General Terms and Conditions for Advertising Customers of The Jodel Venture GmbH
§ 1 Subject matter of the contract
1.1
The Jodel Venture GmbH (hereinafter referred to as “Jodel”) and the signing contractual partner (“Customer”) agree to perform the services mutually promised to each other in the concluded contract on the basis of these General Terms and Conditions as well as our price list (see offer), provided that the Customer is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB) or a legal entity under public law. Our general terms and conditions and our price list shall apply exclusively. We do not recognize any terms and conditions of the customer that conflict with or deviate from our terms and conditions, unless we have expressly agreed to their validity in writing.
1.2
Our terms and conditions shall also apply to all future transactions with the customer in the version valid at the time of the last conclusion of the contract. However, they shall only apply to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB).
§ 2 Conclusion of contract
The contract shall be concluded when Jodel receives the dated and signed acceptance of the contract offer from the Customer in the original, as a fax or copy, as a PDF or in another electronic form (e.g. email or DocuSign). Contract offers of Jodel which have been changed in terms of content by the Customer shall be deemed to be a new offer of the Customer, the contract shall then only come into existence upon explicit acceptance by Jodel, a performance of services shall not be deemed to be an implied acceptance.
§ 3 Description of services
3.1
The contract obligates Jodel to publish the listed products agreed in the contractual offer and to provide the services listed therein (both: “service elements”), in accordance with these terms and conditions.
3.2
The Contract entitles Jodel to use the Customer Data for trend analyses and overviews, provided that this does not involve personal data of the Customer’s employees. The respective results shall be used exclusively for internal purposes and, at most, shall be published after consultation with the Customer, provided that the data is not anonymous, aggregated data.
3.3
Exclusion of competition shall not be granted.
§ 4 Remuneration for services
The remuneration for the services to be provided by Jodel shall be determined in accordance with the prices stated in the contractual offer. Prices for services which are not included in the price list are subject to individual agreement between Jodel and the Customer.
§ 5 Cost regulation and payment agreements
5.1
Invoicing shall take place at the end of the campaign, unless otherwise agreed in an individual contract. Jodel reserves the right to demand advance payment after one month of the campaign start. The invoice amount is based on the actual expenditure of the advertising month. The payment claim is due 20 days after the invoice date without deduction. In the event of late or deferred payment, interest of 6% above the prime rate of the European Central Bank and collection costs will be charged. In the event of a delay in payment, Jodel shall be entitled to defer the publication of individual service elements until payment has been made in full, insofar as the Customer is in arrears with the payment of a not merely insignificant part of the remuneration owed. This does not apply if the customer has a right of retention. If, in the case of payment by installments, an installment is not paid within 30 days of the due date, the entire remaining amount shall become due immediately.
5.2
All prices quoted are exclusive of the statutory value added tax applicable at the time of invoicing.
5.3
Payments by the Customer shall always be offset first against the oldest existing claim. Jodel may refuse to provide its services until all payments due have been made by the Customer.
5.4
We reserve the right to send invoices and all correspondence in connection with invoices, such as, but not limited to, payment reminders, only as an attachment in an e-mail. For this purpose, the Customer undertakes to provide an up-to-date e-mail address for dispatch and to inform Jodel promptly of any changes to the e-mail address.
5.5
Performance periods and quotas for agreed services stated on offers or order forms represent provisional estimates and are therefore not legally binding with regard to their scope or duration as orientation values, unless expressly agreed otherwise between the parties. In this context, Jodel reserves the right to provide agreed services within a reasonable period of time, even after the specified campaign period, if the services could not be provided during the original campaign period for reasons for which Jodel is not responsible. If this is the case, Jodel will inform the Customer of the shortfall in the estimated contingent or the exceeding of the provisionally stated campaign period and notify the Customer of the new campaign period.
§ 6 Principles of cooperation
6.1
The Customer’s rights under the contract are non-transferable and non-assignable. Any transfer of the contract by third parties shall require the consent of Jodel.
6.2
Insofar as Jodel has received the Customer’s email address in connection with the Customer’s order, Jodel is entitled to send the Customer information, questionnaires and other commercial communication concerning the ordered and similar services of Jodel by email even after the expiry of the contract. The Customer may object to this at any time informally and free of charge by email to Jodel with effect for the future. Jodel will inform about the right of objection in every email.
