1. Governance and modifications of the Terms and Conditions
1.1 Contracting party is the FACTORY 92 mpx GmbH, Van-der-Smissen-Straße 4, 22767 Hamburg Germany (“FACTORY 92”) that offers PR, marketing, consulting and management services targeted towards the international music industry.
1.2 The following Terms and Conditions (“Terms”) apply to all agreements entered into between FACTORY 92 and it’s customers (“CUSTOMER”). General Terms and Conditions of the CUSTOMER shall only apply upon prior explicit and written approval by FACTORY 92.
1.3 The CUSTOMER must act as an entrepreneur. As defined in § 14 Bürgerliches Gesetzbuch/ German Civil Code (BGB)) an entrepreneur means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
2. Legal nature of an agreement
It’s understood, that the agreements between FACTORY 92 and it’s CUSTOMERs are Service contracts according to § 611 ff. BGB. FACTORY 92 is obliged to perform the contractual services. Unless otherwise expressly agreed FACTORY 92 is not obliged to achieve any results of the provided services as defined in § 631ff BGB.
3. Conclusion of an agreement
FACTORY 92 sends CUSTOMER an offer to enter into an agreement. The offer is binding for FACTORY 92 for a period of ten (10) days. It is accepted by CUSTOMER and the contract is concluded by signing and redelivering the offer within the aforementioned period. A late acceptance of the offer is considered to be a new offer by CUSTOMER that requires an acceptance by FACTORY 92 within a period of ten (10) days.
4. Rights and Obligations of CUSTOMER
The CUSTOMER has to enable FACTORY 92 to perform it’s contractual obligations by delivering the agreed material, information, data and documents (“MATERIAL”) as stated in the offer immediately after conclusion of the agreement.
5. Grant of Rights, Warranties of CUSTOMER
5.1 The CUSTOMER grants FACTORY 92 the non-exclusive, non-transferable, worldwide right during the term of the agreement to use contractual MATERIAL, the name, logos or marks of the CUSTOMER as delivered under this agreement solely to perform the agreement. FACTORY 92 may also be entitled to use the contractual MATERIAL, name, logos and marks of the CUSTOMER for its own marketing purposes (e.g. reference, exposition).
5.2 The grant of rights include copyrights, neighbouring rights, moral rights and other intellectual property rights as may be necessary to perform the agreement, particularly but not limited, the right to release the MATERIAL to the public, to reproduce and distribute the MATERIAL, the right to communicate the MATERIAL to the public as defined in § 15 of the German Copyright Law (UrhG) and the right to edit and adapt the MATERIAL as may be necessary to perform the agreement.
5.3 The CUSTOMER represents, covenants and warrants by way of an independent warranty,
a) that he can dispose of the rights hereunder to the extent necessary and that he has obtained any and all rights and consents of third party, particularly as to copyrights, neighbouring rights, personal and moral rights and any other rights of a third party to the extent necessary to not frustrate this agreement,
b) that any MATERIAL complies with all applicable national and international laws and that MATERIAL is not false, deceptive, misleading, unethical, defamatory, libellous or threatening unlawful, harmful, abusive, harassing, tortious, defamatory, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable.
6.1 FACTORY 92 reserves the right to request advanced payment.
6.2 Any payment shall become due after the proper invoice is sent to the latest contractual address as being informed by the CUSTOMER, unless otherwise agreed in the offer.
6.3 The CUSTOMER may hold payment if a counterclaim has been established as final and absolute, is ready for judgement or is undisputed by FACTORY 92.
7. Term and Termination
7.1 The term of the agreement and the period of notice to terminate the agreement are defined in the offer. If the offer omits any definition or reference to the term and termination the agreement shall run for an indefinite period of time and can be terminated by either party serving 14 days notice to the end of a month.
7.2 Each party reserves the right to terminate the agreement immediately for grave cause.
8. Liabilities and Indemnification
8.1 FACTORY 92 does not give a warranty for the success or results of the provided services particularly.
8.2 FACTORY 92 shall not be liable for the inability to perform one of it’s obligations arising from any reason or cause beyond reasonable control (including, but not limited to a material defect of MATERIAL)
8.3 The CUSTOMER shall indemnify, defend, and hold harmless FACTORY 92, its parents, subsidiaries, affiliates, and their respective directors, officers, employees and agents, with respect to any claim, demand, cause of action, or debt or liability brought by or claimed by any third party, including reasonable outside attorneys’ fees (collectively, “Claims”), to the extent that any such Claim is based upon or arises out of a breach or non-performance of any of the CUSTOMERs representations, warranties, covenants or obligations hereunder.
8.4 FACTORY 92 shall only be liable – regardless of the cause of action – for damage which has been caused as a result of culpable breach of a substantial contractual duty (cardinal obligations) in a manner which endangers the achievement of the contractual purpose or is caused by intention or gross negligence.
8.5 The liability of FACTORY 92, the quantum of any compensatory damages or reimbursement of expenses, shall be limited to the damages and expenses that FACTORY 92 would typically have had to expect based on the circumstances known as at the date of conclusion of the agreement and that were foreseeable at such time, provided no wilful or grossly negligent conduct has occurred. The liability of FACTORY 92 for consequential damage, in particular for lost profit or compensation for third-party damage, is excluded unless FACTORY 92 is guilty of gross negligence or wilful intent.
8.6 Damage claims in accordance with the Product Liability Act and due to the loss of life, personal injury or prejudice to health shall remain unaffected.
8.7 The aforesaid liability limitations shall also apply in favour of bodies, employees and vicarious agents of FACTORY 92.
8.8 All claims of CUSTOMER against FACTORY 92 shall lapse twelve months after the claim is first detected or could have been detected.
CUSTOMER shall, either during or within 3 years after the term, disclose to any other person or use for any unauthorised purpose any confidential information obtained from FACTORY 92, except to the extent necessary for CUSTOMER to exercise its rights or perform its obligations under the agreement, or to the extent that the information is at the date when it is so obtained or subsequently becomes public knowledge through no fault of CUSTOMER, or as required by law.
10.1 FACTORY 92 may provide the same or similar services to competitors of the CUSTOMER.
10.2 The courts of the Federal Republic of Germany shall have the exclusive jurisdiction to determine all matters arising hereunder. The courts of Hamburg, Germany, shall have the original jurisdiction.
10.3 The agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany.
10.4 FACTORY 92 reserves the right to amend or supplement this Terms and will inform the CUSTOMER in due time of any changes. FACTORY 92 will point out adequately the right of the CUSTOMER to object, within which period of time such right to object has to be claimed and the consequences if the CUSTOMER fails to claim its right to object. If the CUSTOMER does not object the new Terms within 14 days after he knew or ought to have known the new Terms, such new Terms shall be deemed as accepted.
FACTORY 92 mpx GmbH, Hamburg, March 2022
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