General terms and conditions (status: 18/07/2022)
MEDIAFIX GmbH (LLC)
1. Preliminary note
MEDIAFIX LLC (GmbH), Vitalisstraße 158, 50827 Cologne, Germany (hereinafter referred to as “MEDIAFIX”) specializes in the digitization of analog media, especially outdated carrier media. The technical basis for the digitization service offered are self-developed digitization machines, which are used as part of an automated process. Upon customer request MEDIAFIX offers additional services, such as the post-processing, rotation and sorting of images on the computer as well as cleaning treatments for analog media.
2. Area of application
2.1. The General Terms and Conditions (hereinafter referred to as “GTC”) apply to all agreements on the digitization of media between MEDIAFIX and the customer. Customers of MEDIAFIX can be both consumers within the meaning of § 13 BGB (German Civil Code) and entrepreneurs within the meaning of § 14 BGB.
2.2. These General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of customers are not recognized and are not to become part of the contract, even without a written objection by MEDIAFIX.
2.3. In case of changes to the GTC, the customer will be notified in writing or by e-mail. If the customer does not object within a period of 4 weeks after the receipt of the respective notification, the changes will be deemed accepted by the customer. In the event of an amendment to these GTC, the customer will be informed separately of the right to object and the legal consequences of silence.
3. Subject matter of the contract
3.1. The subject matter of the agreement is the digitization of analog media in return for payment (analog photographs, slides, video cassettes, etc.) by MEDIAFIX after a corresponding order by the customer.
3.2. The extent of the services to be provided by MEDIAFIX is based on the order form signed by the customer, which MEDIAFIX sends to the customer by e-mail, fax or letter after the reception of an inquiry, as well as on the original media sent or handed in by the customer for processing. The request can be made by telephone, through the internet, or in person at one of the internal or external access points.
4. Definitions of terms/ Technical service descriptions and limitations
4.1. The contractual/commissioned relationship between the contracting parties is based on the following performance-specific terms with the respective service-specific restrictions:
4.2.1. “Original medium”: Originally owned by the customer, i.e. slides, photo negatives, 8mm films, video cassettes or paper prints of photos, as well as photo albums.
4.2.2. “MEDIAFIX storage medium”: A data carrier initially owned by MEDIAFIX on which MEDIAFIX stores the result of the digitization, which is then sent to the customer.
4.2.3. “Customer medium”: USB flash drives and external hard disc drives owned by the customer on which MEDIAFIX stores the results of the digitization. Data carriers without a standard USB connection will not be accepted as customer media. Furthermore, no other storage media such as blank DVDs , SD cards or similar will be accepted.
4.2.4. “Work result”: The final product processed by MEDIAFIX, which is usually a digital copy of the original medium.
4.2.5. “Working days”: Monday to Friday of each week, excluding public holidays for North Rhine-Westphalia and local holidays to celebrate customs, i.e. Weiberfastnacht (Carnival Thursday) and Rosenmontag.
4.2.6. A rimless processing of the original medium is usually not possible. Due to the process, a minimal part of the original medium is optically cut off at the edge so that it does not appear and cannot be seen on the final work result.
4.2.7. Due to the process, the work result may not be a completely true reproduction of the contour circumference of the original medium, so that the work result appears insignificantly but noticeably blurrier compared to the original medium.
4.2.8. Due to the process or due to the age or condition of the original medium, there may be deviations in the color values of the work result compared to the original medium.
4.2.9. In some cases, existing soiling or other flaws of the original medium cannot be removed during the converting procedure. In individual cases they can even be slightly intensified by the cleaning treatment or processing, so that they will also visible in the work result. This is due to technical reasons and cannot be influenced by MEDIAFIX; even if MEDIAFIX is assigned with a “post-processing”, “wet cleaning”, “dry cleaning”, “cleaning of images”, “cleaning of Hasselblad media” or “compressed air treatment” of the original medium. A complete cleaning of the original medium is not contractually owed by MEDIAFIX.
4.2.10. A faulty framing or mirror-inverted alignment of an original medium is not automatically detected by MEDIAFIX. This can lead to a mirror-inverted appearing work result. If the service “image rotation” is booked by the customer, MEDIAFIX tries to display the work result as a mirror correct image, but is not obliged to do so and therefore, does not guarantee a correct display of the work result.
