CARL KONFERENZ- & EVENTTECHNIK GmbH & Co., Heselstücken 9, 22453 Hamburg, Germany ("Carl") offers the web-based software solution send ON SCREEN as "software as a service" as well as all components and functions asso-ciated with it (jointly the "Live Tool"). send ON SCREEN allows the collection of texts, graphics, photos, comments, and other content ("Content") that was send for public communication to a certain user account of a third party provider or from publicly accessible networks of social media ("Feeds") via key words or other criteria, which the organizer of an event ("Organizer") specifies, and to visualize such jointly with the content of Carl's customer ("Customer") or of the Organizer on screens or walls in real time.
Please note: This is a convenience translation of Carl’s GTC into English. In the event of any deviations resulting from the translation, the formulation set forth in the German version shall prevail.
Scope of application; no utilization by consumers
1.1 These general terms & conditions ("GTC") apply to the agreements concluded between Carl and the Customer regarding the use of the Live Tool and/or individual components or functions of the Live Tool.
1.2 The applicability of the Customer's general terms and conditions is excluded. Deviating, conflicting or supplementary general terms and conditions of the Customer shall only be an integral part of the agreement if and to the extent to which Carl explicitly approves their applicability in writing. This approval requirement shall apply in any case, even if, for example, Carl accepts the Customer's payments without reservation in knowledge of its general terms and conditions.
1.3 Carl provides the Live Tool pursuant to these GTC only to Customers that are not consumers in terms of Sec. 13 German Civil Code (BGB). The use of the Live Tool is therefore exclusively permitted for entrepreneurs in terms of Sec. 14 BGB, associations, legal entities under public law or special funds under public law.
1.4 The scope of use of the Live Tool agreed on with the Customer, the start of the term and duration in case of continuous services, remuneration, as well as possibly specified additional conditions and services, e.g. an analysis or moderation tool ("Add-Ons"), are specified in the respective user agreement.
1.5 Insofar as provisions under a user agreement contradict individual provisions of these GTC, the provisions under the user agreement shall prevail.
Information concerning the conclusion of an agreement
2.1 Contracts of use can be concluded in writing (fax or email is sufficient) or online in German at send.on-screen.info.
2.2 If the agreement is concluded in writing, the user agreement is concluded once Carl transmits an offer for the specific requested scope of services to the Customer and the Customer accepts such offer within five (5) working days in writing.
2.3 If the agreement is concluded online, the following provisions (a) through (d) apply:
(a) The user contract is concluded when (i) customers select the desired service or the desired scope of use of the live tool at send.on-screen.info as an offer to conclude the user contract, enters their payment details and click on the "Place binding order" button; and (ii) Carl accepting the Customer's offer within five (5) working days by email ("Confirmation of Agreement"). If Carl does not accept the Customer's offer within the stated acceptance period, a user agreement is not concluded.
(b) As soon as Carl obtains an offer from a Customer in terms of Sec. 2.3 (a) (i), the Customer receives an email confirming receipt of the offer by Carl and listing the details of such offer ("Order Confirmation"). The receipt of the Order Confirmation does not conclude a user agreement between Carl and the Customer.
(c) Before customers click on the "Place binding order" button, they are shown a summary of the selected services and the data provided by them and, in order to avoid input errors, they have the opportunity to correct or delete the services and data they have selected so far or, using predefined buttons, to delete or adjust their order, or to cancel the order by logging out of their customer account ("Account").
(d) The contract of use is stored separately by Carl. Customers can view the provisions of the user contract at any time in their customer account. Customers have the option of calling up the general terms and conditions which are valid at the time the contract is concluded at send.on-screen.info, and of saving them in a reproducible form.
3.1 The Customer must conclude an agreement to open an Account ("Account Agreement") in order to conclude an agreement for use of the Live Tool at send.on-screen.info, For this purpose, the Customer must register with the data requested during the registration process.
