General terms and conditions of use

General Terms and Conditions of Use »via gustica« for Providers


§ 1 General Information

(1) The company Sandstein Neue Medien GmbH, Goetheallee 6, 01309 Dresden, Germany (hereinafter also referred to as »Sandstein«) operates an information portal and an online shop on the websites www.via-gustica.de and shop.via-gustica.de (hereinafter collectively referred to as »Platform«).

(2) For providers using the Platform within the meaning of § 2 c) of these General Terms and Conditions of Use, the General Terms and Conditions of Use of Sandstein as stated below shall apply exclusively insofar as no individual deviation has been contractually agreed upon in a particular case. Any of the provider’s diverging General Terms and Conditions of Business shall be rejected. Consequently, the provider’s General Terms and Conditions of Business shall be inapplicable even in instances where Sandstein is not separately rejecting their applicability or when Sandstein makes reference to a letter that may contain business terms and conditions of the provider or refers to any such terms and conditions.

(3) Sandstein retains the right to amend these General Terms and Conditions of Use provided that there is a valid reason to do so. Valid reasons for amendments include unforeseeable events not initiated by Sandstein and on which Sandstein had no influence as well as changes to existing legislation or when a judicial decision or court ruling requires an amendment so that performance may be maintained. In such a case, Sandstein shall notify the visitor of the proposed alteration of the Terms and Conditions, specifying the reason and the specific extent in writing (e.g., via email). The amendments shall be considered as approved insofar as the visitor does not express an objection in writing. Sandstein shall especially point out this stipulated implication to the visitor in the notification letter. The objection must be received by Sandstein within six weeks following the receipt of the notification. If the visitor exercises the right to object, the requested change shall be deemed as rejected. The contract shall then continue without the proposed amendments, but may be terminated by either party at any time without notice.

§ 2 Definitions

For the purposes of these General Terms and Conditions of Use, the following definitions shall apply:

a) »Visitor« defines a person who accesses the Internet pages of Sandstein;

b) »Users« are Visitors that have entered their information on the Platform for the purpose of setting up accounts or for the one-off processing of an order or for booking a request;

c) »Providers« are businesses, legal entities under public law or respectively, public law entities with special public funds that offer or advertise their services on the Platform;

d) »Customers« are Users that place orders or book requests for products that are subject to a fee payable to the Providers;

e) »Account« defines the User’s account;

f) »Products« refer to the range of products offered by the Providers, in particular goods originating from and accommodation services offered in the German-Polish border region of Oberlausitz-Niederschlesien [Upper Lusatia-Lower Silesia], which the Provider has entered in the databank of offers on the Platform;

g) »Advertisements« are promotional notices and announcements displayed by the Providers and these may consist of texts and/or pictures/images, and in particular of banners;

h) »Provider Contents« include all contents offered by the Providers, such as in particular product offers, advertisements, self-presentations and profile data;

i) »Inadmissible content« refers to content that violates the law, is contrary to an official regulation/policy or accepted principles of morality; this particularly includes violations of the General Act on Equal Treatment or Equal Opportunity [General Anti-Discrimination Act] and the statutory provisions of the Jugendschutzgesetz [law for the protection of children and minors - Youth Protection Act] and the Data Protection/Privacy Act, criminal acts, anti-competitive actions, violations of third party rights, especially the general Persönlichkeitsrecht [right to protection of an individual’s sphere of life such as privacy, physical integrity, health, freedom of action], the right to specific images and logos, trademarks and copyrights, name rights, brand names, company names and other industrial or intellectual property rights, as well as pornographic content, content that glorifies violence, discriminatory content that expresses racist and/or extreme right-wing views as well as content that offends religious sentiment.

§ 3 Services provided by Sandstein

(1) In accordance with the following provisions, Sandstein shall provide the technical requirements necessary for using the Platform on which Providers may offer, advertise and market their products, by publishing content for the Providers’ products and notices on the Platform where Customers can order and book their requests. The details of the services and procedures are described on the Platform.

