

Upon termination of rights of use, the customer has to return all data storage devices with programs, possible copies as well as all written documentation and advertising support to TRIVID.  The customer deletes all stored programs from his computer system. The remaining contractual duties of the customer with respect to TRIVID continue through a possible notice or an ending of the contract.

Delivery, Services

TRIVID refers to the guarantees of his contractually required data processing service centers for the accessibility of its servers at 99% as the annual mean. From this there are excluded times in which the server is not to be accessed on the basis of technical- or other problems which do not lie within the sphere of TRIVID’s influence (act of God, fault of third parties, etc.) on the Internet.  TRIVID can limit access to services, provided that the security of the mains operation, the maintenance of the net integrity, in particular the avoidance of serious disturbances of the net, the software or stored data require this.

TRIVID reserves the right to improve its services within the scope of technical progress. [It is not liable for] the compatibility of the new contracted programs with customer- installed programs as long as it is not expressly agreed. The objective of the service obligation of TRIVID is particularly not to adapt the customer’s previously existing programs to the contracted software– even if the installation is performed as such by TRIVID.  Other accompanying services of TRIVID, including the user introduction and similar, are only contract elements if they are expressly agreed.

If necessary, TRIVID is authorized to deliver documentation and operator's support regarding the subject matter of the contract ‚ on a data storage device, for example, on CD-ROM.

Reserved Rights

Up to entire payment of the purchase price the whole delivered product remains the property of TRIVID. With contracts with enterprisers TRIVID reserves ownership of the whole delivered product up to the complete settlement of all demands from on-going business relationships. If the customer comes into default, TRIVID can withdraw - regardless of other rights - from the contract and the require remuneration for provided services.

License Agreements

The rights of ownership of the contractual programs belong to TRIVID or one of its business partners whom it has authorized for further distribution of the programs.

The customer receives from TRIVID a non- transferable and non-exclusive right to the use of the programs (license) for the duration of this contract. If the customer is authorized by TRIVID for multiple licenses of the program, count the following terms of utilization of the licenses apply to every individual user.  The word „program“ referrs to the original program and all copies of the same, including [copies] of parts of the programs that are combined with other programs.  A program is made up of machine-readable commands, audio-visual content and the related licensing materials.

Use of Programs

The customer undertakes to make sure, that everybody who uses the program, carries out this only within the scope of this license arrangement and keeps to this license arrangement.

The customer may only simultaneously use the program on a computer. A „use“ of the program occurs when the program is located on the mainframe or on a computer storage medium.  A program that is currently installed on a network server for the purposes of program distribution is not considered as used.

The royalties charged  by TRIVID are determined according to the frequency of use (for example, number of generated video clips), to the resources (for example, memory size) or to a combination of both.

If the access to a program is controlled through a license management program, copies may be provided and be stored on all machines which exist under the control of this license management  program. The customer may not change or remove copyright notices of TRIVID.

The customer is not entitled to:

- to use the program in other way than is described here, to copy, to work on or to transfer;

- to convert the program into another form of expression (reverse-assemble, reverse-compile) or to translate in other way, provided that such a change is not indispensably planned by explicit legal regulations;

- to rent the program, to give to be rented or to be shared with sublicensors of the program

 

Prices and Payment

The payments for services become due with receipt of the invoice. All invoice amounts are to be paid immediately upon receipt of the invoice without any deduction to TRIVID’s [bank] account.

 TRIVID is entitled to raise the prices any time after written advance notice. The changed price applies if the customer does not object to the changed price within four weeks. Then the contractual relationship is continued with the changed conditions / prices. If the customer objects on time, both parties have the right to discontinue the contract with a term of one month at the month end. Until expressly agreed differently, the prices are fixed prices.

In the case of delayed [payment], TRIVID is entitled to require interest at the rate of 5% above the respective prime lending rate, and 8% above the respective prime lending rate for enterprises. For enterprises, TRIVID reserves the right to demand and apply a higher late fee. TRIVID is further entitled in the case of delay, to block the service, moreover, the server access of the customer; the customer also remains obligated to pay agreed fees for the time of the blockage.

In regard to TRIVID’s demands, the customer can only settle with uncontradicted or legally ascertained counterclaims. The customer can exercise a retention right only if his counterclaim is based on the same contractual relationship. The cession of customer claims to third parties against TRIVID is excluded.

On payment of the remunerations by direct debit, TRIVID calculates 11.60 euros per back debit if the customer represents the back debit, unless the customer proves that a damage has not originated at all or by a substantially lower amount.

Guarantee

The customer must expressly document in a written notification any defects that appear, in particular in the form of always logging indicated error messages. He must carry out a problem analysis and problem report according to the documentation.  The customer must support TRIVID as it is able, in removing a possible deficiency.

