General Terms and Conditions
(Download PDF: Trebbau General Terms of Trade.pdf):
Section I: General Provisions 1
1. Scope 1
2. Definitions of terms 1
Section II: Provisions on the exploitation of data, in particular addresses and inserts and the additional services associated therewith 1
1. Address owner contract, granting rights of usage 1
2. Contractual data relationship, control 1
3. Contractual relationship with the advertiser 2
4. Prices, Terms and Conditions of payment 2
5. Acquisition of rights of usage and the obligations of the advertiser 2
6. Data Protection Act, Robinson file 3
7. Guarantees, assignment, liability 3
8. Contractual penalties in favour of the address owner 4
9. The right to withhold performance, termination without notice 4
10. Transmission of data in exchange for services in return 4
Section III: Other services 4
1. Conclusion of contract 4
2. Prices, methods of payment 4
3. Supply, delays, third-party services 4
4. Lettershop and distribution services 5
5. Printing, production and media services 5
6. Guarantees, liability 5
7. Interruptions to service 5
8. Data processing 5
9. Retention of title 6
10. Transfer of risk, dispatch 6
Section IV: Final provisions 6
1. Final provisions 6
The following General Terms and Conditions (GTC) are a component of any and all contracts entered into with
Trebbau direct media GmbH
Schönhauser Str. 21
Tel.: +49 (0)2 21/3 76 46-0
Fax: +49 (0)2 21/ 3 76 46-48 99
District Court of Cologne HRB 16272
VAT ID No.: DE 123050075
Member of the DDV Deutscher Dialogmarketing Verband e.V.
–Hereinafter referred to as the Contractor–
1.1. Any additional verbal agreements or deviating provisions must be explicitly agreed to. If, when concluding the contract, an agency or list broker is involved as a representative of the address owner or the advertiser, the Quality and Service Standards (QuLS) of the DirectMail Services Council and of the List Council of the Deutscher Dialogmarketing Verband e.V. (DDV) shall also apply. The same applies if an agency or list broker becomes a direct contractual partner.
1.2. Any General Terms and Conditions of the contract partner which contradict or deviate from the following Terms and Condition shall not apply. The following General Terms and Conditions shall apply exclusively even if the Contractor supplies goods or provides services in full knowledge of any terms contradictory to or deviating from the following terms and conditions on the part of the contractual partner or if the contracting party explicitly states that it is only willing to enter into a contract based on its Terms and Conditions.
1.3. The following Terms and Conditions of Sale only apply to companies in the meaning intended in § 310 para. 1 German Civil Code (BGB).
2. Definitions of terms
2.1. Address owner = the person who is authorised to make use of the address and who is granting rights of usage for the address and/or other data
2.2. Data = the information, usually relating to a person, provided for use by the address owner, such as postal address, year of birth and another characteristic of the group
2.3. Address group = address lists = addresses and/or other data which is selected by group characteristics
2.4. Inserts = inserts in catalogues, parcels, media or other business communications from the advertiser which are to be linked to mailings or other advertising on the part of the address owner
2.5. Advertiser = the user of the rights of usage for the data in connection with its own business communications
2.6. Control address = data created for monitoring purposes (e.g. addresses, e-mail, personal characteristics) which are incorporated into the catalogue of data to be used.
2.7. Persons concerned = persons to whom the data relates
2.8. Customer = entity which contracts a service
2.9. Contractor = service provider who functions as the contractual partner of the customer (in this case Trebbau direct media GmbH)
Provisions on the exploitation of data, in particular addresses and inserts and the additional services associated therewith
1. Address owner contract, granting rights of usage
1.1. The address owner shall grant the Contractor the exploitation rights stipulated in more detail in the relevant contract for the agreed period, respecting the fact that the address owner remains the data controller in respect of data protection and retains the associated authority to transfer rights of usage for specified data to third parties for commercial purposes, usually for single use. The address owner guarantees that it is entitled to transfer these rights in respect of the data and thereby enable use of said data.
1.2. The Contractor is entitled to initiate and conclude contracts for use of the data transferred to it for use in its own name and to grant appropriate rights of usage to third parties for this purpose. The Contractor is entitled to issue subcontracts or undertake marketing via other contractors. For this purpose, the address owner agrees that the Contractor and any third parties contracted by it may, in the course of normal advertising, offer for use the data provided by the owner of the address and the following associated information.
1.3. The address owner hereby undertakes to inform the Contractor adequately and to the best of its knowledge about the object of the data for which the rights are being transferred, in particular about the quality (source/means by which acquired, whether up to date, buyer/interested party addresses, compiled addresses, return rates etc.). The address owner hereby authorises the Contractor to use the information provided to it in this context in the relevant advertising. Any estimates made by the address owner must likewise be made to the best of its knowledge and must be identified as such.