(2) The data communication with Sandstein’s servers shall take place through online access via the web browser.

(3) Sandstein offers systems availability of 98% on a monthly average. This does not include times during which the use of the Platform is interrupted or restricted for compelling technical reasons or because of necessary maintenance work (§ 4), circumstances for which Sandstein shall not be held responsible.

(4) The duties of Sandstein do not include the Visitor’s access to the Internet or the operation of data lines or data networks as components of the public Internet. Sandstein shall therefore assume no responsibility for the functionality of such data networks or such data lines towards its servers with the exception of data lines between its servers and the respective point of transfer or interconnection to the public Internet. Sandstein shall also assume no liability whatsoever for power failures or for downtime of networks or servers as Sandstein has no control over these occurrences.

(5) Sandstein shall be authorised to independently carry out updates and extensions of the Platform at any time provided that it is reasonable for the User.

(6) Sandstein shall be entitled to have the services administered through a third party.

(7) As the services provided by Sandstein for the Visitor or Customer remain free of charge, these services are provided by Sandstein strictly on a voluntary basis and the Visitor or User will have no grounds to claim damages against Sandstein regarding the execution and maintenance of the offer. Sandstein reserves the right to withdraw the free use of its Platform at any time without prior notice.

§ 4 Maintenance

(1) Sandstein shall inform the User in advance about scheduled maintenance work as well as its expected duration via the Platform’s Internet pages using the email address which the User has registered with Sandstein or by alternative means of communication. The total duration of such scheduled maintenance work may consist of a maximum of twelve hours per quarter.

(2) In the event of system failures caused by system malfunctions, Sandstein shall inform the Users in the same manner immediately after Sandstein has become aware of the problem.

§ 5 Registration as Providers

(1) The use of the services performed by Sandstein requires the registration as Providers. An exception of this requirement involves the publication of notices which may be commissioned without registration in writing or in electronic text format.

(2) By entering the required data in an online form provided for that purpose, the Visitor submits a registration request. The Visitor shall be bound to this until the expiration of the third working day following the day of the registration request.

(3) The Visitor may cancel the registration request at any point by activating the »back« button and by closing the browser window. The languages of German, Polish and English are available for concluding the contract.

(4) If the registration request has been successfully submitted, the Visitor will receive an email confirming that Sandstein has received the registration request. This confirmation of receipt does not yet constitute a binding acceptance of the registration request. The confirmation represents acceptance of the registration only once Sandstein has expressly declared its acceptance.

(5) After reviewing the registration request, Sandstein will email the notification of successful registration. This email will realise the formation of a contract between the Provider and Sandstein regarding the utilisation of the Platform. In this email, the Provider will receive all other necessary information, in particular information needed for using the portal and for determining the amount of a potential fee or commission (§ 8). The details of the contract will be stored by Sandstein and a copy may be forwarded to the User upon his/her written request in the event of a loss of the documentation.

(6) Sandstein shall be entitled to refuse the registration of would-be Providers without explaining the reasons even if all the requirements for acceptance have been fulfilled.

§ 6 Publication of Provider Contents

(1) Sandstein will publish Provider Contents in the name and on behalf of the Provider on the Platform as well as on cooperating portals. The Provider will be permitted to link Provider Contents to external websites only upon separate special contractual agreement. Further details will be derived from the content of the order as well as from the product information on the Internet pages. The placement of Provider Contents shall be carried out within the framework of the contractual details at the discretion of Sandstein; in the process, Sandstein will adequately consider the contracting party’s interests.

(2) Sandstein shall also be authorised, but not obligated, to publish the Provider Contents elsewhere in any medium so designated at Sandstein’s discretion, especially on cooperating portals or in printed media or to have it published by third parties. This mainly involves additional and voluntary services provided by Sandstein to which the Provider has no legally enforceable right, but which also incur no additional costs.

