General Terms and Conditions
As of 06th September 2019
§ 1 Validity, scope and amendments
These General Terms and Conditions apply to all services of Outdooractive AG, Missener Straße 18, DE-87509 Immenstadt, mail: firstname.lastname@example.org, registry court, registry number: District Court Kempten, HRB 15575 CEO, Hartmut Wimmer. VAT ID according to §27a UStG: DE 261707005 (hereinafter called “provider”)
(2) Unless otherwise expressly agreed, these Terms and Conditions shall apply exclusively in their version valid at the time the contract was concluded. Conditions of the customer which deviate from or oppose the following provisions do not apply, unless the provider expressly agrees to their validity in writing.
(3) Customer within the meaning of these Terms and Conditions are exclusively entrepreneurs (hereinafter referred to as “customer”). Entrepreneurs within the meaning of the terms and conditions are natural persons or legal entities or partnerships with legal capacity, who act in the exercise of their commercial or independent professional activity upon conclusion of the contract with the provider, including, in particular, public corporations and registered associations.
(4) The terms and conditions may be changed by the provider, provided that this does not affect the essential provisions of the contractual relationship and they are necessary to adapt to developments that were unforeseeable at the time of conclusion of the contract and their non-consideration would significantly disturb the balance of the contract. Significant regulations are in particular those concerning the type and scope of the contractually agreed services and the term, including the rules on termination and liability. Furthermore, adjustments or additions to the terms and conditions can be made, as far as this is necessary to eliminate difficulties in the implementation of the contract due to loopholes resulting from the conclusion of the contract. This may, in particular, be the case if the jurisdiction or legal regulations change and one or more clauses of these terms and conditions are affected. Intended changes to the General Terms are communicated to the customer at least six weeks before they take effect in written form (e.g. letter, email) under emphasis of the respective changes.
(4.1) Insofar as the changes do not merely give the customer a legal advantage and the customer does not agree with the changes, he may object in writing within six weeks after receipt of the notification of the change. In the case of an objection, the previous regulations initially remain unchanged. If the customer does not object, the amended regulations apply after expiry of the opposition period.
(4.2) Customers who make use of recurring services of the provider (so-called subscription, or perpetual obligation) are entitled to a special right of termination in case of a change of these terms and conditions by the provider, which entitles them to terminate the corresponding continuing obligation with the provider before the proposed effective date of the change without notice and free of charge in writing. If the customer does not cancel in writing within six weeks after receipt of the notification of change, the changes become part of the contract at the time of the effective date.
(4.3) The customer is informed of these consequences in the change notification.
§ 2 Subject of the contract
(1) The provider’s offering includes a variety of services in the areas of online platform content marketing (e.g. sub-licensing platform content, cartography, DMS, apps, online marketing, content management, software development, technical support, etc.).
(2) The provider provides the concrete service after placing the order to the terms of the specified service description. This applies, in particular, to the type and scope of the services as well as prices and the processing time in which the provider completes the order.
§ 3 Conclusion of contract
1). The presentation and promotion of articles on the website of the provider at https://corporate.outdooractive.com/ does not constitute a binding offer to conclude a purchase agreement by the provider, but serves to make a binding offer by the customer (order).
(2) The provider sends the customer a customized and binding offer with an order form. The offer can be bindingly accepted by the customer by signing the order form and returning it to the supplier by post or scan. With the receipt of the signed order form with the provider, the contract with the provider is concluded.
§ 4 Storage of the contract text
The provider saves the order of the customer and the specified order data. The customer has the option to print both the order and the terms and conditions before sending the order to the provider.
§ 5 Prices, terms of payment, due date, set-off, right of retention
(1) Costs and prices result from the respective product offer of the provider. All prices quoted are final prices. They include all price components, including VAT. The amount of a possibly additionally incurred administration fee also depends on the product and results from the respective product offer.
(2) All payments shall be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority save as required by law. If a Party to this Agreement is bompelled to make any such deduction, it will pay tot he receiving Party such additinal amounts as are necessary to ensure receipt by the receiving Party oft he full amount which that party would have received but fort he deduction
(3) Payment by the customer shall be made in accordance with the payment plan attached in the offer of the provider. The methods of payment accepted by the provider are prepayment and direct debit.