1.4. In principle, the Contractor is free to make its own business decisions. However, within the framework of the considerations to be applied in respect of data protection, once shown the measures planned by the advertiser, the address owner shall be entitled to refuse these without being obliged to explain the considerations which have led to this decision or may grant approval subject to conditions which it considers in the best interests of the persons concerned. In the event that an individual contract between the Contractor and the advertiser fails to be executed as a result of these rights being exercised, the Contractor shall be entitled to withdraw from the individual contract with the address owner.
1.5. The contractual relationship between the address owner and the Contractor may include other obligations to provide services on the part of the Contractor, in particular advice on the selection of the data which can be marketed, selection criteria to be applied or the provision of technical services. The Contractor is likewise entitled to issue subcontracts in this respect.
2. Contractual data relationship, control
2.1. Any and all of the authorisations granted above or below are granted subject to the limitation that the address owner remains the data controller in respect of data protection. The Contractor’s right to issue instructions and the rights of the advertiser in respect of third parties derived therefrom are limited in respect of the data by the provisions of this regulation on the use of data and any additional relevant provisions, as appropriate, and by any decisions made by the address owner on grounds of data protection.
2.2. The parties hereby agree that in the absence of any other deviating agreements, the data is not provided directly to the advertiser. Rather, the data continues to be controlled by the address owner within the framework of data processing undertaken on its behalf – subcontracted to a processor previously approved by the address owner such as qualified data processors or lettershops if necessary – and is made accessible to the advertiser for use. Who is the contractual partner of the address owner in respect of the contractual data will be determined based on its agreements with the persons concerned. All agreements relating to processing of the contractual data must be made in writing in accordance with the law.
2.3. If the advertiser is explicitly approved as the processor in writing in the order or in another document, the data can be delivered directly to the advertiser.
2.4. Insofar as the Contractor or the advertiser acquire information on the data and the further processing thereof in connection with the data to be used, knowledge of which is essential in order to comply with the legal obligations on the address owner, it shall immediately inform the owner and shall, in particular, support the latter in complying with its statutory obligations in respect of monitoring and information by employing appropriate contractual provisions and technical precautions when involving third parties. This applies in particular to the statutory obligation on the address owner to take such technical and organisational measures as are necessary in order to ensure compliance with the provisions of the German Data Protection Act (BDSG, § 9 BDSG plus Annex) and to meet any information and reporting obligations, such as those
pursuant to § 42a BDSG on the illegal acquisition of data and the duty to fulfil any requests for information, reporting, deletion or blocking by the persons concerned (§§ 34, 35 BDSG). The address owner, the Contractor and the advertiser shall mutually assist one another in complying with the data protection regulations, in particular in meeting any statutory obligations to provide information by, among other things, immediately providing any relevant information.
3. Contractual relationship with the advertiser
3.1. The advertiser hereby accepts that the agreement on use of the data is entered into exclusively between it and the Contractor. Insofar as the advertiser processes the data or has it processed by a third party commissioned by it pursuant to the agreements entered into, this data processing shall be undertaken within the framework of a processing relationship for the contract data based on a sub-contracting relationship with the Contractor, where appropriate, or with the address owner via the Contractor as a representative of the address owner. Limitations to use may arise from the continued control exercised by the address owner in respect of data protection. However, within the framework of the considerations to be applied in respect of data protection, once shown the measures planned by the advertiser, the address owner shall, in particular, be entitled to refuse these within a reasonable period for checking, without being obliged to explain the considerations which have led to this decision, or may grant approval subject to conditions which it considers in the best interests of the persons concerned. Should the address owner refuse the planned use in general, once the refusal has been received by the advertiser, this shall be deemed the permissible withdrawal by the Contractor from the individual contract. The advertiser is further entitled to withdraw from an individual contract with the Contractor if it does not accept conditions imposed by the address owner in this respect which go beyond the conditions and limitations that were known at the time the contract was entered into. Notification of withdrawal must be issued within one week of being notified of the conditions.
3.2. Quotes issued by the Contractor are subject to change until such time as they become the object of a binding contract. A contract is entered into when the Contractor confirms the order.
3.3. If, at the time the order is confirmed, the Contractor or the address owner still do not have all the information necessary to verify data protection (promotional materials, processor etc.), the Contractor is entitled to make confirmation of the order subject to conditions which have yet to be complied with.