(3) The Provider is solely liable for the Contents, in particular the accuracy and the extent to which the textual components and those related to image or videos are legally admissible. The Provider must ensure that the Provider Contents include no inadmissible content and also provide no direct links to inadmissible content. Sandstein is under no obligation to examine or monitor the Provider Contents in respect to lawfulness and infringements of third party (property) rights. However, Sandstein reserves the right to refuse the publication of the Provider Contents at its own discretion and without explanation. Sandstein will especially refuse to publish inadmissible content. In cases of inadmissible content, Sandstein will be authorised to block and delete Provider Contents pursuant to § 11 paragraph 5; Sandstein will promptly notify the Provider of the blockage or deletion; any claims for compensation against Sandstein for damages due to the blockage or deletion based on this paragraph are hereby excluded.

(4) Deadlines or due dates that have not been specifically agreed upon as binding represent merely non-binding information. Fixed dates must be separately arranged and expressly designated as such. If no fixed date has been arranged, the publication will take place within three working days after the Provider has communicated the complete and defect-free Provider Contents to Sandstein.

(5) The Provider must examine the Provider Contents promptly each time Sandstein releases the content on the Platform, insofar as this is feasible in the orderly course of business and notify Sandstein immediately upon noticing any defect or fault. If the Provider omits the notification as specified in sentence 1, the Provider Contents are deemed as approved, unless it is a question of a defect that was not recognisable during the examination. Should any such defect be found later on, notification thereof must be sent immediately upon its discovery; otherwise in this case, too, the Provider Contents shall be deemed to be accepted even in consideration of this defect. The timely posting of the notification shall suffice to preserve the Provider’s rights.

(6) In the case of defects involving quality, Sandstein may begin by providing supplementary performance (remedy for the defect). The Provider will set an appropriate deadline for Sandstein in writing. The supplementary performance takes place at the discretion of Sandstein. A minimum of three attempts at remedying the defect must be accepted.

(7) In addition, the provisions stated in § 14 (Liability) shall apply to claims for compensation lodged against Sandstein.

(8) Sandstein is not obligated to store the Provider’s respective Provider Content once it has been posted.

§ 7 Contract Conclusion between Providers and Customers

(1) Sandstein merely makes the use of the Platform available for the formation of contracts between Providers and Customers. Providers upload their product offers themselves on the Platform. Offers and Provider Contents published on the Platform by Providers are, as a matter of principle, not reviewed by Sandstein for their lawfulness, accuracy and completeness and do not represent the views and opinions of Sandstein.

(2) Products offered by Providers on the Platform are essentially non-binding presentations. The Customer does not make a binding offer until he or she places or books an order or requests a booking/reservation.

(3) The order, the booking/reservation or the booking request may be cancelled by the Customer at any point in time by activating the »cancel« or »back« button as well as by closing the browser window. An overview page appearing before the order, the booking or booking request is placed enables the User to check the data once again for accuracy and to correct any input or typing errors after activating the »back« button. The languages of German, Polish and English are available for concluding the contract.

(4) In the case of an order or a booking, the Customer will be notified by email regarding the confirmation of his or her offer. This means that a binding contract is formed between the Provider and the Customer regarding the goods or respectively, the accommodation services.

(5) In the event of a Customer making a booking enquiry or request, the contract regarding the accommodation services is realised only when the Provider confirms the offer after checking the availability of the accommodation. The confirmation generally takes place via email.

(6) Sandstein carries out merely a very limited verification of the data registered, as the identification of persons or individuals is possible only to a limited extent on the Internet. The possibility of incorrect contact data being entered in an Account can therefore not be excluded despite the various security precautions. Every User is thus obliged to ascertain the identity of his or her contract partner.

§ 8 Commission/Compensation

Sandstein shall be entitled to the payment of a commission once contracts are concluded (§ 7) between Providers and Customers. Particulars regarding the extent of the fees are detailed on the Platform.

§ 9 Payment and Default

(1) Unless otherwise agreed, invoices submitted by Sandstein are due to be paid within 14 days of the invoice date without any deduction or discount.

(2) If the Provider defaults on payment, interest will be charged at 8 percentage points above base rate from the time the default started. Sandstein further reserves the right to claim higher compensation for damage caused by the delay in payment.

