Conditions for the Ordering, Delivery and Publication of Advertising on the Internet Platforms of the GKS Handelssysteme GmbH
Section 1 General, Definitions
Section 2 Conclusion of the Agreement
- Under the domains "RESTPOSTEN.de" and "grosshandel.eu", GKS Handelssysteme GmbH - hereinafter referred to as: "GKS" - operates, among other things, virtual marketplaces on the Internet for the business-to-business commerce, hereinafter referred to as "Platforms". The Platforms are visible to any visitor, but only registered members can participate in trading activities.
- "Visitor" means any person who retrieves contents from the Platform. "Member" means any Visitor who signs an agreement with GKS regarding the use of the service. "Advertiser" means any Visitor who signs an agreement with GKS regarding the placing of advertising. The term "User" includes Visitors as well as Members.
- These terms and conditions, as amended from time to time, shall apply for all business relationships between Advertisers and GKS, including future business relationships. Any contrary, conflicting, or additional general terms and conditions of any Advertiser (including but not limited to terms and conditions for placing of orders, purchasing conditions) shall only become part of the Agreement if explicitly agreed upon in writing at the time of concluding the Agreement. Any standardized reference to the general terms and conditions of any Advertiser is hereby expressly excluded.
- Any transfer of rights and obligations of Advertisers based on the Advertising Agreements shall require our written approval.
Section 3 Provision of advertising space
- The placing of advertising on the Platforms is only permitted within the scope of an Advertising Agreement. Only entrepreneurs, legal persons governed by public law or special fund under public law can enter into an Agreement for the placing of advertising on the Platforms.
- The User and/or Member may place advertisements via the GKS Admin Tool in the Advertising Center area. The forms of advertising offered by GKS, e.g. special placements of certain product offers or banner ads, can be selected there by activating the "Select format" or "Check availability" buttons. Depending upon the form of advertising, he or she chooses available periods or calendar weeks by means of the calendar overview or an available format of a banner ad. Using the "Add to cart" button, the selected forms of advertising are placed into the shopping cart. Upon calling up the cart, an overview of the forms of advertising selected are displayed. There is the option, using a "delete" function, of removing forms of advertising from the cart. Using the "Proceed to checkout" button, he or she proceeds to the overview of the selected order items and by pressing the "Send order" button declares his or her intent to enter into a binding contract for the placement of the selected advertising. GKS will accept the offer by sending an invoice. The acceptance of the Agreement is subject to the suspensory condition of entire payment of the respective invoice amount within the payment term stated on the invoice. If payment is made after this deadline, GKS is entitled, but not obliged, to nevertheless place the advertisement on the Platform within the stipulated deadline or to offer an alternative publication deadline to the Advertiser if the foreseen advertising space has already been otherwise allocated.
- The placing of advertising on the Platform is subject to a fee. Costs for advertising are based on the pricelists accessible at: http://www.restposten.de/werbepreisliste.pdf and/or at: http://www.grosshandel.eu/werbepreisliste.pdf, which are an integral part of the Advertising Agreement. All prices are deemed to be plus statutory value-added tax.
- All payments are due in advance and can be made using the payment methods offered by GKS, to which Section 2, Clause 5 GKS General Terms and Conditions shall apply mutatis mutandis. For payments made from abroad, GKS may charge a lump sum amount in accordance with the price list, in addition.
- GKS invoices are issued in electronic form and sent by e-mail. The Advertiser is obliged to ensure the technical and factual conditions for proper receipt of the e-mail. GKS shall exclusively be responsible for sending the respective e-mail. Should an Advertiser wish to also receive invoices by post, GKS is entitled to charge a lump sum amount for this service as stated in the price list.
Section 4 Rights and obligations of Advertisers
- GKS provides advertising spaces both on the Platforms as well as in other media such as on social media platforms, in newsletters or other e-mails.
- GKS does not accept any warranty for the availability of the Platform in individual cases.
- GKS does not make any warranties or representations for the reach of the advertising spaces, which means that GKS shall not be responsible for the advertising spaces being displayed, forwarded, correctly received, read or clicked in a certain quantity.