3.2 The creation of an Account is free of charge.
3.3 If the Customer is logged in the Account with its access data, it may conclude user agreements for the Live Tool.
3.4 Carl provides customer-specific access data for the Account. Access data for an Account are (a) not simultaneously usable on multiple end devices and (b) must be kept confidential by the Customer and not be disclosed to a third party or the Organizer.
3.5 The Customer is obligated to immediately inform Carl if it becomes aware that its access data are used by unauthorized persons.
Scope of work and subsequent modifications
4.1 The Customer may conclude fixed term user agreements for the Live Tool and order Add-Ons.
4.2 If the Customer wishes to modify a user agreement and Carl consents to such modification, the price to be paid by the Customer is based on the scope of the service ultimately negotiated; additional services already provided by Carl prior to the modification request must be additionally paid by the Customer.
4.3 Carl assures that changes of the function of the Live Tool, which at Carl's discretion may be executed during the agreement period without prior notification, do not reduce the functionality and performance of the Live Tool.
4.4 However, Carl shall inform of periodically occurring maintenance of the Live Tool. The usability of the Live Tool may be restricted during these maintenance periods.
4.5 The scope of services and the respective price (net) of the subscriptions and Add-Ons currently offered by Carl are accessible in the product description at send.on-screen.info.
4.6 Further additional services may be agreed upon between Carl and the Customer by individual agreements.
Selection of Content
5.1 The Customer is obligated to visualize only the Content from Feeds listed in the user agreement. With Carl’s consent, the number of Feeds and Content can be adjusted in the user agreement at any time as required.
5.2 Only the Customer is responsible for the selection of the collected, published, and otherwise used Content - whether posted publicly or by third parties or whether send to certain user accounts of a third party provider for public communication - as well as for the Content of the Customer or the Organizer to be visualized by the Live Tool; Carl does not control this selection.
5.3 Carl may be separately commissioned by the Customer to editorially select individual Content to be displayed in the Live Tool (Add-On in terms of Sec. 4.1). The criteria based on which the Content is to be selected shall be specified by the Customer. Carl does not perform a legal review of the Content.
5.5 The Customer must select Content not violating third party rights and not use the Live Tool in an improper manner. In case of doubts regarding the lawful use of the Live Tool, the Customer must obtain information regarding the valid legal situation prior to use.
5.6 If Carl determines a use of the Live Tool that severely violates these GTC or mandatory statutory rules, Carl reserves the right to interrupt the Customer's, Organizer's, or third party's access to the Live Tool or to suspend functions either temporarily or permanently without prior notification, without being liable for damages vis-a-vis the Customer in this regard.
Requirements for use of the Live Tool
6.1 For the use of the Live Tool it is necessary that the Customer has its own internet access with sufficient bandwidth, a current version of a common browser that accepts cookies, as well as an email address.
6.2 Carl is not responsible for technical difficulties, in particular connectivity disruptions to the Internet arising in connection with these requirements.
6.3 Carl is not responsible for technical problems arising from the integration of the Live Tool into the Customer's or Organizer's products (e.g. RSS Feeds or websites).
Obligation to co-operate; license for Customer Data; third party rights
7.1 Insofar as the Customer provides images, logos and/or other information ("Cus-tomer Data") for individualization of the appearance of the Live Tool for the Customer, the Customer grants Carl a right that is non-exclusive, geographically unlim-ited and temporally restricted to the term of use of the Live Tool for reproduction, processing, transmission, and possible other use of the Customer Data to the extent required for the fulfillment of Carl’s contractual obligations vis-a-vis the Customer.
7.2 The Customer assures (i) that it owns all rights to the Customer Data to grant the above-stated rights to Carl, (ii) that the Customer is free to dispose of the Customer Data and (iii) that the Customer Data is not encumbered with third party rights opposing a use in terms of Sec. 7.1.
7.3 Regardless of other rights, in the event of a violation of the above assurances, the Customer indemnifies Carl from any liability vis-a-vis third parties, including the Organizer andreasonable costs of a legal defense. Furthermore, Carl is authorized to delete Content that does not comply with the provisions of Sec. 7.2 if the Customer does not immediately remove such despite request.