(3) Despite any differing provisions on the part of the Provider, Sandstein shall be authorised to offset any payments first against any existing older debts and will inform the Provider regarding the nature of the offset made. If additional costs and interest have already been incurred, Sandstein shall be authorised to first credit the costs, then the interest and lastly the principal claim.

(4) Payment is deemed to have been received at the point in time when the amount is available for Sandstein’s disposal.

(5) Should Sandstein become aware of circumstances that give rise to reasonable doubt of the Provider’s creditworthiness, in particular if the Provider suspends or stops his payments, Sandstein shall be authorised to declare the entire remaining debt as due and payable. In this case, Sandstein shall also be authorised to demand advance payments or collateral as security or the posting of a surety bond.

§ 10 Offsetting, Retention and Assignment

(1) The Provider shall be entitled to offsetting and retention only if the counterclaims have been upheld by a court or are undisputed. However, without further conditions or requirements arising from Sentence 1, the Provider shall be

a) entitled to offsetting even if he or she wants to offset a claim by Sandstein which entails mutuality of obligation with the Provider (e.g., offsetting by using a claim for damage caused by non-performance or default against the claim for payment of the compensation owed under the contract),

b) entitled to retention even when the right of retention is asserted based on counterclaims from the same contractual relationship.

(2) Notwithstanding § 354a HGB [Handelsgesetzbuch - German Commercial Code], the Provider may assign claims based on this contract to third parties only with Sandstein’s prior written consent.

§ 11 Duties and Obligations of Users

(1) All Users of the Platform provided by Sandstein shall agree to the duties and obligations of conduct necessary to guarantee the orderly operation, non-compliance with which may lead to detriments, in particular to cancellation and claims for damages. These duties and obligations of conduct are listed below.

(2) The User must

a) provide complete and truthful information with any required registrations and other enquiries needed for the purposes of the Contract,

b) choose a password upon registration,

c) keep his or her password secret and under no circumstances divulge it to third parties; he or she must immediately inform Sandstein, if there is any indication that the Account is being or has been abused by third parties, and

d) immediately inform Sandstein of any subsequent modifications of the input data.

(3) The User shall be in particular obliged to ensure that the services provided by Sandstein are not used for vexatious litigation or in illegal or immoral ways and that laws and third party rights are respected and observed. This includes the following duties:

a) The User must ensure that his or she does not upload or submit inadmissible content to Sandstein or post such material on the Platform. The User must check before every data entry of Contents, whether he or she is entitled to the required rights to the work (e.g., texts, photographs, pictures, graphics, videos, musical pieces, samples) as well as trademarks, company names, logos and proprietary features. In the case of photographs and videos, further verification will be necessary to ensure that the necessary consent has been obtained in the case of images featuring persons; no uploading should take place without this consent.

b) The User is obliged to refrain from putting an excessive load on the network through indiscriminate or improper use of the services provided by Sandstein. The systematic copying of content made available by Sandstein is considered as particularly improper use. The User must observe the legal requirements
regarding data protection and data security.

c) The User may transfer the rights and obligations arising from this contract to third parties only after obtaining prior written consent from Sandstein.

(4) In addition, Users carrying out a trade are obliged to indicate this clearly and must comply with all relevant statutory obligations to provide information, including the information requirements relating to distance selling (the Telemarketing Act), the obligation to specify provider identification as well as information regarding the use and handling of data for their offerings and their Contents. In addition, they must independently observe all other regulations applicable to them (e.g., the Price Indication Ordinance, the Packaging Ordinance etc.).

(5) In the event of a breach of duty in accordance with paragraphs 2 to 4, Sandstein shall be entitled, at its discretion, to block and/or delete the Content with immediate effect and/or exclude the User temporarily or permanently from the services offered and/or terminate his or her Contract without notice. The same shall apply if third parties indicate to Sandstein that the User saves/stores and distributes Content in violation of the duties specified in paragraph 3 and 4, as long as the assertion of a legal violation is not obviously incorrect.

