Terms And Conditions
Terms And Conditions
Last updated 05.03.2020
Vidmonials.com – a product of Coeus Solutions GmbH – (‘Vidmonials’) develops and operates professional video reviews collection, management, and publishing (the ‘Vidmonials Systemְ’) as well as other Software as a Service (SaaS) services. By signing the order form, the company named in the order form (hereinafter the ‘Company’) agrees to these General Terms and Conditions (‘T&Cs’) underlying the agreement between Vidmonials and the Company.
1. SCOPE AND EXCLUSION OF FURTHER TERMS AND CONDITIONS
1.1. For the business relationship between Vidmonials and the Company in the conclusion of contracts (‘Vidmonials contracts’), only the following general terms and conditions apply in their version valid at the time of conclusion of the contract, unless otherwise agreed in writing between Vidmonials and the company.
1.2. Divergent conditions of the company do not apply unless Vidmonials expressly agrees to their validity in writing.
2.1. Evaluator is a natural person who has concluded an end-user agreement with the Company, either on its own behalf or on behalf of a third party, and who is submitting, has submitted or is entitled to make an evaluation (‘potential evaluator’).
2.2. Transaction-based review is a subjective assessment based on personal experience provided by an evaluator through the Vidmonials System, which
relates to the conclusion of an end-user agreement with the Company, its execution, termination, reversal and/or customer service in connection with this end-user agreement (‘Merchant Review), and/or
relates to the Company’s products, services or other experience that the evaluator has gained from the Company based on an end-user agreement (‘Product Review).
It consists of a star-based rating system and a comment, and may contain other elements (such as photos and videos) (‘complementary rating elements’).
2.3. Non-Transaction-based review is a subjective assessment based on personal experience that has been submitted by an evaluator through the Vidmonials System, which
relates to the Company, its execution, termination, reversal and/or customer service without an end-user agreement (‘Merchant Review’), and/or,
relates to the Company’s products, services or other experience that the evaluator has gained from the Company without an end-user agreement (‘Product Review’).
It may consist of a star-based rating system and a comment and may contain other elements (such as photos and videos) (‘complementary rating elements’).
2.4. Review conditions & communication rules include the principles, rules and conditions that must be observed by the evaluator for issuing ratings via the Vidmonials System, which are available here.
2.5. Review database is the database of all vendor or product ratings collected on the basis of the Vidmonials contract. If there are multiple accounts related to the Company, the sum of the ratings recorded in relation to each account will be considered as a standalone rating database.
2.6. Review comment is, as part of the rating, the evaluator’s assessment in video form recorded during the course of the evaluation.
2.7. Vidmonials widget is a web graphic component that integrates with the Company’s web site, which includes a video reviews collected through Vidmonials.
2.8. End-user agreement is a contract between the Company and the evaluator for the purchase of a product or the provision of a service or other experience that is concluded during the term of the Vidmonials Company offer agreement.
2.9. Customer backend is a password-protected section of Vidmonials’s website that allows the Company to view the reviews submitted about its business offer and/or its products/services, engage in a dialogue with customers, comment on review texts, adjust account settings, and download scripts for integrating the Vidmonials widget and Vidmonials seal, etc.
2.10. User-generated content is content (videos) that Vidmonials receives from the Company, evaluators or other third parties for the purpose of publication. This includes valuation comments and supplementary assessment elements, company comments and third-party responses to ratings, products, services or companies (‘third-party feedback’). Again, the principles, rules and conditions for issuing ratings via the Vidmonials System, which are available here, apply
2.11. Software as a Service services (‘SaaS’). This is where Vidmonials acts as a technical service provider. The Company is obligated to check the nature of the commissioned service for legal admissibility. Vidmonials assumes no liability for this. The scope of service and other conditions are regulated in a special agreement, which is concluded in addition to these terms and conditions.
2.12. Business offer is the product and service portfolio (e.g. the online shop) of the Company that is subject to vendor reviews based on the Vidmonials contract.
2.13. Company product is a product, service or other experience offered by the Company that is the subject of product reviews on the basis of the Vidmonials agreement, whereby it does not matter if the Company is a manufacturer of this product or if it is a product of a third party offered and distributed by the Company.