(3.1) Bei der Zahlungsart Vorkasse durch Überweisung nennt die Anbieterin dem Kunden ihre Bankverbindung in der Auftragsbestätigung. Der Rechnungsbetrag ist vom Kunden auf das angegebene Bankkonto der Anbieterin zu überweisen. Bei Überweisungen aus dem nichteuropäischen Ausland sind etwaige Bankspesen vom Kunden zu tragen.
(3.1) In the payment method “advance payment by bank transfer”, the provider shall inform the customer about his bank details in the order confirmation. The invoice amount is to be transferred by the customer to the specified bank account of the provider. For transfers from non-European countries, any bank charges are to be borne by the customer.
(3.2) In the case of the payment method SEPA direct debit and the successful transmission of bank details by the customer, the provider is revocably authorized to collect the invoice amount from the specified (giro) account (SEPA mandate). By specifying the current account, the customer confirms that he is entitled to direct debit via the corresponding checking account and that the account has sufficient cover so that the amounts due can be collected by the provider. The invoice amount is due for payment after a SEPA direct debit mandate has been issued, but not before the deadline for the preliminary information has expired. Pre-notification is any communication (such as an invoice) by the provider to the customer that announces a debit of the account via SEPA direct debit. If the customer is an entrepreneur, the deadline for the preliminary information is shortened to one day for both direct debits and follow-on direct debits. The preliminary information on the collection of the SEPA direct debit is sent to the customer by email to the email address provided by him. If the direct debit is not redeemed due to a lack of adequate account coverage or due to an incorrect bank account or if the customer objects to the debit, although he is not entitled to do so, the customer shall bear the fees resulting from the non-payment or the chargeback of the respective credit institution, if he has to represent this.
(4) Contracts with customers from countries outside the EU may incur additional costs for which the provider is not responsible. These are to be borne by the customer. These include, inter alia, costs for the transfer of money by credit institutions (e.g. transfer fees) or import duties or taxes (e.g. customs duties).
(5) The services rendered are charged to the customer by the provider. Unless otherwise agreed in writing, the agreed-upon fee shall be due immediately upon receipt of the invoice. The provider reserves the right to withhold services until the invoice is settled.
(6) During default, the interest rate is 9 percentage points above the base rate. The provider reserves the right to prove and assert a higher damage caused by delay.
(7) Recurring services are billed by the provider according to the individually agreed intervals in the payment plan. If the customer defaults in his contracts for two months or more with monthly payments, the provider may terminate the contract without notice.
(8) The customer shall only be entitled to offset if his counterclaims have been legally established or are undisputed or have been acknowledged by the provider or are in a close synallagmatic relationship with the provider’s claim. The customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 6 Special conditions for contractual services, subject matter, training
(1) The provider offers various services in the field of online marketing and design services, as well as coaching and training in the field of content management. In addition to the analysis of the customer’s Internet offer, the provider also defines goals and measures with the customer for a tailor-made concept, or a campaign of content management or online marketing.
(2) The provider advises and assists the customer in optimizing the reach of his content via the output channels of the Outdooractive platform. However, the provider owes no specific ranking, no specific positioning and no specific traffic or conversion rates of the contents of the customer. Nor does the provider owe a specific economic purpose or advertising success beyond the agreed performance by optimizing the ranges.
(3) Insofar as the subject matter of the contractual service of the provider is the organization of in-house training, this will be provided by the instructor named in the service description in the premises of the customer on site. If necessary, the provider is entitled to replace the intended speaker with another suitable person. Suitable training facilities with computer workstations for demonstration purposes are to be provided by the customer for the purpose of organizing the training. Expenses (e.g. meals, accommodation, conference expenses) as well as travel expenses incurred by the provider are not included in the price for in-house training and must therefore be paid separately by the customer.
§ 7 Special conditions for service and sales contracts, due date, acceptance, warranty, retention of title
(1) Notwithstanding § 5 (4) sentence 2 of these provisions, the remuneration for agreed and performed work performances of the provider shall be due on acceptance of the service by the customer, unless otherwise agreed in the payment plan. The customer is obliged to accept the substantially contractual performance at the request of the provider.