4.2.11. Due to production conditions, after digitization, the original media may be returned to the customer tipped or upside down.
4.2.12. If the original medium is in poor condition and / or if access to the original medium is considerably more difficult for MEDIAFIX due to the condition in which it was delivered, MEDIAFIX is authorized to refuse the order or to renegotiate the conditions of the processing with the customer.
4.2.13. MEDIAFIX will attempt to adhere to the sorting sequence of the accepted original media and to number the work results consecutively. Nevertheless, MEDIAFIX’s adherence to the sequence is not contractually owed as well as the complete numbering of the work results on the data carrier.
4.2.14. MEDIAFIX will take on the labeling of the original media by the customer (for folders, not single images, except when booking the service “Single image labeling”) for an additional charge when saving the work result. This requires that the customer’s labeling is well readable and does not exceed a length of 20 characters per folder. Should this not be the case, MEDIAFIX is entitled to label the work result at its own discretion.
4.3. Digitization of slides, negatives and paper photos
4.3.1. “Digital image editing” or its synonym “semi-automated image editing”: A computer-based image processing method with the aim of reducing aging traces in old photo and video material (such as color casts, contrast changes, image distortions, etc.) as well as improving the work result. The result of this post-processing always depends on the condition of the original media.
4.3.2. “Image rotation” means that the digitized images are rotated to the correct orientation (portrait or landscape) after digitization. The rotation of the digital images is done manually by means of an EDP program. Both parties are aware that this is only possible for clearly recognizable portrait formats, which for technical reasons can only be digitized in landscape format. In this case mirror correctness cannot be ensured.
4.3.3. “Raw data”: The unprocessed image information of the original medium, which is stored without any change after digitization. In some cases, further processing of a copy of the original medium based on raw data will be applied after the raw data has been stored (see section 4.6.1. of these GTC “Premium-inversion”).
4.3.4. If the customer hands in special format slides within an order of only 35mm slides, MEDIAFIX is not obliged to react and to digitize these formats separately without a separate order. In this case, the digitization will be carried out as for 35mm slides. However, the work result of the affected slides will show increased quality losses for technical reasons and the agreed unit price will remain decisive.
4.3.5. When digitizing original media in Minox or 110-format, there will be an increased loss of quality compared to the digitization of 35mm slides due to the process.
4.4. Digitization of negatives and paper photos
“Dry cleaning”, “Image cleaning” or “Hasselblad media cleaning”: Cleaning the original medium without moisture using a special glove, cloth or brush, with the aim of removing easily removable soiling such as normal dust as far as possible. This cannot guarantee the complete removal of dirt particles.
4.5. Digitization of slides
4.5.1. “Compressed air treatment”: Blowing off the original medium with compressed air to take off easily removable soiling such as normal dust as far as possible. This cannot ensure complete removal of dirt particles.
4.5.2. “Wet cleaning”: A manual process that uses a special cleaning agent and cloth to remove streaks and impurities from the outside of glass slides as much as possible (with respect to the source material (original medium)). Dirt particles behind the glass cannot be removed.
4.5.3. During the digitization process, slides are always brought into landscape format and digitized in this way, regardless of the image orientation of the original medium. A subsequent image alignment is only owed by MEDIAFIX if the customer orders the option “image rotation”.
4.5.4. “Re-sorting” means that the original media, which is delivered by the customer deviating from the format designated in the respective order form, will be re-sorted by MEDIAFIX into a magazine of the type specified in the order form with charging a fee for this service. After digitization, the original media will also be sorted back into the original magazines or containers delivered by the customer.
4.6. Digitization of negatives
“Premium inversion via raw data of scans”: A semi-automated process aimed at correcting color casts and other film type-dependent color deviations of the inverted images (negatives) from the color scheme of the original motifs.
4.7. 8mm film and video digitization
4.7.1. 100% film digitization – It cannot be ensured that the recordings are started right at the beginning of the original media, so approx. 1-2 seconds may be missing.
4.7.2. Post-processing – It cannot be guaranteed that post-processing will have a visible effect. Effect and visual added value depend on the condition of the original media. The price is calculated by minutes, not by the number of cassettes / films.
