General Terms and Conditions

These General Terms and Conditions (GTC) apply to all contracts, deliveries and services entered into within the business relationship between Creakom GmbH für kreative Kommunikation und Business Intelligence, Obere Hauptstraße 9, 85456 Wartenberg, Germany (hereinafter "Creakom") and the client (hereinafter: "Client"), provided that the Client is not a consumer.

These GTC apply to all of Creakom's service areas, in particular Inhouse Studios, Creative AV Spaces, Events and Livestreaming, Content Creation, Global Networking, Industrial AV and Digital Signage — regardless of whether these are one-off project services (conception, planning, construction, integration) or ongoing Managed Services (operation, maintenance, monitoring, support). For Managed Services, the special provisions in Clause 12 apply in addition.

The scope of these GTC also extends to the pre-contractual relationship between the parties (in particular audits, initial discussions and proposal phases) as well as to subsequent amendments to the contract.

The contract is formed upon the Client's acceptance of a binding offer from Creakom, but at the latest upon the Client's unopposed acceptance of a service rendered by Creakom.

Deviating terms and conditions of the Client shall not become part of the contract. This applies in particular to references to the Client's purchasing conditions in electronic orders. Insofar as Creakom commences performance without objection, this shall not be deemed acceptance of such deviating provisions.

The scope of Creakom's deliveries and services, in terms of function and extent, is determined by the respective contract and by the specific description of services existing at the time the contract was concluded, if any (e.g. proposal, concept, audit result, specification sheet).

Depending on the project, the scope of services may in particular include: the conception and planning of spaces and technical infrastructure (spatial dramaturgy, signal architecture, lighting scenes), the structural and technical implementation (integration of media technology, cabling, installation of hardware and control systems), the production of moving-image, graphic and other media content, and the execution of events and livestreams.

Documents and information provided by Creakom, including images, renderings, sample rooms and technical specifications, are binding only insofar as they are expressly listed in writing as part of the contract or expressly referred to therein.

Even when providing services at the Client's premises, Creakom retains sole authority to instruct its own employees. No integration into the Client's business organization shall take place. Instructions may only be addressed to Creakom's project manager.

Creakom reserves the right to replace employees deployed in the performance of services with others of equivalent qualification, or to engage corresponding subcontractors and trades (e.g. for structural works, electrical installation). Creakom is liable for the fault of such vicarious agents as for its own fault.

Insofar as Creakom's services build on structural conditions, structural or static prerequisites, or electrical or network infrastructure at the Client's premises, the Client shall provide the information required for this (e.g. construction plans, network topology, power supply capacities) in good time and in full. Delays or additional expense resulting from incomplete or incorrect information provided by the Client shall not be to Creakom's detriment.

All rights already existing at the time of conclusion of the respective contract in the work results (= any services rendered by Creakom under the respective contract, in particular concepts, spatial designs, software configurations, video, graphic and other media content), in particular copyright as well as rights to inventions and technical property rights (hereinafter "Pre-Existing Property Rights"), remain the exclusive property of the party contributing them.

Furthermore, all intellectual property of the parties already existing at the time of conclusion of the respective contract, as well as any processing, modifications and further developments made during the term of the contract (hereinafter "Pre-Existing IP"), shall remain the exclusive property of the party contributing it.

In respect of its work results as well as (i) pre-existing property rights, (ii) pre-existing work documents and (iii) pre-existing IP rights contained in Creakom's work result, Creakom grants the Client a simple, group-wide transferable right, unlimited in time and place, to use the intellectual property of Creakom referred to under (i) to (iii) above and its work results for the Client's internal purposes and for use on its own premises, in its own communication activities and products, in all known forms of use.

Notwithstanding the preceding paragraph, any marketing, rental, (sub-)licensing or other use by third parties, whether for consideration or free of charge, is only permitted if Creakom has given its express prior written consent.

The rights referred to herein are granted at the time of contribution, subject to full payment of the respectively agreed remuneration.

Concepts, renderings, spatial designs and other work results provided pre-contractually or in the course of proposals are not intended for publication, reproduction or use for purposes other than those expressly stated. Without Creakom's prior written consent, such work results may not be passed on to third parties or used to obtain competing quotes from third parties.

The Client may create a reasonable number of backup copies of digital work results (e.g. graphic files, configurations, video material) for contractual purposes. A backup copy on a data carrier must be labelled as such.

Products, hardware, software licences or cloud subscriptions to be acquired from third parties, even if required for the use of the work results (e.g. control-software licences, streaming-platform subscriptions), are not covered by this contract unless expressly agreed otherwise.

The shipment of all materials, documents, hardware and software, as well as the electronic transmission of data and software to and from Creakom, is at the Client's risk exclusively, unless otherwise agreed.