Rights of use for the Live Tool / Analysis results
8.1 To the extend respectively set forth in the user agreement, Carl grants to the Customer the temporary, irrevocable, non-exclusive and non-transferable right to use the Live Tool for its own operational purposes or respectively the operational purposes of the Organizers at the location of the event described in detail in the user agreements. The right of use is void upon expiration of the respective negotiated term.
8.2 Sub-licensing is permitted only vis-a-vis the Organizer listed in the respective user agreement and must be free of charge.
8.3 With the exception of the extend required vis-a-vis the Organizer during the event, the Customer is not authorized (i) to rent, lease, lend, loan, reproduce, resell, or in any other way distribute or forward the Live Tool or access the Live Tool, also not via the Internet or a downstream public or private data network; (ii) to use the Live Tool for the development of other services; (iii) to activate and use components of the Live Tool for which no rights of use were granted to the Customer; (iv) to transfer rights of use to the Live Tool to third parties or to grant third parties access to the Live Tool; as well as (v) to remove, hide, or modify legal notes, in particular references to industrial property rights of Carl.
8.4 Insofar as the Customer is enabled to reproduce analysis results (i.e. statistical evaluation) in a reproducible form via the Live Tool, e.g. by printouts or separate storage, Carl grants the Customer the geographically and temporally unlimited, irrevocable, non-exclusive right to use the reproductions for the Customer's or Organizer's own purposes, which right can be sub-licensed only vis-a-vis the Organizer and which is not transferable. Regardless of the reproductions generated via the Live Tool, the analysis results themselves can be freely utilized by the Customer at any time.
8.5 The Customer or Organizer will not receive Content displayed via the Live Tool. Carl does not grant rights of use to such.
9.1 Unless otherwise stated in the user agreement, remuneration for user agreements that are concluded in writing must be paid after the end of the agreement. Carl shall issue a written invoice of services due, which shall be payable by the Customer within ten (10) days after receipt of Carl's invoice by the Customer.
9.2 The remuneration agreed upon in a user agreement concluded via send.on-screen.info is due and payable immediately.
9.3 All stipulated remuneration are net amounts and are listed plus VAT at the statutory rate.
9.4 Retention of payments because of counterclaims or offsetting against such claims by the Customer are permissible only if these counterclaims arise directly from this contractual relationship, are undisputed, or legally ascertained.
9.5 Carl reserves the statutory rights of retention and to refuse performance.
9.6 In the event of the Customer's default, the statutory provisions shall apply.
With regard to the function and components of the Live Tool, Sections 536 et seq. BGB as well as the following provisions (a) through (d) generally apply for defects:
(a) Strict liability for initial defects pursuant to Sec. 536a para. 1, 1. Var. BGB is hereby ruled out. Carl is fault-based liability continues to exist. (b) Defects shall be rectified at the choice of Carl either by subsequent improvement or replacement free of charge.
(c) Termination by the Customer pursuant to Sec. 543 para. 2 Clause 1 No. 1 BGB for deprival of contractual use is permissible only if Carl has been given sufficient opportunity to remedy defects and if such has failed.
(d) Carl does not accept any guarantee for the Customer's internet access, in particular for the availability and dimensioning of the internet access. The customer itself is responsible for standard-compliant internet access as of the service transfer point.
(e) Carl does not accept any guarantees.
11.1 For damages incurred due to functions of the Live Tool, the following provisions (a) through (e) apply:
(a) Carl shall be liable without restrictions for damages arising from the violation of life, body, or health based on a breach of duty by Carl, a legal representative or vicarious agent of Carl, as well as for damages caused by the lack of a quality guaranteed by Carl or in case of fraudulent conduct of Carl.
(b) Carl shall be liable without restrictions for damages caused intentionally by Carl or a legal representative or vicarious agent of Carl or by gross negligence.
