- (1) These General Terms and Conditions regulate the business and contractual relationships between nextsocial GmbH, represented by our managing director Prof. Dr. Dr. Christian Werner, Vulkanstraße 1 10367 Berlin, Germany, registered with the Local Court of Berlin Charlottenburg under HRB 174509 B (hereinafter referred to as ''nextsocial'') and the customers of the services offered by nextsocial under www.nextsocial.io or by special arrangement (hereinafter referred to as ''Client''). nextsocial offers its services exclusively to companies within the meaning of § 14 BGB [German Civil Code] as well as to legal entities or special-purpose entities organized under public law.
- (2) Services offered by nextsocial shall be utilized exclusively on the basis of the following provisions. This shall also apply for any use originating from a site outside of the territory of the Federal Republic of Germany.
- (3) Contradictory, deviating or supplementary general terms and conditions of the Client shall only be deemed as agreed if nextsocial has explicitly confirmed them in writing. nextsocial's General Terms and Conditions shall apply even if nextsocial provides the services without reservation while aware of a Client's conflicting terms and conditions or terms and conditions that otherwise deviate from these provisions.
2 Conclusion of Contract / Obligations and Performances by nextsocial
- (1) The agreement between nextsocial and the Client is concluded once the Client completes a binding registration under www.nextsocial.io for one of the memberships offered on the site, the scope of services and fees of which are in part structured differently. In addition, it is possible to conclude a contract for an individual service package. In this case the contract is concluded when the Client accepts the written offer that nextsocial has transmitted to the Client.
- (2) nextsocial offers the Client the possibility to manufacture, integrate and use interactive applications for selling and/or advertising goods and services (hereinafter jointly referred to as: ''Sales campaign'') in web-based social networks (Social Commerce) as Software as a Service (SaaS). Within this framework nextsocial shall provide the storage capacity in its IT system required for implementing the Sales campaign via the application and shall guarantee not only that it is technically integrated into the technical infrastructure of social networks (if offered) but also into the technical infrastructure of the external payment service PayPal, through which payment of individual transactions in the Sales campaign will be processed. Furthermore, nextsocial shall provide hosting during the Sales campaign as well as the technical delivery (serving) of the application in response to the respective inquiry of a (potential) consumer of goods and services offered in the framework of the Sales campaign (hereinafter: ''Consumer''). Additional services are provided by nextsocial depending on the scope of the membership selected by the Client or based on an individual agreement. In the course of a membership the Client is entitled to register as many Sales campaigns with nextsocial as it likes.
- (3) nextsocial expressly points out that within the framework of the Sales campaign, contractual relationships are established solely between the Client and the Consumer. In this relationship nextsocial is neither subject to (pre-) contractual obligations/rights nor shall nextsocial become a contractual partner. The same shall furthermore apply not only in relation to the respective social network, on which the respective Sales campaign is being executed, but also in relation to the payment service PayPal, that acts exclusively on behalf of and for the account of the Client.
- (4) nextsocial shall provide the Client with storage space for carrying out Sales campaigns, whereby nextsocial shall not be subject to any storage obligation and/or duty to exercise proper care in this regard. nextsocial is entitled to delete all information and material transmitted for implementing the Sales campaign ñ including advertising material, e.g. product images or ad texts - (hereinafter jointly referred to as ''Artwork'') as well as other data with respect to the Sales campaign 30 days after expiration of the Sales campaign. The Client shall bear the sole responsibility for complying with storage periods required under commercial and tax law. nextsocial shall retain all intellectual property rights, in particular to applications including the user interface as well as templates, drafts and materials that were prepared by nextsocial's staff or on behalf of nextsocial. Any use beyond the agreed Sales campaign shall only be permitted subject to prior written consent from nextsocial and in return for additional fees. The same shall apply with regard to any modifications to the application.
3 Obligations and Collaboration of the Client
- (1) If necessary for executing the Sales campaign, the Client shall join one or several social networks or maintain existing membership accounts.
- (2) The Client is responsible in all respects for the Sales campaigns carried out with nextsocial's applications. This applies not only for the offer of goods and services published using applications from nextsocial and/or the advertising thereof but also for the contracts with Consumers concluded using the applications and/or the performances of said contracts. As part of this responsibility the Client ensures that not only the Sales campaign with regard to type, content, design, location and timing but also the offer/advertising of the goods and services themselves shall in every aspect meet all legal requirements. In particular the Client must guarantee compliance with the relevant regulations for distance selling contracts, for electronic business transactions as well for data protection and the price indication ordinance. It is also the Client's responsibility to ensure compliance with the guidelines and/or other rules of social networks.
