(Effective: November 15, 2009)
1. General Information
1.1 These General Terms and Conditions are integral to our offerings and contracts with our customers regarding supply addresses, services and other areas of business and will also be effective for future business deals. They apply only to businesses with entrepreneurs as defined in § 14 of the German Civil Code. We are not bound to the General Terms and Conditions of our customers, even in the case that we did not expressively refuse to accept them.
2.1 Fixed delivery dates are accepted only if they have been expressly confirmed in writing.
2.2 In the event of unforeseen circumstances beyond our control, delivery dates may be extended to a reasonable extent. This applies specifically in case of labour disputes, interruptions of internet connections, interruptions of operations in ancillary industries and delays in deliveries of essential materials as long as they have been ordered in good time from our side. The delivery date may also be extended to a reasonable extent in case of subsequent modifications of orders by the customer.
3. Returns; Telephone Data
3.1 Due to fluctuations within address groups and despite the fact that we continuously update and edit our address records, we cannot guarantee that all items in our data base for addresses are, at the moment of delivery to the customer, correct and complete for each and every branch of trade and target group, nor that all additional details are correct. The same holds true for telephone data and e-mail addresses.
3.2 Due to the fact that we use general registers and directories and personally submitted data collected in surveys to compile our data base we cannot guarantee that an addressee is or still is indeed what he or she claimed to be at the moment of survey or at the moment of the last update of the data base, or as given by a third party. Returns or refusals are thus inevitable and do not constitute a defect in the items delivered. These inevitable returns will not be reimbursed.
3.3 Unless explicitly stated in our offer and confirmation of order, 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 manner via these channels.
4. Terms of Payment
4.1 The number of address items stated in our offers may vary between confirmation of order and actual delivery due to continuous additions and deletions in our data base. The number of address items actually delivered will be the basis for calculation of payment due. In the event that we made an offer for a minimum order this minimum order is the lowest price limit.
4.2 Offsetting of customer’s counterclaims is only permissible in the event that these counterclaims have not been rejected by us, or that they have been legally recognized.
5. Customer Rights in Case of Deficiencies; Liability
5.1 Ascertainable deficiencies established after reasonable investigation must be communicated without any delay after delivery or download of address data (§ 377 Code of Commercial Law), any hidden deficiencies immediately after discovery. Report has to be received in written communication, notification by e-mail is sufficient. If the customer fails to comply with the applicable deadline this is his/her responsibility and s/he may assert no claims against us for deficiencies.
5.2 Even in the event that the customer plans to make use of the addresses at a later date, this does not release him/her of the obligation to carry out a reasonable inspection of the material supplied immediately on delivery to the customer. This applies specifically to the objection that electronically transmitted data files could not be opened.
5.3 If we receive justified notification of deficiencies within the stipulated period, we are obliged to either make a replacement delivery or rectify (take remedial action) at our own discretion. The customer must provide us with sufficient time and opportunity to do so. If the remedial action fails, the customer may accept a price reduction or withdraw from the contract.
5.4 Liability for consequential damages caused by deficiencies is excluded, unless the damage was caused intentionally or by gross negligence. In the event of injury to life, limb or health we are liable according to legal regulations. In the event of slightly negligent breach of contractual duties our liability is limited to direct, foreseeable losses that are typical for this type of contract. The latter shall not apply when there is a breach of important contractual obligations.
5.5 Claims due to deficiencies of a delivery expire twelve months after delivery of shipment, unless the claim is based on an accepted guarantee or can be traced to gross negligence or intention on our side.
6. Liability for Contents of Advertisements
The customer is solely responsible for any contents of advertisements dispatched by us according to agreement, including e-mail communications, our own newsletters and those by third parties. These contents must adhere to legal regulations, respect public morals and not infringe on any rights of a third party.
7. Making Use of Addresses; Prohibition of Repeated Usage
7.1 Our address records are subject to data protection and copyright law according to § 87b ff. of the German Copyright Act. They may be made use of only in the manner agreed upon in the contract. In making use of the received data, the customer is responsible for the observation of legal regulations regarding data protection and competition law.