3. SERVICES BY Vidmonials
3.1. The exact scope of the services to be provided by Vidmonials is based on the contract offer and the associated service description. Changes to these services during the term of this contract are only permitted with the written consent of both parties.
3.2. The Vidmonials system is provided 24 hours a day, seven days a week, with an annual average availability of 99%. This excludes downtime due to maintenance and software updates as well as times when the Vidmonials system cannot be reached via the internet due to technical or other problems not within the control of Vidmonials (force majeure, third party fault, etc.). If it is foreseeable for Vidmonials that downtime for maintenance and software updates will take longer than three hours, Vidmonials will notify the Company at least three days before the beginning starting the maintenance in question.
3.3. In the case that the Company is in the position to include or integrate services or offers from third parties in connection with the use of Vidmonials’s services (‘Third Party Offers’, e.g. integration of Social Media offers, Google Feeds, etc.), only the technical portion of facilitating the integration into Vidmonials’s services applies. The third-party offers themselves are offered, provided and accounted for by the respective third-party providers, and Vidmonials does not guarantee their functionality and performance framework.
4. CUSTOMER BACKEND, Vidmonials WIDGETS, INTERFACES, AND SOFTWARE (PROGRAMS/APPS)
4.1. Vidmonials grants the Company access to the customer backend for the duration of the agreement and grants the right to use the customer backend, which is non-sublicensable and non-transferable and limited to the term of the Vidmonials Agreement.
4.2. Access to the customer backend is granted via login credentials that Vidmonials provides to the company. The company is obligated to keep the access data and other passwords provided by Vidmonials confidential from unauthorised third parties and to protect them against access and abuse by third parties. The company undertakes to notify Vidmonials as soon as it becomes aware that the information has become known to unauthorised third parties.
4.3. To the extent that Vidmonials provides the Company with computer programs, program codes, documentation, interface specifications or other materials, Vidmonials grants the company the simple non-sublicensable and non-transferable right to use in accordance with the contract, including the right for reproduction and public broadcast, limited to the term of the Vidmonials contract, if and insofar as this is necessary in the context of the contractual use.
4.4. The Company is not authorised to make any changes to computer programs, program codes, documentation, interface specifications or other provided materials without the written consent of Vidmonials. A decompilation of provided computer programs is only permitted under the strict conditions of § 69 e of the German Copyright Act (GCA) but is otherwise prohibited.
5. PRINCIPLES REGARDING THE HANDLING OF RATINGS AND USER-GENERATED CONTENT
The Company acknowledges the principles set forth below for dealing with ratings and user-generated content by Vidmonials:
5.1. Vidmonials stands for professional collection, management and publishing of authentic reviews that reflect actual consumer experiences. The parties agree that the authenticity of the evaluators’ assessments is crucial and, therefore, the subjective views of the evaluators should be respected in the light of freedom of expression, if and to the extent that the evaluations do not violate the communication rules or are otherwise unlawful. Whether a rating is appropriate or inappropriate, factual or unsuitable, is expressly and deliberately not examined.
5.2. Vidmonials will check all submitted rating comments, as well as any additional rating elements provided, regardless of the associated star ratings, to determine whether they are consistent with the evaluation terms. If there are no indications of violations of the evaluation conditions, the evaluations will be published directly on the Vidmonials certificate page.
5.3. Checking for unlawfulness of the rating comments as well as other user-generated content is limited to obvious illegalities. Liability for non-obvious unlawful content is excluded. This also applies to the compliance of the content with special statutory provisions, such as the Act on the Advertising of Medical Products, professional regulations, etc.
5.4. If Vidmonials is notified by the Company or a third party that rating comments or other user-generated content contain illegal content, Vidmonials will check the contents if the complaint is detailed enough that the legal violation can be easily identified. As part of the assessment and to the extent appropriate to the circumstances, Vidmonials will consider the comments of the parties, if contact with them is possible. Section5.6 applies accordingly.
5.5. Generally, the inappropriate portion is obscured while retaining the remaining content. In the case of inadmissible content in evaluation comments, the inadmissible content is basically deleted or rendered illegible, e.g. starred out with three asterisks (***), while maintaining the star rating and the other content. Complete deletion of the entire review may be made, if appropriate or warranted, taking into account the circumstances of the case, in particular if a negative star rating is attributed to solely or predominantly assertions in the evaluation commentary which prove to be untrue or which are to be treated as untrue.