4.8. 8mm film digitization
4.8.1. “WETGATE cleaning”: A process that ensures a reduction of dust and scratches. This process does not ensure one hundred percent purity of the carrier material.
4.8.2. “Film tear repair for 8mm films”: Repair attempt by MEDIAFIX to reconnect a torn 8mm film and to enable digitization. If the repair attempt fails, digitization is not possible. The service offered under “Filmrissfix” is charged for every three tears.
4.8.3. Image interference due to faulty perforation – If the perforation cannot be clearly distinguished optically from the film material, trouble-free digitization is not possible. Individual images may not be digitized at all.
4.9. Video cassette digitization
4.9.1. Copy protection – Externally clearly recognizable copyright protected cassettes (“purchase cassettes”) are not digitized. It may happen that any image interference is interpreted as copy protection when digitizing directly on a DVD. It cannot be guaranteed that this copy protection can be circumvented. However, digitization as an MP4 file is possible.
4.9.2. “Film tear repair for Videocassettes”: Repair attempt by MEDIAFIX to reconnect a torn magnetic tape and make digitization possible. If the repair attempt fails, digitization is not possible.
4.9.3. “Rewind non-rewinded films”: Rewind fee for videotapes charged at a flat rate, starting from one minute of rewind time.
4.9.4. Saving as MP4 file – MEDIAFIX does not guarantee that a cassette will be saved as one file. In some circumstances, the cassette may be split into several files.
4.9.5. LongPlay – If the customer provides a video cassette that is recorded in LongPlay mode and exceeds a running time of 240 minutes, corresponding extended lengths will be charged several times. A possible loss of quality due to the compression of LongPlay cassettes is possible.
4.9.6. Short-term sound dropouts – Audio tracks are only checked randomly. It cannot be ensured that the audio track is present throughout.
4.9.7. MEDIAFIX reserves the right to terminate the digitization in the case of non-digitizable cassettes due to, for example, excessive image interference, non-repairable tape damage, infringements of copyright or the like. This list is exemplary and not exhaustive. In these cases, we charge a viewing fee of €2 per medium.
5. Conclusion of contract
5.1. Advertisements, offers or other promotions on the Internet or in any other form merely represent an invitation for the customer to submit an offer aimed at the conclusion of a contract, but do not represent an offer of their own on part of MEDIAFIX.
5.2. The contractual partner for each order is MEDIAFIX.
5.3. The contract between MEDIAFIX and the customer will come into effect with the receipt of the order form signed by the customer in written form (original on paper, by fax, letter or as a scan by e-mail, or personal delivery) and a declaration of acceptance by MEDIAFIX. The declaration of acceptance by MEDIAFIX can consist of the personal receipt of the signed order form or the handing over of the analogue media as well as by e-mail after the postal receipt of the original media including the signed order form. Any other implied acceptance of the order will be excluded.
5.4. An order received in any other form will only be accepted, if MEDIAFIX executes it or expressly declares acceptance to the customer.
5.5. MEDIAFIX reserves the right to refuse orders or to have them carried out by qualified third parties.
5.6. The specific scope of the order is determined by the number of usable original media sent in or handed over by the customer for processing. MEDIAFIX is also deemed to have been commissioned by the customer to the extent of the media handed over at the agreed unit price, if the number of original media received or the material deviates from the information provided by the customer when placing the order.
5.7. MEDIAFIX is not bound by its declaration of intent directed towards the conclusion of the contract, if and insofar as the original media submitted by the customer deviates from the specifications stated on the order form. The commissioning of MEDIAFIX by the customer with regard to original media that deviate from these format specifications shall constitute fault on the part of the customer upon conclusion of the contract.
6. Obligations of MEDIAFIX
6.1. The processing of the original media by MEDIAFIX is taking place in an automated or partially automated process. MEDIAFIX undertakes to handle the original media with due care. It is assumed that the customer has the appropriate technical equipment for the reproduction of the work result, which enables him to use the common file formats and common data carriers, e.g. USB flash drives, external hard disks.
6.2. Insofar as MEDIAFIX accepts the customer’s original media at one of its branches or access points, MEDIAFIX will hand over the digitized media to the customer at the location of the original handover after processing has taken place. Procedures deviating from this, e.g. postal dispatch, will only be made at the explicit request of the customer and at the customer’s risk and expense.