3.4. By authorising a test of the proposed use, the address owner’s consent to equivalent use, in the near future, of any and all of the data belonging to the portion of the group of addresses used for the test shall be deemed to have been granted unless significant changes to the relationship occur after approval has been granted (changes to the legality of the advertising, changes in respect of the rights to dispose of the data).
3.5. By approving the use, neither the address owner nor the Contractor accepts any liability for the legality, in particular in respect of competition law, of the planned use of the data. Sole responsibility for this lies with the advertiser, which shall indemnify the address owner and the Contractor against any and all claims by third parties. This indemnity also covers the necessary legal and defence costs.
3.6. Any liability on the part of the Contractor arising from particular duties of information arising from the QuLS are unaffected by the previous provision.
4. Prices, Terms and Conditions of payment
4.1. For the contractual relationship with the Contractor the prices stated in the conformation of order or the Contractor’s current price lists apply.
4.2. Unless stated otherwise, these are net prices to which the statutory applicable VAT must be added, whereby each group of addresses is to be invoiced for individually. Since inventories change regularly as a result of accruals and retirements, the quantities cited for addresses or data listed in the quotes and price lists (data cards) are only approximate values. Consequently, the quantities applicable for every order are the values ordered plus or minus deviations of up to 5 %, as standard for the industry, whereby the prices to be paid vary according to the increased or reduced scope of delivery, unless it is not reasonable to expect the advertiser to accept such deviations in individual cases.
4.3. Other costs, such as for selection, packaging, data transfer, postage costs or transport insurance or costs for consultancy services agreed, are invoiced for separately.
4.4. The address owner shall invoice the Contractor for the transfer of usage rights and the provision of data for use. The Contractor shall charge the costs for the relevant services to the advertiser or an intermediate third party. The recipient of the invoice must pay within two weeks of receiving the invoice. Any additional services provided by the Contractor shall be charged for within the framework of the relevant contractual relationship and fall due within two weeks of receiving the invoice.
4.5. The Contractor shall pay the address owner subject to payment by the advertiser. Unless agreed otherwise, payment is due at the latest once the relevant payment has been received by the Contractor. The Contractor is entitled to cancel the order and demand repayment from the address owner if it does not receive the relevant payments from the advertiser, unless the default on payment is the Contractor’s fault.
5. Acquisition of rights of usage and the obligations on the advertiser
5.1. Within the limits of its powers, the Contractor shall transfer to the advertiser limited usage rights for the data. Unless agreed otherwise, once payment has been made and the address owner has authorised the use as required by data protection laws, the agreement on usage entered into between the Contractor and the advertiser entitles the advertiser to a single, defined use of the data made available by the address owner by the specified deadline (e.g. deadline for delivery to the post) or within a specified period, provided the advertiser has not acquired a co-right of disposal pursuant to the provisions below (cf. Section II item 5.9).
5.2. Insofar as no other provisions are agreed, the advertiser is only entitled in relation to the data to commission the following services by third parties (e.g. Computer centre/lettershop) which have been approved in advance by the address owner:
– Postal check and correction;
– Robinson or nixie reconciliations, reconciliation for relocation
– Screening e.g. Infoscore, Protector and similar
– Reconciliation for duplicates;
– Splitting into subgroups and reduction;
– Optimisation of postage costs;
– Laser printing;
– Lettershop tasks.
5.3. Any services beyond this, such as optimisation analyses, history files, storing for order entry or storing temporary files over a period of six months beyond the last agreed use of the data, passing on of the data to third parties or other data processing of relevance for data protection are subject to prior written approval by the address owner.
5.4. The advertiser must desist from saving, amending or transferring the data which is the object of the contract in a manner which exceeds the authority to use the data and instructions, in particular the transfer of the data or providing access to third parties for any unauthorised use. The advertiser must further comply with any specific instructions and individually agreed limitations (e.g. in respect of the approved promotional materials).
5.5. Unless agreed otherwise, the advertiser shall only use new addresses which the carrier has marked on returns once for the already approved campaign.
5.6. The data storage media or data may only be stored or processed in the previously approved computer centres or by the approved processors. These companies must be suitable for the processing of personal data pursuant to the German Data Protection Act (BDSG) and must be selected accordingly. Any subcontractor relationships with the aforementioned service providers must be entered into in writing and the address owner informed, or they must be transferred to the address owner by means of a suitable subcontractor relationship for processing the contractual data. They are subject to prior written approval from the contractual partner in the agreement on processing the contractual data. In every case, the service provider commissioned must confirm that it has filed a declaration of commitment with the DDV pursuant to the DDV standard regarding “Processing of contractual data and handling of data” (DDV-VE).
