Elbwind Media GmbH & Co. KG
subsequently named “Elbwind Media”
A visit to our website can result in the storage on our server of information about the access (date, time, page accessed) but exclusively within the laws of the Republic of Germany. This does not represent any analysis of personal data (e.g., name, address or e-mail address). If personal data are collected, this only occurs – to the extent possible – with the prior consent of the user of the website. Any forwarding of the data to third parties without the express consent of the user shall not take place. Web statistics data is captured anonymously (using a truncated IP address) and cannot be associated with a particular individual. This data is not combined with other data sources.
We employ security measures of a technical and organisational nature to protect your data against accidental or deliberate manipulation, loss, and destruction as well as against access by unauthorised persons. Our security measures are subject to continuous improvement in line with technological advances. We would like to expressly point out that the transmission of data via the Internet (e.g., by e-mail) can offer security vulnerabilities. It is therefore impossible to safeguard the data completely against access by third parties. We cannot assume any liability for damages arising as a result of such security vulnerabilities. The use by third parties of all published contact details for the purpose of advertising is expressly excluded. We reserve the right to take legal steps in the case of the unsolicited sending of advertising information; e.g., by means of spam mail. We employ security measures of a technical and organisational nature to protect your data against accidental or deliberate manipulation, loss, and destruction as well as against access by unauthorised persons. Our security measures are subject to continuous improvement in line with technological advances.
Terms & Conditions
§ 1 Scope of application and object of the agreement
(1) All deliveries, services and offers of Elbwind Media GmbH & Co. KG are governed exclusively by the present General Terms and Conditions. The object and basis of the contract in each case are the services and/or contract for services specified in the contractual offer for the contractual partner (customer, principal, hereinafter referred to at all times as the “contractual partner”) by Elbwind Media GmbH & Co. KG (hereinafter referred to as “Elbwind Media” or the “contractor”). The present General Terms and Conditions apply in respect of commercial entities and thus apply to all future business relations even if not expressly re-agreed. Terms and conditions of a contractual partner which conflict with our General Terms and Conditions are hereby rejected. Side agreements, provisos, amendments and supplements to the contract shall not be valid unless made in writing pursuant to § 126 German Civil Code (BGB).
(2) Elbwind Media reserves the right to amend or supplement the present General Terms and Conditions at any time. Amendments and supplements shall only be made by Elbwind Media if such amendments and supplements do not lead to foreseeable, avoidable and inconsiderable impairment to the equivalent interest of the contractual parties at the time when the contract is concluded. The contractual partner has the right to object to such an amendment within a deadline of six weeks of receipt of notification of amendment in written form. The amendment shall enter into force if no challenge is made by the contractual partner within the deadline stipulated.
(3) The contractual language is German. German law applies exclusively.
(4) The contractual partner may download and print the present General Terms and Conditions as amended at http://www.elbwindmedia.de/de/agb_datenschutz.html. Deviations and supplements to the respective contract which are not stipulated within the scope of the present General Terms and Conditions will be regulated by the parties in additional agreements to the extent that this is necessary for the fulfilment of services on an individual case basis.
§ 2 Services of Elbwind Media GmbH & Co. KG
(1) The scope of the individual services to be provided is based on the specification of service made by Elbwind Media and agreed in the contract and on further relevant information stated in this regard.
(2) Insofar as nothing to the contrary has been agreed, Elbwind Media may arrange for the services incumbent upon them to be provided by third parties acting in the capacity of a subcontractor. Elbwind Media will provide the contractual partner with the name and qualification of such a third party on request. The contractual partner may only reject such a third party to the extent that the contractual partner is able to assert justified and clear doubts as to the suitability of the third party.
(3) Contracts concluded with Elbwind Media do not result in acquisition by the contractual partner of any rights in existing brands or trademarks or in brands or trademarks still to be established insofar as no provision to the contrary has been made in the contract. In the event that Elbwind Media makes documents available to the contractual partner in connection with an offer or placement of an order, such documents may not be made accessible to third parties unless Elbwind Media has provided its express written consent.
