General business terms and conditions of sonicsense audio and video services

Valid from May 15tht, 2018 on

1. General business terms and conditions of sonicsense audio and video services

1.1 Program content and additional services.

1.1.1 sonicsense is a registered trademark of the Audio Factory Media GmbH (hereinafter sonicsense) and offers a multitude of audio, music and video content to legal persons and businesses (hereinafter subscribers) according to the order agreement and in accordance with these terms. Access to additional services (hereinafter modules) is offered for an additional fee as stated in these terms. The reception of the program and the use of additional services is only allowed to the subscriber by a mandatory contract.

1.1.2 sonicsense is free to change content in a program channel, if the general character of this channel will not be touched by this adjustment.

1.1.3 The subscriber is aware and agrees to a possible change of content in channels and modules, due to seasonal availability and changing royalties.

1.1.4 Additionally to 1.1.2 sonicsense is allowed to close audio or video services completely or in parts, if forced to do so by e.g. changing licensing jurisdiction or due to technical reasons. In case of the loss of all program booked by the subscriber and in case no comparable substitute program is available, sonicsense will inform the subscriber about the cancellation of the program in due time, if possible at least two months in advance. In this case the subscriber has the right to cancel the subscription agreement at the date the termination of the services is taking effect. sonicsense will inform the subscriber about his cancellation right and the period of notice. The cancellation must be sent to sonicsense before the change of program is taking effect. The subscriber is not permitted to cancel his subscription, if only one or several single parts of his subscribed program is changed or adjusted.

1.1.5 The subscriber acknowledges not to record or save encrypted content received by sonicsense gear externally. After the termination of the subscription, the subscriber is not permitted to use any possibly remaining content.

1.2 The sonicsense digital receiver

1.2.1 In order to receive the sonicsense program and additional content the subscriber needs to use sonicsense compatible and certified reception gear (hereinafter digital receiver).

1.2.2 After committing to a sonic sense subscription the subscriber receives a digital receiver free of any fees and agrees to handle it with care according to the general terms of use for top grade computer gear. This includes to avoid overheating, dirt, damage due to power failure or placement near magnetic fields as produced e.g. by audio amplificators or speakers. The subscriber is legally liable to sonicsense in case the digital receiver, it’s parts or additional gear should be damaged in any way, due to handling without appropriate the care and in case they are property of sonicsense.

1.2.3 With a program subscription or in cases of special installation requirements sonicsense offers special extra hardware for sale. These sale offers are inseparably associated with a sonicsense subscription. If the subscriber accepts the offer, all gear stays property of sonicsense until all due payment for the program subscription has been made and until the end of the minimum subscription period. The offer can also be an addition to an existing subscription contract or be made as part of a change in a subscription contract or be bound to renunciation of cancellation rights. In these cases the reservation of property rights will take effect until the end of the minimum subscription period of the changed contract or until the end of the renunciation of cancellation rights.

1.2.4 The subscriber is obliged to return all digital receivers to sonicsense within two weeks after the termination of the subscription, regardless of the circumstances of the termination. He is responsible to organize the transportation on his own risk and has to pay for all occurring shipping. If the subscriber fails to do so sonicsense is allowed to treat this as a dead loss and is entitled to bill all gear according to the model.

1.2.5 sonicsense is reserving the right to update any software or data on any digital receiver at any time and free of any charges. sonicsense is not liable, if this should involve any data loss on the digital receiver.

1.2.6 For the remote control of the booked program content sonicsense provides the subscriber with the control software „sonicRemote“ for the duration of his subscription. The software can be downloaded as Mac or Windows version from the sonicsense website or will be provided to the subscriber in other ways. For the duration of his subscription the subscriber is allowed to install and use the sonicRemote software on as many workstations or computers as he wishes.

With sonicRemote the subscriber will leave orders on the music server that will control his digital receiver, as soon it is online and connected to the server. He will do so in consideration of the manual provided by sonicsense. After the termination of the subscription the subscriber is obliged to delete all copies of the sonicRemote software he has installed on any computer.

1.2.7 For the sonicsense product „ sonicsenseVideo“ the subscriber will not be provided with a remote software. The sonicsense editorial staff will make all controls. The subscriber may state his wishes for the video program, but sonicsense is not obliged to change the program.