6.3
The Customer undertakes to provide Jodel in good time with all information and documents which are necessary and expedient for the achievement of the objectives described in the contract. This includes in particular the delivery of Ad texts and layouts in digital form. This also includes that the Customer informs Jodel immediately if one of the service elements ordered by him is no longer up to date. Furthermore, the Customer shall be obliged to cooperate as described for individual service elements, if any. If these requirements are not met in good time, any deadlines for Jodel to provide the service will be extended accordingly.
6.4
Insofar as the offer specifies a fixed start date for the respective campaign, such date, in contrast to the campaign duration, is binding for both parties as a fixed date for the performance of the services by Jodel. If this date cannot be met due to a lack of cooperation on the part of the Customer (e.g. due to Advertising Media not being delivered to Jodel), the Customer’s claim to the contractual services shall lapse if, prior to the provision of cooperation by the Customer, a specified start date was exceeded by more than 7 days.
6.5
Jodel reserves the right not to execute orders placed by the Customer insofar as the content to be published violates statutory provisions, official prohibitions, the rights of third parties or morality or is contrary to Jodel’s terms and conditions (“Inadmissible Content”). The same shall apply insofar as links are set to service elements on behalf of the Customer which directly or indirectly lead to pages with inadmissible content. The Customer’s obligation to pay shall remain unaffected thereby. Jodel is only obliged to remove such inadmissible content within the framework of the statutory provisions and at the request of the Customer. Insofar as claims are asserted against Jodel on account of inadmissible content or other breaches of the law for which the Customer is responsible, the Customer shall indemnify Jodel upon first request. The indemnity shall include the necessary legal costs.
6.6
Jodel accepts no responsibility for data material supplied, Ad texts or storage media relating thereto and is in particular not obliged to store these or to return them to the Customer.
6.7
Jodel is entitled to engage vicarious agents.
6.8
The Customer shall configure his own infrastructure in accordance with the respective state of the art in such a way that it is neither the target nor the starting point of disruptions which are likely to impair the Internet service offered by Jodel or, in general, smooth and faultless network operation.
6.9
The Customer warrants that all of its own content or parts thereof published by it on the Internet or handed over to Jodel for publication are free from the rights of third parties. The Customer shall compensate Jodel for any damages arising from a violation of this provision upon first request.
6.10
The Customer agrees that Jodel may use the Customer’s logo for advertising purposes on the Jodel homepage or on other advertising formats used by Jodel. Jodel is also entitled to use advertisements created for the Customer as a means of reference vis-à-vis customers or interested parties, provided that the advertisements concerned have previously been published by Jodel on behalf of the Customer.
§ 7 Copyrights
7.1
This Agreement does not include any transfer of ownership or rights of use, licenses or other rights to the Software to the Customer. All rights to the Software used, to marks, titles, trademarks and copyrights and other commercial rights of Jodel shall remain with Jodel without restriction.
7.2
All work results and information published by Jodel are subject to Jodel’s copyright. Excluded from this are only those work results and information published by Jodel which were created by the Customer or a third party and were taken over by Jodel unchanged for publication on the Internet.
7.3
Upon placing an order for the publication of Advertisements, Jodel shall receive the sole database rights to the Customer’s Advertisements published by Jodel.
7.4
The Customer shall bear sole responsibility under press law, competition law and other law for the content supplied by him for publication.
7.5
By placing the order, the Customer confirms that the holder of copyright, ancillary copyright and other rights to the documents and data provided by him has acquired all rights of use required for placement on the Internet or can freely dispose of them.
§ 8 Warranty, defects
8.1
Jodel warrants that the services commissioned by the Customer, to be provided by Jodel and to be published on the Internet will be implemented in accordance with the usual technical standards.
8.2
The Customer’s warranty rights are subject to the Customer notifying Jodel in writing of any defects without delay, at the latest 7 days after the service elements have been placed on the Internet, and giving notice of at least one defect.
8.3
In the event of a defect, Jodel shall initially be entitled, at Jodel’s discretion, either to remedy the defect or to produce a new work for the Customer in the sense of a lengthening (subsequent performance). For this purpose, the customer must give Jodel the time and opportunity required for subsequent performance. Jodel is obliged to bear all expenses necessary for the purpose of subsequent performance. If the customer’s request for rectification of the defect proves to be unjustified, Jodel may demand compensation from the customer for the costs incurred as a result.
8.4
Only if the subsequent performance fails, the Customer may demand a reduction or assert a right of withdrawal for individual elements of performance. In the event of an insignificant defect, however, there shall be no right of rescission. The Customer is obliged to declare within a reasonable period of time upon request by Jodel whether he continues to insist on the delivery due to the delay and/or which of the claims and rights he is entitled to assert. In repeated cases, the Customer shall be entitled to terminate the entire contract for the future. The contract cannot be terminated with effect for performance elements already published.
