Business Terms and Conditions

(as of: 15.08.2018)

General Terms

1. Applicability of General Terms and Conditions of Business

1.1 These General Terms and Conditions are an essential part of all offers and contracts for address services, products and other services of Schober Information Group Deutschland GmbH, Ditzingen („Schober“) and its customers.

1.2 The General Terms and Conditions shall apply exclusively to transactions with businesses as defined in Section 14 BGB (German Civil Code).

1.3 The general terms and conditions of the customer shall not become part of the contract unless Schober expressly agrees to them in writing. This shall also apply if the customer’s General Terms and Conditions have not been expressly objected to or if Schober performs the commissioned service without objection in full knowledge of conflicting or differing conditions.

1.4 These General Terms and Conditions shall also apply to all future business dealings with the customer, even if they are not explicitly agreed upon again.

2. Finalisation of Contract

2.1 Unless otherwise stipulated in our offers, Schober’s offers are subject to change without notice. A contract shall come into effect upon confirmation of the order (Order Confirmation) by Schober, but at the latest upon delivery of services.

3. Rates

3.1 The number of addresses specified in our quotes may change after confirmation of the order due to constant additions and deletions that can occur up until the time of delivery. Only the actual number of delivered addresses will be charged. If a minimum order amount has been agreed upon, this shall constitute the minimum price.

3.2 Unless otherwise agreed upon, price increases are permissible up to a maximum of 15% in the case of a long-term contract, initially after expiry of a twelve-month contract term and then at most once every 12 months. The customer must be notified of these at least 6 weeks before they come into effect. If the customer does not agree with the price increase and the price increase is more than 15% based on the last price range, the customer can terminate the respective individual agreement within a time period of 6 weeks after notification of the planned increase, with a notice period of 4 weeks before the end of the month. During the remaining period, the conditions existing before the increase remain unchanged and in effect.

3.3 All our prices are net prices plus VAT at the applicable rate.

3.4 Invoices and partial invoices from Schober are payable 10 days after receipt of the invoice without deductions. If the user defaults on payment of the fees, Schober shall be entitled to claim default interest at a rate of 8% above the respective base interest rate. The claim for further damages is not excluded.

3.5 Schober retains the right to assign all payment claims arising from this contract for the purpose of collection of debts owed to an affiliated company of the Schober Group or to a collection agency.

3.6 Should the customer raise objections to an invoice from Schober, these must be submitted to Schober in writing or by e-mail within 28 days of receipt of the invoice. Otherwise, the invoice shall be regarded as approved by the customer. Schober shall notify the customer specifically in the invoices of the consequences of a failure to object in a timely manner.

3.7 Compensation from customer counterclaims is only admissible if these counterclaims are not disputed by us or have been legally determined.

4. Customer rights and obligations in the event of defects and faults.

4.1 The customer is solely responsible for the equipment it uses (hardware and software) and its suitability for data transmission. A failure of the equipment does not release the customer from the obligation to pay the fees.

4.2 The customer is obligated to provide all necessary assistance required for the receipt of services in a timely manner.

4.3 The customer is responsible for the risk of loss of data on the data transmission path to its intended application.

4.4 In the event of defects in the services purchased, the customer must first set Schober a reasonable deadline for rectification before asserting its right of a price reduction or cancellation. The setting of a deadline is unnecessary if, according to the legal stipulations, the use of warranty rights without setting a deadline for subsequent fulfillment is permitted. Schober has the right, at its own discretion, to provide subsequent fulfillment by means of rectification or replacement delivery or a combination thereof.

4.5 The customer is required to inspect the delivered services immediately upon receipt and to notify Schober immediately in writing of any defects found. Immediate notification of Schober must be made in the case of obvious defects within 7 days of receipt of the delivered services and in the case of hidden defects within 7 days of knowledge of the defect. A planned or actual staggered use of services does not release the customer from the obligation to review and complain in good time. A breach of the obligation to report and notify defects will lead to the warranty being voided.

4.6 If Schober processes data files from the customer, the customer is responsible for ensuring that all data files collected by them were collected using legally compliant consent for advertising purposes, which is necessary to enable the use of the data files which was agreed upon with Schober. Schober reserves the right to demand from the customer evidence of the declarations of consent through random examination within a reasonable period of time.