For structural and technical integration services (e.g. studio fit-out, room fit-out, signage installation), risk passes upon formal acceptance of the respective service by the Client. If no formal acceptance takes place, the service is deemed accepted at the latest upon its first productive use by the Client.

The Client is subject to a duty to inspect and give notice of defects in respect of all deliveries and services of Creakom in accordance with Sec. 377 et seq. of the German Commercial Code (HGB). Notices of defects must be made in writing, whereby the Client may also validly declare them in text form (e.g. email or similar), provided the Client can prove that Creakom received such text-form message. Notices must include a concrete description of the problem.

Remuneration is determined by the respective contract. All remuneration is exclusive of the applicable statutory value-added tax and exclusive of travel and accommodation expenses as well as any incidental meal allowances incurred in providing services on site. Travel time and costs arise for travel between the employee's place of work and the Client's respective place of deployment, or between different places of deployment of the Client.

Unless otherwise expressly agreed, Creakom may increase the remuneration or prices for services to be rendered in the future if

• the Harmonised Index of Consumer Prices for the EU published on the Eurostat website ("HICP", 2018 = 100) has increased since the proposal, conclusion of the contract, or the last adjustment (the extent of the increase corresponds to the increase in the HICP), or
• the costs relevant to price calculation (e.g. hardware, material or licence costs) increase in a manner that is unforeseeable and not caused or influenced by Creakom,
• and the Client has not objected in writing or in text form within ten business days of receipt to a written or text-form notice received by the Client at least six weeks before the intended date of the increase, provided that the notice referred to the right of objection.

Creakom reserves all rights to the services that are the subject matter of the respective contract, as well as to delivered hardware, until full settlement of all claims arising from the individual contract.

Time-and-material billing is invoiced monthly. The time records ("service records") must be checked by the Client for accuracy without delay upon receipt. If no objection is raised within ten days of receipt, the time record is deemed accepted. If the record is first submitted at the time of invoicing, Clause 5.7 applies. One service day corresponds to eight hours. Additional hours are billed pro rata according to the specifically agreed daily rate. Travel and waiting times are deemed working time.

Training sessions, briefings and workshops (e.g. on the operation of studio or signage systems) are billed either as a flat fee per day or on a per-participant, per-day basis. Fees are invoiced to the Client upon completion of the training or workshop.

Creakom's invoices are due within 14 days of the invoice date. No cash discount is granted. The statutory default provisions and interest rates apply.

Objections to Creakom's invoicing must be raised in writing within a preclusive period of six weeks after receipt of the invoice. Otherwise, the invoice is deemed accepted; claims under Sec. 812 et seq. of the German Civil Code (BGB) remain unaffected. Creakom will separately draw the Client's attention to this legal consequence on the invoice.

The Client may only set off against, or assert a right of retention with respect to, claims of Creakom that are undisputed or have been finally and bindingly established, and, in the case of a right of retention, that are directly connected with the respective contract.

Creakom is entitled to send invoices to the Client in electronic form. The Client expressly consents to receiving invoices from Creakom in electronic form.

The parties undertake to treat as confidential all confidential information that becomes known to them in the course of performing the contract, and to use it only for the purposes agreed under the contract. Confidential information within the meaning of this provision means information, documents, particulars and data that are designated as such or that are by their nature to be regarded as confidential — for Creakom, this includes in particular floor plans, network topologies, security concepts and the Client's internal communication content.

The parties undertake to grant access to the other party's confidential information only to those employees entrusted with performing the services. Both parties are obliged, at the request of the other party, to have their employees sign a corresponding undertaking and submit it to the other party. All Creakom employees are already contractually bound, under their employment contracts, to confidentiality and data secrecy.

The parties will not seek to register any property rights in respect of the other party's confidential information.

The obligation under this Clause 6 does not apply to confidential information that (I) was already publicly available at the time of receipt by the recipient, (II) subsequently becomes publicly available through no fault of the recipient, its employees, staff, authorised agents or contract suppliers, (III) must be disclosed by the recipient pursuant to law or by order of a competent authority (but only to the extent required by the relevant law or order), (IV) is lawfully received by the recipient from third parties without restriction, (V) was already known to the recipient prior to receipt within the meaning of the contract, or (VI) was independently developed by the recipient without using or referring to the disclosing party's confidential information.

The rights and obligations under this Clause remain unaffected by termination of the associated individual contract. Both parties are obliged, upon termination of the contract, to return or destroy the other party's confidential information at that party's election, insofar as it has not been properly consumed.

