TERMS OF SERVICE
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1. General, Scope
(1) These terms and conditions are part of all our offers and contracts for address deliveries, services or other business with our customers and also apply to future transactions with them. They apply exclusively to business with entrepreneurs in the sense of §14 BGB.
(2) Our terms and conditions apply exclusively; We do not accept conflicting or deviating terms and conditions of the customer, unless we have expressly agreed to their validity in writing.
(3) Our terms and conditions shall also apply if we carry out the delivery to the customer without reservation in the knowledge of conflicting terms or conditions of the client deviating from our terms and conditions.
(4) All agreements made between us and the client for the purpose of executing an order are laid down in writing in the order. Verbal collateral agreements and deviating agreements expressly require the written form.
2. Conclusion of the contract, offers and order processing
(1) All offers made by us are non-binding. Only with the written confirmation of orders or the execution of the order they become binding.
(2) We shall be bound to the offer prices for four weeks after the date of the offer, unless another provision has been made in the order confirmation. The prices stated in our offer are subject to the proviso that the order data underlying the offer remain unchanged.
(3) Subsequent changes at the instigation of the client, including the costs caused thereby, shall be charged to the client.
3. Terms of payment
(1) The prices result from the offered offer price or the order confirmation. Unless otherwise stated, the prices shown are net prices. Costs for packaging, postage, transport insurance and VAT will be charged additionally.
(2) The deduction of discount requires a special written agreement.
(3) Unless otherwise stated in the order confirmation, our invoices are due immediately upon receipt without deduction.
(4) The Purchaser shall only be entitled to offsetting rights if his counterclaims have been legally established, are undisputed or acknowledged by us. Furthermore, he is entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
(1) The approximate delivery date results from the order confirmation. Fixed deadlines with regard to delivery require the express, separate and written consent of GMP. The specified delivery dates refer to the transfer date to the persons and companies, media and / or service providers intended for transport.
(2) Compliance with our delivery obligation further requires the timely and proper fulfillment of the obligation of the customer. The exception of the unfulfilled contract remains reserved.
(3) If delays occur, which are caused by the customer or by the customer commissioned company or persons, or do not arrive on time at GMP, the delivery dates are extended. These delays may be caused, for example, by requests for changes, delayed delivery or returns of materials or data. There is no entitlement to preferential processing of late orders.
(4) If a customer insists on immediate processing despite the delays for which he is responsible, GMP shall not be liable for any quality complaints due to its special urgency and the usual quality controls that GMP normally carries out.
(5) If GMP is in default of performance, we must first grant a reasonable period of grace. After fruitless expiry of the grace period, the client can withdraw from the contract. § 361 BGB remains unaffected. Compensation for damage caused by delay can only be demanded up to the amount of the order value (own contribution excluding advance payment and material).
(6) Operational disturbances – both in our company and in that of a supplier – in particular strike as well as all other cases of force majeure, do not entitle to the termination of the contractual relationship. The principles governing the abolition of the business foundation remain unaffected.
(7) In the event of late delivery by a supplier, the contractor shall be granted a reasonable grace period, otherwise the contractor is entitled to withdraw from the contract. Also confirmed in writing delivery dates are valid only under the condition of undisturbed production.
(8) If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred in this respect, including any additional expenses. Further claims are reserved.
(9) Insofar as the conditions of paragraph ( 8) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the time at which the latter is in default of acceptance or payment.
(1) Claims for defects on the part of the client presuppose that he has duly fulfilled his duties of inspection and complaint pursuant to § 377 HGB.
(2) The client shall check the conformity of the delivered goods as well as the preliminary and intermediate products sent for correction in any case.
(3) If the customer requires compensation for non-performance in cases where GMP has culpably made the service culpable, if we are in default or have fulfilled the order-related services, he may only pay this amount up to the invoice amount for the corresponding order claim. The limitation of liability does not apply if GMP intent or gross negligence is charged.
(4) Insofar as we do not agree to a reduction or a change in the case of justified complaints, we are obliged to repair and / or replace the goods, up to the amount of the order value concerned.
(5) In the case of unreasonably delayed, omitted or repeatedly failed rectification or replacement, the client can withdraw from the contract.
§ 361 BGB remains unaffected.