5.6. If, in Vidmonials’s opinion, supplementary evaluation elements violate the evaluation conditions, they will not be published.
5.7. Otherwise, evaluations and user-generated content will not be published or deleted in whole or in part, if and to the extent that:
5.7.1. Vidmonials or the Company is instructed to do so due to a court decision or an official order;
5.7.2. the Company or the evaluator has been compelled to remove content, or have content removed, due to a cease-and-desist declaration, whereby Vidmonials reserves the right to review the cease-and-desist declaration and circumstances that led to its submission;
5.7.3. Vidmonials has reason to believe that the assessments are due to abusive and/or manipulative acts or acts of malintent by the Company or by third parties;
5.7.4. exceptionally, there are circumstances where, under consideration of an individual case, make a deletion or partial deletion appear appropriate, at the sole discretion of Vidmonials.
5.8. The Company must notify Vidmonials of alleged inadmissible user-generated content via email to support@Vidmonials.de upon learning about the incident; Vidmonials has no obligation to the Company to respond to a complaint by the Company, which is received by Vidmonials later than 12 months after the publication of the review in question. In that regard, the company has an obligation to review the evaluations made in relation to its Company or products.
5.9. Vidmonials may allow third parties to submit a rating related to an end-user agreement by sending a rating link if the third party provides suitable evidence of the conclusion of an end-customer contract and a rating for this process is not or is no longer published, or if the evaluator wants to replace a previous rating. However, Vidmonials will not send the evaluation link if the end-customer contract does not fall into the defined selection group that may have been agreed between Vidmonials and the Company (Section 5).
5.10. In case of deletion or partial deletion of ratings, Vidmonials may give the evaluator in question the opportunity to replace their original review. For this the evaluator must provide his or her email within the review process or contact Vidmonials via the certificate pages. Vidmonials may also give evaluators the opportunity to subsequently change an already submitted rating.
6. RIGHTS AND OBLIGATIONS OF THE COMPANY TO ADVERTISE WITH RATINGS AND THE VIDMONIALS ELEMENTS
6.1.The Company acknowledges that Vidmonials owns all exclusive rights to the Vidmonials name, the Vidmonials logo, and the Vidmonials widgets
6.2. Furthermore, the parties agree that Vidmonials is entitled to all exclusive rights of use as a database manufacturer in terms of copyright about the rating database or rating databases. It is not permitted to duplicate, distribute or publish the rating database or any significant parts of it without the consent of Vidmonials.
6.3. The Company undertakes to
6.3.1. use the Vidmonials seal, the Vidmonials widget, and the rating database (and any parts thereof, including individual ratings) exclusively in relation to the business offer or goods and/or services to which the underlying ratings actually refer, as well as committing to not misrepresent Vidmonials elements which relate to a Company as actually relating to a service and vice-versa. With regards to product ratings, use in relation to identical products is permissible if there is complete equality of design and it is expressly stated that the subject of the presented ratings was a structurally identical product;
6.3.2. not use the Vidmonials elements in a misleading or abusive way;
6.4. The rights under Section 3 expire upon termination of the agreement. This also applies in the case of termination for breach or cause. After termination of the master agreement, any advertising reference to Vidmonials is inadmissible. Specifically, it is prohibited to use the Vidmonials elements and the rating database or to suggest the existence of an ongoing contractual relationship between the Company and Vidmonials after termination of the contract.
6.5. The Company is responsible for the legal admissibility of advertising with the reviews (including their manner of presentation); in particular, the Company has to check the advertising for its legality under competition and advertisement law (e.g. according to the Act on the Advertising of Medical Products).
6.6. The Company exempts Vidmonials from all damages and/or claims of third parties in accordance with Section 15, which may result from the fact that the advertising (including the manner) violates statutory regulations. The same applies in the case of a culpable violation of the obligations arising from Section 6.
6.7. Without prejudice to the right to extraordinary termination (see Section 13.6) and without prejudice to any claims for damages, Vidmonials can, in the event of a breach of obligations arising from Section 7.6, immediately prevent the availability of the Vidmonials widget and the Vidmonials certificate page, withdraw or suspend the Vidmonials status and prevent the submission of further ratings.