Insofar as access to personal data occurs as a result of the performance of the contractual services (e.g. in the operation of signage systems with access to the Client's employee data, or in the remote maintenance of studio facilities), the parties will comply with the provisions of the GDPR and the German Federal Data Protection Act (Bundesdatenschutzgesetz), as well as other applicable data protection regulations. In particular, the parties will implement the necessary technical and organisational measures to protect personal data within the meaning of Art. 32 GDPR. Insofar as Creakom acts as a processor within the meaning of Art. 28 GDPR in connection with Managed Services, the parties shall enter into a separate data processing agreement.

If the Client itself, or through Creakom, collects, processes or uses personal data, it warrants that it is authorised to do so under the applicable provisions, in particular data protection law, and indemnifies Creakom against all third-party claims in the event of a breach. It is clarified that the Client remains the "controller of the data" both in the engagement generally and within the meaning of data protection law (Art. 28 GDPR).

The contracting parties will work closely and in a spirit of mutual trust, and will notify each other without delay of any deviations from the agreed approach or doubts as to the correctness of the other party's approach.

Any structural prerequisites required for the performance of the service (e.g. power supply, network connections, load-bearing wall and ceiling structures), premises, access, system requirements, documents and information, as well as the work equipment needed for a smooth process, must be provided by the Client in good time and free of charge. This also applies to any related maintenance and updating.

Necessary access and entry rights to the Client's premises must be granted in good time and to a sufficient extent. Likewise, where the Client has special security requirements (e.g. site passes, safety briefings for Industrial AV projects), the Client must create, without additional expense to Creakom, the conditions necessary for Creakom to perform the contract unhindered.

The Client must document changes communicated to it and other notices, and keep its internal system and operational documentation (e.g. network diagrams, user policies) up to date.

The Client thoroughly tests work results for freedom from defects and fitness for use in the specific situation before beginning operational use, and in particular takes reasonable precautions for the event that work results or installed systems are affected by faults (e.g. through data backup, fault diagnosis, regular review of results). Without prejudice to the contractual liability provisions, Creakom is not liable for the loss of data, configurations or programs to the extent that this would have been avoidable had the Client complied with this obligation.

The Client will name a point of contact for Creakom. Information provided by the contractually named points of contact is binding. Insofar as a joint decision-making body is established by the Client and Creakom for a project, both parties' approval of its resolutions is deemed granted if no objection is raised within a period of four weeks to minutes received by both parties, and Creakom has separately drawn attention to this consequence when sending the minutes.

If duties to cooperate are not fulfilled and this results in delays and additional expense, Creakom is entitled, in addition to a reasonable adjustment of the schedule, to demand correspondingly increased remuneration.

The Client will notify Creakom of defects without delay, at least in text form (see Clause 4.3).

For consulting, conceptual, support or other service contracts without a specific work-related outcome (e.g. audits, consulting services), no contractual or statutory claims exist in respect of any defects. However, Creakom warrants that such services are always provided by suitably qualified personnel with due care and in accordance with the state of the art applicable at the time the contract was concluded.

For contract-for-work services with a specific outcome (e.g. construction and integration of a studio, installation of a signage infrastructure), the statutory warranty provisions apply, insofar as these GTC do not provide otherwise. Creakom is entitled to remedy defects, at its discretion, by rectification or replacement delivery.

Creakom is liable in accordance with the statutory provisions for damage caused intentionally or through gross negligence by Creakom, its legal representatives or vicarious agents, as well as for damage resulting from injury to life, body or health.

In the case of ordinary negligence, Creakom is liable only insofar as it has breached a material contractual obligation, i.e. an obligation the fulfilment of which is a prerequisite for the proper performance of the contract in the first place, or the breach of which jeopardises achievement of the purpose of the contract, and on the observance of which the Client may regularly rely.

In the case of property damage and financial loss, this liability is limited to the typical and foreseeable damage, but in any event to no more than EUR 20,000 per instance of damage and to a total of EUR 50,000 per contract. This also applies to loss of profit and unrealised savings. The Client acknowledges these liability caps. In the Client's assessment, they are sufficient to cover any risks. Insofar as the Client considers higher liability caps to be necessary, it will inform Creakom thereof in writing prior to conclusion of the respective contract.

In the case of necessary restoration of data, configurations or components (e.g. hardware, software, cabling), Creakom is liable only for the expense required for restoration assuming proper data backup and contingency planning by the Client. In the case of ordinary negligence on the part of Creakom, this liability only arises if the Client, prior to the incident, carried out data backup and contingency planning appropriate to the nature of the data and components concerned. This does not apply insofar as data backup, monitoring and contingency planning are agreed as a Managed Service provided by Creakom.

In all other respects, any liability of Creakom for damages, on whatever legal grounds, is excluded.

The Client is obliged to notify Creakom in writing without delay of any damage that Creakom is required to compensate, or to have such damage recorded by Creakom.