(6) The User must compensate Sandstein for any damage resulting from a breach of duty, unless the User is not responsible for it. The User shall indemnify and protect Sandstein from all disadvantages or penalties suffered by Sandstein due to third party claims for which the User’s harmful actions are responsible.

§ 12 Copyrights, Linking, Framing

(1) Depending on the individual case, the information contained on the Platform provided by Sandstein is subject to protection under intellectual property rights, copyright and/or trademark/brand name rights. The Providers are therefore not permitted to copy, edit and/or distribute the data beyond the extent of the use which is granted in individual cases by the rights holder.

(2) For the event that the Provider transmits Provider Content in connection with the services provided by Sandstein, for which he or she holds intellectual property rights, copyright and/or trademark/brand name rights, for the duration of the service delivery Sandstein shall be entitled in its service delivery function to the acts of exploitation which serve the purpose of delivering the individual services within the framework of Sandstein’s performance.

(3) It is pointed out to the Provider that the current state of the art does not completely exclude the possibility of third parties using the so-called frames to copy, link and/or publish Provider Content published on the Platform and possibly on cooperating Internet portals and then publishing the Content additionally in disguise as their own offer. Sandstein makes every effort to prevent such activities within the scope of what is technically and legally possible and reasonable. The Providers already now acknowledges this. A claim on the part of the Provider against Sandstein for preventing these activities does not exist.

§ 13 Contract Duration and Termination

(1) The contract regarding the use of the Platform (§ 5) is concluded for an indefinite period of time. The contract may be terminated by either party with a notice period of 14 days to the end of a calendar month. In the event that the User is inactive for a minimum of two years, Sandstein shall be entitled to delete the Account without notice and without requiring any additional explanation or further enquiry with the User.

(2) If a service contract is concluded for a minimum term (e.g., 12 months), termination is possible at the earliest upon expiration of this minimum period with a notice period of a month. The minimum contract period begins with the day the contract is concluded. If due notice is not given, the contract shall be extended for the duration of the agreed minimum period, but at most for one year.

(3) The right to contract termination for a good reason remains unaffected.

(4) Any notice for termination must be given in writing. If Sandstein gives notice to the User, text form (e.g., email, facsimile, unsigned letter) shall also suffice.

(5) Upon effectiveness of the termination, the User’s Account may be blocked and any Content still stored there may be deleted. The User is therefore advised to prepare and retain copies of all content he or she had stored on the Platform provided by Sandstein.

§ 14 Liability

(1) The scope of liability of Sandstein for the payment of compensation or for reimbursement of futile expenditures, whatever the legal basis (e.g., contractual and quasi-contractual obligations, breach of duty and tort), shall be limited as follows:

a) Liability for intent, gross negligence and on a guarantee is unlimited.

b) Liability for ordinary or slight negligence is excluded. In the case of a breach of a material contractual obligation whose fulfilment allows the proper execution of the contract in the first place and where the contracting partner can routinely and regularly rely on compliance (the »cardinal duties«), however, Sandstein shall be liable in the amount of damage typically foreseeable when the contract is concluded.

c) If Sandstein is found to default in its performance, Sandstein shall also accept unlimited liability for this performance even in the case of a fortuitous event, unless the damage would have occurred even if the performance had been fulfilled in a timely fashion.

(2) Inasmuch as the liability of Sandstein is excluded or limited, this also applies to the personal liability of employees, representatives and agents of Sandstein.

(3) The limitations of this § 14 (Liability) do not apply to Sandstein’s liability for harm to life, limb or health and to claims made under the Produkthaftungsgesetz [German Product Liability Act].

§ 15 Data Protection

Data made available by Users will be stored and processed by Sandstein exclusively for the purposes of executing the contract by taking into account all relevant statutory data protection regulations (see the Data Privacy Statement of Sandstein for further information).

§ 16 Final Provisions

(1) The laws of the Federal Republic of Germany shall apply with the exclusion of the UN Convention on International Sales of Goods.