5. Exemption

5.1 Should a claim against Schober by third parties be made due to an infringement on the part of the customer whatsoever, the customer shall indemnify Schober from such claims upon first request and shall agree to assume all costs arising as a result (in particular attorney, court and expert costs) upon first request by Schober or—at Schober’s discretion—to reimburse Schober for the same. In particular, this also includes costs in connection with adequate defense against such claims.

6. Liability

6.1 Schober guarantees that the contracted services shall have the agreed upon quality and not be defective, which would cancel or substantially reduce the value or suitability for normal use or use as provided for in the contract. Schober also guarantees that the customer’s agreed upon rights not be infringed by the rights of third parties.

6.2 Schober shall not be liable for the proper functioning of the data lines to its server, in the event of electrical power failures or for restrictions or failures in performance due to force majeure or events which as a rule make performance significantly more difficult or impossible. These include in particular: strikes, lockouts, governmental orders, the failure of communication networks and gateways of other providers, malfunctions in the area of the relevant line provider as well as malfunctions within the scope of risk of other network providers.

6.3 Despite constant updates and revisions of our business data, due to fluctuation within address groups we cannot guarantee that at the time of delivery to the customer, all addresses in our address files are correct in postal terms and complete or all additional data are correct for each industry and target group.

6.4 As we compile addresses from publicly accessible registries, directories and personal data from surveys, we cannot guarantee the accuracy of the information provided by an addressee since the time the addresses were collected, last updated or issued by a third party.

6.5 Returns are unavoidable for this reason and do not constitute a defect in the delivery item. Such unavoidable returns will not be reimbursed.

6.6 In the event of ordinary negligence on the part of Schober, its legal representative or a subcontractor, Schober’s liability in the event of a breach of material contractual obligations shall be limited to generally foreseeable, direct damages. Essential contractual obligations are defined abstractly as those obligations whose fulfillment makes the normal execution of the contract possible in the first place and whose fulfillment the customer is entitled to expect as a matter of course. Schober’s liability for ordinary negligence is otherwise excluded.

6.7 All contractual guarantees and compensation claims against Schober shall become statute-barred 12 months after the date they arose.

6.8 Notwithstanding the provisions of Sections 4.3. and 4.4. above, Schober shall be fully liable for damages resulting from injury to life, limb or health resulting from an intentional or grossly negligent breach of contract by Schober, or its legal representative or subcontractors.

7. Schober’s data protection and control rights

7.1 If Schober products and services contain personal data as defined by Article 4 No. 1 of the European Data Protection Regulation (DSGVO), these will only be transmitted by Schober if there is at least one legal basis for processing the data.

7.2 The customer hereby agrees to process personal data in the services provided by Schober only if there is a legal basis for their use. Before delivery of the agreed-upon services and during the term of the contract, Schober shall randomly check the existence of a corresponding legal basis on the part of the customer and maintains the right to refuse to provide the service if there is no sufficient legal basis for obtaining the respective product. To this end, the customer must keep suitable records of the legal basis for its data processing in connection with the services procured from Schober for at least 12 months after delivery of the services procured and shall make these available to Schober upon request.

7.3 The customer shall comply with any complaints raised by data subjects against the customer with regard to individual address data or other personal data pursuant to Article 4 No. 1 DSGVO in the services purchased from Schober within the legally stipulated time limits. In the event of international complaints by data subjects, the customer must notify Schober of such complaints immediately upon receipt of the complaint.

7.4 Schober advises the customer to check the DDV Robinson list (www.ichhabediewahl.de) against the address data received from Schober before using the individual address data for advertising purposes, in order to comply with restrictions on data subject use.

7.5 Personal data as defined in Article 4 No. 1 DSGVO in the services purchased from Schober must be deleted by the customer immediately after the end of the contract period and a confirmation of deletion must be sent unsolicited in written form to Schober.

7.6 If the services purchased from Schober are used for advertising purposes, the customer must ensure that notice of the right to object by the data subjects to the use of his/her personal data pursuant to Article 4 No. 1 DSGVO as well as the information disclosure requirements of the customer in accordance with DSGVO are provided and the information required under the DSGVO for personal data not collected from the data subject as defined in Article 4 No. 1 of the DSGVO is provided in accordance with Schober’s specifications.