1.2.8 If the digital receiver was sent back to sonicsense after a subscription was terminated and needs to be repaired, because of any reasons mentioned earlier, sonicsense will perform the repair or order the repair and will charge the subscriber with any emerging costs. The fee for one work hour of a technician is EUR 96.00. All cost of gear will be charged according to the usual market value. In case of a total loss of a digital receiver or if it can not be repaired, sonicsense will charge the subscriber with EUR 450.00 for a standard device or 890.00 for a 19“ rack device. VAT will be added to these fees, if legally obliged by tax legislation. The subscriber will make his due payment in full within 14 days of the invoice date. The subscriber is obliged to pay for any occurring bank charges on his own expense.

1.2.9 If the subscriber is booking additional services (modules) which enable him to upload and embed content by himself he is responsible for all licensing necessary. sonicsense will not be held liable for claims of recourse of any third party or for any damages to the soft and hardware caused by improper uploads or configurations or content with improper format. sonicsense will support the subscriber with the necessary information about this topic. If requested, sonicsense will implement this service for the subscriber, which might cause a compensation fee.

2. Obligations, general obligations to co-operate and due diligence of the subscriber

2.1. Program content and additional services
2.1.1 The subscriber has to provide an online connection to the internet in order to receive the sonicsense program content. All expenses for this service have to be paid by the subscriber. The subscriber is obliged to take care of the installation of the digital receiver as well as all compatible devices (TV, screen, HIFI, PA, speakers etc.) according to the manual provided by sonicsense.
2.1.2 The subscription agreement entitles the subscriber to use the services of sonicsense only as specified in the order form. The subscriber is forbidden to use any content of this services in other locations than agreed on in the contract or to play or make them available e.g. through upload or file streaming or sharing services. He is furthermore not allowed to use any content for online ticker or text message or other commercial services.
In case of any display, external saving, copying or any other commercial use of the content the subscriber infringes upon his legal obligation to sonicsense and might violate royalty obligations to third parties as well. The subscriber has to expect the assertion of legal action for infringements by sonicsense and third parties.
2.1.3 If the subscriber uses the services of his subscription in earlier mentioned ways sonicsense is permitted to charge a contractual penalty. The amount of this penalty is two times the annual subscription fee for each single receiving device. In addition sonicsense is reserving the right to take further legal action as mentioned in section 5.4.
2.1.4 The subscriber has to inform sonicsense immediately in case of any change of the data of the subscriber or his technical staff, which was required in the contract (in particular the name of the company, ownership, address of the company, location of the digital receiver, contact person, email or phone). In case of a changing bank account the subscriber also has to inform sonicsense immediately and has to grant a direct debit authorization, if this was the agreed method of payment.

2.2 Use of the digital receiver
The subscriber is not allowed to leave a loan receiver to a third party, exempt from third parties authorized by sonicsense to repair the receiver. The subscriber is furthermore not entitled to use the loan receiver in other rooms than is agreed upon in the contract or outside the official distribution area of sonicsense. To open the case of the receiver or to perform any unpermitted modification of the software or hardware of the loan receiver is forbidden. In case of loss or damage to a loan receiver the subscriber has to inform sonicsense immediately under the disclosed email or phone number. The subscriber also has to inform sonicsense instantly in case of interferences of the reception of the receiver for more than three days.

3. Performing rights

3.1 The fees to be paid to a collecting society (e.g. GEMA in Germany, SACEM in France, SUISA in Szwitzerland, AKM in Austria) by the contractual partners are not affected by the subscription contract. The subscriber has to pay for these licenses on his own expense, if necessary. If the subscriber is using only royalty free program content sonicsense can provide a certificate to be handed to the collecting society to free the subscriber of royalty fees. sonicsense is not liable for content the subscriber added to the program on his own. The subscriber has to keep sonicsense free of any claims of third parties.

4. Compensation arrangements

4.1 The settled monthly subscription fee and all other fees are to be paid to sonicsense in advance by the subscriber. In addition the subscriber has to pay for any ordered hardware and activation or procurement fee for the server connection, the program subscription or additional services (Modules), if agreed upon. The unrequested return of the loan receiver does not release the subscriber of his obligation to pay his monthly fees.

4.2 Payments within this business relationship, in particular the subscription fees are to be made via bank transfer, if not agreed upon otherwise. If debit authorization is rejected due to liability of the subscriber, sonicsense is entitled to hold the subscriber responsible for any emerging costs. These charges are at least EUR 15.00 per rejected debit authorization added with VAT, if necessary.