§ 3 Cooperation of the contractual partner
(1) The contractual partner will cooperate in the required manner in the provision of the service by Elbwind Media and will act without delay in supplying Elbwind Media with all available information and documentation necessary for fulfilment of the service.
(2) The contractual partner is required to make documentation needed for the execution of works available to Elbwind Media, in particular equipment, data, programmes and programme elements intended to be used in conjunction with the object of performance.
(3) Contractual partners shall provide an assurance that, within the meaning of the German Data Protection Act, they are entitled to store and arrange for the processing of personal data of third parties supplied to Elbwind Media or to a subcontractor of Elbwind Media by the contractual partner for the purpose of achieving the work result.
(4) The contractual partner shall be required to procure the consent of third parties to the extent necessary.
(5) Elbwind Media accepts no guarantee for defects which are caused by contents provided by the contractual partner or by third parties commissioned by the contractual partner. The contractual partner shall bear the expense caused by the need for Elbwind Media to repeat or delay works as a result of incorrect, subsequently corrected or incomplete information provided by the contractual partner. Expense within the meaning of the present General Terms and Conditions is deemed to constitute all costs arising in connection with the execution of the order. Administrative costs relating to the order may also in particular be included. In general, Elbwind Media will charge 30% of the order price still outstanding as compensation for additional services to be provided.
§ 4 Acceptance by the contractual partner
(1) Insofar as Elbwind Media creates or adapts digital works such as websites within the scope of a contract for services, such services shall require acceptance by the contractual partner. In the event that the contractual specification also contains the stipulation that a user handbook and/or documentation of the performance delivery process should be provided, these elements shall also require separate acceptance.
(2) The contractual partner is required to accept the work result without delay once material conformity with the contractual agreement has been investigated and to declare acceptance in written form pursuant to § 126 German Civil Code (BGB). The maximum appropriate period for the execution of such an investigation is 7 (seven) working days.
(3) In the event of material deviations to the requirements contractually agreed, Elbwind Media shall be obliged to amend such deviations within an appropriate deadline. Elbwind Media shall subsequently again present the work result to the contractual partner for acceptance.
(4) In the event that the functional investigation is once again unsuccessful notwithstanding the fact that the contractual partner has properly performed the duty of cooperation incumbent upon it, the contractual partner may set Elbwind Media an appropriate subsequent deadline whilst declaring that, following the expiry of such an appropriate subsequent deadline, the contractual partner will act in accordance with the statutory stipulations in requiring a decrease in remuneration (reduction) or else will refuse the service.
(5) In the event that the contractual partner does not declare acceptance without providing reasons, Elbwind Media may set an appropriate deadline for submission of declaration of acceptance. Upon the expiry of such a deadline, the work result shall be deemed to have been accepted if the contractual partner fails to present reasons for refusal of acceptance because of material defects in writing within the deadline.
§ 5 Rights of exploitation
(1) Elbwind Media accords the contractual partner the right of beneficial use of the work result including of the relevant documentation, sketches, designs and source code. Said right of beneficial use shall be without limitation as to time. In terms of place, however, it shall be restricted to the territory of the Federal Republic of Germany.
(2) All rights of exploitation accorded to the contractual partner shall lapse in circumstances where the contractual partner is in default of payment and fails to meet a subsequent deadline for payment stipulated in writing. In such a case, the contractual partner shall be required to act without delay in returning the service provided to Elbwind Media including all existing copies. If the performance provided has been installed on a hard disc, the contractual partner shall provide an assurance to be enforced by penalty that the service delivered has been completely deleted.
§ 6 Remuneration
(1) The contractual partner shall pay remuneration in accordance with the contractual agreement. Remuneration shall not fall due until acceptance of the service(s) respectively stipulated. Notwithstanding this, the contractual partner shall be required to make partial payments or advance payments if resource-related remuneration has been agreed. In such cases and in the case of the final invoice, which must take into account any partial payments that may have been made, remuneration shall be paid seven days after issuing of the respective invoice unless the contractual partners have agreed payment on certain fixed dates.