4 Granting of Rights / Client's Warranty / Indemnity?
- (1) For the duration of this agreement the Client shall grant nextsocial all required rights to the Artwork transmitted for the purpose of implementing the Sales campaign, in order to enable the desired social networks to integrate said Artwork into their web offers as well as to publish, disseminate and make the Sales campaign available to the public using applications from nextsocial via all distribution channels and technologies regardless of the end devices.
- (2) The Client warrants that it is unlimited authorized to dispose of the rights granted hereunder, in particular that the Client has purchased the rights of all authors, ancillary copyright holders or other beneficiaries that are required for editing the Artwork transmitted by the Client for preparing and implementing the Sales campaign and the publication thereof using the applications, and that no third-party agreements exist, even no such agreements that could give rise to a reversion of rights, which are contrary to the unimpaired use of the rights granted herein. The Client furthermore warrants that the transmitted Artwork is free from third-party rights, i.e. in particular that copyright, ancillary copyright, personal rights or other third-party rights shall not interfere with the contractual use in the framework of the Sales campaign.
- (3) The Client furthermore warrants that it has obtained all licenses and permits required for the contractual exploitation of the assigned rights and paid all requisite fees and amounts. If necessary, the Client is solely responsible for all payments (including any payments pursuant to §§ 32 and/or 32a UrhG [Urhebergesetz / Germany Copyright Law]) owed to performers, musicians, directors, graphic designers, authors or ad writers or other parties involved in the production of the Artwork or to persons otherwise entitled thereto. This shall also apply for such costs and fees that must be rendered vis-à-vis collecting societies, e.g. fees from the Society for Musical Performing and Mechanical Reproduction Rights (GEMA / Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte).
- (4) In addition the Client warrants that the Artwork contains all the required attributions to all persons that have a right to be credited, or that the Artwork explicitly indicates any obligation to give credit. The Client shall inform nextsocial immediately in writing of any additional obligations to give credit or any that become known after conclusion of the agreement.
- (5) The Client further warrants that neither the use of applications from nextsocial that it has initiated, use initiated through the Sales campaign itself nor the Artwork transmitted for that purpose ñ also in the case of publication as part of the Sales campaign ñ violates any applicable laws, in particular unfair competition, copyright, trademark and/or broadcasting laws.
- (6) In particular the Client warrants that neither the Sales campaign itself nor the Artwork transmitted for its implementation contain contents or contain and/or advertise hyperlinks to contents that can be categorized as exploitation of prostitutes within the meaning of §§ 180a, 181a et. seqq. StGB [German Criminal Code], as pornographic within the meaning of §§ 184, 184a StGB or as contents within the meaning of §§ 4 et. seqq. of the Interstate Treaty on the Protection of Minors in the Media; incite racial hatred, glorify or trivialize violence and/or war, advertise for a terrorist organization within the meaning of § 86, 131 StGB; advertise for goods or services for which advertising is not possible or not possible in that way in the Federal Republic of Germany, e.g. advertisements for prescription pharmaceuticals, advertisements for drugs; violate the principle of respect for human dignity; are suitable for evoking or promoting racism, fanaticism, hate, psychic or physical violence of any kind against others or for threatening their safety; have as their object or contain insulting, slanderous or otherwise disrespectful or discrediting statements or representations; are seditious; deny or trivialize an act of genocide committed under the rule of the National Socialists or contain propaganda and/or characteristics of unconstitutional organizations; transport otherwise religiously or politically extreme contents; are otherwise illegal, in particular violate competition laws and/or provisions set forth under state treaty (incl. regulations concerning surreptitious advertising, product placement, teleshopping and/or sponsoring, etc.); invite to commit criminal acts or administrative offenses or other illegal conduct.
- (7) The Client shall release nextsocial and third parties, which have purchased rights from nextsocial in accordance with the agreement, from all third-party claims asserted in or out of court that may arise from the fact that the Client does not comply with its warranties, assurances, obligations and granting of rights. Furthermore, the Client is obligated upon the first request to indemnify or hold harmless nextsocial and third parties, which have purchased rights from nextsocial in accordance with the agreement, from all costs, damages or asset impairments ensuing therefrom, including the costs of an appropriate legal defense.
5 Account Statements / Fees / Payment Conditions
- (1) Fees for services from nextsocial are based respectively on the membership selected by the Client and the price list that is insofar applicable and current at the time the agreement is concluded (available under: http://www.nextsocial.io/pricing). The price list shows the amount of the fees due to nextsocial for each membership, which as a rule consist of a monthly basic fee as well as transaction fee. The transaction fee is a sales commission that is associated with gross sales achieved with the respective Sales campaign. If and to the extent that the Client has opted for an individual service package, the fees deviate from the price list and are based on the written offer of nextsocial, on which the concluded contract is based. The fee must be paid not only regardless of whether the contract is realized legitimately (e.g. deemed null and void because concluded by a minor), continues to exist (e.g. is revoked, disputes or cancelled) and/or is implemented (not or poorly performed by the Client) between the Client and Consumer but also regardless of whether the Consumer is in arrears or has defaulted on payment. Fees from nextsocial are calculated in Euros and the Client is basically provided with the net amounts, unless VAT is explicitly indicated.