5.7. The regulations in Section II items 2 and 3.1 also apply.
5.8. The Contractor and the advertiser hereby agree that the address owner or the Contractor shall incorporate a maximum of 50 control addresses per delivery of addresses, irrespective of the number of addresses, in order to verify compliance with any statutory obligations or other obligations arising from the contractual agreements.
5.9. The data of people who have ordered as a result of the advertiser’s materials or have otherwise responded in accordance with the purpose of the campaign may, once the order or response has been received, be used without limitation within what is legally permissible in the future (co-right of disposal).
5.10. The advertiser will not make data available to third parties in the course of processing without making them aware of the existence of the control addresses and compliance with the aforementioned limitation on usage.
5.11. The advertiser shall be liable for any culpability by a third party commissioned by it towards the Contractor or the address owner.
5.12. Use of the personal data provided in order to deliver criminal offers, or offers which may be harmful to minors, or offers which are otherwise illegal or to direct competitors of the address owner is not permitted.
6. Data Protection Act, Robinson file
6.1. The data may only ever be transmitted and used in accordance with the provisions of the BDSG or other data protection laws (e.g. Telemedia Act [TMG]).
6.2. The advertiser’s attention is explicitly drawn to the fact that on first saving data as the data controller (cf. § 33 BDSG) and when making an approach to an addressee that falls within the scope of the German Data Protection Act, the obligations regarding information pursuant to the BDSG must be complied with. Depending upon the route selected, whether in connection with transparent transfer (§ 28 para. 3 sentence 4 BDSG) or transparent use (§ 28 para. 3 sentence 5 BDSG), this applies in particular to information to be given regarding the point at which the data was first collected in the advertisement or informing the persons concerned about who is responsible for use of the data and their right to cancellation pursuant to § 28 para. 4 BDSG when making an approach for the purposes of advertising. Insofar as the address owner must be named, the advertiser accepts responsibility to the address owner for providing the relevant information in its advertising.
6.3. The advertiser’s attention is further explicitly drawn to the fact that pursuant to § 28 para. 4 BDSG the persons concerned can revoke permission for the use or transfer of their data and that once this revocation has been received the data must be blocked such that it cannot be used for these purposes. This also applies if the data is stored by someone other than the advertiser. The advertiser must introduce organisational regulations such that these rights are respected within its areas of operation. For this purpose, the advertiser is entitled to create blacklists containing the data to be blocked.
6.4. Should the person concerned advise the advertiser that they either fully or partially revoke the right to use their data, the advertiser must inform the address owner or the Contractor of this in writing immediately.
6.5. As a matter of principle, we recommend a reconciliation with Robinson files maintained by the DDV before using data in the consumer sphere.
6.6. The advertiser’s attention is also explicitly drawn to the statutory obligations mentioned by way of example in Section II item 2.4., which may also affect it.
6.7. If, after separate discussions, the data is transferred to the advertiser by the transparent transfer route, then the obligations under § 28 para 3. sentence 4 BDSG and § 34 para. 1a BDSG must be complied with. In particular, the law requires that the origins of the data and the recipient must be stored for the duration of two years after transfer and that information on the source and recipient must be provided to the person concerned.
7. Guarantees, assignment, liability
7.1. In the event of errors in the data or other violations of obligations on the part of the address owner, the advertiser shall only be entitled to claim against the address owner.
7.2. The Contractor hereby assigns any and all claims and rights in respect of failings arising in connection with the contract with the address owner with regard to the data and any other additional guarantee claims and rights arising from the violation of other obligations against the address owner or any other third party to the advertiser. Insofar as the advertiser is entitled to claims against the address owner or another third party in its own right, the advertiser is obliged to give priority to the claims in its own right.
7.3. Insofar as any claims and rights are assigned to the advertiser, the latter is obliged to file these on its own behalf provided that, in the event that the contract is withdrawn from or a reduction in prices agreed, any payments from the address owner or third party are to be made directly to the Contractor. Any more extensive claims which are not covered by the aforementioned assignment of claims against the address owner by the Contractor, can be made against the Contractor by the advertiser.
7.4. The right to fulfilment of the contract with the address owner and any claims for compensation of damages incurred by the Contractor and claims for restitution, in particular claims arising from or in connection with payments made by the Contractor, shall not be assigned to the advertiser.
7.5. The advertiser alone bears the risk that the rights and claims assigned to it may prove unsuccessful as a result of insolvency on the part of the address owner.
7.6. The address owner hereby undertakes to accept the guarantee obligations to the advertiser incumbent upon it and to inform the Contractor of any claims made and to keep it informed of the progress.