4.3 If external expenses of sonicsense e.g. for licensing, service or technical support are increasing, sonicsense is entitled to pass these expenses to the subscriber by raising the subscription fee. sonicsense must inform the subscriber about the raise of the subscription fee at least one month in advance of the raise. The subscriber is permitted to cancel his subscription agreement effective on the day the raise is taking effect. The cancellation of the subscription agreement is only valid, if the raise of the fees exceeds 10 % (in words: ten percent) of all fees for the agreed subscription period. The notice of cancellation has to reach sonicsense before the rise of the subscription fees takes effect. sonicsense will inform the subscriber about his cancellation right and the period of notice. The subscriber agrees to the raise of his subscription fees by not exercising his right of cancellation.

4.4 In case of an appropriate change of services pursuant to section 1.1.4 sonicsense reserves the right to adjust the subscription fees according to the ratio of change in costs to total costs. sonicsense will inform the subscriber in due time, but at least one month before the price adjustment is taking effect. The subscriber is permitted to cancel his subscription agreement effective on the day the adjustment is taking place. The cancellation has to be performed in writing. sonicsense will inform the subscriber about his cancellation right and the period of notice.

5. Impairment of performance / Liabilities / Rescission

5.1 In case of a total or partial impairment of program services the subscriber is entitled to reduce the subscription fee proportionally, appropriate to the gravity of the impairment. This reduction is only valid, if the subscriber and his vicarious agents (in particular network operators) are not responsible for the impairment of services. The reduction of fees is not valid, if the impairment of services is insignificant. Insignificant are connection failures less than 30 hours per year on a single program channel. In case of a total impairment of program a program interruption of more than 24 hours is no longer insignificant, starting with the 25th hour and without consideration of the sum of interruptions in this year. An impairment of program is not taking place, if the subscriber fails to meet his obligations pursuant to section 2.1.1.

5.2 If the program reception is temporary failing due to software updates of the digital receiver, section 5.1 applies accordingly.

5.3 sonicsense is not liable to compensate the subscriber for any damage to him caused by the installation or the use of a digital receiver approved by sonicsense. This includes in particular goods in possession of the subscriber, furniture or any goods of any kind or origin and is valid whatever impact the effect on these goods has. Any liability of sonicsense for a possible loss of or damage to the data on the digital receiver due to maintenance or warranty related work or software updates is excluded.

5.4 If the subscriber should be more than three months behind in payment of his subscription dues and ongoing payment obligations, sonicsense reserves the right to suspend any services and to reject the subscribers rights of use until payment for all due fees has been made. In this case the program transmission will be suspended. The right of termination for good cause and the right to withdraw user rights remain unaffected by this. If sonicsense is canceling the contract due to breaches of obligations of the subscriber or setting of a grace period for subsequent fulfilling in case of default of payment, the subscriber is indebted to a flat compensation. The compensation value equals 80% of the fees until the regular end of the subscription period minus 10% discount due to reduced licensing expenses. The compensation value is not less than half of the annual subscription fees. The parties remain free to prove that a higher, lower or no damage has occurred. If sonicsense should exercise the right of cancellation within the contract duration and related to purchase of hardware, sonicsense is entitled to withdraw from the purchase agreement and to assert the right of property. If the subscriber fails to meet his obligations to return the digital receiver, the terms of section 1.2.8 apply accordingly.

5.5 The liabilities of the contracting parties are bound to the statutory provisions.

6 Data Protection

6.1 sonicsense / Audio Factory Media GmbH, Borselstraße 18 in 22765 Hamburg, represented by managing directors Martina Hofmann and Michel Sturiale, is responsible for processing the personal data provided by the customer. sonicsense has appointed a data protection officer who can be reached at the above address or at contact@audiofactory.


6.2 The personal data provided by the customer as well as data on the type and frequency of the customer’s use of the services provided by sonicsense are processed by sonicsense and stored within the statutory retention periods (in particular in accordance with the German Commercial Code [HGB] and the German Fiscal Code [AO]), insofar as this is necessary for the performance of the agreement, in particular for the performance of customer service as well as remuneration invoicing (Article 6 Paragraph 1 lit. b of the EU General Data Protection Regulation [GDPR]). Depending on the respective subscription, the data may be transferred to third parties who have a contractual relationship with the customer (e.g. IPTV providers) and to service providers who provide services on behalf of sonicsense (order processing, Article 28 GDPR). If a sonicsense service provider is located in a third country, then appropriate measures (in particular the use of EU standard contractual clauses) shall ensure that the rights of the customer as the data subject are protected. In addition, under certain circumstances sonicsense may transmit the personal data provided to credit agencies (e.g. SCHUFA Holding AG, Kormoranweg 5, 65201 Wiesbaden) for the purpose of age verification.