6.3. Delivery times will only be considered as guaranteed by MEDIAFIX, if this is confirmed in writing or if it is effectively agreed separately. The delivery times, thus the time span between receipt of the original media and their availability for collection or handover to the shipping partner after successful digitization, is a combination of transport times and processing times. The transport time usually is three working days per route. The processing time is usually 4 – 6 calendar weeks.
6.4. In the case of a fee-based order for prioritized processing, the processing time will be reduced to 10, 5 or 2 working days, depending on the option booked (Prio, Express, Overnight). However, the booking of the option depends on the number of original media to be digitized and must be confirmed by MEDIAFIX. Especially in times of high workload (e.g. before Christmas), MEDIAFIX reserves the right to limit the number of orders to be digitized with a chargeable order for priority processing as well as the number of respective original media per order.
6.5. Deviating customer requests, such as a fixed delivery date or the collection / dispatch of the original media, are only effectively agreed, if they are explicitly confirmed in writing by MEDIAFIX. A written note from the customer on the order form without written confirmation from MEDIAFIX is not sufficient.
6.6. MEDIAFIX is not obligated to store digital copies of the original media on its own servers, unless this has been separately agreed.
6.7. MEDIAFIX will treat the customer’s data while considering the legal regulations of data protection and will not pass it on to third parties, as long as the passing on is not required by law or by the authorities, is not necessary for the proper fulfillment of the contract or for exercising the customer’s own rights, or as long as the customer has not agreed to the processing.
6.8. MEDIAFIX’s obligation to perform is fulfilled as soon as the original media as well as the work results have been returned to the customer or, in the case of explicit commissioning of a shipping service provider, have been handed over to the latter.
7. Obligations of the customer
7.1. The customer is obligated to deliver the original media in a proper condition and to expressly point out when placing the order, if
7.1.1. original media are damaged or otherwise defective;
7.1.2. he or she has a special emotional connection to original media that are subject of the contract;
7.1.3. the original media that are subject of the contract are irreplaceable for him or her, because he or she does not have any copies, not even in the form of other carrier media.
7.1.4. A corresponding note is to be made by the customer on the respective order form.
7.2. If the customer engages MEDIAFIX to store the work result on a customer medium, the customer must ensure that this device is readable and has sufficient free storage space. MEDIAFIX points out that the storage space required for storage must always be doubled, if MEDIAFIX is engaged to post-process the digitization result. If the customer medium is not readable or the storage space is not sufficient, MEDIAFIX is entitled to store the work result on a MEDIAFIX storage device, which will be provided to the customer at the prices stated on the order form, alternatively at an appropriate price. In this regard, MEDIAFIX will always choose the most favorable MEDIAFIX storage device for the customer.
7.3. The customer must ensure that he or she does not hand over any previously undeveloped films (negatives) to MEDIAFIX. Otherwise, it may happen that these are accidentally exposed to light and thus will be damaged or rendered useless without the customer receiving a replacement. MEDIAFIX is not obliged to develop or otherwise process such films.
7.4. A customer (defined within the meaning of the German Civil Code (BGB)) has to check whether the service provided by MEDIAFIX fulfills the contractual requirements within 14 days after receiving back the original media. If not, the customer is obliged to notify MEDIAFIX accordingly.
7.5. The customer is obliged to collect his original media and the work result within seven working days after the completion at the place where he handed over the original media to MEDIAFIX, unless another form of collection or handover has been negotiated. After the expiration of this period, MEDIAFIX is entitled to demand a monthly additional storage fee of EUR 0,01 per image (picture medium, i.e. slides) or EUR 1,00 per film (film medium, i.e. videocassettes) plus VAT (at the current rate) from the customer for each individual original medium. It is possible for the customer to prove that MEDIAFIX has suffered no or less damage.
