Our General Terms & Conditions

  I.

General information/conclusion of contract

1.

These General Terms and Conditions apply to all current and future business relations between us and our parties to the contract.

2.

All agreements between us and the party to the contract must be in writing, unless expressly specified otherwise in writing.

3.

Any General Terms and Conditions of our party to the contract that deviate from, oppose or supplement ours shall not be a component of the contract unless their validity has been expressly agreed on in writing by us. This also applies to unconditional receipt/acceptance of services or to their payment.

4.

If the customer books individual campaign days as a result of our offer, the contract will be concluded as follows:

On the basis of an enquiry from the customer (e.g. by e-mail or via our online booking calendar) for a specific date, we will carry out a check and reserve this date if it is still available. We will then send an offer to the customer.

The customer can firmly accept the offer by, for example, e-mail (binding agreement). Binding acceptance of the offer is also constituted by the confirmation of the date by the customer in our online booking calendar (customer clicks on "Confirm booking" - "Buchung bestätigen"). We will then not send any further confirmation of the order.

With the confirmation of the offer (including in the online booking calendar), the customer also confirms that the contract has also been concluded on the basis of these General Terms and Conditions. This is also indicated to the customer separately in our offer.

 II.

Industrial property rights/ownership

1.

All modules (standard modules, customised modules, individual solutions) as well as the corresponding software provided by us to carry out the contract and all further documents provided by us for the implementation shall remain our property and must be returned to us after the cooperation has been terminated.

2.

Only for the duration of the contractual cooperation and only for the purpose of its implementation do we grant our party to the contract a simple right of use for the advertising applications, the modules, the software and the brands that may be necessary for their use and whose proprietors we are.

3.

For the entire duration of the contractual cooperation we are not prevented from granting third parties rights to the advertising applications, the software, the modules, brands etc., even if these third parties compete with the party to the contract.

4.

We cannot vouch that the rights, items, modules etc. that have been provided for use are free of the industrial property rights of third parties. We do, however, declare that according to our knowledge there are no rights of third parties that restrict or exclude any use in line with the terms according to these General Terms and Conditions or the contract that was individually concluded.

5.

The party to the contract undertakes to use only the consumables, such as photo paper, provided by us at the individually agreed-on prices in order to implement the contract. Only those materials that cannot be provided by us on request can be obtained elsewhere.

6.

The provisions in Sections II. 1., 2. and 5. do not apply to the sale of the modules or their associated software etc.

We retain the title to the objects sold by us until complete payment of all receivables, regardless of legal basis, including any future or conditional receivables that arise from contracts that were concluded at the same time or later. This also applies when payments are made on especially designated claims. If there is evidence that justifies the assumption of the inability to pay of our party to the contract or the threat of such, we are entitled, without setting a deadline, to withdraw from the contract and to demand the return of the reserved goods.

If we make use of our retention of title, then this is considered to be a withdrawal from the contract only if this has been expressly declared by us as such in writing. The right of our party to the contract to own the reserved goods will expire if he does not fulfil his obligations that arise from the contract or another contract.

7.

Should our party to the contract attack any industrial property rights included in the contract with regard to which he has been granted rights of use, then we are entitled to end the cooperation with immediate effect - irrespective of any cancellation periods stated in the contract. The right of instant cancellation for other important reasons also exists.

 

III.

Payment

1.

The prices specified by us are binding.

2.

The payments we have to make shall be effected - unless specified otherwise in writing - within two (2) weeks with a deduction of 3%, calculated from the date of the receipt of the invoice of our party to the contract, or net within 4 weeks after receipt of invoice.

3.

The invoices issued by us must be paid within two weeks of receipt of invoice without any deductions.

 

IV.

Liability

1.

We do not carry out any judicial review of the advertising ideas and modules etc. that we develop. The judicial review of all work is incumbent upon our client/end user. We therefore assume no liability for the absence of legal objections (especially with regard to competition law).

2.

Our party to the contract must ensure that he as well as his staff and representatives have familiarised themselves with the operation of the appropriate advertising applications (e.g. marketing modules) before the beginning of every project.

3.

We are not liable for any damage arising to the party to the contract or an end customer due to faulty or improper use of the software as well as the technical equipment by the party to the contract himself or his staff. In this respect, our party to the contract releases us from any liability and exempts us from any claims of the end customers within the scope of this contractual relationship.

4.

Item 2 applies correspondingly to any financial or other losses of the end customer or third parties that have been caused either deliberately, intentionally or negligently by our party to the contract, his staff or representatives within the framework of the cooperation. Our party to the contract must reimburse such losses to the end customer.

5.

Furthermore, our party to the contract is liable to us for all damage that arises to us through defects, delay or non-compliance with obligations arising from the contract by the party to the contract, his staff or representatives. This, however, also includes such damage that arises because the party to the contract avails himself of third parties in order to meet his obligations arising from the contract and such third parties cause damage either intentionally or negligently.

6.

Should the systems that we have made available to the party to the contract (this does not apply to the sale thereof) - even in parts - become damaged or lost due to faulty use by our party to the contract, his staff or a third party charged by him while they are set up at the premises of the party to the contract or while they are used by them or are available to them, then we are entitled to invoice our party to the contract for such systems at the original price plus any costs related to their re-acquisition or – if damage has been done to the systems – to choose the option of repairing the systems or having said systems repaired at the expense of our party to the contract.

7.

We accept no liability of any kind. This exclusion of liability does not apply in cases of intent or gross negligence (by us, our staff or representatives) as well as not in the case of injury to life, body or health or in the event of the infringement of fundamental contractual obligations. In the event of slightly negligent violation of substantial contractual duties, our liability shall be limited to the foreseeable losses that typically occur.

8.