8.5
Section 9 of these General Terms and Conditions shall apply to the limitation periods. Claims of the Customer for damages or reimbursement of futile expenses shall only exist in accordance with Section 10 of these General Terms and Conditions.
8.6
Due to a breach of duty which does not consist of a defect, the Customer may only rescind or terminate the contract if Jodel is responsible for the breach of duty.
§ 9 Limitation
9.1
All warranty claims of the Customer shall become statute-barred within one year of the statutory commencement of the limitation period.
9.2
Mandatory statutes of limitation shall remain unaffected. The relief from the statute of limitations referred to in clause 9.1 shall not apply to claims based on injury to life, body or health, to claims based on intent and/or gross negligence and to claims based on the assumption of a guarantee.
9.3
The limitation periods arising under Sections 9.1 and 9.2 for claims based on material defects and defects of title shall apply mutatis mutandis to competing contractual and non-contractual claims for damages by the customer based on a defect. However, if in individual cases the application of the statutory limitation rules should lead to an earlier limitation of the competing claims, the statutory limitation period shall apply to the competing claims. The statutory limitation periods under the Product Liability Act shall remain unaffected in any case.
9.4
Insofar as the limitation of claims against Jodel is shortened in accordance with clauses 9.1 to 9.3, this shortening shall apply accordingly to any claims of the Customer against the legal representatives, employees, staff, agents and vicarious agents of Jodel which are based on the same legal grounds.
§ 10 Liability
10.1
Subject to the provisions of Clause 10.2, Jodel is liable for damages – in the case of contractual, non-contractual or other claims for damages, irrespective of the legal grounds, in particular on account of defects, default and impossibility, culpa in contrahendo and tort – only in the case of intent and / or gross negligence, including intent and / or gross negligence on the part of Jodel’s representatives or their vicarious agents. In addition, Jodel shall also be liable in the event of simple negligence, including simple negligence on the part of Jodel’s representatives and vicarious agents, for damages arising from the breach of a material contractual obligation, i.e. an obligation the fulfillment of which is a prerequisite for the proper performance of the contract and on the fulfillment of which the customer may therefore regularly rely (cardinal obligation). Insofar as Jodel is not accused of any intentional breach of duty, the liability for damages shall, however, be limited to the foreseeable, typically occurring damage.
10.2
Claims for damages arising from injury to life, limb and health as well as Customer claims under the Product Liability Act and other mandatory statutory liability provisions shall remain unaffected by the exclusions and limitations of liability set out in Clause 10.1. The above exclusions and limitations of liability shall also not apply if Jodel has fraudulently concealed a defect or if Jodel is liable on the basis of the assumption of a guarantee or on the basis of the assumption of a procurement risk.
§ 11 Exemption from infringement of property rights
11.1
If claims (“Property Right Claim”) are made against Customers by third parties for infringement of patents, copyrights, trademarks, trade names or trade secrets by a performance of Jodel (“Property Right Infringement”), Jodel shall indemnify Customer against all costs (including reasonable legal defense costs) and claims, incurred by it as a result of final judgments of competent courts or written settlements entered into by Jodel, provided that (i) the cause of the Intellectual Property Right Infringement has not been set by the Customer, for example in the case of the publication of Inadmissible Content pursuant to sec. 6.6, (ii) Customer notifies Jodel in writing within no more than twenty (20) business days after the initial claim is made, (iii) Jodel retains sole control of the defense of the IPR Claim, and (iv) Customer provides reasonable assistance and all information to enable Jodel to perform obligations hereunder. The foregoing obligation shall not apply to any action or statement not previously agreed to in writing by Jodel and shall not apply to the extent Customer continues infringing activities after being notified of changes that would have prevented infringement. If an infringement of an Intellectual Property Right is determined by a court of competent jurisdiction or is deemed possible by Jodel, Jodel may, at its sole discretion and at its own expense, either (i) replace or modify the Services in such a way that there is no longer an infringement of an Intellectual Property Right, or (ii) procure for the Customer a right to use the Intellectual Property Right, or (iii) if measures under (i) or (ii) are not possible or not reasonable, terminate this Agreement extraordinarily with immediate effect.
§ 12 Secrecy
12.1
Jodel undertakes to keep secret all information marked as “confidential” which Jodel receives from the Customer under this Agreement. This obligation will be fulfilled by Jodel even after expiry of the term of the contract.