(6) Defects of a part of the delivered goods do not entitle to the complaint of the entire delivery, unless the partial delivery is of no interest to the client.
(7) Further liability for damages is excluded – regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from negligence on conclusion of the contract, due to other breaches of duty or due to tort claims for compensation for property damage in accordance with § 823 BGB.
(8) Insofar as the liability for damages against us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, employees, employees, representatives and vicarious agents.
6. Retention of title
(1) We reserve the ownership of the purchased item until receipt of all payments from the delivery contract. In case of breach of contract by the client, in particular in case of default, we are entitled to take back the purchased item. The return of the purchased item by us is not a withdrawal from the contract, unless we have expressly stated in writing. In the garnishment of the purchased item by us is always a withdrawal from the contract.
(2) The client is obliged to handle the purchased goods with care.
7. Property, copyrights and usage rights, liability
(1) All copyrights relating to the work supplied by us (drafts, texts, sketches, graphics, documentation, programs, etc.) require a separate contractual transfer. All rights of use for work that has not yet been paid upon termination of the contract shall remain with us subject to any other agreements made.
(2) Within the framework of the contractual tasks, GMP is liable to the client only for intent and gross negligence. It is the client’s responsibility to have the advertising measures proposed by us checked to see whether they are legally, in particular competition-law, harmless. If the declaration is not made within two weeks of the announcement of the concept, we assume that the legal safety has been checked and ascertained.
(3) We are entitled to receive specimen copies of the advertising material which we design in whole or in part and / or of the elements belonging to the action and to use it after self-employment for the purpose of self-promotion (eg for publication, discussion, illustration, PR). Action, participation in competitions whose prizes become our property).
(4) The client shall be solely liable if the execution of his order violates rights, in particular copyrights of third parties. The client has to indemnify us from all claims of third parties for such an infringement.
8. Conditions for special services and products of Gelfert Marketing Partner GMP
8.1. Company addresses
8.1.1. Delivery of addresses, warranty, defects, liability
(1) Unless otherwise agreed in writing, the delivery of addresses and data by email or data carrier.
(2) Due to continuous changes, company addresses, telephone numbers, other data and data components as well as the address sources may contain errors. In accordance with the usual conditions in the direct marketing industry GMP assumes no liability for the postal and other correctness and completeness of the supplied address and data material. For defects which are unavoidable according to the circumstances and for defects which are not attributable to our fault, GMP is not liable.
(3) GMP shall not be held liable for any misrepresentation of profession or branch, or for the addressee to be or is not what he claims to be or what he is spent on. Returns (shipments with postal non-delivery note) are unavoidable despite constant care of the addresses and are not reimbursed. The submission of a guarantee of success for an advertising campaign is excluded.
(4) The customer shall report defects that are detectable by reasonable examination without undue delay (§ 377 HGB) after delivery of the address data, hidden defects immediately after their discovery in writing, whereby the indication by e-mail is sufficient. If the customer fails to meet his deadline and if he is responsible, he can not assert any claims against GMP because of the deficiencies.
(5) A delay in the use of the addresses does not release the customer from the obligation to reasonably check the delivered address data upon receipt by the customer; this applies in particular to the objection that data supplied by electronic means would not be readable.
(6) In the case of a timely justified notice of defects, we first have the obligation to deliver replacement or repair (supplementary performance) at our discretion. For this the customer has to give us the necessary time and opportunity. If the supplementary performance has failed, the customer may reduce his choice or withdraw from the contract.
(7) Liability for consequential damage is excluded, unless a damage was caused intentionally or through gross negligence. Claims for defects in the delivery are subject to a limitation period of twelve months after delivery of the delivery item, unless the claim arises from an assumed warranty or is due to gross negligence or intent on our part.
8.1.2. Address assignment and contractual penalty
(1) All delivered company addresses, dates and telephone numbers may be expressly used only once by the customer, unless otherwise agreed in the contract.
(2) The transmission of a company address with telephone number as well as e-mail addresses does not mean that the addressee in question has given his consent by addressing these communication channels. The use of the addresses with or without telephone number or email address may only be made in accordance with the rules of the Federal Data Protection Act, the UWG and superordinate international guidelines and laws.
