General Terms and Conditions of GmbH

General Terms and Conditions of GmbH

1.   Area of validity

1.1. GmbH (hereinafter “PROVIDER”), Erlanger Strasse 9-13, 91083 Baiersdorf, entered in the Commercial Register of Fürth Local Court under the number HRB 10525, operates an internet portal at the internet TERMINAL”). This Terms and Conditions applies to anyone is willing to purchase products on the terminals which are set up in the points of sales. This terminals are provided and operated by GmbH (hereinafter “TERMINAL”).
1.2.    The PROVIDER has stipulated that TERMINAL may only be visited and the services offered therein used on the proviso that these Terms of Use are agreed to. By visiting the internet portal TERMINAL or making use of the services offered therein the respective visitors or users (referred to collectively hereinafter as “USER”) hereby declare their agreement with these Terms of Use. The PROVIDER allows every USER to download these Terms of Use into the working memory of their computer and to print them off.
1.3.    The PROVIDER reserves the right to amend these Terms of Use at any time. Use of the services offered by the PROVIDER at TERMINAL is subject to the Terms of Use of the PROVIDER which are valid at the time TERMINAL is visited and/or the services offered there are used.

2.   Definitions

All definitions used in these Terms of Use which are written in bold anywhere other than in a heading have the meaning throughout these Terms of Use which is defined in the applicable provision in which they are first emphasised by being written in bold.

3.   Services provided by TERMINAL, No remuneration for services

3.1.    TERMINAL offers these USERS the option of gathering information about goods and services offered by various manufacturers, retailers and distributors (referred to hereinafter individually or collectively as “MANUFACTURER(S)”) which the PROVIDER cooperates with in this respect.
3.2.    In-store purchase: TERMINAL allows USERS to just take the initial steps towards concluding PURCHASE AGREEMENTS, with the actual PURCHASE AGREEMENT being concluded in the store where the terminal is located (herinafter SELLER)
3.3.    The number of SELLERS and the portfolio of goods and services offered on TERMINAL by these SELLERS in the manner described in section 3.4 above is restricted. The PROVIDER can reduce or extend the spectrum of relevant SELLERS as well as their goods and services marketed and distributed via TERMINAL at any time and at its own discretion. The USER is not entitled to any claim to the availability of certain goods and services in TERMINAL.
3.4.    The PROVIDER shall provide the services described above to the USER via TERMINAL free of charge. Accordingly, the USER is not obliged to pay the PROVIDER any charges for using these services or for using TERMINAL in general.
3.5.    The PROVIDER expressly reserves the right to amend the technical and organisational framework of TERMINAL at any time and at its own discretion.
3.6.    With the services stipulated in this section 3, TERMINAL is aimed in accordance with these Terms of Use at consumers (cf. § 13 German Civil Code), legal entities under public law and special funds under public law. In addition, TERMINAL is aimed at USERS based in the Federal Republic of Germany, and other countries.
3.7.    Whilst the PROVIDER shall in principle make all reasonable efforts to provide USERS with access to TERMINAL 365 days a year, 24 hours a day in accordance with these Terms of Use, the PROVIDER does not give any guarantee for the availability of TERMINAL. The PROVIDER assumes no guarantee for the availability of TERMINAL.

4.   Contractual relationships, No contract between PROVIDER and USER

4.1.    TERMINAL simply represents an platform which allows USERS to purchase certain goods and services offered via TERMINAL by SELLERS in the SELLER’S store within the context of a purchase made in-store. Accordingly, with TERMINAL the PROVIDER mediates between the USER and the relevant SELLER simply as a provider of technical services, and not in any way as a broker or intermediary.
4.2.    The PROVIDER explicitly does not offer any goods or services for purchase via TERMINAL.
4.3.    If a USER initiates and/or concludes a PURCHASE AGREEMENT via TERMINAL, the PROVIDER shall not become a party to these legal relationships and contracts. The relevant legal relationships and contracts are exclusively concluded between the USER and the pertinent SELLER without the PROVIDER being legally involved in any way, shape or form. Performance of the above-mentioned contracts and handling of any disruptions to services which may occur during performance of the contract also exclusively concerns the USER and the pertinent SELLER.
4.4.    If a USER decides to simply initiate a PURCHASE AGREEMENT via TERMINAL i.e. decides first of all to inspect a certain product in the SELLER’S retail outlet without being under any obligation to buy, no contract is concluded in this respect between the PROVIDER and the USER. In particular, the PROVIDER is under no obligation in this instance to deliver the relevant product to the relevant retail outlet for the USER within any particular period of time. Rather, TERMINAL simply provides the necessary technical and organisational platform. The relevant SELLER is responsible for ensuring that the relevant goods are available.
4.5.    Messages sent to the USER via STORESHIP® in connection with initiating or concluding a PURCHASE AGREEMENT are only sent for the purpose of informing the USER. Insofar as these messages contain legally relevant statements, they are considered as being made for and against those whomsoever it concerns. If a PURCHASE AGREEMENT is concluded between a USER and a SELLER within the framework of the use of TERMINAL, only the USER and the SELLER are party to the contract.