(2) The provider is entitled to demand from the customer one or more partial acceptances of definable parts of the work to be performed. If all parts of service have been accepted, the last partial acceptance is at the same time the final acceptance. A partial or final acceptance is the same if the customer does not accept within a reasonable time set by the provider after delivery or refuses the acceptance or if the service is used by the customer.
(3) The provider guarantees that the services rendered in accordance with the sales contract and the contract for work and services correspond to the contractually defined performance specifications.
(3.1) The customer is obligated to examine the service of the provider, as far as this is in accordance with orderly business transaction, immediately after delivery and to reprimand any defects without delay. If the customer fails to report the defect, the service is deemed to have been approved, unless it is a defect that was not identifiable during the investigation. If such a defect later arises, the notification of the defect must be made immediately after the discovery in writing, otherwise the performance shall also be considered as approved in view of this defect. § 377 of the German Commercial Code (HGB) remains unaffected. The customer is not exempted from his obligation to inspect, even in the case of recourse of the entrepreneur according to § 478 of the German Civil Code (BGB). If, in such cases, he does not immediately indicate the defect asserted by his customer, the service shall also be deemed approved in view of this defect.
(3.2) Ist die Leistung der Anbieterin mangelhaft, so ist die Anbieterin zur Nacherfüllung berechtigt. Die Anbieterin ist unter Berücksichtigung der Art des Mangels und der berechtigten Interessen des Kunden berechtigt, die Art der Nacherfüllung zu bestimmen. Eine Nacherfüllung gilt nach dem erfolglosen dritten Versuch als fehlgeschlagen. Diese Ziffer gilt nicht im Fall des Rückgriffes nach § 478 BGB.
(3.3) In the event of subsequent performance in the event of defects, the provider shall only be obliged to bear the expenses required for this, in particular transport, travel, labor and material costs, as these are not increased by transferring the item to a location other than the registered office or commercial branch of the customer to whom the goods have been delivered. This number does not apply in the case of recourse to § 478 BGB.
(3.4) The claims of the customer including claims for damages become time-barred in one year. This does not apply in the case of recourse to § 478 BGB, this also does not apply in the cases of §§ 438 (1) no. 2 BGB and § 634a (1) no. 2 BGB. This also does not apply to claims for damages for injury to life, limb or health or due to a grossly negligent or intentional breach of duty by the provider or their vicarious agents. The sale of used goods is subject to exclusion of any claims for defects.
(4) Until full payment, the goods ordered by the customer remain the property of the provider.
§ 8 Special conditions for continuing obligations, contract duration, subscriptions, discounts, contract renewal, termination
(1) The respective contract period is based on the contractually agreed service ordered by the customer. Payments are due from the beginning of the month following the delivery of the product that can be processed or from the period agreed for campaigns.
(2) Contracts which have a limited contract period shall end with the expiry of the contractually agreed service period, without the need for separate termination.
(3) For contracts with a minimum term or for subscriptions:
(3.1) The provider reserves the right to grant the customer corresponding transit time discounts for the conclusion of a subscription, which depend on the contract period chosen by the customer.
(3.2) After the expiry of the agreed contract period, the contract is automatically extended by the period originally selected by the customer, but not by more than one year, unless it is given four weeks prior to the end of the respective contract period in text form (e.g. email, letter) is terminated.
(4) The right to extraordinary termination for cause remains unaffected.
§ 9 Change of the contracting party
The transfer of rights and obligations under this contract from the customer to third parties requires the express and written consent of the provider.
§ 10 obligations to cooperate, interruption of service
(1) An essential factor for the provision of the contractually agreed services by the provider is the cooperation of the customer. The customer will support the provider in providing the contractual services to an appropriate extent. In particular, the customer provides the provider with all data and documents necessary for the provision of services free of charge and will provide the provider with all necessary information upon request.
(2) If the services of the provider exist in the preparation of concepts or analyzes or the support of the customer in their preparation, the customer shall provide the necessary cooperation and undertake measures for the implementation of the concepts within the framework of the economically appropriate.
