SETFIRE TO DIGITAL MEDIA LTD.GENERAL TERMS AND CONDITIONS (T&C) OF SERVICES
1. Scope of Application
1.1 The following General Terms and Conditions (T&C) apply to all contracts concerning services of Setfire to Digital Media Ltd.. Setfire to Digital Media Ltd. is hereinafter referred to as “Contractor”.
1.2 The following T&C apply exclusively. T&C of the Customer shall not apply, unless their application has been expressly acknowledged in writing by the Contractor.
1.3 In addition to these T&C, special terms and conditions of the Contractor may also apply
2. Performance Periods
Except where deadlines have been expressly agreed upon as binding in the contract (fixed deadline), performance periods are non-binding.
3.1 Remuneration shall be agreed as a fixed price or on a time and cost basis. For remuneration on a time and cost basis, billing is always done applying hourly rates per service rendered. If the actual time worked deviates from the previously calculated hours, the remuneration owed shall be increased or reduced proportionately.
3.2 Prices quoted by the Contractor are net prices in Euros. No cash discounts or other deductions are allowed. Unless otherwise agreed, charges and other levies shall be borne by the Customer, even if levied at a later date.
4. Other Costs
4.1 Documented travel expenses are to be reimbursed by the Customer as follows: car journeys at EUR 0.30 per kilometre driven; economy flights within the EU and Switzerland; 2nd class rail journeys; taxis and overnight accommodation according to actual expenditure; extra board expenses at the rates recognised for tax purposes. Means of transport and overnight accommodation are to be chosen giving due regard to economic factors.
4.2 The agreed remuneration shall not include waiting times requested by or imputable to the Customer. Such waiting times shall be invoiced as additional expenses. If further expenditure is incurred on the Contractor as a result of such waiting times, this expenditure is be reimbursed by the Customer separately.
5. Terms of Payment
5.1 Remuneration shall fall due for payment immediately after the service has been rendered. If remuneration on a time and cost basis has been agreed, the Contractor may also by way of an alternative issue monthly invoices every calendar month.
5.2 Other costs shall fall due for payment on being invoiced. The parties reserve the right to agree on due dates for progress payments or monthly lump-sum payments. Payment requests are to be met within 14 days of the date of invoice, no deductions or retentions made.
6. Rights of Use
6.1 The rights of use in the items of performance that are granted to the Customer shall depend upon the contractual agreements individually reached in this respect.
6.2 If no provisions, or incomplete provisions, on rights of use have been made in the contractual document and/or in the Contractor’s quotation accepted by the Customer, the following shall apply:
6.2.1 As a matter of principle, the content, range and scope of the rights of use granted in the items of performance, as well as any limitations of the rights of use in terms of time and territory shall depend upon the purpose of the contract. At all times, the Customer shall only be granted those rights of use needed to enable it to put the items of performance to their designated use.
6.2.2 The Contractor always grants only non-exclusive rights of use in items of performance.
6.2.3 As a matter of principle, the Contractor shall not grant the Customer any adaptation rights. The Customer is therefore also and in particular prohibited from making items of performance available to third parties, especially competitors of the Contractor, and from giving such third parties access to the items of performance so that they may adapt or rearrange them for the Customer. Moreover, non-exclusive adaptation rights granted individually in any single case shall not extend to items of performance where source code analyses or changes to the source code are required for adapting or rearranging the items of performance, unless such acts have been expressly permitted.
6.2.4 The Customer may not transfer to third parties the rights of use granted. Nor shall the Customer receive the right to grant non-exclusive rights of use to third parties, or to allow third parties to use the items of performance concerned. In this respect, however, the Customer’s affiliates within the meaning of Stock Corporation Act § 15 shall not be deemed third parties.
6.3. The granting of rights of use shall be subject to the condition precedent that the agreed remuneration is paid in full by the Customer. However, the Contractor shall acquiesce to the items of performance being used to the extent agreed in the contract, as long as the Customer does not default in payment.
7. Cooperation by the Customer
7.1 The Customer is to name to the Contractor a point of contact authorised to submit and receive information and declarations of intent.
7.2 The Customer is under obligation to carry out the acts of cooperation necessary for rendering the agreed services. In particular, the Customer is to provide the Contractor with all necessary information and data. Any costs arising from the provision of inaccurate or incomplete information and/or data shall be at the Customer’s expense.
7.3 The Customer vouches that the materials made available to the Contractor for the implementation of the contract are devoid of protective rights and other rights of third parties that could limit or exclude the use planned. The Customer shall indemnify the Contractor against all claims by third parties that the latter file on the Contractor on account of pre-existing rights in any materials brought in. In particular, the Customer shall assume in this context all and any obligations towards collecting societies.