7.7 In the event that personal data as defined in Article 4 No. 1 DSGVO is used by the customer more than once, Schober shall fulfil its notification obligation under Article 19 DSGVO regarding subsequent amendments or deletions of the personal data or a restriction on processing in accordance with Article 16 DSGVO, Article 17 (1) DSGVO and Article 18 DSGVO by updating the personal data obtained. The customer must observe such updates immediately upon delivery.

8. Business data – use of addresses; prohibition on multiple use

8.1 Our business address data is subject to data protection copyright in accordance with Section 87b et seq. of the German Copyright Act. UrhG. They may only be used to the extent agreed upon with us.

8.2 Unless otherwise agreed upon with the customer when the order was issued, all addresses provided by us are only intended for the customer’s own advertising use. Unless otherwise agreed upon in the offer and order confirmation, only one-time use is permitted. Any use beyond this as well as the transfer of data to third parties, whether free of charge or in return for payment, constitutes an improper use of data. To prove misuse, it is sufficient to submit one of the control addresses, which are generated exclusively for each address delivery and included in each address list supplied.

8.3 The customer is obliged to pay us a contract penalty in the amount of ten times the net price of the address order from which the misused address originates for each case of misuse of an address.

Supplementary Terms and Conditions for the Supply of Addresses

The following terms and conditions shall apply in addition to our General Terms and Conditions in the event that Schober provides a customer with addresses from a third-party owner (third-party supplier).

1. Address Broker

1.1 Unless otherwise stipulated in individual instances in the order confirmation issued to the customer, Schober is only a broker for the third-party supplier and cannot be held liable by the customer for incorrect addresses or other defects in the address data provided.

1.2 The customer hereby acknowledges that subject to other provisions in Schober’s order confirmation, the respective address licence agreement is entered into solely between the customer and the third-party supplier.

2. Receipt by third-party supplier

2.1 The offers made by us on behalf of a third party supplier are non-binding and must be approved in writing by the third party supplier. The customer may refuse to accept orders placed by us on behalf of the customer without stating reasons or may make the acceptance of additional conditions contingent upon the submission, in particular, a sample of the advertising material with which the addresses are to be processed.

3. Copyright – right of use

3.1 There is copyright protection in accordance with Section 87b of the German Copyright Act (UrhG) on the addresses of the third-party supplier; they remain the property of the third-party supplier and are leased to the customer, subject to other provisions in Schober’s order confirmation, only for one-time use for the customer’s own advertisements within the agreed scope.

3.2 If the customer wishes to use the addresses several times or without restriction, a separate long-term usage agreement with the third party supplier is required. To protect against unauthorized use, control addresses are incorporated into the address data sets. The presentation of a control address is sufficient proof of misuse.

3.3 The leased addresses may only be processed and used in compliance with data privacy laws, in particular, those of the DSGVO.

4. Penalty Clause

4.1 In the event of violation of the use restrictions mentioned under sections III and IV, the customer is liable to pay a contractual penalty in the amount of 10 times the invoice value for all of the address data sets delivered, together with the collection from which the address used in violation of the contract originated.

5. Product Returns

5.1 Due to the various fluctuations in the individual address groups, returns (with a postal undeliverability note) are unavoidable. These returns will not be reimbursed. Compensation for returns requires a special agreement with Schober or the third party supplier.

Concluding Provisions

1. Project References and Marketing

1.1 Schober has the right to refer to its customer cooperation in its list of references or in the case of Schober’s participation in project announcements of third parties unless otherwise agreed upon in individual cases.

1.2 Any additional project references and their use for the marketing of Schober are only permissible with the prior consent of the customer.

2. Applicable Laws

2.1 The mutual legal rights are governed exclusively by German law. If the customer is domiciled outside Germany, this shall apply including the United Nations Convention on Contracts for the International Sale of Goods (CISG).

3. Place of Delivery; Legal Domicile

3.1 Place of performance for all contractual obligations with us is Stuttgart.

The place of jurisdiction for all legal disputes shall be the district court or regional court of Stuttgart, depending on the value of the subject matter of the dispute, unless an exclusive place of jurisdiction is established.