7. USE OF THE NAME AND TRADEMARKS OF THE COMPANY BY VIDMONIALS; REFERENCE ADVERTISING; CONNECTION TO SEARCH ENGINES AND SOCIAL MEDIA
7.1. The Company grants Vidmonials the basic (non-exclusive), non-transferable, non-sublicensable, geographically unlimited right to display the Company’s name and logo (or, if these differ from those of the company, the name and logo of the Company’s offer/product) within the Vidmonials website, particularly on the Company’s Vidmonials certificate page, for the duration of the Vidmonials agreement.
7.2. The Company guarantees and warrants that the above referenced reproduction of the name or logo does not violate any rights, in particular trademark, symbol and copyrights, of third parties and indemnifies Vidmonials in accordance with Section 15 from all claims and damages arising from the fact that the contractual use of the name or logo infringes on the rights of third parties.
7.3. The Company grants Vidmonials the basic (non-exclusive), non-transferable, non-sublicensable, geographically unlimited right to display the Company’s name and logo (or, if these differ from those of the company, the name and logo of the Company offer/product) within reference advertising.
7.4. Vidmonials has the right to feed reviews to our supported search engines and social media platforms.
8. OTHER OBLIGATIONS OF THE COMPANY
8.1. At the beginning of the contract, the Company undertakes to provide Vidmonials with technical implementation of the contractual product swiftly and to provide the necessary contact persons, data and information.
8.2. The Company is obligated to immediately notify Vidmonials in writing about any changes to the information given at the time of conclusion of the contract (company name, contact address, telephone numbers, email addresses, etc.).
8.3. The company must immediately notify Vidmonials of any disruptions and malfunctioning of the Vidmonials System in writing. If malfunctions or functional failures are caused by Company actions, the Company must pay for the services required to remedy them.
9. DATA PROTECTION
9.1. If Vidmonials transmits personal data of potential evaluators for the purpose of inviting potential evaluators to submit Reviews, the contractual data collection, processing and use of this personal data by Vidmonials takes place in the name and on behalf of the Company on the basis of a contract for order data processing, the conclusion of which is a prerequisite for this service provision by Vidmonials. To that extent, the Company is the responsible body for the collection, processing and use of personal data in this context according to the General Data Protection Regulation (GDPR) and is responsible for compliance with data protection regulations. To this extent, Section applies in particular.
10.1. Confidential Information’ means all information and documents relating to the transactions of the party concerned, in particular financial, technical, economic, legal, tax, business, staff or management information of the other party relating to the affected party or a company affiliated with it (§ 15 of the German Stock Corporation Act [AktG]) and which are marked as confidential or whose confidentiality results from their subject matter or other circumstances.
10.2. Both parties undertake to keep confidential information concerning the other party secret and to use it only for the performance of this contract and the agreed objective. The receiving party is under no obligation to disclose the confidential information, either directly or indirectly, to third parties in any form, whether verbally, in writing or otherwise, unless otherwise agreed between the parties.
10.3. Both parties agree to ensure that all employees and/or third parties with access to the aforementioned business transactions also maintain confidentiality.
10.4. The obligation of secrecy according to Section 2 does not apply to information:
that was already published at the time of disclosure without having resulted from a breach of confidentiality by the other party, which the other party has expressly released for disclosure in writing, which the other party has lawfully obtained without any restriction relating to confidentiality from other sources, provided that the disclosure and utilization of such confidential information do not violate contractual agreements, legal regulations or official orders, which the other party has developed on its own without access to the confidential information of the customer, that has to be disclosed due to statutory, disclosure and/or publication requirements or official orders. To the extent permitted, the party obligated to do so will inform the other party as soon as possible and assist them as best they can to prevent a breach of disclosure.
11. CONCLUSION, TERM AND TERMINATION OF THE CONTRACT AND CONSEQUENCES OF TERMINATION
11.1. For the purpose of the conclusion of the Vidmonials contract, Vidmonials will send the company a written offer in the form of a completed order form as well as a detailed description of services (hereinafter collectively referred to as ‘contract offer’).