5.   Nature of the contract concluded online between the USER and a SELLER; USER’S duty to take due care and check all relevant aspects in this regard

5.1.    By offering goods and services via TERMINAL, the relevant SELLER is deemed to have made an undefined group of people a non-binding offer to conclude a contract concerning the purchase and acquisition of goods or use of services.
5.2.    Any information passed on from TERMINAL to the USER whilst initiating a PURCHASE AGREEMENT concerning whether a SELLER has the goods relevant to the USER in stock and in what quantity and/or whether the goods can be made available for inspection in the SELLER’S store (see section 3.3) is not binding, either for the PROVIDER or for the relevant SELLER.
5.3.    The conditions for purchasing and acquiring the goods or using the services are governed in the first instance by the conditions cited by the SELLER in the offer it makes, provided these are legally permissible. In the second instance, these conditions are also governed by applicable law. The USER is obliged in his own interests and at his own risk to find out about the legal and commercial conditions entailed by a PURCHASE AGREEMENT before entering into such an agreement. In particular, the USER is obliged to find out the exact contents of any of the SELLER’S general terms and conditions, provided the relevant SELLER intends incorporating such conditions into the PURCHASE AGREEMENT.
5.4.   The USER makes the SELLER a binding purchase offer by clicking the “buy now” button. The offer is accepted upon dispatch of the goods, any previous order confirmation only serves as information that the order has been received and does not constitute acceptance of the offer. Accordingly, a binding PURCHASE AGREEMENT is concluded between the USER and the SELLER upon the dispatch of the goods, without any legal participation on the part of the PROVIDER.
5.5.    Each USER is responsible for the contents and legality of the contracts concluded between him and a SELLER via TERMINAL.

6.   Registration of the USER as a prerequisite for being able to initiate and conclude PURCHASE AGREEMENTS, USER’S consent to these Terms of Use applying in this context, obligations and liability of the USER in this context, possibility of excluding the USER

6.1.    The PROVIDER stipulates that the USER must first register by setting up a user account before being able to use the TERMINAL platform to conclude or initiate Purchase Agreements with a SELLER. Before setting up a user account of this nature, the USER must explicitly express agreement with these Terms of Use. Accordingly, the PROVIDER requests certain personal data from the USER when the latter wishes to register for TERMINAL and set up a user account. This is data which is necessary for initiating, concluding and implementing a PURCHASE AGREEMENT involving TERMINAL. Before a USER can be successfully registered for TERMINAL, the USER is asked whether the personal data which he has entered is correct. If this is not the case, the USER is given the opportunity to make the necessary corrections. Herafter the USER is asked if he or she agrees to these Terms and Conditions of Use.By clicking the button “I agree to the General Terms and Conditions of Use of TERMINAL” the USER declares to the PROVIDER his acceptance of these Terms of Use.
6.2.    No charge is incurred for the USER when setting up a user account. The USER is not entitled to demand that the PROVIDER set up a user account for him. The PROVIDER is entitled to refuse to set up a user account for a USER and is under no obligation to give the reason for this decision. A USER may only register several times for using TERMINAL after first obtaining the explicit prior consent of the PROVIDER.
6.3.    A user account can only be set up by entrepreneurs, legal entities under public law or special funds under public law within the meaning of §310 (1) German Civil Code as well as natural persons of age who are of full legal capacity.
6.4.    A USER may only set up a user account in his own name. The customer account set up by a USER and/or any claims on the part of the USER arising therefrom may not be assigned to a third party.
6.5.    The USER agrees to give all data requested when setting up a user account accurately and in full. The information the USER is expected to give is predominantly name, current address, company name including the legal form and the person authorised to represent the USER.
6.6.    As and when any information given by the USER when setting up the user account changes, the USER is obligated to make the relevant changes to the applicable user account.
6.7.    The USER shall determine a user name and a password for accessing TERMINAL when setting up the user account. The user name and password (hereinafter “log-in credentials”) must not infringe any rights of third parties, in particular not the right of a third party to a name or designation and must be suitable for being used in conjunction with TERMINAL.
6.8.    The USER shall treat the log-in credentials or other access codes for using TERMINAL or the customer account with the utmost confidentiality. The USER shall take appropriate measures to ensure that third parties cannot unlawfully access this data and these codes at his own expense. If the USER learns that his log-in credentials have been abused (see section 6.7), he is obliged to inform the PROVIDER immediately.
6.9.    The USER shall be liable to the PROVIDER for all activities, declarations and actions submitted or carried out using his customer account. The above shall not apply if the USER has taken all necessary precautions and cannot be held responsible for his user account having been abused.
6.10.  The PROVIDER is entitled to close down the USER’s user account at his own discretion and at any time without giving reasons and to prevent the USER from continuing to use TERMINAL. The PROVIDER shall in particular make use of this option if the USER has culpably infringed these Terms of Use or if SELLERS with which the USER has concluded or taken steps to initiate PURCHASE AGREEMENTS via TERMINAL have made complaints to the PROVIDER concerning the USER’s behaviour in this regard.