- At any time and without prior notification, GKS is entitled to extend or restrict the range of functional features and the way of presenting the advertising spaces, as long as this is reasonable acceptable for the Advertiser.
Section 5 Rights of GKS
- Before placing a specific advertisement, GKS reserves the right to send the Advertiser information detailing the technical and content-related requirements for placing advertising on the Platforms. The Advertiser is obliged to create and prepare advertisements according to these requirements. The Advertiser is furthermore obliged to prepare advertisements that could alternatively be placed on the Platform in case the original advertisement does not achieve the designated reach, the advertised product is sold out or is no longer more available due to other reasons or if a replacement of the advertising is necessary due to other reasons.
- All Advertisers undertake to exclusively submit factually correct and legally admissible information within their advertisements. In particular, Advertisers are not allowed to advertise in an anti-competitive manner and may only offer goods and services that are in stock and can be provided by the individual Advertiser. Furthermore, the Advertiser guarantees that no objectionable content is contained in the advertisement/s. All Advertisers warrant to GKS that the information contained in their advertising does not violate any third party rights and that the Advertiser is in possession of all required rights, in particular of the intellectual property rights and copyrights. GKS is entitled to request suitable evidence of this to be provided within 2 working days (receipt at GKS) to confirm compliance.
- All Advertisers warrant to GKS that the information contained in their advertisement does not contain any damaging source code or any other damaging programming instructions. All Advertisers warrant to GKS that their contents do not infringe against Section 202a), 202b), 202c), as well as Section 303a), 303b of the German Penal Code [StGB] (computer-related crime).
- Regarding the information used by Advertisers on the Platforms, Advertisers transfer to GKS any and all rights that are necessary for displaying the advertisements, i.e. make copies and keep such information available on the Internet. Advertisers warrant that no rights of third parties are violated by the contents.
- The storage of information and data on computer systems takes place at the risk of the respective Advertiser. The stored information may become lost or pass into the hands of third parties following a cyber attack. GKS gives assurance that its system and the stored data are safe and secure according to the latest state of technology. However, all Advertisers are obliged to make data backups at regular intervals. For this purpose, appropriate tools are made available to Advertisers by GKS. In case of a data loss through no fault of GKS, GKS cannot be made liable for such data loss. Apart from this, using reasonable efforts and expense, GKS shall only be liable up to the amount of the expenditure actually incurred to restore the data that has been duly backed up by the respective Advertiser.
- All Advertisers undertake the obligation not to place advertisements advertising offers rivaling GKS.
- All Advertisers shall hold GKS harmless against any third-party claims for damages and expenses based on the respective Advertiser’s infringements of these Advertising Conditions. In particular, this applies to costs for legal proceedings.
- In case of an infringement against these Advertising Conditions, all Advertisers commit themselves towards GKS to pay a contractual penalty, the amount of which shall be determined by GKS at its reasonable discretion and which shall, in case of dispute, be subject to review by the competent court, for each culpable infringement. This applies without prejudice to any further claims.
Section 6 Termination of Agreement, Blocking
- Before placing advertisements on the Platform, GKS is entitled to assess compliance with the technical and content-related requirements and to refuse or, if necessary, adapt advertisements if compliance with these requirements is not fulfilled.
- In particular and without any further notice, GKS is entitled to correct offers including, but not limited to, formulation inaccuracies or typographical errors.
- Moreover, GKS is entitled to assess advertisements as to performance, reach, and inclusion in search-engines. To increase the performance, GKS is entitled to adopt amendments, including, but not limited to, the keywords of an advertisement if it can be assumed that the performance can thus be increased.
- GKS is entitled to ask the Advertiser to further amend its advertisement. GKS is entitled to set a reasonable time limit for these specific amendments. If the Advertiser allows this time limit to expire without making its amendments, GKS is entitled to replace the advertisement with the alternatively provided advertisement of the Advertiser. If the Advertiser allows this time limit to expire without making its amendments and if the Advertiser has not provided for any alternative advertisement, GKS is entitled to deactivate the advertisement and to make the advertisement space available to third parties. In such cases, no refunds, even partial refunds, will be granted.
