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General Terms and Conditions of Ocean Outdoor Germany GmbH
1 Scope of Application, Deviating Terms and Conditions, Individual Agreements, Severability
1.1 The performance of services (“Services”) by Ocean Outdoor Germany GmbH (“Ocean”) shall be subject exclusively to these general terms and conditions (“GTC”). Other provisions, in particular general terms and conditions of the client (“Client”) shall not apply, irrespective of whether they have been expressly rejected by Ocean or not. These GTCs shall also apply exclusively if Ocean effects contractual performance without reservation in knowledge of other terms and conditions.
1.2 These GTCs shall only apply to entrepreneurs within the meaning of Section 14 German Civil Code, legal entities under public law or special funds under public law.
1.3 Individual agreements between Ocean and the Client shall prevail.
1.4 Should any provision of these GTCs be invalid or unenforceable, the remaining provisions shall remain in full force and effect to the fullest extent permitted by law.
2 Offers, Quotations, Orders, Formation of Agreement, Cancellation, Confidentiality
2.1 Offers and quotations issued by Ocean are non-binding. In the event that an offer or quotation issued by Ocean is expressly designated in writing as binding, Ocean will be bound for the period of one month, starting from the date of the offer or quotation.
2.2 Offers and quotations must be confirmed by the Client by signing the offer or quotation. Notwithstanding, an agreement also becomes into effect upon Client’s acceptance of the Services.
2.3 Any amendments to an agreement with the Client shall be laid down in writing.
2.4 The following cancellation conditions apply: Cancellation after six weeks (42 days) prior to the broadcast/distribution requires Ocean’s consent. Cancellation shall be subject to the following cancellation fee, based on the net price of the agreed Services:
· between 41 and 25 calendar days: 50% of the net price;
· between 24 and ten calendar days: 75% of the net price;
· less than ten calendar days: 100% of the net price;
· after the start of broadcasting/distribution: 100% of the net price.
The cancellation fee shall be waived or reduced if the Client can prove that no damage has been incurred or that the damage is significantly lower than the cancellation fee.
2.5 All offers, quotations and agreements are strictly confidential, and their contents shall not be disclosed by the Client to third parties outside the Client’s organisation, with the exception that an advertisement- and/or media agency is expressly named in the offer, quotation or agreement.
3 Performance of the Agreement
3.1 Unless otherwise agreed, the performance of all Services shall be at Ocean’s registered office, Hamburg.
3.2 The performance periods or performance dates (performance time) stated in offers and quotations of Ocean are non-binding. A performance time for Services will only be binding if it has been expressly confirmed. In the case of non-binding performance periods or performance dates, Ocean shall not be in delay in performance (Lieferverzug) until a reasonable performance period set in writing by the Client has expired to no avail. The Client shall not set the expiry date of such period earlier than four weeks after expiry of the non-binding performance period or the non-binding performance date.
3.3 Ocean may make performance by instalments where reasonably aceptable for the Client.
3.4 If Ocean has not received delivery of any goods or performance of services at all or in time, Ocean will not be late with the performance of Services unless Ocean is responsible for not having received upstream delivery at all or in time. If Ocean has been established that upstream delivery of ordered goods or services has failed for reasons beyond Ocean’s control despite a matching self-delivery transaction, Ocean may withdraw from the agreement with the Client.
3.5 Ocean is at all times entitled to subcontract the performance of the Services in whole or in part to third parties.
3.6 The Client is responsible for the correct delivery of the advertising space within the specified time in accordance with Ocean’s (technical) regulations and/or (design) specifications. Non-delivery, late delivery or Ocean’s rejection of the design does not discharge the Client from the obligation to perform its financial or other obligations. Ocean may charge any additional costs incurred to the Client. The advertising space supplied by the Client will remain the property of Ocean at all times.
3.7 If the agreement includes the use of DeepScreenTM technology, its use is only permitted in the context of the specific advertising campaigns set out in the agreement.
3.8 In case of termination of the agreement, Ocean is entitled to remove digital advertisements attached by it to the advertising medium before or no later than on the day of expiry.
4 Obligations of the Client, Indemnification
4.1 The Client shall comply with all applicable laws and regulations. The Client shall ensure that the advertising message is not contrary to the law, other applicable regulations on advertising law, public order or public decency. Advertisements shall in any case not be of an immoral, defamatory, threatening, pornographic, intimidating, hateful, political, racist, ethnically offensive, idealistic and/or religious nature.
4.2 The Client guarantees that it is the owner of the advertisement or has the right to submit the advertisement to Ocean without infringing third-party rights, including intellectual property rights (including copyrights and trademark rights), privacy rights or publication rights, confidentiality rights or contract rights.
4.3 The Client indemnifies Ocean without limitation against and holds Ocean harmless from all claims and demands in respect of damage, loss and costs of third parties, as well as fines and/or other sanctions imposed by a competent authority, which may be instituted or imposed against Ocean due to violation of laws or regulations caused by the Client and/or any third parties engaged by it.