11.2. The Vidmonials contract goes into effect upon Vidmonials’s receipt of the legally-binding order form signed by the Company. The transmission can take place by mail, by fax or by email (scanned copy). The contract is concluded with the acceptance of the application by Vidmonials. However, the Vidmonials contract does not take effect if the Company has changed the content of the order form previously submitted by Vidmonials.
11.3. Subject to agreements to the contrary and regardless of the date on which the Vidmonials contract enters into force, the contract will commence with the full technical implementation of the Vidmonials System in the Company’s system, however, also no later than four weeks after the conclusion of the Vidmonials contract, unless the delay in implementation is attributable to Vidmonials. If the implementation of the contractual product cannot be realised within four weeks after the conclusion of the Vidmonials contract, unless Vidmonials is at fault the owed remuneration by the Company is due, even if the company does not make use of the services.
11.4. The Vidmonials contract is concluded with a minimum term of 12 months, starting with the beginning of the contract year (Section 13.3). It may be terminated by both parties with a notice period of one (1) month before the end of the respective 12-month period. If no notice is given within this period, the contract period will automatically be extended by an additional 12 months.
11.5. Termination must be submitted in text form (e.g. Email). Termination by the Company can either be announced by email to cancellation@Vidmonials.co.uk, by mail to ‘Vidmonials Limited, Markgrafenstr. 11, 10969 Berlin’ or by fax to ‘+49 30-2000 444 998’.
11.6. Upon termination being effective, the Company immediately loses the right to use the Vidmonials System and the Vidmonials elements. It must immediately refrain from further use of the V6idmonials elements.
12. PRICES, BILLING AND PAYMENT CONDITIONS, RECALCULATION
12.1. The owed fees payable under the Vidmonials contract are net amounts plus applicable sales tax (Germany), if this is applicable. They are due immediately after invoicing by Vidmonials. The billing by Vidmonials takes place electronically.
12.2. Invoicing is made as advance payment for the entire agreed contract period at the time of implementation of the Vidmonials service or at the time of contract renewal. Unless otherwise agreed, the standard payment method shall be SEPA direct debit. Alternatively, other electronic payment methods are possible after approval by Vidmonials.
12.3. Vidmonials’ credit card processing companies meet PCI security standards.
12.4. If the company grants Vidmonials a SEPA mandate for the incoming payments of the remuneration, payment is made through collection from the bank account of the Company by Novalnet AG, Gutenbergstraße 2, 85737 Ismaning, under the creditor ID: DE53ZZZ00000004253. The pre-notification deadline is reduced to one day. The Company assures that sufficient funds are available via their chosen payment vehicle.
12.5. In case of a return debit, Vidmonials will charge a fee of Euro 20.00 per return debit to the Company, unless the Company is not responsible for the non-payment or the chargeback. The Company reserves the right to prove that damage has not occurred or is substantially lower than this flat fee.
12.6. Vidmonials reserves the right to charge additional fees for certain payment methods, as agreed in the Vidmonials contracts.
12.7. If charges agreed in the Vidmonials contract refer to agreed volumes and these volumes are exceeded during the agreed time frames, the company is obligated to pay the additional fees agreed for this case after appropriate accounting by Vidmonials.
12.8. If the company defaults on the payment of past due invoices, it is obligated to pay a flat fee of Euro 40.00. In addition, Vidmonials is entitled to interest in the amount of 9% above the respective base interest rate in the event of late payment, unless the Company proves that the interest loss incurred by Vidmonials is lower. The assertion of further claims for damages by Vidmonials is not excluded. The flat fee pursuant to sentence 1 shall be set off against any damages owed, insofar as the damage is justified in the legal expenses.
12.9. Increases in personnel and material costs, increases in taxes and general vehicle costs, and increased costs due to inflation can lead to an increase in service prices. Regardless of the reasons mentioned above, service prices may be increased once per contract year by 5%. Such an increase must be announced 4 weeks in advance.
To the extent that the Company is required to provide an exemption under the above provisions, it shall indemnify Vidmonials from all claims and damages arising from the Company’s culpable breach of its obligations. This includes the indemnification of any claims and demands of third parties asserted against Vidmonials for or as a result of the breach of duty by the Company, including compensation for reasonable legal defence costs.