12.2
Insofar as Jodel processes personal data, Jodel will process all data exclusively in accordance with the current data protection declaration. For the term of the contract, Jodel undertakes to maintain a current data protection declaration and to make it available to the data subjects on the Jodel homepage and on all other online services which Jodel operates as the responsible party.
12.4
It is the Customer’s responsibility to exercise the greatest possible care when using IDs, passwords, user names or other security devices provided in connection with the Services and to take every measure to ensure the confidential, secure handling of the data and to prevent their disclosure to third parties. The Customer shall be held responsible for the use of his passwords or user names by third parties if he cannot sustainably demonstrate that the access to such data was not caused by himself and that the reasons for this could not have been influenced by him. The customer is obliged to inform Jodel immediately of any possible or already known unauthorized use of his access data. In the event of a breach by the Customer of one or more of the obligations set out in these GTC, in particular but not exclusively those set out in this clause, Jodel is entitled to terminate the Services without further notice and to remove them from the Website without waiving any payment obligations on the part of the Customer.
§ 13 Warning, judicial decision
13.1
If the Customer has been warned about a product published on Jodel, has already issued a cease-and-desist declaration with regard to certain advertisements (content) or has been served with a corresponding injunction, judgment or other court decision or official order, the Customer is obliged to inform Jodel of this immediately in writing. If the Customer fails to do so, Jodel shall not be liable. The customer is then obliged to indemnify Jodel against any claims by third parties on first demand and to compensate Jodel for any damage.
§ 14 Term
14.1
The contract shall come into force when Jodel receives the acceptance of the contract. The term of the contract shall also commence upon receipt of the acceptance or, if a different commencement date has been agreed, upon such date. The contract shall end automatically upon expiry of the agreed term.
14.2
Agreed service elements can only be called up within the agreed contract term. Upon expiration of the contract term, the customer’s right to call up service claims not yet asserted before expiration of the contract term shall expire.
§ 15 Changes in performance
15.1
If the Customer wishes to change the contractually determined scope of a service to be provided by Jodel, he is obliged to express this wish for change to Jodel in text form. Likewise, Jodel will inform the Customer if a change to the contract appears necessary with regard to the feasibility of the project, in particular for technical, design or legal reasons.
15.2
Jodel will communicate what effects the desired change will have, in particular with regard to remuneration, additional work and deadlines. The contracting parties shall immediately agree on the proposal for the implementation of the change request and, if necessary, conclude a supplementary agreement. If no agreement is reached or if the change procedure ends for any other reason, the original scope of services shall remain unchanged. The same shall apply in the event that the customer does not agree to a change in the services.
15.3
The dates affected by the change procedure shall be postponed to the extent necessary, taking into account the duration of the review, the duration of the vote on the change proposal and, if applicable, the duration of the change requests to be executed plus a reasonable start-up period. Jodel shall notify the Customer of the new dates.
15.4
Jodel shall not be liable for delays, legal or technical problems or other adverse effects on the subject matter of performance of a project if the Customer has disregarded Jodel’s proposal for a change in performance.
15.5
If the Customer wishes to pause the project, Jodel shall be entitled to invoice all services already rendered and to communicate any additional expenses incurred due to the postponement of deadlines.
§16 Other disruptions to performance, withdrawal & termination
16.1
If the performance of services becomes impossible for reasons for which the Customer is responsible, Jodel shall in principle retain its claim to the full agreed fee. The cancellation fee will be based on the agreed fee and the right to prove higher damages is reserved.
16.2
A deadline for performance or subsequent performance can only be used after the unsuccessful expiry of this period to withdraw from the contract or to claim damages in lieu of performance if the corresponding legal consequence was communicated when the deadline was set and the statutory grounds for withdrawal also exist in all other respects.
16.3
If the customer withdraws from the contract due to a breach of an obligation relating to a delimitable service, the other services shall not be affected by this withdrawal.
16.4
If a contractual partner becomes insolvent or if insolvency proceedings are opened against its assets or if the opening is rejected for lack of assets, the other contractual partner shall be entitled to terminate the contractual relationship in accordance with the above provisions.
§ 17 Final provisions
17.1
The law of the Federal Republic of Germany shall apply to the contract and its interpretation.
17.2
If the customer is a merchant as defined by. § 1 (1) of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the courts in Berlin shall have exclusive jurisdiction for all disputes arising from or in connection with the relevant contractual relationship. In all other cases, Jodel or the Customer may bring an action before any court having jurisdiction on the basis of statutory provisions.
17.3
Should any provision in these General Terms and Conditions or any provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.