6.3 If the customer requests proof of individual bookings for the use of additional services, e.g. chargeable sonicsense On Demand content, then the customer may request this from sonicsense in text form.

6.4 For the purpose of credit assessment and address verification, sonicsense and, if applicable, third parties may, on the basis of Article 6 Paragraph 1 lit. f GDPR, transmit data to credit agencies (e.g. Infoscore Consumer Data GmbH, Rheinstr. 99, 76532 Baden-Baden) with regard to application, acceptance and termination of the agreements as well as, if applicable, other contract processing data relevant to creditworthiness when the agreement is concluded and during the term of the agreement. When using this service sonicsense then receives information from or via Infoscore Consumer Data GmbH with regard to the customer’s previous payment behaviour and information about the customer’s creditworthiness using probability values for future behaviour calculated on the basis of mathematical and statistical methods, the calculation of which includes address data (scoring). The credit assessment is intended to prevent financial default risks which sonicsense might incur in connection with the agreement. The result of the credit assessment may result in restrictions in the method of payment or to refusal of an agreement.


6.5 On the basis of Article 6 Paragraph 1 lit. f GDPR, sonicsense uses the address data of customers which sonicsense has received in connection with the agreement in order to provide customers with information on sonicsense products in the pay-TV sector (direct advertising). The customer may object to use of the data for the purpose of direct advertising at any time under contact@audiofactory.de.


6.6 The customer shall have the right to request information about the personal data stored by sonicsense free of charge (Article 15 GDPR). The customer also has the right to request the rectification, erasure or restriction of the processing of the customer’s personal data (Article 16-18 GDPR) and the right to receive such data in a structured, common and machine-readable format (right to data portability, Article 20 GDPR). The customer may object at any time to data processing necessary to safeguard the legitimate interests of sonicsense or a third party or that is carried out for the purpose of direct advertising (Article 21 GDPR). The customer may address such requests to the aforementioned address or to contact@audiofactory.de. If the customer is of the opinion that the processing of the customer’s personal data by sonicsense contradicts the relevant statutory provisions, then the customer may also contact a supervisory authority.


6.7 Further information on data protection at sonicsense can be found in the latest version in the Data Protection section of the website at www. sonicsense.de.

7. Test Setting

7.1 Following prior consultation and approval by sonicsense, interested parties may be enabled to have systems, audio and/or video made available for testing on a trial basis and without payment of service fees for server setup or recurring usage fees.

7.2 The test setting and use takes place for a maximum of two weeks (14 consecutive days). This is the period during which the device is in the interested party’s possession. Whether the test device is connected and online remains irrelevant. The test phase runs from the day on which the device is delivered to the interested party.

7.3 The sonicsense technical team is available for commissioning by telephone or e-mail. The sonicsense music editorial team provides support to the interested party during the test phase in the case of questions regarding setting and operation of the control elements.

7.4 The interested party shall handle any equipment and accessories provided with care and protect them from damage. The interested party shall be fully liable for any damage to the loaned item. The provisions of Section 1.2.8 shall apply in the event of loss or damage.

7.5 sonicsense will store the online times as well as the playlists and system logs of the test devices for the term of the test use for licensing and contractual reasons and delete them within a reasonable period of time after completion of the test phase, unless they are required to assert any claims for damages.

7.6 Upon completion of the test phase the interested party (test customer) shall return all test devices and accessories to sonicsense undamaged and in their original box within seven (7) days of completion of the test phase; transport costs shall be borne by the interested party.

7.7 Should return not take place in accordance with Paragraph 7.5, then the interested party shall owe 1⁄4 (one quarter) of the monthly service fee offered to the interested party for each week or part thereof of the test period granted by sonicsense. It is irrelevant whether the sonicsense control systems recognise the borrowed devices as online or not. It is sufficient that the equipment is in the possession of the interested party after elapse of the agreed test phase.

7.8 In the event that the equipment provided on loan remains with the interested party for more than eight weeks following completion of the test phase, sonicsense shall have the right to charge the full cancellation fee specified for the respective hardware in accordance with Section 1.2.8 and to discontinue the service. The invoice is payable immediately upon receipt. After termination of the test phase the interested party is expressly no longer permitted to use the hardware to play any audio and/or video data located on the devices. Further use is considered a violation of the Copyright Act and is punishable by law. A return of the hardware after invoicing does not release the interested party from payment of the invoice.