7.   Obligations of the USER concerning the use of TERMINAL

7.1.    When using TERMINAL, each USER shall be obliged to comply with laws and legislation, to act in keeping with honest practices and to strictly comply with or protect existing rights of third parties.
7.2.    The USER is prohibited from taking measures or carrying out actions which are capable of jeopardizing the correct functioning of TERMINAL or individual features thereof. In particular, the USER is prohibited from using or making use of mechanisms (of any shape or form), software or programmes or scripts in connection with using TERMINAL which lead or could lead to the functioning of TERMINAL being jeopardized as stated above.
7.3.    The USER shall refrain from using TERMINAL in any way capable of putting the TERMINAL system under unreasonable or excessive strain. The USER shall also refrain from interfering in the structure and/or functioning of TERMINAL in a disruptive manner or in any way capable of negatively influencing the functionality and/or security of TERMINAL or its features, contents and services.
7.4.    The USER is not entitled to use TERMINAL or any individual features thereof in any way going beyond the bounds of these Terms of Use. In particular, the USER is not entitled to reproduce, sell or provide to third parties for a limited period of time TERMINAL or any parts thereof or the contents, data and information provided to the USER via TERMINAL. In the event of an unauthorized use by third parties, the USER shall provide the PROVIDER immediately upon request with all information required in order to bring a claim against the unauthorized user, in particular his or her name and address.
7.5.    The USER is strictly prohibited from copying, circulating or using or reproducing in any other way the contents saved on TERMINAL without first obtaining the prior explicit consent of the holder of the relevant rights. The USER is prohibited from taking any such measures and actions, in particular using automatic mechanisms, for example with the assistance of so-called webcrawlers.
7.6.    Each USER is strictly prohibited from taking the use of TERMINAL as an excuse for calling up data and information from the server of the PROVIDER without due authorisation, or for interfering with the PROVIDER’s server and /or programmes belonging to the PROVIDER which are operated on the platform.

8.   Liability of PROVIDER, Restriction of liability

8.1.    The PROVIDER does not accept, neither explicitly nor implicitly, any warranty, guarantee or liability for
statements and declarations made by a SELLER regarding the concluding of a PURCHASE AGREEMENT being accurate and complete,
the goods and services offered on TERMINAL, in particular as regards their properties,
the actual and commercial ability of a SELLER to perform and execute the contracts concluded between himself and the USER via TERMINAL,
the nature, scope and quality of goods and services or information offered by cooperation partners, in particular by SELLERS, which are referred to in TERMINAL either directly or indirectly, e.g. via so-called “links”, and
the proper functioning and compatibility of TERMINAL.
8.2.    Any information which is given on TERMINAL regarding goods and services from any particular SELLER does not constitute statements or information given by the PROVIDER. Rather, this is information passed on by the PROVIDER in its capacity as a messenger for the respective SELLER. The PROVIDER shall not as a rule check whether such information is indeed legitimate, correct and complete. Such information explicitly does not reflect the opinion of the PROVIDER. Accordingly, the PROVIDER shall not be liable vis-à-vis the USER for ensuring that such information is correct and complete.
8.3.    Except for in the event of a breach of essential obligations of the PROVIDER within the framework of its offer made via TERMINAL, the PROVIDER shall only be liable vis-à-vis the USER if and to the extent that the PROVIDER, its legal representatives or vicarious agents have acted with intent or gross negligence. In the case of a breach of essential obligations of the PROVIDER within the framework of its offer made via TERMINAL, the PROVIDER shall be liable for all instances of culpable conduct on the part of its legal representatives or vicarious agents. “Essential obligations” in the meaning mentioned above are those obligations which must be fulfilled in order for the USER to make use of the services offered by TERMINAL in accordance with the provisions of these Terms of Use, which would jeopardize the ability to use the services in the correct manner if they were not complied with and which the USER can reasonably rely on being complied with.
8.4.    The liability of the PROVIDER is limited to the amount of the foreseeable damage which could typically be incurred for use of this nature relating to the type of services provided, unless the PROVIDER, its legal representatives or vicarious agents have acted with intent or gross negligence.
8.5.    The PROVIDER shall only be liable to provide compensation for indirect damage, in particular lost profits, additional expenditure or savings which have not been made, in the event that legal representatives or vicarious agents of the PROVIDER have acted with intent or gross negligence.
8.6.    They shall also not apply to damage arising from harm to life, limb or health or in the event of mandatory statutory regulations to the contrary.