7.7. The advertiser shall only be entitled to reduce the remuneration or to withdraw from the contract if any reworking or replacements are not provided in a manner acceptable to the advertiser within an appropriate period or if supplementary performance fails in some other way.
7.8. Unless stipulated otherwise in a preceding or subsequent provision, the guarantee is based on the statutory provisions with the limitation that the guarantee period is limited to one year unless stipulated otherwise in Section II item 7.13.
7.9. No guarantee is given that the addressee actually exists or that the characteristics (age, gender, buying habits etc.) actually correspond to those of the person concerned to whom they are assigned insofar as the characteristic depends upon the existence and/or the information and/or the unchanged behaviour of the addressee or other circumstances relating to the person not having changed. Since the data is subject to continuous change, and since incorrect information may have been entered by the source of the data, no guarantee can be given in respect of correct allocation to a target group and/or full market coverage by the data provided at the time it is used. Fluctuations within the individual address groups mean that returns (communications which are returned as undeliverable) are inevitable. No right to claim compensation for costs and/or fees incurred in connection with returns exists. Compensation for returns is subject to a separate agreement with the address owner.
7.10. The Contractor accepts no liability for the legality of the intended use of the address by the contracting party. The duties of information arising from the QuLS are unaffected hereby.
7.11. Any complaints in respect of the quantities supplied or other faults in the data supplied which can be identified through immediate and appropriate examination must be communicated to the Contractor in writing by the advertiser immediately after receipt of the contractual transmission of data and, in every case, prior to making use of the data. In cases where the advertiser is not receiving the data itself, a prompt (written) complaint from a processing company, which the advertiser previously informed the address owner of, shall be deemed adequate. If the data has been used without any notification of complaint, any claims relating to failing to supply or exceeding the agreed quantities or in respect of any other faults in the data identified by appropriate investigations are excluded. In the case of businesspersons, the obligation to notify any complaints pursuant to § 377 German Commercial Code (HGB) also apply.
7.12. The Contractor shall only be liable for damages irrespective of the legal grounds – in particular as a result of tortious actions, organisational fault, culpa in contrahendo or any other claims based on violations of obligations for which fault must be established – insofar as they result from intent or gross negligence or if the damage is the result of the violation of a significant contractual obligation which is essential to the fulfilment of the contract and which the contractual partner can reasonably expect to be met or if the claims are based on §§ 1 and 4 of the German Product Liability Act.
7.13. None of the exclusions of liability or limits to the statute of limitations in connection therewith contained in these provisions apply if the damages result from injury to life, limb or health or in the event that a guarantee of quality has been provided or in the event of fraudulent concealment of a fault in the meaning intended in § 444 German Civil Code (BGB). In such cases the address owner shall also be liable even in cases of ordinary negligence or the statutory statute of limitations shall apply. Insofar as the liability is regulated above, this shall also apply to the Contractor’s employees, staff members, representatives and agents. Furthermore, any guarantees provided by the address owner or contractor are unaffected by the reduction in the guarantee period.
7.14. Provided there has been no wilful violation of an obligation, liability is limited to the damages typical for such contracts and which constitute the foreseeable possible consequences of a violation depending upon the known or unknown circumstances.
8. Contractual penalties in favour of the address owner
8.1. For every violation of the limitations on the scope of use (Section II, items 5.1-5.6), the advertiser hereby undertakes to pay the address owner a contractual penalty in the amount of ten times the cost of the rights of usage as per the address owner’s price list in relation to the gross quantity of data delivered for the data group which was supplied for use and which included the data which has been used incorrectly. The advertiser shall be liable for any fault on the part of its employees (§ 278 German Civil Code, BGB) or other third parties commissioned by it. We reserve the right to file more extensive claims.
8.2. The only proof required to prove an infringement is contact by the advertiser and/or a third party it commissioned with one of the control addresses included in the data provided for commercial purposes, unless the advertiser is able to prove that it received this control address via other means without violating the contract.
9. The right to withhold performance, termination without notice
9.1. The Contractor and the address owner are entitled to withhold performance for as long as the statutory requirements for orderly data processing and use are not met or this cannot be proven. Both are entitled to withdraw from the relevant contract if this has not been rectified by a reasonable deadline. Should the address owner justifiably withdraw from the contract on grounds attributable to the advertiser, the Contractor shall be entitled to withdraw from its contract with the latter without needing to give further reasons.