7.9 All invoices from sonicsense that result from the test setting and retention of the test device by interested parties shall be due for payment immediately upon receipt, without deduction and plus value added tax.

8. Contract period / Termination

8.1 The subscription contract remains valid for the agreed duration and will be automatically extended for 12 months, if weather the subscriber nor sonicsense are cancelling the contract in writing at least three months before the end of the contractual period. If the prolonging of the contract will involve a price increase, sonicsense will inform the subscriber in time, but at least one month before the start of the next contract period. The subscriber is entitled to cancel the contract at the date the increase takes effect. sonicsense will inform the subscriber about his cancellation right and the period of notice. The cancellation announcement has to be received by sonicsense before the price adjustment takes effect. If the subscriber is abstaining from is right of cancellation, the price adjustment is considered approved. The contractual period starts with the activation of the booked program channels. The activation of the channels usually start’s with the activation of the sonicsense gear through remote access by the sonicsense server.

8.2 The subscriber may activate new channels (upgrade) within his combination limits and until the beginning of the next month and in combination with a new start of his contractual period. Information about the limit of channels on a digital receiver at a time can be requested at the sonicsense editor’s office or the distribution office. If new hardware is necessary for the upgrade, this can be purchased, lent, leased or be made available free of charge, if intended. A downgrade of the program extent is possible at the beginning of the contract period and has to be applied for at least four weeks before the end of the contractual period.

8.3 For the contract duration extras, e.g. single channels can be subscribed to according to the applicable conditions, if they are available. The general period of the subscription contract applies in this case. Within a grace period of two months to the end of a subscription period, single channels can be canceled in writing or they will be prolonged for another 12 months.

8.4 An extraordinary termination of contract due to a total program failure is not applicable, if this failure does not last longer than 12 days or in case of an act of god 30 days. The contract period is not prolonged by the time of program failure.

8.5 If sonicsense is no longer able to sustain single channels, program packages or combinations, sonicsense is entitled to extraordinarily cancel the named program parts with a 14 days period of notice.

8.6 sonicsense is not responsible for any kind of impairment or failure of the indebted services in case of an act of god. An act of god occurs in case of events outside of the sphere of control of sonicsense like earthquakes, flood, storm, fire or other natural disasters and any acts or omissions of third parties, e.g. telephone service providers, energy suppliers or other service providers.

9. Transfer to third parties

9.1 sonicsense is entitled to transfer any payment claims against the subscriber, as well as any rights and obligations of the subscription contract to subsidiary companies or third parties, without the approval of the subscriber.

9.2 The subscriber is permitted to transfer his rights and obligations to third parties without approval of sonicsense.

10. Final agreements

10.1 If individual regulations of the subscription contract are or become ineffective, the validity of the remaining contract is not affected.

10.2 sonicsense is permitted to adjust this terms and conditions within an appropriate period of notice. If the subscriber does not object to this adjustment within the announced period of notice, the adjustment is considered accepted by the subscriber. sonicsense will inform the subscriber about this in the adjustment notice.

10.3 If an individual regulation of this contract is or becomes ineffective or impracticable or if the contract should contain an omission, the validity before the law of the remaining sections of this contract is not affected. Instead of the missing or ineffective clause, an agreement within the range of economical sense and within the best interest of both contractual parties is considered agreed upon.

10.4 This contract and it’s attachments are expressing all agreements reached between the parties and replaces any and all previous agreements between the parties concerning the subject of the contract. Supplements to this contract have not been made, in particular no oral agreements. Adjustments or changes of this contract or any announcements concerning the termination of the contract must be made in writing (email with reconfirmation, fax or registered letter) and have to be signed by both parties. The written form is also required for the deviation from this agreement.

sonicsense
is a registered brand
and a business unit of
Audio Factory Media GmbH

CEO:
Martina Hofmann, Michel Sturiale
Borselstraße 18 – 22765 Hamburg
Telephone: 0049 – (0) 40 – 557006-0
Fax: 0049 – (0) 40 – 557006-0

Email: team@sonicsense.eu

Web: www.sonicsense.eu

USt-ID DE 118599216
Member of the Chamber Of Commerce Hamburg, HRB 40820
Tax ID.: 41 / 704 / 04101