- (2) Services from nextsocial are settled on a monthly basis. The fees shown on the account statement are due and payable without deductions ten (10) business days after accounts have been rendered.
- (3) Should the Client fail to pay within 14 days after due date, the Client shall fall into arrears without further notice. nextsocial is entitled to charge annual interest on arrears on the invoiced amount at the rate of 8 % points above the respectively valid base interest rate pursuant to § 247 BGB from the point in time onward when the Client fell into arrears. Should the Client not honor its payment obligations in due time, nextsocial is also entitled ñ subject to further claims ñ to suspend services until all debts are settled.
6 No Responsibility for Web Offers of Social Networks
- (1) nextsocial shall endeavor to provide the greatest extent of availability of its service possible, but due to the nature and uncertainties of the internet as well as for technical reasons (server backup, maintenance, updates, etc.) cannot guarantee constant and faultless availability of the servers over which the application to the social networks is transmitted. Therefore interruptions and limitations of nextsocial services cannot be ruled out. Accordingly, no liability may be assumed for damages caused by a temporary or permanent unavailability or only limited availability of the services. In particular no liability shall be assumed for damages, loss or deletion of data resulting from technical malfunctions or delays, viruses or similar reasons. The same shall apply for the availability of services of the social networks as well as in the event of force majeure or events that equally affect a not inconsiderable number of providers.
- (2) The web offers of social networks and their contents (incl. the hyperlinks they contain) do not originate from nextsocial and also do not reflect the opinions of nextsocial. nextsocial does only incorporate the applications into the social networks' web offers at the Client's request and does not have any influence on either the design or the contents of these web offers. The respective social network is exclusively responsible for these web offers. Therefore nextsocial explicitly distances itself from all contents of the web offers of social networks and does also not adopt their contents as its own. nextsocial shall not assume any liability in the event that the web offers of social networks violate applicable law, in particular criminal laws, unfair competition and copyright law provisions. This shall not apply if nextsocial acts with intent or gross negligence.
- (1) Subject to the regulations set forth in the following paragraphs, nextsocial shall be liable ñ for whatever legal reason ñ only for damages caused by the intentional or grossly negligent conduct on the part of nextsocial, its legal representatives, employees or agents.
- (2) For damages caused by grossly negligent conduct of nextsocial's agents, liability shall be limited for such damages, the occurrence of which is typically to be expected within the context of the present agreement.
- (3) For damages caused by nextsocial, its legal representative, employees or agents not due to intent or gross negligence, nextsocial shall be liable only if an essential contractual obligation is violated. An obligation is deemed as essential, which is of particular importance for achieving the contractual purpose and on the compliance with which the Client may particularly rely. In this case the limitation of liability with respect to damages to be replaced shall apply accordingly pursuant to the foregoing paragraph.
- (4) Any liability on the part of nextsocial for damages arising from injury to life, limb or health, from the assumption of a guarantee or a procurement risk as well as pursuant to product liability law shall remain unaffected by the foregoing regulations.
- (5) nextsocial shall not be held liable for damages caused by the operators of social networks, on which the Sales campaigns are implemented, or by miscellaneous third parties.
- (6) If any liability not based on injury to life, limb or health of the Client is not or not effectively excluded for simple negligence, such claims shall be statute-barred within one year starting with the date said claims were asserted.
- (7) If nextsocial's liability is excluded or limited in accordance with the foregoing paragraphs, this shall also apply in favor of nextsocial's employees if the Client brings a direct claim against them.
8 External Presentation and Statements
- The parties are entitled to use the names and the logo of the respective other party even beyond the end of the contractual period within the context of presentations, press releases, newsletters, marketing and sales documentation and on its web offers. Any additional press or PR measures shall be subject to prior written consent from the contractual parties.
- (1) The contractual parties shall not disclose vis-à-vis third parties the contents of this agreement or any information, documentation and data in connection therewith that is not public knowledge and shall not make it available to third parties. Third parties in this sense do not include the operators of social networks, on which a Sales campaign is being run, the payment service PayPal as well as shareholders or the parties' professional consultants who are obligated to maintain confidentiality by way of agreement, rules of ethics or by law and who are involved in the realization, assessment or implementation of business transactions and contractual relationships under the authority of one of the parties. This especially applies for auditors, tax consultants, attorneys and corporate consultants. The contractual parties undertake to implement all appropriate measures to meet the obligation set forth under this provision. This shall also apply for a period of three years beyond the end of the business and contractual relationships. This obligation shall not apply: a) if an agreement or a contractual party explicitly authorized the other party to disclose; b) with regard to information that is accessible to the general public and publicly known at the time of the disclosure; c) with regard to information that was prepared independently by the other party without using confidential information; d) if a contractual party is obligated to disclose information for legal reasons or due to official or court orders; e) if non-disclosure interferes with the assertion of own claims.