9.2. Any more extensive claims to damages are unaffected hereby.
10. Data transmission in exchange for services in return
In the case of rights being granted in exchange for services in return in favour of the address owner (“exchange of addresses”), the rights are granted via the Contractor. In other respects the regulations apply accordingly. Appropriate application of these regulations shall be deemed to have occurred if the opportunity to use the data is provided via transmission of opportunities for dispatch in the form of the advertiser’s inserts sent with mailings from the address owner.
1. Conclusion of contract
The contract with the customer is only deemed to have been entered into once confirmation of order has been received or the order filled. The customer is bound by its order for a maximum of seven days.
2. Prices, methods of payment
2.1. The applicable prices are the prices cited in the quote, or, in the absence of such prices, those in the current price list or the confirmation of order. Insofar as delivery and postage costs are to be invoiced by the Contractor, these will be calculated separately and shall be due immediately net as advance performance, or at the latest three days before the intended date of dispatch payable without deductions.
2.2. Unless stipulated otherwise, the prices and any other remuneration quoted are subject to the statutory applicable VAT (prices before VAT). Customs duties and any other charges arising directly in connection with the services provided will be passed on to the customer.
3. Supply, delays, third-party services
3.1. Agreements on delivery dates or delivery deadlines must be made in writing. The customer reserves the right to point to an explicit verbal agreement on this.
3.2. Compliance with the obligation to supply is subject to proper fulfilment of its obligations by the customer. This includes clarifying any technical issues. The customer must further supply the Contractor with any documents required in order to fulfil the order and any material to be provided by the customer in good time or on the agreed delivery date. The same applies to advance payment of postage costs as per Section III, item 2.1. We reserve the right to object on the grounds of a failure to fulfil the contract.
3.3. If the customer defaults on acceptance or otherwise culpably violates any duty of cooperation, the customer shall be obliged to compensate the Contractor for any damages incurred as a result, including any additional expenses incurred. We reserve the right to file any more extensive claims.
3.4. Insofar as the prerequisites stipulated in the above item 3.3 of Section III are met, the risk of any decline or any deterioration in the goods is transferred to the party placing the order at the point in time at which it defaults on acceptance or falls into arrears.
3.5. The delivery deadline shall be deemed to have been met if the deadline has not passed on the date of handover to the transport company or carrier.
3.6. The Contractor is entitled to make use of third-party services in order to provide the contracted services.
4. Lettershop and Distribution services
4.1. Packaging and delivery of the promotional materials are undertaken in accordance with the practices standard in the industry.
4.2. In view of the quantities of incoming goods received each day, the Contractor cannot check the quality or quantity of materials to be provided by the customer. In particular, the Contractor accepts no obligation to check whether the materials supplied by the customer also meet its requirements and have been supplied in appropriate quantities.
4.3. Any costs incurred as a result of incorrect supply of materials – such as reprinting – are to be borne by the customer unless the Contractor is responsible pursuant to stipulations in the above provisions in Section III item 4.1 and item 6.
4.4. In the event that, following successful delivery to the carrier, additional postage costs fall due as a result of excess weight from tolerances in the weight of the paper, which could not have been known in advance, and provided that these are not the Contractor’s fault, these costs are to be borne by the contracting party. The contracting party shall bear sole responsibility for complying with any conditions imposed by the carrier or delivery service chosen in respect of the form or content of the mailing (e.g. regulations for infopost) insofar as this was not commissioned with the order. The Contractor reserves the right to invoice separately for any additional work required from the Contractor as a result of such circumstances on the basis of its current price list.
4.5. Any materials, documents or other items to be provided by the contracting party are to be delivered to the door.
If the materials supplied to the Contractor or the products to be transported are to be insured against fire, theft, loss or other damage, the customer must take out this insurance at its own expense.
4.6. The customer is to be informed of any residual materials insofar as these are not insignificant amounts in respect of the order. Residual materials shall only be returned upon request from the customer and at the latter’s expense. The Contractor is otherwise entitled to destroy the residual materials 30 days after completion of the order, after having previously informed the customer at its last known address.
5. Printing, production and media services
5.1. Provision of media distribution services, consultancy services and the production of promotional materials are all undertaken subject to separate contractual relationships and for a fee. Only the Contractor is entitled to agency commission.
5.2. If the production of promotional materials is ordered or another print order placed, the standard deviations for the print industry of plus or minus 10% are accepted by the contracting party. Deviations in the colour of the printed materials of up to 10% from the stored file fall within the accepted tolerances.
5.3. Calculation of the delivery period shall be suspended during the checking of the proofs, production samples, lithographs etc. by the contracting party from the date of dispatch to the contracting party until the date its approval is received.