7.6. By placing the order, the customer expressly declares that he is either the owner and originator of the original media himself, or that the owner and originator of the original media agrees to the processing by MEDIAFIX. The customer hereby transfers, as far as legally possible, all rights necessary for the fulfillment of the contract to MEDIAFIX, in particular the duplication and processing rights, thereby declaring that he is authorized to make this transfer. The customer is obliged to relieve MEDIAFIX and its vicarious agents of all claims made by third parties in connection with the order, due to the violation of their legal positions including copyrights and the rights of use as well as the right to his/her own image. The customer relieves MEDIAFIX of all costs of legal prosecution, compensates any potential other damages for which the customer is responsible and supports MEDIAFIX in every possible way in asserting its own rights.
7.7. The customer declares that the original media which are the subject of the contract and their ownership, duplication and distribution is legally permitted and does not violate any legal prohibitions. MEDIAFIX is not obliged but entitled to check this. In the case of suspicion of a criminal offence, MEDIAFIX is entitled to hand over the original media and any copies that may already have been made to the criminal prosecution authorities and to pass on the details of the order including the customer’s data to them. In this case MEDIAFIX will be released from its obligation to fulfil the service for the client including the obligation to return the original media. Additionally, MEDIAFIX reserves the right to claim damages against the customer.
8. Warranty / Liability
8.1. If nothing to the contrary arises from this contract, according to the applicable legal provisions, MEDIAFIX is liable in the event of a breach of contractual and non-contractual obligations.
8.2. MEDIAFIX is liable without limitation, regardless of the legal cause, in the case of intent and gross negligence. In the event of simple negligence, MEDIAFIX is only liable for damages resulting from injury to life, body and health as well as for damages resulting from the violation of a so-called ” Kardinalpflicht” (‘cardinal obligation’), i.e. an integral contractual obligation, which fulfillment makes the proper execution of the contract possible in the first place and on whose fulfillment the customer regularly relies and may rely. In this case, MEDIAFIX’s liability is restricted to compensation for so-called “contract-typical foreseeable damages”, i.e. damages that can typically be expected to occur within the framework of the respective contractual agreement, but to a maximum amount of EUR 1.00 per affected original medium, or a total of EUR 1,000.00 per order. This also applies in case of loss or destruction of original media.
8.3. A limitation of liability does not apply, as far as MEDIAFIX has fraudulently covered up a defect or has taken over a guarantee of quality. The same applies to the liability of MEDIAFIX according to the regulations of the (german) product liability law.
8.4. Any lack of compatibility of the storage media with the customer’s playback device or computer will in any case be at the customer’s expense and unrestricted risk.
8.5. MEDIAFIX is not obligated to compensate for the resulting damage, if the original medium is already in such a state upon delivery that it is damaged or destroyed when handled in accordance to the contract.
8.6. If the parties agree to store the work result on a MEDIAFIX storage medium, MEDIAFIX is not liable, if the customer then uses the storage medium beyond the purpose of the contract. MEDIAFIX strongly recommends its customers to protect electronically stored data and also the work result from loss by making several backup copies in each case. Furthermore, in the event that the customer is in possession of copies and/or prints of the media to be digitized, MEDIAFIX’s liability is limited to the damage resulting from the restoration of the transferred media from the prints.
8.7. The limitation of liability applies accordingly to legal representatives and vicarious agents of MEDIAFIX.
9. Force majeure
9.1. Each contracting party is not liable for the non-fulfillment of one of its obligations, if the non-fulfillment is based on an obstacle beyond its control, such as fire, natural disasters, war, confiscation or other official measures, general shortage of raw materials, restriction of energy consumption, labor disputes or if breaches of contract by suppliers are based on such a reason. Each contracting party has to notify the other in writing of the occurrence a force majeure immediately.
9.2. Either contracting Party is entitled to terminate the Agreement by written notice, if its execution is prevented for more than 6 months in accordance with the aforementioned clause.
10. Transfer of risk
10.1. The risk of loss or damage to the original media or customer media is transferred to MEDIAFIX upon successful delivery to a branch office or access point. The risk of loss or damage to the original media or storage medium passes to the customer after the order has been fulfilled upon collection at a branch office or access point as well as in the case of the return shipment option by handover to the carrier. The return shipment will be made to the delivery address given in the order.
11. Price / payment
11.1. The costs for the digitization service provided by MEDIAFIX are based on the signed order form and the individual amounts per medium stated and multiplied by the actual number of original media delivered and digitized. The costs resulting of the customer’s request due to different contractual arrangements, e.g. additional shipping costs, will be added by MEDIAFIX to the actual order value and are to be paid by the customer.