(2) The place of performance and execution of contracts with merchants, legal entities under public law or public-law special funds shall be Dresden. The exclusive court of jurisdiction for all disputes arising out of or in connection with the contracts with merchants, legal entities under public law or public-law special funds shall be Dresden. For legal actions filed by Sandstein against a Provider, any other legal place of jurisdiction shall also apply.

 

Status date: August 2013
© e|s|b Lawyers

General Terms and Conditions of Use »via gustica« for Customers


§ 1 General Information

(1) The company Sandstein Neue Medien GmbH, Goetheallee 6, 01309 Dresden, Germany (hereinafter also referred to as »Sandstein«) operates an information portal and an online marketplace on the websites www.via-gustica.de and shop.via-gustica.de (hereinafter collectively referred to as »Platform«).

(2) For customers using the Platform within the meaning of § 2 d) of these General Terms and Conditions of Use, the General Terms and Conditions of Use of Sandstein as stated below shall apply exclusively insofar as no individual deviation has been contractually agreed upon in a particular case. Any of the customer’s diverging General Terms and Conditions of Business shall be rejected. Consequently, the customer’s General Terms and Conditions of Business shall be inapplicable even in instances where Sandstein is not separately rejecting their applicability or when Sandstein makes reference to a letter that may contain business terms and conditions of the customer or refers to any such terms and conditions.

(3) Sandstein retains the right to amend these General Terms and Conditions of Use provided that there is a valid reason to do so. Valid reasons for amendments include unforeseeable events not initiated by Sandstein and on which Sandstein had no influence as well as changes to existing legislation or when a judicial decision or court ruling requires an amendment so that performance may be maintained. In such a case, Sandstein shall notify the visitor of the proposed alteration of the Terms and Conditions, specifying the reason and the specific extent in writing (e.g., via email). The amendments shall be considered as approved insofar as the visitor does not express an objection in writing. Sandstein shall especially point out this stipulated implication to the visitor in the notification letter. The objection must be received by Sandstein within six weeks following the receipt of the notification. If the visitor exercises the right to object, the requested change shall be deemed as rejected. The contract shall then continue without the proposed amendments, but may be terminated by either party at any time without notice.

§ 2 Definitions

For the purposes of these General Terms and Conditions of Use, the following definitions shall apply:

a) »Visitor« defines a person who accesses the Internet pages of Sandstein;

b) »Users« are Visitors that have entered their information on the Platform for the purpose of setting up accounts or for the one-off processing of an order or for booking a request;

c) »Providers« are businesses, legal entities under public law or respectively, public law     entities with special public funds that offer or advertise their services on the Platform;

d) »Customers« are Users that place orders or book requests for products that are subject to a fee payable to the Providers;

e) »Account« defines the User’s account;

f) »Products« refer to the range of products offered by the Providers, in particular goods originating from and accommodation services offered in the German-Polish border region of Oberlausitz-Niederschlesien [Upper Lusatia-Lower Silesia], which the Provider has entered in the databank of offers on the Platform;

g) »Advertisements« are promotional notices and announcements displayed by the Providers and these may consist of texts and/or pictures/images, and in particular of banners;

h) »Provider Contents« include all contents offered by the Providers, such as in particular product offers, advertisements, self-presentations and profile data;

i) »Inadmissible content« refers to content that violates the law, is contrary to an official  regulation/policy or accepted principles of morality; this particularly includes violations of the General Act on Equal Treatment or Equal Opportunity [General Anti-Discrimination Act] and the statutory provisions of the Jugendschutzgesetz [law for the protection of children and minors - Youth Protection Act] and the Data Protection/Privacy Act, criminal acts anti-competitive actions, violations of third party rights, especially the general Persönlichkeitsrecht [right to protection of an individual’s sphere of life such as privacy, physical integrity, health, freedom of action], the right to specific images and logos trademarks and copyrights, name rights, brand names, company names and other industrial or intellectual property rights, as well as pornographic content, content that glorifies violence, discriminatory content that expresses racist and/or extreme right-wing views as well as content that offends religious sentiment.