- At all times, GKS is entitled to check advertisements, possible target pages of the Advertisers, and/or integrated links to assure adherence to the provisions of all applicable laws and to these Advertising Conditions. In case of reasonable suspicion that an infringement has occurred, GKS is entitled to refuse the placing/providing of the respective advertisement on the Platform, to deactivate the advertisements or to limit its issuing. Advertisers will be immediately notified by GKS in the case of suspicion and if the placing of its advertisement is to be limited or blocked.
- In case of reasonable suspicion that an infringement of the applicable law has occurred, such as infringements of industrial property rights of third parties, of security, approval or labelling requirements, GKS is entitled to refuse the placing of advertisements, to deactivate currently placed, or to limit their issuing. In these cases, GKS shall not be liable for any damages including, but not limited to, the loss of profits.
Section 7 Liability, responsibility
- GKS is entitled to block individual advertisements and to permanently exclude Advertisers from placing advertisements on the Platform as well as to grant individual Advertisers access with only a limited scope of functions if there is any suspicion that the specific Advertiser has infringed these Advertising Conditions, applicable law, third-party rights, or common decency or if GKS has a legitimate right to block the advertisement. Should individual advertisements be blocked, Advertisers have no entitlement to the restoration of the blocked advertisement or account. GKS is allowed to activate advertisements only following an individual examination. This shall particularly apply if an infringement of the General Terms and Conditions or of these Advertising Conditions on this Platform has occurred.
- Agreements for the placing of advertisements have an agreed duration and shall expire without requiring separate cancellation.
- The right to terminate the contract without notice for serious reasons or to block advertisements is excluded from the previously mentioned terms. In such cases, any already paid fees shall not be refunded.
Section 8 Amendments to these General Terms and Conditions, transfer of rights
- Unless otherwise stated in these terms, including the provisions set out below, GKS is liable in case of any breach of contractual or non-contractual duties in compliance with the relevant legal provisions.
- GKS shall be liable for damages - irrespective of the legal grounds - in case of willful intent and gross negligence only. In case of simple negligence, GKS shall be liable only
- in case of damage due to death, physical injury or an impairment to the health of another,
- in case of damage caused by a breach of an essential contractual duty (fulfilment of which is essential for due implementation of the contract in the first place and the observance of which the contractual partner can reasonably expect and rely on); in this case the liability of GKS is limited to compensation for foreseeable damage which typically occurs.
- The limitations of liability stated in Comma 2 do not apply to the extent that GKS has fraudulently concealed a defect or has accepted a guarantee or within the scope of the Product Liability Act.
- The Advertiser can only withdraw from the contract or cancel the contract due to a breach of duty, which does not consist in a defect if GKS is responsible for the breach of duty. A free right of cancellation for the Advertiser (in particular in accordance with Sections 651 and 649 of the German Civil Code) is excluded. In all other respects, the legal requirements and legal consequences apply.
Section 9 Final provisions
- GKS is entitled to amend the provisions with regard to the service to be delivered as GKS may consider fair and just in consideration of technical requirements and market conditions as long as this is reasonable for the Advertiser.
- Amendments to these General Terms and Conditions shall be published on the Platforms. Amendments of Terms and Conditions not governed by Section 8, clause 1, shall be advised to any Advertiser in writing. The specific amendments shall take effect, unless the specific Advertiser objects to the respective amendments not later than 14 days after receipt. At the beginning of this 14-day period, the Advertiser shall be specifically informed of the significance of such behavior.
- With a 4-week notice period, GKS is entitled to transfer the rights and obligations of the contractual relationship in whole or in part to a third party. In this case, Advertisers shall be entitled to cancel the Advertising Agreement.
- This Agreement is governed by German law. The UN Convention on International Sale of Goods (CISG) shall have no effect.
- The place of jurisdiction for all disputes arising from this Agreement is the court of our business location if the Advertiser is a merchant or entity under public law or special funds under public law. The same shall apply if neither the domicile nor the habitual place of residence of the Advertiser is known at the time the action is filed.
- Additionally, the "General Terms and Conditions" of GKS as well as the data protection regulations shall apply.
- Collateral agreements need to be made in writing to become valid.
Version as at: January 1, 2016
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