7.4 The Customer shall be responsible for regularly backing up its data as appropriate to the relevance of the respective data.
8. Third-Party Protective Rights
8.1 The Customer vouches that the items of performance provided to the Contractor are free from protective rights and other rights of third parties that could limit or exclude the implementation of the contract.
8.2 The parties shall notify each other in writing without delay if any claims based on an infringement of protective rights are brought against them.
9. Contractor’s Liability
9.1 The Contractor shall be liable in accordance with statutory provisions for any loss or damage that is incurred on the Customer due to intent or gross negligence, the lack of a guaranteed feature of the item of performance or a culpable breach of cardinal duties, or that is based on a culpable instance of mortal injury, physical harm or health damage, in cases where provision for liability is made under the Product Liability Act.
9.2 Cardinal duties are contractual duties having to be performed in order for the contract to be properly implemented in the first place, and that the Customer may normally rely on being performed, and that, if breached, would on the other hand jeopardise the attainment of the purpose of the contract.
9.3 If a cardinal duty is breached, liability shall – provided that and insofar as the loss incurred is attributable merely to slight negligence and does not relate to mortal injury, physical harm or health damage – be limited to foreseeable loss that can typically be expected to arise in the course of rendering services such as those covered by the contract.
9.4 In all other respects, the Contractor’s liability and that of its vicarious agents – for whatsoever legal cause – is excluded.
9.5 If the Customer sustains any loss as a result of its data being lost, the Contractor shall not be liable for this, insofar as such loss could have been avoided, had the Customer appropriately, regularly and completely backed up all relevant data.
10.1 The Customer is under obligation to keep permanently secret and not pass on to third parties, record or otherwise exploit any information concerning the Contractor that has come to its knowledge or comes to its knowledge at any future date in connection with this contract, insofar as such information is designated confidential or is evidently a business or trade secret on account of other circumstances, unless the Contractor has given its express written consent to such disclosure or use. Beyond any publication as intended, this shall apply in particular to the work results created by the Contractor, to the Contractor’s know-how embodied in such work results, and to all contracts, framework agreements, quotations, costing documents, preferential prices and other significant information of a commercial nature.
10.2 The Customer shall be permitted to disclose confidential information to its employees and other persons working for it only if and insofar as this is necessary for rendering the respective service under the project concerned. In such cases, the Customer shall ensure by means of suitable contractual agreements with the persons concerned that these persons also refrain from disclosing, exploiting, passing on or recording the information having to be kept secret.
10.3 The obligations under this Item 10 shall persist beyond termination of the contract.
11.1 The Contractor is permitted to use sub-contractors for rendering the services.
11.2 The Contractor is entitled to assign or transfer in whole or in part to its affiliates within the meaning of Stock Corporation Act § 15 any individual rights and/or obligations created under the present contract, as well as to transfer the contract in its entirety, provided the Customer’s legitimate interests are not thereby impaired.
12. Press Releases / References
When stating references for advertising or bidding purposes and for the purpose of self-presentation, the Contractor shall be entitled to point out on its website as well as in its own documents – the services having to be or already rendered for the Customer, and also to use the Customer’s logo for this purpose. Moreover, for self-presentation purposes, the Contractor may by prior arrangement with the Customer issue press releases concerning the Customer’s order and the project.
13. Data Protection
The Contractor and the Customer hereby declare that, insofar as they collect, process and/or use personal data from the respective other party’s sphere in the course of initiating, forming and/or implementing the contract, they shall do so in keeping with the applicable statutory provisions on data protection, and in particular only for the purposes of the contract.
14. Place of Jurisdiction and Performance
Dublin shall be the place of jurisdiction for all and any legal disputes ensuing directly or indirectly from the contractual relationship, as well as the place of performance.
15. Governing Law
The contract, including these General Terms & Conditions, shall be exclusively governed by the law of Ireland and be subject to the exclusive jurisdiction of the courts of the Republic of Ireland.
16. Written Form
Any contract closure and any amendments and supplements thereto must be done in writing. This shall apply also to any agreement under which this clause is declared invalid or is amended. Unless otherwise agreed in the contract in any individual case, declarations by the parties that are communicated in text form (email) shall satisfy this requirement for written form under these General Terms and Conditions.
If any provision in these General Terms and Conditions is or becomes ineffective, this shall not affect the effectiveness of the remaining provisions.
Revised: June 2016