4.4 The Client is obliged to co-operate so that Ocean can perform its Services. If the Client fails to comply with such obligations, Ocean is entitled to perform or arrange for the performance of the relevant act itself at the Client’s risk and expense and to charge the Client for any incurred costs.
5 Price, Payment Terms
5.1 Prices are indicated in Euro. Any applicable value added tax shall be calculated separately at the statutory rates as valid from time to time and shall be payable by the Client.
5.2 Unless otherwise agreed, payment shall be made within ten calendar days of receipt of the invoice by bank transfer to an account indicated to the Client by Ocean. Unless otherwise agreed, payments shall be effected in Euro.
5.3 If the Client fails to effect payment by expiry of the due date for payment, it shall be in default without further notice. Decisive for the timeliness of the payment is the receipt of the invoiced amount in the bank account specified.
5.4 In case of default of payment Ocean shall be entitled to charge default interest at the statutory rate. The right to assert further damages is reserved.
6 Force Majeure
6.1 Ocean shall not be responsible for a failure to perform its obligations under this agreement if such failure is through no fault of Ocean or attributable to Ocean and due to any cause beyond its reasonable control, such as acts of God or nature, war, terrorism, embargoes, lawful strikes or employee lockout, riots, epidemic or pandemic, and import/export restriction, prohibition or other action by any government or authorities.
6.2 If the failure to perform Oceans obligations lasts six weeks or longer, Ocean may rescind the agreement.
7 Defective Services, Limitation Period
7.1 If the Services are defective, the Client may, at Ocean’s discretion, demand that the defective Services be remedied or that new Services be provided. The Client shall only be entitled to remedy the defective Services itself after having set a reasonable notice period.
7.2 The limitation period for claims for defective Services is one year as from acceptance of the Services by the Client. This limitation shall not apply, however, if (i) a defective Service was fraudulently concealed, (ii) a guarantee regarding the quality of the Services was given (in this context, where applicable, the guarantee and/or limitation period laid down in the guarantee shall apply). In case of damage claims, this limitation shall further not apply in the following cases: (i) liability pursuant to the German Product Liability Act, (ii) injury to life, body or health, (iii) intent, or (iv) gross negligence.
8 Limitation of Liability, Limitation Period
8.1 The liability of Ocean for damages caused by slight negligence is limited to damages resulting from the breach of material contractual obligations, the fulfilment of which is prerequisite to the proper execution of the agreement and in the observance of which the contractual partner regularly trusts and is entitled to trust; in this case, however, liability shall be limited to damages and losses that were foreseeable at the conclusion of the agreement and are characteristic for the particular type of agreement.
8.2 In cases governed by Section 8.1 the limitation period shall be one year after the commencement of the statutory limitation period. The limitation period for claims for damages due to defective Services shall be determined pursuant to Section 7.2.
8.3 The above limitations of liability shall apply to all claims for damages irrespective of their legal basis, with the exception of claims for damages by the Client (i) due to fraudulently concealed defective Services, (ii) for defective Services which are covered by a guarantee that was given regarding the quality of the Services (in this context, where applicable, the guarantee and/or limitation period laid down in the guarantee shall apply), (iii) according to the German Product Liability Act, (iv) for death, damage to body or health, (v) for intent or (vi) for gross negligence.
8.4 The above limitations of liability shall also apply to claims for damages by the Client against Ocean’s officers, executives, employees or agents.
8.5 The above limitations on claims for damages shall apply accordingly to claims for reimbursement of futile expenses.
9 Termination
9.1 The Client’s right to ordinary termination is excluded.
9.2 The right of both parties to terminate the agreement for good cause remains unaffected.
10 Set-Off and Right of Retention
Set-off and the exercising of a right of retention by the Client for disputed counterclaims or counterclaims that are not established as final and absolute is excluded unless the counterclaims are based on the same contractual relationship.
11 Assignment
The Client may not assign its rights and obligations in connection with Services, neither in part nor in their entirety, without Ocean’s prior written consent. Ocean is entitled to assign its rights and obligations in connection with Services, in particular to associated companies as defined in Section 15 German Stock Companies Act.
12 Place of Fulfilment, Governing Law, Place of Jurisdiction
12.1 The place of fulfilment shall be Ocean’s registered office, Hamburg, unless agreed otherwise.
12.2 The contractual relationship between Ocean and the Client shall be governed exclusively by German law. The application of the terms of the UN Convention on International Sales of Goods (CISG) is excluded.
12.3 The courts having jurisdiction at Ocean’s registered office shall be the place of jurisdiction for all disputes arising out of the contractual relationship, if the Client is a merchant, a legal person under public law or a public law fund or has no general place of jurisdiction in Germany. However, Ocean may bring legal proceedings against the Client at any other legal place of jurisdiction. Nothing in this shall prevail the validity of any legal provisions on exclusive jurisdiction.
Hamburg, September 2024