The limitation period for the Client's liability claims is two (2) years from handover/acceptance, or, in the case of Managed Services, from termination of the respective individual service. Excluded from this are claims for damages arising from injury to life, body or health, and/or claims for damages arising from damage caused by Creakom intentionally or through gross negligence.

Creakom assumes no liability for the prevention or delay of services, or for damage or other consequences, attributable to force majeure or other circumstances outside Creakom's sphere of influence, such as natural events, strikes, riots, accidents, supply shortages of hardware components, or governmental measures, the cause of which is not attributable to the Client.

The Client indemnifies Creakom, where applicable, against all third-party claims arising from the Client's use, contrary to the contract, of hardware, software or other systems delivered or installed by Creakom.

Assignment of any claims of the Client arising from a contract with Creakom to third parties is excluded and shall be ineffective as against Creakom.

Creakom is entitled to have services performed by subcontractors.

The exclusive place of jurisdiction is Wartenberg. The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

For any disputes arising out of or in connection with a contract, or contract extensions or amendments, that the parties cannot resolve between themselves, the parties agree, before bringing the matter before the ordinary courts, to refer the dispute to the arbitration board of the Deutsche Gesellschaft für Recht und Informatik e. V. (German Association for Law and Informatics), in order to resolve the dispute, in whole or in part, provisionally or finally, in accordance with its arbitration rules as in force at the time arbitration proceedings are initiated:

The limitation period for all claims arising from the facts subject to the arbitration proceedings is suspended from the filing of the request for arbitration until the end of the arbitration proceedings. Sec. 203 BGB applies accordingly.

This contract constitutes the entire agreement between Creakom and the Client with respect to the subject matter of this contract. Amendments and supplements are only effective if agreed in writing. The waiver of this written-form requirement likewise requires written form.

Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions or of contracts concluded on their basis. The invalid provision shall be replaced by a valid provision that comes closest to its intent and economic purpose.

Unless otherwise provided in the respective contract, Managed Service contracts are concluded for a minimum term of twelve months from the agreed commencement of operations.

After expiry of the minimum term, the contract is automatically extended by a further twelve months at a time, unless terminated in writing by either party with three months' notice to the end of the respective term.

The right of either party to extraordinary termination for cause remains unaffected. Cause for termination by Creakom exists in particular if the Client repeatedly fails to fulfil its duties to cooperate under Clause 7 despite being given a deadline to do so, or is in default of due payments for more than six weeks.

The specific scope of the Managed Service (e.g. scope of monitoring, response times, hours of operation, scope of content maintenance) results from the respective contract or a service description attached to it (Service Level Agreement, "SLA").

Insofar as response times are agreed in the SLA, these relate to Creakom's initial response to a fault notification from the Client, not to the complete resolution of the fault. The time required for restoration depends on the nature and cause of the fault and, where applicable, on the availability of spare parts or manufacturer support.

Fault notifications must be submitted via the contact channels specified in the respective contract (e.g. support email, ticketing system, emergency phone number). For faults reported outside the agreed hours of operation, the agreed response time only begins at the start of the next agreed period of operation, unless a 24/7 service has been separately agreed.

Creakom will, where possible, notify the Client of planned maintenance work at least 48 hours in advance. Creakom is not liable, under any availability commitments, for downtime resulting from such announced maintenance.

In order to provide Managed Services, Creakom requires permanent remote access and, where necessary, physical access to the systems and premises being operated. The Client shall provide the access, network authorisations and entry permissions required for this in good time and maintain them throughout the term of the contract.

If the Client independently makes changes to the systems supported by Creakom (e.g. network configuration, software updates outside the agreed maintenance routines) or engages third parties to do so, Creakom's liability for faults caused thereby is excluded; additional expense for troubleshooting shall be remunerated separately at the agreed rates.

Unless otherwise agreed, remuneration for Managed Services is payable as a monthly flat fee in accordance with the respective contract. Invoicing takes place monthly in advance.

Services that go beyond the agreed scope of services (e.g. additional content creation, unscheduled on-site deployments, expansion of the system scope) are remunerated separately, on a time-and-material basis in accordance with Clause 5.

Clause 5.2 (price adjustment) applies to Managed Service contracts accordingly, with the proviso that price increases take effect at the earliest at the start of a new contract term under Clause 12.1.2, unless the Client exercises its right of objection under that clause.

Upon termination of the Managed Service contract, Creakom's operating service ends at the agreed termination date. Return or handover of hardware operated by Creakom, and of access credentials, to the Client or to a third party named by the Client takes place against reimbursement of the reasonable expenses incurred for this, to be remunerated separately, unless otherwise provided in the contract.

Clauses 3 (Rights to Work Results) and 6 (Confidentiality and Data Protection) continue to apply even after termination of the Managed Service contract.