7.2 Unless we and the customer have not agreed differently upon the placement of order, the address data submitted may only be used by the customer. Unless otherwise stated in the offer and confirmation of order, no more than a single application of the data is permissible. Any further use of the data and surrendering of data to a third party with or without payment constitutes a misuse of data. Presentation of one single control address generated and inserted into the data file exclusively for every single address delivery counts as sufficient proof of misuse. Every case of misuse will result in a contractual penalty tenfold the net sum of the order of addresses in which the misused address originated.
If a DVD is included in the shipment which includes a Schober data bank (Schober Companies Address List DVD), the customer has to pay a contractual penalty of € 100,000.00 (one hundred thousand euro) for every single duplication of the storage medium or decompilation thereof. We reserve the right to make claims for further damages according to respective legal regulations.
8. Data Processing
8.1 Proprietary rights and copyrights regarding software and documentation as transmitted from our side remain with our company. The customer obligates him-/herself to not duplicate any of these software programs except for a backup copy, nor to use any other means of copying the data, nor to make them accessible to a third party. This prohibition also applies to software programs of another origin included in any of our DVDs. Every single case of culpable noncompliance by the customer will result in a contractual penalty tenfold the amount of invoice. We reserve the right to make claims for further damages according to respective legal regulations.
8.2 If we act as the intermediary for the owner of an address list we are authorised to include any returns from this address list in our list of returns and to use this as a purge list to avoid future divergence loss.
9. Applicable Law
The mutual legal relationship shall be governed by the laws applicable in the Federal Republic of Germany only. If the customer is resident outside Germany, this applies including the United Nations Convention on Contracts for the International Sale of Goods (CISG).
10. Place of Performance; Place of Jurisdiction
Place of performance for all obligations is Ditzingen near Stuttgart. Place of jurisdiction for all legal disputes is Stuttgart, unless the law stipulates that there is no one exclusive place of jurisdiction.
Supplementary Business Regulations for the Brokering of Addresses
The following regulations are supplementary regulations complementing our general regulations in case that we broker the lease of address data between a customer (leaseholder) and an owner of address records (lessor).
I. We are the broker for the lessor and cannot be held responsible by the leaseholder for any incorrect addresses or other deficiencies in the address records. Therefore, we do not give a guarantee for the correctness of the lessor’s records.
II. The offers given by us in the name of the lessor are subject to confirmation and must be confirmed in writing by the lessor. The lessor has the right to reject the acceptance of orders made by us in the name of the leaseholder without giving reasons, as well as to demand the fulfilment of further conditions, e.g. the presentation of a sample of the advertising material in which the address material will be processed. If the lessor agrees to a test mailing he or she waives the right to object to an identical mailing within a narrow time frame to all the addresses ordered. Leaseholder and lessor agree that the contract is concluded solely between lessor and leaseholder. As brokers for a contract between the lessor and the leaseholder, we cannot be held responsible for the lessor, irrespective of our right to collect the bill.
III. The lessor’s addresses are subject to data protection in data banks according to § 87b of the German Copyright Act, they remain the property of the lessor and are submitted to the leaseholder for single use only for advertisement on the leaseholder’s own behalf and to the extent agreed upon. If the leaseholder wants to make repeated or unlimited use of the addresses, a special Contract for Unlimited Use must be negotiated and concluded with the lessor. For protection against unauthorized use control addresses have been included in the address collections.
Presentation of a single control address is sufficient proof for unauthorised misuse of the data. Addresses of persons who place an order or request an offer in response to the leaseholder’s advertisement are not subject to these limitations for further processing by the leaseholder. This does not apply to addresses of participants in lotteries, contests or similar venues.
IV. Processing or use of leased addresses must comply with the regulations of the Federal Data Protection Act.
V. In case of noncompliance with regulations as set out under III, the leaseholder must pay a contractual penalty to the sum of tenfold the amount of all address collections delivered together with the collection from which the misused address originated. We are authorised to collect the bill for the lessor/s.
VI. Due to fluctuations within individual address groups returns (with the post mark ‘undeliverable’) cannot be avoided. These returns will not be reimbursed. Reimbursements for returns must be negotiated separately with the lessor. The lessor is not liable for the fact that an addressee, on the specific date of use of the address data, is indeed what he or she is listed as.
VII. In the event of negligent breach of contract the lessor’s liability is limited to direct, foreseeable losses. The latter shall not apply when there is a breach of important contractual obligations.