5.4. Print templates shall only be returned if explicitly requested by the contracting party. In any case, any obligations of retention and return shall expire 2 months after the delivery date.
5.5. The contracting party will be invoiced separately for the costs of producing stereotypes and sets. Galley proofs will be charged for from the third set of proofs.
5.6. Pursuant to § 369 HGB, the Contractor shall have a right of retention in respect of any printing or stamp samples, manuscripts, raw materials and other items provided by the contracting party until such time as all liabilities arising from the business relationship have been met.
6. Guarantees, liability
6.1. The Contractor provides no guarantees for a particular quality or other characteristic of the services provided. The right to claim under the guarantee (cf. Section III item 7) is unaffected hereby.
6.2. The Contractor shall in particular be liable – irrespective of the legal grounds – for tortious actions, organisational fault, culpa in contrahendo or any other claims based on violations of obligations for which fault must be established, for any damages caused by intent or gross negligence on the part of one of its legal representatives, proxies or vicarious agents, as well as for the absence of a quality which was explicitly guaranteed or fraudulent concealment of a fault in the meaning intended in § 444 German Civil Code (BGB).
6.3. In cases of ordinary negligence, the Contractor shall only be liable for injury to life, limb or health or in the event that a guarantee of quality has been given or in the event of fraudulent concealment of a fault in the meaning intended in § 444 German Civil Code (BGB), as well as in the event of claims arising in connection with the German Product Liability Act or as a result of the violation of a significant contractual obligation which is essential to the fulfilment of the contract and which the contractual partner can reasonably expect to be met. Provided there has been no wilful violation of an obligation, liability is limited to the damages typical for such contracts and which constitute the foreseeable possible consequences of a violation depending upon the known or unknown circumstances.
6.4. The contractor accepts no liability for the legality, in particular the legality under competition law, of the intended use of the data by the contracting party. Sole responsibility for this lies with the contracting party which shall indemnify the Contractor against any and all claims by third parties. The contracting party hereby undertakes to reimburse the Contractor for any costs incurred for legal defence.
7. Interruptions to service
7.1. Insofar as statutory warranty entitlements arise in connection with the provision of services, these shall expire within one year from the transfer of risk. In the case of supplementary performance, the Contractor reserves the right to choose between rectification and redelivery. The duty to register complaints pursuant to § 377 HGB also applies in the case of provision of work services.
7.2. In all other respects, enforcement of claims in connection with interruptions to services depends upon whether the goods supplied and the services provided were examined or checked immediately and whether complaints in respect of violations of obligations were notified in writing as soon as they were discovered. The customer’s duty to examine and check goods applies in particular before further processing or other use. Direct delivery of the goods or the provision of services to a contractual partner of the customer does not release the customer from its duty to examine goods. In this case, a prompt complaint made in writing by a processing company which was previously notified to the Contractor shall be deemed adequate.
7.3. If a contract is being processed by means of multiple deliveries, each delivery must be examined and complaints made within the agreed period.
8. Data processing
8.1. The processing, use, storage or transfer of data, in particular for promotional purposes, shall be undertaken exclusively in accordance with the legal provisions, in particular those of the German Data Protection Act (BDSG) and any other data protection regulations (e.g. Telemedia Act [TMG]). In all other respects, the declaration of obligations (processing of contractual data and handling of data) and the quality and performance standards (QuLS) of the DirectMail Services Council and the List Council of the Deutscher Dialogmarketing Verband e.V. (DDV) shall apply. These declarations must be filed with the DDV.
8.2. Data processing by the Contractor is undertaken within a contractual relationship, whereby the processing of personal data will only be undertaken within the framework of the provisions of § 11 BDSG and must be stipulated accordingly in writing.
8.3. The contracting party hereby confirms that the data to be processed will only be used and transferred in accordance with the legal provisions, in particular the BDSG and the TMG if applicable, and that it is entitled to transfer it to the Contractor for the commissioned processing and use. The Contractor hereby draws attention to the fact that the transfer of personal data must be undertaken in a secure manner (e.g. through appropriate encryption; attachments to e-mails in password-protected files are not secure). Liability for infringements of data protection in connection with this (e.g. infringements of data secrecy or the use of the data by unauthorised parties) rests with the party which transferred the data without adequate security measures either itself or via a third party it commissioned.
8.4. If the contracting party has only acquired a limited right of usage for personal data and which is subject to instructions from a third party for the data to be processed, it shall inform the Contractor of this and shall only commission from the latter processing which accords with the instructions of the third party in respect of the data which the Contractor is to render identifiable. The Contractor must be provided with written instructions from the third party.
