General Terms and Conditions (GTC)
(with effect from: 15.3.2012)
Preambel (recital clause?)
Kühne & Loos GmbH (hereinafter „Kühne & Loos”) is a Full-Service-Provider of Online-Marketing-Services. In the following we call our clients and suppliers also „contracting partner“ or „customer“, not least to provide a certain variety in reading.
1. In general
These General Terms and Conditions apply to all our offers and contracts regarding our services, the supply of addresses or any other business with our clients. They shall also apply for all future business relations, even if not expressly referred to.
They solely apply to business and transactions with entrepreneurs and traders in the meaning of § 14 BGB (German Civil Code). The GTC shall not apply to business and transactions with consumers in the meaning of § 13 BGB (German Civil Code). They replace all former General Terms and Conditions unless a different contractual agreement has expressly been made with the customer. Terms and conditions of the customer, if any, shall not be accepted. No separate objection of Kühne & Loos to the customers GTC shall be required.
2. Deliveries and services
If a delivery period is agreed, it starts with the dispatch of our order confirmation. Binding agreement on deadlines shall be recorded in writing and are subject to our written confirmation. The delivery deadline shall be suitably extended in the event of unforeseen circumstances, which lie outside of our control. In case of subsequent modifications of orders by the customer, the delivery deadline shall also be extended accordingly. Kühne & Loos may also demand a reasonable surcharge, to compensate for any resulting disadvantage. Kühne & Loos shall be entitled to employ or commission sub-contractors to fulfil its contractual obligations.
Despite the fact that we continuously update and edit our address database and due to the fluctuation within address groups, we cannot guarantee to the customer at the time of delivery that all postal addresses are accurate and complete for all industry- and target groups. The same applies to telephone data and e-mail addresses. Returns or refusals are inevitable for these reasons and do not constitute a deficiency in the object of delivery and will therefore not be refunded.
Unless explicitly stated in our offers and confirmations of orders, the delivery of telephone numbers, fax numbers and e-mail addresses does not automatically include a commitment on our part that the addressee has agreed to be approached in a promotional way via these channels. If the customer nevertheless uses the data inadmissibly, he exempts Kühne & Loos from any claims made by the parties affected.
4. Terms of payment
All fees stated shall be net fees plus statutory value added tax unless expressly agreed otherwise. Any other, possibly arising costs for shipping, packaging, transport insurance, customs or any other kind of expenses are not included. All numbers of addresses mentioned in our offers and confirmations of orders may be subject of changes until the delivery deadline due to the constant ads and outs of addresses. The invoicing is based on the actually supplied number of addresses. In the case our offer is based on a minimum order value, this shall be the lower price limit.
For all objects, stored on our premises or handed over on other legal grounds by the customer we acquire lien in accordance with §§ 1204 et. seq. BGB (German Civil Code) to secure our claims. All invoices are due for payment 14 days after the invoice date without any deduction of cash discount.
5. Liability and customer rights in case of defects
The customer shall notify any defects that can be ascertained by reasonable examinations without delay following the handover of the object of delivery. Hidden defects shall be notified in writing immediately on discovery. If the customer fails to comply with the applicable deadline and is fully responsible for it, he may not assert any claim against us for deficiencies. If the customer uses the addresses at a later date, this does not release him of the obligatory reasonable inspection of the material provided immediately on delivery.
In the case of a justified and timely notification of defects we are obliged to a replacement delivery or to remedy (subsequent performance) at our choice. The customer is solely responsible that the content of the advertisements mailed by Kühne & Loos on his behalf, do not contravene legal regulations, nor violate moral standards or harm the rights of third persons.
Moreover the client releases Kühne & Loos from all claims by third parties arising from infringements of the rights and regulations mentioned above.
6. Customer’s duties to co-operate
The client is obliged to provide Kühne & Loos with all information and documents required for rendering the contractual services. If the customer fails to do so following an appropriate deadline, we are entitled to terminate the contract without notice and invoice the customer for time and expenses incurred up to that point.
7. Range of address utilization and copyright protection
All addresses supplied are protected by copyright (database copyright protection) according to § 87b UrhG (Urheberrechtsgesetz – German Copyright Act). They therefore shall only be used for within the agreed scope. When using the data received, the customer is fully responsible to comply with the legal regulations especially those regarding data protection.
If no agreement relating to multiple use is made, all addresses supplied are designated for single use only by the customer in the scope of a direct advertising campaign of the contractor in compliance with the German Federal Data Protection Act. This also applies to addresses provided by from third parties through Kühne & Loos as address list brokers.
For all data and documentation provided by us, the property and copyrights remain with us. The customer commits himself to neither reproduce them nor make them available to other parties. For every use of addresses violating the bans on use as mentioned above for which the client is responsible, he shall pay a contractual penalty of 12-times the fee of the respective contract. Unless a written approval from our side exists, there shall no indication of the origin of the address material be included into the advertising of the client.
Our contractors agree, that Kühne & Loos promotes logo and name of the contractor in line with industry’s standards. Kühne & Loos is obliged to present the nature and scope of the partnership, to the best of their knowledge and belief, professionally and correctly.
9. Non-solicitation agreement for employees
For the cooperation period and one year following, our contractors commit themselves not to undertake attempts to entice away employees from Kühne & Loos or its subsidiaries and sister companies. In the case of any violation of these provisions we reserve the right to take legal steps.
10. Place of performance and place of jurisdiction
The place of performance for all obligations by us and the place of jurisdiction for all legal disputes shall be Ober-Mörlen, Germany, unless law stipulates an exclusive place of jurisdiction.
If any of the above mentioned provisions of these General Terms and Conditions are ineffective, the effectiveness of the remaining provisions shall not be affected.