§ 3 Services provided by Sandstein

The services are provided by Sandstein for the Visitor or Customer free of charge and strictly on a voluntary basis. Visitors or Customers will have no grounds to claim damages against    Sandstein regarding the execution and maintenance of the offer. Sandstein reserves the right to withdraw the free offer at any time without prior notice.

§ 4 Contract Conclusion between Providers and Customers

(1) Sandstein merely makes the use of the Platform available for the formation of contracts between Providers and Customers. Providers upload their product offers themselves on the Platform. Offers and Provider Contents published on the Platform by Providers are, as a matter of principle, not reviewed by Sandstein for their lawfulness, accuracy and completeness and do not represent the views and opinions of Sandstein.

(2) Products offered by Providers on the Platform are essentially non-binding presentations. The Customer does not make a binding offer until he or she places or books an order or  requests a booking/reservation.

(3) The order, the booking/reservation or the booking request may be cancelled by the Customer at any point in time by activating the »cancel« or »back« button as well as by closing the browser window. An overview page appearing before the order, the booking or booking request is placed enables the User to check the data once again for accuracy and to correct any input or typing errors after activating the »back« button. The languages of German, Polish and English are available for concluding the contract. Sandstein will store the order or the reservation, send it to the Customer along with the confirmation mailing and will be able to send a copy of it to the Customer upon the latter’s written request in case of potential loss of the documentation.

(4) In the case of an order or a booking, the guest will be notified by email regarding the   confirmation of his or her offer. This means that a binding contract is formed between the Provider and the Customer regarding the goods or respectively, the accommodation services.

(5) In the event of a Customer making a booking enquiry or request, the contract regarding the accommodation services is realised only when the Provider confirms the offer after checking the availability of the accommodation. The confirmation generally takes place via email.

(6) Sandstein carries out merely a very limited verification of the data registered, as the identification of persons or individuals is possible only to a limited extent on the Internet. The possibility of incorrect contact data being entered in an Account can therefore not be excluded despite the various security precautions. Every User is thus obliged to ascertain the identity of his or her contract partner.

§ 5 Duties and Obligations of Users

(1) All Users of the Platform provided by Sandstein shall agree to the duties and obligations of conduct necessary to guarantee the orderly operation, non-compliance with which may lead to detriments, in particular to cancellation and claims for damages. These duties and obligations of conduct are listed below.

(2) The User must

a) provide complete and truthful information with any required registrations and other enquiries needed for the purposes of the Contract,

b) upon registration choose a password and a user name, whereby the user name must correspond to the personal email address and may neither violate third party rights or other brand name/trademark rights nor offend common decency or good manners,

c) keep his or her password secret and under no circumstances divulge it to third parties; he or she must immediately inform Sandstein, if there is any indication that the Account is being or has been abused by third parties, and

d) immediately inform Sandstein of any subsequent modifications of the input data.

(3) The User shall be in particular obliged to ensure that the services provided by Sandstein are not used for vexatious litigation or in illegal or immoral ways and that laws and third party rights are respected and observed. This includes the following duties:

a) The User must ensure that his or she does not upload or submit inadmissible content to Sandstein or post such material on the Platform. The User must check before every data entry of Contents, whether he or she is entitled to the required rights to the work (e.g., texts, photographs, pictures, graphics, videos, musical pieces, samples) as well as trademarks, company names, logos and proprietary features. In the case of photographs and videos,  further verification will be necessary to ensure that the necessary consent has been obtained in the case of images featuring persons; no uploading should take place without this consent.

b) The User is obliged to refrain from putting an excessive load on the network through indiscriminate or improper use of the services provided by Sandstein. The systematic copying of content made available by Sandstein is considered as particularly improper use. The User must observe the legal requirements regarding data protection and data security.

c) The User may transfer the rights and obligations arising from this contract to third parties only after obtaining prior written consent from Sandstein.