8.5. Insofar as one party acquires information on the data and the further processing thereof in connection with the data to be used, knowledge of which is essential in order to comply with the legal obligations on the persons concerned, it shall immediately inform the other party. The Contractor hereby undertakes to support the contracting party in appropriate measure in complying with its statutory obligations in respect of monitoring and information. In its processing division it shall take such technical and organisational measures to protect the data as are necessary in order to ensure compliance with the provisions of the German Data Protection Act (BDSG, § 9 BDSG plus Annex). It shall support the contracting party – insofar as this has been agreed against remuneration – in complying with demands for rectification, deletion or blocking by the persons concerned (§§ 34, 35 BDSG) insofar as it believes this can reasonably be expected.
8.6. The Contractor is only obliged and authorised to follow instructions which comply with the law. In all other respects, the Contractor can refuse to act. In the event of a refusal it shall inform the contracting party immediately. The contractor is entitled to refuse performance for as long as the statutory requirements for orderly data processing and use of data are not met or this cannot be proven and shall be entitled to withdraw from the contract if these conditions are not met within a specified period.
8.7. The Contractor explicitly draws the contracting party’s attention to the fact that on first saving data as the data controller (cf. § 33 BDSG) and when making an approach to an addressee that falls within the scope of the German Data Protection Act, obligations regarding information pursuant to the BDSG must be complied with. This applies in particular to information to be given pursuant to § 28 para. 3 BDSG regarding the point at which the data was first collected in the advertisement or informing the persons concerned about who is responsible for use of the data and their right to cancellation pursuant to § 28 para. 4 BDSG.
8.8. The Contractor further explicitly draws the contracting party’s attention to the fact that pursuant to § 28 para. 4 BDSG the persons concerned can revoke permission for the use or transfer of their data and that once this revocation has been received the data must be blocked such that it cannot be used for these purposes. This also applies if the data is stored by someone other than the contracting party.
8.9. As a matter of principle, we recommend a reconciliation with Robinson files maintained by the DDV before using data in the consumer sphere.
8.10. If additional services such as selection, data-coding, data conversion, checking and correcting of postal addresses, screening such as Infoscore or Protector, reconciliation for duplicates, splitting into subgroups and reduction, optimisation of postage costs, laser printing, monitoring of reactions, printing and production services, media services, distribution services or other direct marketing advice are provided, these are to be paid for separately.
9. Retention of title
9.1. Until such time as the purchase price has been paid in full, the goods supplied remain the property of the Contractor.
9.2. The processing or altering of delivery items by the customer is always undertaken for the Contractor.
9.3. If the delivery items are processed together with other items not belonging to the Contractor, the Contractor shall acquire co-rights to the new items proportionate to the value of the delivery items (final amount on the invoice including VAT) compared to the other items to be processed during the processing period. In all other respects, the same applies for this new item to be processed as for the items delivered with reservations.
9.4. If the Contractor’s property becomes inextricably joined to the other items not belonging to it, the Contractor shall acquire co-rights to the new items proportionate to the value of the goods supplied (final amount on the invoice including VAT) compared to the other conjoined items from the time at which they were combined. If they are joined in such a way that the customer’s goods are to be seen as the main item, it is agreed that the customer shall transfer co-ownership to the Contractor proportionately. The customer thus safeguards the sole ownership or co-ownership acquired by the Contractor.
9.5. The Contractor hereby undertakes to release any securities held by it as requested by the customer insofar as the value of the security exceeds the value of the liability thus secured by more than 10%. The choice of which security to release rests with the Contractor.
10. Transfer of risk, dispatch
10.1. Insofar as the confirmation of order does not state otherwise, delivery is “ex works”.
10.2. Dispatch is always on account of the customer and at the customer’s own risk. This applies even if delivered using the Contractor’s own transport.
10.3. If delivery is delayed for reasons for which the customer is responsible, the risk is transferred to the customer at the point in time at which the notification of readiness for dispatch was issued.
1. Final provisions
1.1. The place of fulfilment is the Contractor’s registered offices.
1.2. The contract is exclusively governed by the law of the Federal Republic of Germany. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded, including insofar as it has become national law.
1.3. The place of jurisdiction shall be the registered offices of the Contractor provided it is an entrepreneur and that the contracting party has the status of an entrepreneur, a legal entity under public law or of a special fund under public law.
1.4. In the event that one or more clause(s) in these GTC is/are or become(s) ineffective, or should the contract be found to contain a loophole, the effectiveness of the remaining provisions shall be unaffected thereby. The ineffective or missing provision shall be replaced by the relevant statutory provisions.
Trebbau direct media GmbH, 31/03/2017