If the personal data of the participants is collected during the campaign, the party to the contract is solely responsible for ensuring compliance with the privacy policy and for handling data. We assume no liability vis-à-vis the party to the contract for admissibility of the data collection and processing in line with the privacy policy. Should we have a claim made against us by a third party on account of the collection of this data during campaigns or on account of the use of these data by the contractor, the contractor shall, on first demand, indemnify us against all claims of third parties.

 

V.

Non-disclosure

1.

The party to the contract undertakes to use all pieces of information or facts related to the business at hand or that have been entrusted to him or have become known to him due to the cooperation only within the framework of activities that are subject to the concluded contract and not to use them either for himself or on behalf of others after the cooperation has come to an end. Such business-related or contract-related information includes in particular the business and bank details, turnover, calculations, customer directories, price lists, operational sequences, results and evaluations with regard to the modules, manufacturing, sales and advertising methods.

2.

Furthermore, the party to the contract undertakes to use all technical information, knowledge and rights of use that have been made available to him or have been received by him only within the scope of the cooperation. In addition, such information must be used confidentially and only made available to third parties if they are involved in the implementation of the contract and such information is therefore necessary for them. This confidentiality does not apply to information that can be proven

- to be obvious at the time of their receipt,

  • - to have been compiled by the party to the contract within the scope of his own independent developments,

  • - to have already been in the possession of the party to the contract at the time of its receipt,

  • - to have become manifest without the assistance of the party to the contract after receipt or

  • - to have been made available by a third party without any obligation to keep it confidential and not to use it, whereby it is assumed that this third party has not directly or indirectly received information from the party to the contract.

3.

Our party to the contract grants us the right to document the cooperation and in particular the events carried out (also by means of photos and films) and to use the visual material obtained this way for documentary and advertising purposes. This means in particular that we may use photographs and films of the campaign for advertising purposes without paying any fee to do so.

Our party to the contract is entitled to carry out publications or disclosures that concern the cooperation or the knowledge gained from it only with our prior written agreement - unless we make the documentation material available to the party to the contract after the campaign.

4.

The party to the contract and we oblige his and our staff and third parties charged by us to maintain secrecy.

5.

The confidentiality obligation exists for the entire duration of the contractual cooperation, including any information exchanged regarding the cooperation of the parties to the contract before contract conclusion, and applies for a further five (5) years after such cooperation has come to an end.

 VI.

Customer protection/exclusiveness

1.

The following applies to parties to the contracts which whom we work together in order to carry out our campaigns with the end customer:

The party to the contract will not carry out any campaigns with comparable modules in the country concerned (e.g. with campaigns for Germany this would apply to Germany) or support third parties in doing so for a period of 18 months after termination of the last cooperation (conclusion of the last campaign) between us and him. The period applies to every country after the last campaign carried out in this country.

Furthermore, for a period of 2 years after termination of the last cooperation between us
and the party to the contract, the party to the contract will not contact or conclude any
contracts with the end customers which have either direct or indirect reference to activities similar to those that have been concluded on the basis of this contract; nor will the party to the contract support third parties in doing so; such customers are defined as those to whom contact was originally established by us and customers who were initially presented by the modules etc. concerned within the framework of the cooperation between us and the contracting party.

2.

The following applies to our (end) customers for whom who have carried out campaigns – possibly with the assistance of our partners:

The customer will not carry out any campaigns with comparable modules in the country concerned (e.g. with campaigns for Germany this would apply to Germany) or support third parties in doing so for a period of 18 months after termination of the last cooperation (conclusion of the last campaign) between us and the him or between him and the agencies charged with carrying out our campaigns. The period applies to every country after the last campaign carried out in this country.

3.

The party to the contract undertakes to pay us a contractual penalty for every individual case of culpable infringement of points 1 or 2; each infringement will be seen as a separate infringement; the excuse of a 'continuation of offence' is hereby debarred. The contractual penalty breaks down as follows:

If campaigns of an order value of up to €5,000.00 (the crucial factor is the value of all campaigns in the past year) were carried out together with us by a party to the contract (an agency working together with us in line with Point 1 or (end) customer in line with Point 2), then in the event of culpable infringements, a contractual penalty of €5,000.00 must be paid. With regard to campaigns carried out by us and amounting to a total order value of €5,001.00 to €10,000.000, then for every case of culpable infringement a contractual penalty of €7,5000.000 must be paid; as of an order volume of, in total, more than €10,001.00, then for every culpable case of infringement a contractual penalty of €10,000.00 must be paid.

The contractual penalty will be credited against any other claims for damages that exist.

 

VII.

Offsetting/assignment

1.

We are entitled to the rights to offset and rights of retention to the fullest extent allowed by law. Our party to the contract is not entitled to cede claims arising from and in connection with the individual deliveries  outside of the scope of § 354 a) of the German Commercial Code (HGB) or otherwise such as assigning them to third parties.

2.

Our party to the contract is only entitled to offset with undisputed or legally established counterclaims.

 

VIII.

Applicable law and court of jurisdiction

1.

The sole place of jurisdiction is – as far as legally permitted – Dortmund.

2.

German law applies under exclusion of the rule of private international law and the UN sales law, in particular the Rome I Regulation.

 

IX.

Severability clause

Should an individual provision of the contract or these General Terms and Conditions for Hotel Accommodation be invalid or the contract contain loopholes, the validity of the remaining provisions shall remain unaffected thereby. The invalid provision shall be replaced by a provision that comes as close as possible to the spirit and purpose of the invalid provision. This applies correspondingly to any loopholes or gaps.

Published: 23.05.2012

 

Instant Info

T +49 (0) 231 42 57 75-0
F +49 (0) 231 42 57 75-55

Enquiry@aktionspotenzial.com

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