- (2) The party that invokes these exceptions shall bear the burden of proof.
10 Defense against Third Party Claims
- The contractual parties shall support one another, issue the necessary information and provide miscellaneous documents in the event the acquired rights are asserted in court or out of court. nextsocial is entitled to proceed against infringers on its own behalf.
11 Duration of the Agreement, Termination
- (1) The contractual relationship for the membership for which the Client has registered shall be established for an indefinite period of time. Both parties shall have the right to ordinary termination of this membership subject to compliance to a notice of termination of one week to the end of any calendar month, however not prior to expiration of a Sales campaign already registered with nextsocial.
- (2) If the Client has concluded a contract for an individual service package, nextsocial's offer on which the concluded contract is based shall define the duration and the termination options. If and to the extent the offer document does not stipulate otherwise, the contract duration is based on the duration of the respective Sales campaign and the contractual relationship shall end automatically upon expiration of the Sales campaign. Unless explicitly stipulated otherwise, an ordinary termination of individual contracts between nextsocial and the Client during the agreed contract duration is excluded.
- (3) The right to termination for an important reason shall remain unaffected by the foregoing paragraphs. An important reason for termination for both parties exists in particular if a) insolvency proceedings have been initiated over the assets of one party or institution of the same is rejected due to lack of funds; b) one party violates the obligation to comply with statutory regulations and despite written warnings does not cease or remedy the violation within two (2) weeks; c) one party violates essential contractual obligations and despite a written warning does not cease or remedy the violation within two (2) weeks.
- (4) Every notice of termination must be submitted in writing to be valid. Receipt of the written declaration by a contractual party shall be decisive for adherence to a term.
12 Amendments to the these General Terms and Conditions
- (1) nextsocial is entitled to amend these General Terms and Conditions for the future at any time for an important reason (which includes among other things adapting the terms to changes in statutory provisions, Supreme Court rulings, the elimination of doubts over interpretation or a change in market conditions). The amended terms and conditions of use shall be sent to the Client via email at the latest six weeks prior to entry into full force and effect, if the changes affect the parties' ongoing contractual relationship.
- (2) The amendment shall be deemed as approved by the Client if the Client does not object to the amendment within six (6) weeks after receipt of the amendment notice. In the event of a Client's objection, nextsocial is entitled to an extraordinary termination of the contractual relationship. In the amendment notice nextsocial shall make a special note of the significance of the six-week deadline for voicing an objection as well as the legal consequences for not objecting to the amendment.
13 Jurisdiction / Applicable Law
- (1) The courts of Berlin shall have exclusive jurisdiction for any and all disputes arising directly or indirectly from the contractual relationship, if the Client is a businessman, a legal entity under public law or a special fund under public law. Place of performance is also Berlin.
- (2) The legal relationship between the Client and next social shall be construed in accordance with and governed by the laws of the Federal Republic of Germany, excluding the UN-Convention on Contract for the International Sale of Goods.
14 Final Provisions
- (1) Setoff rights vis-à-vis nextsocial are excluded. This shall not apply for claims against nextsocial that are undisputed, recognized by final judgment or have been acknowledged by nextsocial.
- (2) Rights of retention and to refuse performance may be asserted vis-à-vis nextsocial only to the extent that said rights are based on Client claims arising from the same contractual relationship form which nextsocial is asserting payment claims vis-à-vis the Client.
- (3) The Client may assign and/or transfer rights and/or obligations arising from the parties' agreement subject to prior written consent from nextsocial. In particular, the Client is not authorized to share the application or the possibility of use thereof with third parties.
- (4) If nextsocial does not assert claims vis-à-vis the Client or any other rights in the event that a Client violates this agreement, this shall not affect nextsocial's right to assert corresponding claims or other rights in the event of a repeat violation.
- (5) Amendments and supplements to these General Terms and Conditions, sub-agreements, declarations and other agreements must be made in writing to be valid. This shall also apply for any amendment to the written form clause.
- (6) Should a provision of these General Terms and Conditions be or become invalid in part or in its entirety, this shall not affect the validity of the remaining provisions. An invalid provision must be replaced by one that is legally feasible and comes closest to reflecting the content of the invalid provision and is most likely to correspond to the well-understood economic interests of the contractual parties expressed in the invalid provision. The same shall apply to any potential loopholes.