9.   Obligation on the part of the USER to indemnify the PROVIDER

9.1.    The USER undertakes to indemnify the PROVIDER from all claims brought by third parties – including other USERS – asserted by such parties against the PROVIDER on the basis of an infringement of their rights caused by the USE of TERMINAL by the USER. The indemnity obligation shall not apply if and to the extent that the USER is not responsible for the infringement of rights. In the event that the indemnity obligation stipulated above applies, the USER shall also be responsible for bearing costs for appropriate legal defense.
9.2.    In the event that a claim is brought against the PROVIDER within the meaning of the above provision, the USER undertakes to provide the PROVIDER immediately with all information and documentation required to carry out an appropriate investigation into the entitlement to the claim and for appropriate legal defence. The USER shall take care to ensure that such information is complete and accurate.

10.   Copyright and other rights to TERMINAL, decompilation, liability of USER in this respect

10.1.    The USER is not entitled to rework, amend or redesign TERMINAL in any way, or to reproduce, circulate or subject TERMINAL to reverse engineering or decompilation.
10.2.    The USER undertakes vis-à-vis the PROVIDER to refrain from anything which is capable of jeopardising the PROVIDER’s rights to TERMINAL or one of the features of TERMINAL.
10.3.    The USER shall be liable to the PROVIDER if rights are infringed by third parties which the USER has allowed to access TERMINAL. Such liability shall not apply if the USER can prove that he is not responsible for the violation.
10.4.    Notwithstanding the provisions stipulated in § 69 e Copyright Act, the USER is not allowed to transform TERMINAL or individual features thereof from the object code to the source code in any way going beyond the possibility of using TERMINAL and the services offered therein existing on the basis of these Terms of Use.
10.5.    The PROVIDER explicitly reserves the right to prevent the USER from using TERMINAL with immediate effect in the event that the USER fails to comply with his duties pursuant to this section 10. The above shall not affect the PROVIDER’s right to assert claims for damages, unless the USER is not responsible for the damage caused.

11.   Property rights and copyrights for the PROVIDER

Trademarks, company logos, other means of identification or proprietary notices, copyright notices or any other features serving to identify the PROVIDER or TERMINAL may not be removed by the USER from TERMINAL or altered in any way or be used by the USER without first obtaining the prior explicit consent of the PROVIDER.

12.   Data protection

12.1.    In order to be able to render correctly the services offered under TERMINAL in accordance with these Terms of Use, the PROVIDER is obliged to collect, save, process and use personal data belonging to the USER. The PROVIDER shall forward this data belonging to the (potential) USER in accordance with the provisions of thePrivacy Statement to MANUFACTURERS who have forwarded the USER to TERMINAL pursuant to section 3.4 above as well as to SELLERS, with whom a PURCHASE AGREEMENT is either initiated or concluded and vicarious agents of such SELLERS. The PROVIDER shall act in the capacity of a messenger, passing data on to the SELLER on behalf of the USER to the extent necessary in order to allow the USER and the SELLER to act via TERMINAL to initiate, conclude and execute a PURCHASE AGREEMENT in accordance with these Terms of Use.
12.2.    The PROVIDER undertakes in view of the personal data belonging to the USER cited in the provision above to take all necessary measures stipulated by the valid data protection regulations, in particular as stipulated in the Federal Data Protection Act (BDSG) and the Federal Telemedia Act (TMG). Furthermore, the PROVIDER guarantees that such data shall be treated confidentially in accordance with the Privacy Statement.
12.3.    The PROVIDER shall ensure that personal data of the type mentioned above shall be treated confidentially and shall not be passed on to third parties without authorization.

13.   Applicable law

Use of TERMINAL and these Terms of Use as well as the interpretation thereof are subject to the laws of the Federal Republic of Germany. The provisions stipulated in the UN Convention on the International Sale of Goods of 11 April 1980 (CISG) shall not apply.

14.   Place of Performance and Jurisdiction

14.1.    If the USER is an entrepreneur, a legal entity under public law or a special fund under public law, or if the USER does not have a regular domicile in Germany, the place of jurisdiction for all legal disputes arising from or in connection with the use of TERMINAL and/or these Terms of Use shall be Baiersdorf, Germany.
14.2.    The place of performance is Baiersdorf.

15.   Saving clause

In the event that one or several of the clauses in these TERMS OF USE is or are invalid, this shall not affect the validity of the remaining provisions.