(3) The customer will take the necessary precautions to measure the number of visitors and install the Outdooractive Tracking.
(4) If the customer does not fulfill his duties to cooperate or insufficiently, the provider is released from its performance obligations for this period, as far as the respective services cannot be provided due to insufficient or insufficient fulfillment of the obligations to cooperate or only with disproportionate effort.
§ 11 Data Protection, Data Security and Confidentiality
(1) The contracting parties will comply with the respectively applicable data protection regulations, in particular those valid in Germany, and oblige their employees employed in connection with the contract and its implementation with the data secrecy according to § 53 of theFederal Data Protection Act, insofar as these are not already generally obligated accordingly.
(2) Both the provider and the customer undertake to keep secret any business or company secrets or confidential information that are received or known, unless these are generally known.
(4) If the customer collects, processes or uses personal data, he shall declare that he is entitled to do so in accordance with the applicable provisions of the data protection law and, in the event of a breach, indemnify the provider against claims of third parties.
(5) For the security of the data transmitted to him, the customer is fully self-concerned and undertakes to carry out measures for data protection and against unauthorized access to data in accordance with the current state of the art.
(6) The obligations under paragraphs 1 to 5 exist as long as application data are within the sphere of influence of the provider, even beyond the end of the contract.
(7) If the customer violates a duty under paragraphs 1-6 for reasons for which he is responsible, the provider may claim damages in accordance with § 12 of these GTC.
§ 12 Liability
(1) The provider shall be unlimitedly liable – irrespective of the legal grounds – for intentional or grossly negligent damages (gross negligence). In the case of ordinary negligence, the provider is liable, subject to a more lenient standard of liability according to legal provisions (for example, for due care in own affairs) only for damages resulting from injury to life, limb or health or for damages resulting from the violation of cardinal obligations. Cardinal obligations are the essential obligations that form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfillment of which the customer may rely. The liability in this case is limited to the foreseeable, contract-typical damage. Incidentally, claims for damages are excluded.
(2) As far as the subject matter of the contractual service of the provider is the publication of contents and / or hyperlinks on third-party websites, the provider does not guarantee the duration of the availability or the stock of these publications.
(3) In the event of damage due to loss of data to the customer, the provider shall only be liable to the extent of the expense incurred if the customer regularly and adequately performs data backup and thereby ensures that lost data can be recovered at a reasonable cost. This limitation of liability does not apply in the case of intent and gross negligence.
(4) The provisions of the Product Liability Act remain unaffected.
(5) Insofar as the liability of the provider is excluded or limited, this also applies to the personal liability of the employees, representatives and vicarious agents of the provider.
§ 13 Compliance with legal requirements
(1) Legal responsibility, in particular tele media – as well as press-law and competition-law responsibility for the content of the website of the customer, is the sole responsibility of the customer. The content of the editorial part of the website remains the sole responsibility of the customer. The customer is obliged to check carefully and to ensure that the contents do not violate legal provisions.
(2) The customer warrants that he holds all rights required for the contractual use of the website, in particular that he has the necessary copyright, trademark, ancillary copyright, personal rights and other rights and that he has the right to fulfill the contract the provider may transfer, in terms of time, location and content, to the extent necessary for the performance of the contract.
§ 14 Copyright, use, other protective rights, exemption
(1) The customer grants the provider all rights of use for copyrights, ancillary copyrights and other industrial property rights required for the contractual provision of services, in particular the right to reproduce, distribute, make available to the public as well as processing, in terms of time, place and space. This granting of rights continues even after termination of the contractual relationship. The granting of rights also includes the right to transfer or sublicense the aforementioned rights of use to third parties commissioned to perform the contract, as well as to grant search engine marketing rights to the search engine operators. The user rights to be granted to the provider are simple usage rights.
(2) All copyrights, ancillary copyrights and other rights to all online products created by the provider and / or third parties on behalf of the provider for the customer, in particular images, texts, articles, contributions, comments, banners, graphics, page layouts, concepts, designs and analyses remain with the provider. The provider grants the customer for the duration of the contract period on these online products not exclusive (simple) and spatially unlimited rights to use them in the extent necessary for the execution of the contract, store, reproduce, distribute, make publicly available, perform in public and play in public. With regard to cartography products (print and digital maps), the aforementioned rights apply with the restriction that the customer may only reproduce the cartography products to the extent contractually agreed. Any further duplication is not permitted. Any further duplication requires the conclusion of a license agreement.