The contractor must register in writing to TRIVID evident defects within two weeks ; the consumer within two months after delivery of the product. The timely sending suffices to meet the deadline.   After expiry of the term the assertion of the guarantee claim is excluded.

The customer has to protect programs, data and data carriers completely, or to remove if necessary,  from dammage, in particular before a machine exchange.

From the guarantee are excluded basically such mistakes which originate from external influence, operating errors or changes, supplements, installations or removals, repair attempts or other manipulations not carried out by TRIVID. The replacement of spent equipment accessories (writing elements and printing elements, color cartridges etc.) is not a component of the guarantee.

The guarantee term amounts to a year for enterprisers, and for consumers two years from delivery of the product. Guarantees in the legal sense are not carried out by TRIVID. Manufacturer's guarantees remain unaffected by this.

Rights of Third Parties

TRIVID will defend the customer then against all claims which are derived from an injury of a commercial protective right or copyright by TRIVID in the Federal Republic of Germany, and take over the judicially imposed costs  and damage replacement amounts of the customer, if the customer has informed TRIVID of such claims immediately in writing and all technical and juridical preventive measures and comparative negotiations are reserved for TRIVID.

Previously named obligations of TRIVID are cancelled if claims of third parties are based on the fact that hardware, programs or software were changed or are used together with hardware, programs or software not delivered by TRIVID.

If claims against TRIVID are asserted by third parties because of actual or alleged law violation, TRIVID is entitled to put the application of the customer immediately in the care of the Registrars and to discontinue the [internet] presences of the customer.

Liability

TRIVID is liable for damages which are based on intentional or gross careless breaches of contract. The customer is free to object to his co-fault. TRIVID is liable for consultation only, as far as the question has concerned the contents of the offer. The preceding restrictions of liability also apply to job injuries of the legal representatives or assistants of TRIVID.

Retroactive claims of the customer on the basis of alleged deficiencies are impossible.

TRIVID expressly dissociates itself from the contents of all sites, on the direct or indirect references (so-called pass "links") of the offer of TRIVID. TRIVID accepts no liability for these contents and sites The suppliers of the respective sites are responsible even for the contents of these sites.

Data Protection

Personal data related to the customer are processed, used and stored by TRIVID during the contractual relationship without other explicit approval only for the purposes of contract processing, including billing. The data retrieval, data use and data processing occurs electronically.

TRIVID may transmit the account data of the customer to other official suppliers and third parties, as long as this is necessary for the inquiry into remuneration and for the customer account. TRIVID is entitled to transmit the account data of the customer to the third party responsible for remuneration, as long as it is necessary for this purpose.  For the rest, TRIVID will pass on to third parties neither the data of the customer, nor the contents of private news of the customer without his consent.

TRIVID points out expressly to the customer that data protection and data security cannot be guaranteed for data transfers in open nets like the Internet according to the present state of the technology. The customer knows that the provider can see a technical view of the side offer stored on the web servers and under circumstances can also view at any time other data of the customer stored there.  Also other participants on the Internet are able under circumstances to technically intervene on an unauthorized basis in network security. The customer takes full responsibility for the security and protection of himself for stored data transmitted over the Internet and on web servers.

Cancellation Period

The contract can be discontinued by both parties with a term of 4 weeks as long as it wasn’t expressly agreed otherwise. The notice must be in written form to be effective; the right to immediate termination remains unaffected.

TRIVID is especially entitled to immediate termination of the contract if:

- Changes his address from the one on the application and does not inform TRIVID in an unsolicited manner of his new address within 14 days.  The communication of a post office box or a  "poste restante" does not count as an address.

- The customer gets behind in payment of invoices by an amount at the rate of at least two monthly basic payments.

- The customer seriously violates the conditions of the contract or contract guidelines.

- The content of the customer’s created video-clips violate lawful bans/dictates, common morality and/or rights of third parties.  If the termination occurs after previous warning by TRIVID, TRIVID is not responsible for keeping the contract.

In case of an immediate expressly stated notice  by TRIVID, TRIVID is entitled to require a payment in the amount equal to 75% of the sum of all monthly basic remunerations which the customer would have had to pay with simultaneous term-appropriate notice during the contract term. The right of the customer to substantiate a lower damage remains unaffected.

Upon termination for important reasons, TRIVID is entitled to block the customer from usage.

Final Clause

Exclusive legal venue and place of fulfilment for all disputes from- and in connection with this contract is Tuebingen.

For the concluded contracts from TRIVID on the basis of these general terms of business and for claims following from them, no matter the type, the law of the Federal Republic of Germany applies exclusively to the exclusion of the regulations of the uniform UN-purchase right regarding the purchase of movable items and to the exclusion of the German international private law.

Should regulations of these general terms of business and/or the contract be ineffective or become thus, this does not affect the effectiveness of the remaining regulations.

General terms of business of the TRIVID GmbH, Dettenhausen, Germany.