(4) In the event of a breach of duty in accordance with paragraphs 2 and 3, Sandstein shall be entitled, at its discretion, to block and/or delete the Content with immediate effect and/or exclude the User temporarily or permanently from the services offered and/or terminate his or her Contract without notice. The same shall apply if third parties indicate to Sandstein that the User saves/stores and distributes Content in violation of the duties specified in paragraph 3, as long as the assertion of a legal violation is not obviously incorrect.

(5) The User must compensate Sandstein for any damage resulting from a breach of duty unless the User is not responsible for it The User shall indemnify and protect Sandstein from all disadvantages or penalties suffered by Sandstein due to third party claims for which the User’s harmful actions are responsible.

§ 6 Copyrights, Trademark Rights and other Intellectual/Industrial Property Rights

(1) Depending on the individual case, the information contained on the Platform provided by Sandstein is subject to protection under intellectual property rights, copyright and/or trademark/brand name rights. The Providers are therefore not permitted to copy, edit and/or distribute the data beyond the extent of the use which is granted in individual cases by the rights holder.

(2) For the event that the Provider transmits Provider Content in connection with the services provided by Sandstein, for which he or she holds intellectual property rights, copyright and/or trademark/brand name rights, for the duration of the service delivery Sandstein shall be entitled in its service delivery function to the acts of exploitation which serve the purpose of delivering the individual services within the framework of Sandstein’s performance.

§ 7 Deletion of the Account

(1) Subject to 14 days’ notice, Sandstein shall be entitled to delete the Account with an advance notice sent to an email address supplied by the User. In the event that the User is inactive for a minimum of two years, Sandstein shall be entitled to delete the Account without notice and without requiring any additional explanation or further enquiry with the User.

(2) The User may at any time, in writing or via an email, which must be sent from the email   address stored in his or her Account, request the immediate deletion of the Account.

(3) The right to the deletion or blocking of the Account for a good reason remains unaffected.

(4) Upon deletion of the Account, any Content that may still be stored there will be deleted. The User is therefore advised to prepare and retain copies of all content he or she had stored on the Platform provided by Sandstein.

§ 8 Liability

(1) The scope of liability of Sandstein for the payment of compensation or for reimbursement of futile expenditures, whatever the legal basis (e.g., contractual and quasi-contractual obligations, breach of duty and tort), shall be limited as follows:

a) Liability for intent, gross negligence and on a guarantee is unlimited.

b) Liability for ordinary or slight negligence is excluded. In the case of a breach of a material contractual obligation whose fulfilment allows the proper execution of the contract in the first place and where the contracting partner can routinely and regularly rely on compliance (the so-called cardinal duties), however, Sandstein shall be liable in the amount of damage typically foreseeable when the contract is concluded.

c) If Sandstein is found to default in its performance, Sandstein shall also accept unlimited liability for this performance even in the case of a fortuitous event, unless the damage would have occurred even if the performance had been fulfilled in a timely fashion.

(2) Inasmuch as the liability of Sandstein is excluded or limited, this also applies to the personal liability of employees, representatives and agents of Sandstein.

(3) The limitations of this § 8 (Liability) do not apply to Sandstein’s liability for harm to life, limb or health and to claims made under the Produkthaftungsgesetz [German Product Liability Act].

§ 9 Data Protection

Data made available by Users will be stored and processed by Sandstein exclusively for the purposes of executing the contract by taking into account all relevant statutory data protection regulations (see the Data Privacy Statement of Sandstein for further information).

§ 10 Final Provisions

(1) The laws of the Federal Republic of Germany shall apply with the exclusion of the UN Convention on International Sales of Goods. Mandatory provisions of the state where the User regularly resides shall remain unaffected.

(2) The place of performance and execution of contracts with merchants, legal entities under public law or public-law special funds shall be Dresden. The exclusive court of jurisdiction for all disputes arising out of or in connection with the contracts with merchants, legal entities under public law or public-law special funds shall be Dresden. For legal actions filed by Sandstein against a User, any other legal place of jurisdiction shall also apply.

 

Status date: August 2013

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