The provider grants the customer for the duration of the contract to content that was produced individually on behalf of the customer (example: special programming, landing pages, road networks, tour descriptions), after acceptance and complete payment by the customer a non-excludable (simple) and unlimited right to use, store, reproduce, distribute, make publicly available, publicly perform, publicly present, and publicly reproduce, to the extent necessary for the use of its website. The customer does not have the right to be the author of the materials. The provider remains in any case – even if individual contractual exclusive rights of use were granted – entitled to use the materials created in the context of self-promotion in all media.
(3) The rights of use granted to the customer are not transferable to third parties and are not sublicensable without the written consent of the provider.
(4) The provider is to be named as author in every reproduction, distribution, exhibition and / or public reproduction of the materials. If the client violates the obligation to name the author, he is obliged to pay compensation to the provider.
(5) The materials may not be changed in the original or in the reproduction without the express consent of the provider. Any complete or partial imitation or processing is prohibited. In the event of a breach of this provision, the client must pay the vendor damages.
(6) If the customer wishes to register formal industrial property rights for registration in an official register with regard to the materials created by the provider, he must obtain the prior written consent of the provider.
(7) If third parties assert claims against the provider with the claim that the content of the customer or its use by search engine operators or other users violates legal provisions and / or the contents violate their rights, the customer shall be the provider of all claims of third parties indemnify the provider for the first request and compensate for any additional costs and damages, in particular exempting the provider from the costs of an appropriate legal defense. However, this does not apply if the customer is not responsible for the infringement of the rights of third parties or statutory provisions. The customer is obliged to support the provider within the scope of the reasonable by providing information and documents in the legal defense against the third party. The provisions of this paragraph shall apply mutatis mutandis if third parties for the non-compliance of assurances of the customer under § 13 of these terms and conditions assert claims against the provider.
§ 15 Succession
The provider is entitled to transfer the rights and obligations arising from this contract to a third party. It will bring the transfer to the customer in writing. In the event of a transfer by the provider, the customer is entitled to an extraordinary termination right. Termination must be received by the provider within 14 days of receipt of the transmission notice from the provider in text form. It will take effect at the time of the transfer.
§ 16 Publication, reference
The provider is entitled to cooperate with the customer in publications, e.g. in the context of company brochures or on their own website etc. The provider is also entitled to use image and text documentation on the cooperation with the customer in the context of public relations work.
§ 17 Data processing
The contracting parties conclude a data processing agreement. The corresponding contract according to the EU-GDPR including the legally required attachments is available on the provider’s website on https://corporate.outdooractive.com/en/privacy-policy-at-outdooractive/.
§ 18 Legal system, place of performance, place of jurisdiction and contract language
(1) The law of the Federal Republic of Germany applies excluding the United Nations Convention on Contracts for the International Sale of Goods.
(2) The place of fulfillment for all services arising from the business relationships with the provider is Immenstadt, if the customer is a merchant, a legal entity under public law or a special fund under public law.
(3) If the customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from the business relationship between the provider and the customer is the place of business the provider. For complaints against the provider, the place of business of the provider is the exclusive place of jurisdiction. Mandatory statutory provisions on exclusive jurisdictions remain unaffected by this provision.
(4) The contract language is German. In the event of any doubt regarding the interpretation of the translation of these General Terms and Conditions, the German version alone shall be valid.
B Additional conditions for SaaS services
In addition to the General Terms and Conditions of Outdooractive AG for corporate customers, the following additional terms and conditions apply to contracts for Software as a Service (SaaS) services provided by the provider to the customer.
The customer requires standard software applications and storage space to store the generated application data to perform their business processes. The provider offers the temporary use of such software applications via a telecommunication connection as well as the possibility to store application data for a fee. With this contract the contracting parties agree that the provider provides the customer with the possibility of using the required software applications for access via a telecommunication connection as well as storage space for his application data.