(2) Remuneration shall always be subject to value added tax at the statutory rate applicable at the time of the issuing of the invoice. The contractual partner will be notified in writing of any country-specific levies that may be incurred, such as packaging or transport costs for domestic or foreign deliveries or transport insurance costs. In the event that project-related travel costs and expenses are incurred (costs of overnight accommodation, rail fares, flight costs, taxis, public transport costs, rental cars and parking fees each at the lowest possible amount), these costs will also be passed on to the contractual partner and charged on the basis of individual vouchers presented.
(3) If resource-related remuneration has been agreed, the contractual partner is required to make partial payments or advance payments at the demand of Elbwind Media. In such cases and in the case of the final invoice, which must take into account any partial payments that may have been made, remuneration shall be paid seven days after issuing of the respective invoice unless the contractual partners have agreed payment on certain fixed dates.
§ 7 Default of payment.
(1) The debtor shall be in default of payment from the point in time at which the contractual partner receives a reminder from Elbwind Media requiring settlement of the payment due. No reminder of default of payment is necessary if the time at which a claim is to be settled by the debtor is determined by a calendar date. In the event that the debtor fails to meet the deadline for payment, the debtor shall be in default of payment from the day following the final day of the payment deadline. If no calendar date is stipulated, the debtor shall in all cases be in default of payment 30 (thirty) days after the due date and receipt of an invoice or of an equivalent demand for payment.
If the contractual partner is in default of a payment, the contractual partner will be required to pay statutory penalty interest in the amount of 9.00 percentage points above base rate. The contractor shall also have the right to claim payment of a fixed-rate sum of €40 (forty euro). The above shall be without prejudice to the right to assert further claims for damages.
In the event of payment by direct debit, the contractual partner will be required to bear any costs incurred as a result of the reversal of a payment transaction because of lack of funds or as a result of the transmission of incorrect data regarding bank details.
(2) All rights of exploitation accorded to the contractual partner shall lapse if the contractual partner is in default of payment and fails to meet any subsequent deadline for payment set in writing and if the contractual partner fails to make payment within the scope of the contractual arrangement. In such a case, the contractual partner shall be required to act without delay in returning the service provided to Elbwind Media including all existing copies. If the performance provided has been installed on a hard disc, the contractual partner shall provide an assurance to be enforced by penalty that the service delivered has been completely deleted. In addition to the above, Elbwind Media shall have the right to enforce statutory claims for compensation.
§ 8 Guarantee
(1) In the event of deficiency of performance, the contractual partner shall in all cases be entitled to the statutory guarantee rights.
(2) The guarantee period for work results prepared on the basis of the present Agreement is two years commencing with acceptance of the respective service. The beginning of the deadline commences upon expiry of the respective period of partial performance. Each period of partial performance within this context is one month. If the contractual partner makes unconditional use of a partial performance, the guarantee period for the partial performance commences on the first day of use. This is without prejudice to the guarantee for the contractual combination of all partial performances and fulfilment of the performance characteristics of the services as a whole.
§ 9 Retention of title
Services provided remain the property of Elbwind Media until such time as all claims arising from the business relationship have been settled and may only be resold, pledged or given as security with the consent of Elbwind Media. All claims of the contractual partner resulting from a resale shall be ceded for the securing of all claims arising from the business relationship with Elbwind Media. If the contractual party includes claims resulting from a resale into an existing current account relationship with a third party, the balance respectively assignable shall be deemed to be ceded. The contractual party shall retain the right to collect such claims as long as the contractual party is not in default of payment vis-à-vis Elbwind Media.
§ 10 Liability
(1) Elbwind Media shall liable to an unlimited extent both in respect of itself and in respect of a vicarious agent in the case of gross negligence or intent and pursuant to the provisions contained within the German Product Liability Act. In the case of ordinary negligence, Elbwind Media shall be liable for damages arising as a result of injury to life, limb or health.
(2) The following limited liability otherwise applies. In the case of ordinary negligence, Elbwind Media is only liable in the event of breach of a material contractual duty, the fulfilment of which is required for the proper execution of the contract and compliance with which the contractual partner regularly relies and is entitled to rely upon (cardinal duty). In the case of liability for ordinary negligence, the amount of liability is limited to the amount of the foreseeable damage that would typically be expected to be incurred in the event of such a liability at the time when the contract was concluded.