11.2. The handover of the work result and the original media to the customer usually only takes place after the final price has been paid.
11.3. Invoices are due immediately with acceptance of the order by MEDIAFIX without deductions and are to be paid within one week after acceptance of the order. With expiration of the one-week period, the customer will be in delay of payment, without need of a further reminder. For each reminder, MEDIAFIX is entitled to demand fees of EUR 5.00 in addition to interest. It is possible for the customer to prove that MEDIAFIX has suffered no or less damage.
11.4. Payment is typically made in cash or by EC card when picking up the media at a branch or access point. If the customer chooses the option of a return shipment, payment is typically made by SEPA transfer to an account to be named by MEDIAFIX.
11.5. MEDIAFIX is entitled, but not obligated, to accept other payment methods in individual cases.
12. Reservation of ownership
Until all services and products from the same order have been paid for in full, the delivered data carriers will remain the property of MEDIAFIX.
13. Online Dispute Resolution / Dispute Resolution
The European Commission provides a platform for the out-of-court settlement of disputes online (ODR platform), which can be accessed at www.ec.europa.eu/consumers/odr. Our e-mail address is firstname.lastname@example.org. We are not obliged and not willing to participate in the dispute resolution procedure.
14. No right for cancellation
Since the digitization is created according to customer-specific instructions and personal content, there is no consumer right of cancellation in accordance with the statutory regulation of § 312 g Paragraph 2 Sentence 1 No. 1 BGB (German Civil Code).
15. Supplementary/deviating regulations for business customers
The following provisions of this clause 15 will only apply to commercial customers and will replace the other regulations of this agreement in their regulatory content in the sense of a more specific regulation:
15.1. In order to maintain his/her warranty claims, the customer is obligated to examine the goods immediately and with proper care for deviations in quality and quantity and to notify MEDIAFIX in writing of obvious defects within 7 days of receipt of the product. In order to meet the deadline, it is sufficient to send the notification in time. This also applies to hidden defects discovered at a later time. In case of violation of the duty to examine and to give notice of defects, the enforcement of warranty claims is excluded.
15.2. If the customer reports a defect that does not exist according to the inspection by MEDIAFIX and if the customer was aware of the non-existence of the defect at the time of reporting or was mistaken about this due to negligence, the customer has to compensate MEDIAFIX for the damage that occurred. The customer is entitled to prove that the notified defect exists. Within the framework of the abovementioned regulations, MEDIAFIX is entitled to demand reimbursement from the customer for the occurred expenses, i.e. for the examination of the object or the repair demanded by the customer.
15.3. Claims for defects do not exist in case of only insignificant deviation from the agreed quality or of only insignificant impairment of usability.
15.4. The warranty period is one year from the return of the original media to the customer or, if the customer misses the deadline according to clause 15.1, from the expiry of this period. The shortened warranty period does not not apply to culpable damages caused by MEDIAFIX resulting from injury to life, body or health and damages caused by gross negligence, intent or malice as well as in the case of recourse claims in according to §§ 445a f. BGB (German Civil Code).
16. Offset and right of retention
16.1. A party is only entitled to offset, if its counterclaims have been legally established, are undisputed and/or have been acknowledged in writing by the other party.
16.2. A party is only entitled to execute the right of retention, if the counterclaim is based on the same contractual relationship.
17. Final provisions
17.1. It is not possible to combine coupons, offers or discount promotions.
17.2. Additions or changes to these GTC must be made in writing.
17.3. The text of the contract is not stored by MEDIAFIX.
17.4. If individual regulations of these GTC are invalid or unenforceable, the remaining parts of these GTC will not be affected. In this case, the invalid or unenforceable provision is replaced by the statutory regulations. In the event of a contractual loophole, the statutory regulations and the principles developed by case law will apply in addition.
17.5. All legal relationships between MEDIAFIX and the customer are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
17.6. The exclusive place of jurisdiction for all disputes arising from the legal relationship between MEDIAFIX and the customer will be the registered office of MEDIAFIX in Cologne, Germany, as far as such an agreement on the place of jurisdiction is allowed.
17.7. All translations of these GTC into other languages are for information purposes only. The only binding version is written in German.