(3) The sale or transfer to third parties as well as the use for further promissory mailings , be it by copying , transfer, copying, copying or by transfer to data carriers , as well as a combined advertisement is inadmissible. Compliance with this rule is checked by us by inserting control addresses into each delivery of the address.
(4) A storage of the addresses for purposes of success control of promotions is only allowed for the period of six weeks after dispatch. Then the addresses have to be destroyed or the storage has to be deleted. Addresses of persons, who order on advertisement of the renter or request offers, are subject in the further use by the customer no restriction. A transfer of the addresses to third parties, eg sale and leasing to other companies and institutions, is not permitted.
(5) If the customer intends multiple use of the addresses, a separate written agreement is required. If the customer intends a permanent use, a separate contract must be concluded. Under this agreement, the customer is permitted to use the addresses for unlimited advertising purposes for their own advertising purposes. The sale or transfer to third parties is inadmissible.
(6) For each individual use contrary to the contract, the customer undertakes to pay a contractual penalty in the amount of ten times the price paid for the total delivery. To prove the violation, it is sufficient to submit a control address or other proof.
(7) The assertion of a further claim for damages remains unaffected.
8.1.3. Supplementary terms and conditions for address brokerage
The following terms and conditions apply in addition to our General Terms and Conditions for the case in which we provide a customer (tenant) address stock of an address owner (landlord).
(1) GMP is only a broker of the landlord and can not be claimed by the renter for incorrect addresses or other defects of the data. We assume no responsibility for the accuracy of the information provided by the landlord.
(2) As intermediary, GMP leases such address lists for advertising purposes for address tenants. However, the tenants of such address trunks do not receive the address lists in physical form.
(3) In the case of a rental, the addresses normally remain outside the control of the renter. They can only be delivered to a processor (eg data processor or lettershop ), but remain within the control of the address owner. The sales letters are provided by way of order data processing for the address user with the addresses of the owner. In this activity, GMP can use the services of third parties.
(4) GMP is, however, entitled to transfer the addresses within the scope of the data protection law permissible into the territory of the lessee, if the express consent for this is provided by the owner.
(5) At the addresses of the landlord there is the database copyright protection acc. § 87b UrhG, they remain the property of the landlord and are rented to the tenant only for single use for own advertising in the agreed scope. If the tenant wants to use the addresses multiple or unlimited, it requires a separate permanent use agreement with the landlord. To protect against unauthorized use, control addresses have been incorporated into the address deliveries. To prove the abuse, it is sufficient to submit a control address or other clear evidence. Addresses of persons, who order on advertisement of the renter or request offers, are subject in the further use by the tenant no restriction.
(6) Processing and use of the leased addresses may only be carried out in compliance with the provisions of the Federal Data Protection Act, the UWG and superordinate international guidelines and laws.
(7) In the case of violation of the restrictions of use mentioned in clause 8.1.3. (5), the renter shall pay a contractual penalty amounting to ten times the invoice amount for all deliveries of addresses that were delivered together with the collection from which the contract was used Address comes from; We are entitled to debt collection for the landlord.
(8) Because of the fluctuation possible in the individual address groups, returns (with postal non-delivery note) are unavoidable. A refund of these returns does not take place. The landlord assumes no guarantee that the bearer of an address at the time of the address use is what he is spent or for what he claims to be.
(9) Due to slightly negligent breach of contractual obligations, the liability of the lessor is limited to the contractually foreseeable damage. The latter does not apply if the breach concerns essential contractual obligations.
(10) The address numbers stated in our offers and price lists are only indicative. For our performance as well as the calculation of the prices, the number of addresses selected and delivered for the respective order shall prevail. The number of addresses mentioned in offers may change after order confirmation because of the constant additions and exits of addresses until the time of delivery. The actually delivered address number is calculated.
9. Applicable law, place of performance, place of jurisdiction
(1) If the purchaser is a merchant, our place of business is the place of jurisdiction; However, we are entitled to sue the customer at his place of residence.
(2) The law of the Federal Republic of Germany applies; the validity of the UN sales law is excluded.
(3) Unless otherwise stated in the order confirmation, our place of business is the place of performance.
GMP Gelfert Marketing Partner, as of 01.01.2020