(c) In case of a violation of essential contractual obligations caused by slight negligence, Carl shall be liable with the exception of the cases listed in Sec. 11(a) or Sec. 11(d) to the damage that is foreseeable for this type of agreement. The notion of an essential contractual obligation refers to such obligations of which the fulfillment enables the proper execution of the agreement in the first place and on the fulfillment of which the contractual parties can regularly rely on.
(d) Liability under the German Product Liability Act remains unaffected.
(e) Otherwise, any liability of Carl is excluded; in particular for the non-availability and technical errors of other services and Feeds connected with the Live Tool.
(f) The limitation period for claims for damages of the Customer vis-a-vis Carl amounts to one (1) year, except in the cases pursuant to Sec. 11.1 (a), 11.1(b) or 11.1(d).
Term of Agreement, termination
12.1 The term of the user agreement is specified by the parties and commences on the date on which the respective functions of the Live Tool are enabled for the Customer.
12.2 Proper termination of the user agreements for the Live Tool including Add-Ons is not possible during the term. The statutory rights of both parties for extraordinary termination remain unaffected. Extraordinary terminations must be issued in writing.
12.3 The Account Agreement can be properly terminated by the Customer at any time by the Customer selecting "Delete Account" under the "Settings" section of its Account. This termination option does not apply as long as user agreements are still valid for the Customer's Account.
12.4 Carl is authorized to properly terminate the Customer's Account Agreement by email to the email address registered for the Account with a notice period of one (1) month if the Customer has not logged into its account for longer than twelve (12) months ("Inactivity Period"). Carl shall inform the Customer of the expiration of such an Inactivity Period by email and give the Customer the opportunity to avert termination pursuant to the above clause by the Customer logging into its Account within two weeks after receiving the notification by Carl.
12.5 In case of a termination of the Account Agreement, the Customer loses all access to all (i) user agreements incl. Add-Ons ordered by the Customer through the respective Account, (ii) the analysis results, and (iii) Customer Data. After termination of the Account Agreement by way of notification to email@example.com, however, the Customer has access to its analysis results and Customer Data for a period of thirty (30) days. After expiration of this thirty (30) day period, all Customer Data and analysis results of the Customer shall be deleted by Carl.
Change of the GTC
13.1 Carl reserves the right to change the offered services as well as the GTC to the extent of which the respective change is necessary to reflect changes that were unforeseeable upon conclusion of the respective user agreement and non-compliance of which would affect the contractual balance between Carl and the Customer, in particular insofar as Carl (i) is obligated to create compliance of the services with the respective applicable law, in particular if the applicable legal rule changes; and/or (ii) with such change complies with a court ruling or administrative decision issued against Carl; and/or (iii) the Live Tool must be adjusted due to mandatory safety-relevant aspects.
13.2 At no point in time does the change of services restrict the fulfillment of main contractual obligations by Carl. In particular, the functionality of the Live Tool remains.
13.3 In other cases outside of Sec. 13.1, Carl shall inform the Customer of changes of the GTC in advance. Insofar as the Customer does not object to the applicability of changes within four (4) weeks after notification, the changes are deemed to have been accepted with future effect. In the event that the Customer objects to the changes, Carl is authorized to terminate the contractual relationship. In the notice, Carl shall refer to the effect of silence and the right of termination.
13.4 Any change of the subject of the agreement and the major obligations that would result in a change of the agreement overall are excluded from the right to make changes pursuant to Sec. 13.3. In these cases, Carl shall inform the Customer of the intended changes and offer continuation of the contractual relationship at the respective changed terms.
14.1 Any user agreement concluded between the parties, to include these GTC, is subject to the substantive law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and private international law.
14.2 Exclusive place of jurisdiction is Hamburg, Germany.
14.3 Should one or more provisions of these GTC be or become invalid, the validity of the other provisions shall remain unaffected thereby.
14.5 The Customer is not authorized to permanently or temporarily transfer rights and obligations under the user agreement to third parties without the prior written approval of Carl.