14. INSTALLATION, CUSTOMISING AND PROGRAMMING SERVICES
14.1. Insofar as Vidmonials provides installation, customization, and/or programming services for the Company, Vidmonials guarantees that the work results are free of material defects. Within the framework of the legal warranty, Vidmonials is especially obligated to investigate error messages and eliminate defects (rectification). Vidmonials is entitled to choose replacement instead of repair.
14.2. The responsibility according to Section also applies in the case of customer-specific adjustments, which Vidmonials carries out for the Company in accordance with the order. There is no liability on the part of Vidmonials for the legal admissibility of the use of these customer-specific adaptations.
14.3. In the event that Vidmonials performs customisation and/or programming services on the Company’s systems, such activity shall not violate third party rights to the Company’s systems and system components (especially software). The company indemnifies Vidmonials in accordance with Section 15 from all claims and damages arising from the possibility that the adaptation or programming services commissioned by the Company violates the rights of third parties.
14.4. If errors occur in the performance results delivered by Vidmonials, the company will immediately report them and clearly state the information that is useful for the defect detection. If Vidmonials is unable to remedy the defect or make a clean delivery, Vidmonials will provide the Company with workarounds. Insofar as these are reasonable for the Company, they are deemed supplementary performance.
14.5. Claims for defects – with the exception of claims for damages – are subject to a limitation period of twelve months. For claims for damages, the provisions of Section 17 apply.
15.1. Vidmonials is liable without limitation, in accordance with the statutory provisions, only in case of intent or gross negligence, for injury to life, limb or health, according to the provisions of the Product Liability Act and to the extent of a guarantee assumed by Vidmonials.
15.2. In the event of a slightly negligent violation of an obligation that is essential to the achievement of the purpose of the contract (so-called material contractual obligation), i.e. the fulfillment of whatever makes the proper execution of the contract possible in the first place and on whose compliance the Company can regularly rely, the liability is limited to the amount of damage which is foreseeable and typical according to the nature of the transaction in question. In all other cases, liability is excluded, subject to the provision in 15.1.
15.3. Regardless of the legal reason, Vidmonials is liable in the event of Section 17.2 for direct property damage up to an amount of Euro 25,000.00 per event of damage and for financial losses up to Euro 10,000.00 per event of damage, but not exceeding Euro 100,000.00 in one contractual year.
15.4. There is no liability on the part of Vidmonials for the loss of the evaluation database.
15.5. Vidmonials is not liable for the services provided by providers of third-party offers.
15.6. Neither party is required to fulfil its contractual obligations in the event of, and for the duration of, force majeure. Specifically, the following circumstances are to be considered as force majeure in this sense:
fire/explosion/flooding, which is unforeseeable for the party
war, mutiny, blockade, embargo,
labour dispute that lasts longer than 6 weeks and was not culpably caused by the party,
non-party-influenced technical problems with the internet.
Each contracting party shall immediately inform the other in writing about the occurrence of a case of force majeure.
15.7. The above limitations of liability also apply to the personal liability of the employees, agents, and corporate bodies of the contractor.
16.1. The Company may transfer the rights and obligations under this agreement to third parties only with the prior consent of Vidmonials.
16.2. The contract language is English.
16.3. Contracts between Vidmonials and the Company are governed by the law of the Federal Republic of Germany under exclusion of the UN Convention on Contracts for the International Sale of Goods.
16.4. Jurisdiction for any disputes arising from and in connection with the contractual relationship between Vidmonials and the company is Berlin, Germany.
16.5. If any provision of these General Terms and Conditions becomes ineffective, the remaining provisions remain unaffected. The ineffective provision shall be replaced by one which comes closest to the meaning and purpose of the invalid provision in a legally effective manner.
16.6. The declarations and amendments concerning the Vidmonials contract and the General Terms and Conditions must be in writing. Termination must be presented in writing. Vidmonials reserves the right to change the terms and conditions of this agreement, as well as the evaluation conditions for good cause, in particular in response to new technical developments, changes in case law, legal position or any other equivalent cause. Changes to the General Terms and Conditions will be communicated to the Company in writing. They are considered approved if the Company does not object to them within one month of receipt of the communication in writing. Vidmonials will make explicit reference to this in the notification of the changes. Changes that significantly affect the contractual balance between the parties require the express consent of the Company.