In the case of ordinary negligence of a cardinal duty, Elbwind Media is only liable in respect of itself and in respect of a vicarious agent for such typical damages as were foreseeable at the time when the contract was concluded.
(3) Elbwind media assumes no content responsibility for contents supplied by the contractual partner. The contractor has no duty to check the legality of contents supplied.
(4) In the event that contents supplied by the contractual partner include breaches of the law, the contractual partner shall indemnify Elbwind Media against all resulting claims and shall bear the costs arising. The above also encompasses costs for a legal defence.
§ 11 Maintaining secrecy in respect of confidential information
(1) Both parties commit to maintain secrecy in respect of confidential information affecting the respective other party and only to use such information for execution of the present Agreement and for the purpose thereby pursued. Such a duty to maintain confidentiality further extends to encompass all employees and/or third parties (such as suppliers, graphic designers, reproduction establishments, printing companies, film producers, recording studios etc.) which have access to the business processes stated above. This obligation continues for a period of 5 (five) years after conclusion of the contract.
“Confidential information” refers to all information and documentation of which a party gains knowledge concerning business procedures of the respective other party. This particularly includes, but is not restricted to, printing copy, layouts, storyboards, numerical data, drawings, audio tapes, pictures, videos, DVD’s, CD-ROM’s, interactive products and such other data containing films and/or radio plays and/or other copyright-protected materials of the customer or of companies affiliated with the customer.
(2) The duty to maintain secrecy does not apply to:
a. information which was already known to the respective other party at the time when the contract was concluded;
b. information which had already been published by the contractor at the time when it was passed on in a way not arising from a breach of confidentiality by the respective other party;
c. information which the respective other party has expressly authorised in writing to be passed on;
d. information which the respective other party has received legally from other sources without application of the confidentiality restriction insofar as the passing on and utilisation of this confidential information are not in breach of contractual agreements, statutory provisions or government directives;
e. information which the respective other party has developed for itself without access to the confidential information of the customer;
f. information that has to be made available on the basis of statutory duties of disclosure, notification or publication or on the basis of a government directive. Insofar as permissible, the party required to disclose such information will notify the respective other party of such a circumstance as early as possible and will provide its best possible support to proceed against the duty to disclose. Burden of proof with regard to the existence of one of the exceptions stated above lies with the respective recipient of the information.
(3) If the contractor is made aware of confidential information by a third party, the contractor will notify the contractual partner in writing of such a circumstance without delay.
(4) The contractual partners will apply the same degree of care and attention to maintaining confidentiality of the information as they apply to the maintenance of their own company secrets.
§ 12 Final provisions
(1) In the event that one or more of the provisions contained within the present General Terms and Conditions should be or should become invalid, this shall be without prejudice to the validity of the other provisions therein contained.
(2) The present Agreement is solely governed by German law. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. ausgeschlossen.
(3) If the contractual partner is a registered trader under German law, a legal entity under public law or a special fund as defined by public law, place of jurisdiction for all disputes arising from or in connection with the present Agreement shall be Hamburg, the location of the Registered Office of the contractor.
(4) Any use of the name and brand Elbwind Media always requires prior consent and written authorisation
Data collection via the use of Google Analytics
Our website makes use of the Google Analytics web service from Google, Inc. Google Analytics utilises what are known as "cookies". These "cookies" are text files, which are placed on your computer to help the website analyse how you, the user, browse the site. Examples of the items of data collected include your operating system, your browser, and your IP address, the web page you accessed before visiting our site (the referrer URL) and the time and date of your visit. The information generated by the text file about the use of the website will be transmitted to and stored by Google on servers in the United States. Google will use this information for the purpose of evaluating your use of our website, compiling reports on website activity for website operators and providing other services relating to website activity and internet usage. Google may also transfer this information to third parties where required to do so by law, or where such third parties process the information on Google's behalf. This use is made anonymously or pseudonymously. For more information about this service, please visit Google at https://www.google.com/intl/en/policies/privacy/#information