Standard Terms and Conditions of Riek, direkt Marketing Fairmarktung GmbH & Co. Service KG

 

Riek, direkt Marketing Consulting GmbH, Werner-Reimers-Strasse 9, 61352 Bad Homburg
Eingetragen beim Amtsgericht Bad Homburg, HRB 6760, Geschäftsführer: Udo Riek

 

I.     General Terms and Conditions for all Riek, direkt Marketing Services

(deliveries of addresses, procurement of addresses, letter shop services, preparation of advertising materials, agency services, data processing of orders)

1.         Scope of Application:
All of RIEK’s deliveries, services, and offers shall be exclusively governed by these Standard Terms and     Conditions. To the extent that any of the Customer’s terms deviate from these Standard Terms and Conditions, they shall not be binding upon RIEK, even if RIEK does not expressly object to such terms.

2.         Conclusion of the Agreement:
An agreement with the Customer shall be formed only at the time of RIEK’s confirmation of the order or execution of the order.

3.         Payment Terms:
3.1 All applicable prices shall be set forth in the current price list or order confirmation. Unless noted otherwise, all prices are net prices. Packaging, postage costs, shipping insurance, customs fees, and statutory value-added taxes shall be invoiced separately.
3.2 All invoices issued by RIEK shall be due and payable without deductions immediately upon receipt.
3.3 The payment of invoices with bills of exchange shall require a prior agreement.
3.4 In the event of default or deferment of payment, default or deferment interest shall be payable at the rate of 4 percentage points above the base interest rate provided for by § 1 Art. 1 of the Law regarding Introduction of the Euro dated 9 June 1998. As soon as the European Central Bank determines a reference interest rate, which is functionally equivalent to the discount rate of the Deutsche Bundesbank, this new interest rate shall replace the aforementioned base interest rate for purposes of this provision.
3.5 In the event that the Customer defaults on a payment obligation which is already due and payable under the agreement, RIEK shall have the right to require immediate payment of the outstanding balance, even if such amounts ordinarily would not have been due and payable until a later date.

4.         Delivery
4.1 The delivery date shall be set forth in the order confirmation. Fixed delivery dates shall require an express and separate agreement. All delivery dates specified in the order confirmation shall refer to the date on which the products are delivered to the person or entity responsible for shipment.
4.2 In the event of delays attributable to the Customer or enterprises or persons acting on the Customer’s behalf (requests for modifications, late delivery or return of catalogs and materials), or in the event that materials to be furnished by the Customer are not received by RIEK on the due dates, the delivery dates shall be extended accordingly. When processing the Customer’s orders, RIEK shall not be required to give priority to orders that were received late.
4.3 If a Customer insists on immediate processing despite delays attributable to the Customer, and if the ensuing urgency makes quality controls customarily delegated by RIEK to the Customer impossible, RIEK shall not be liable for any quality defects.
4.4 In the event of force majeure, labor disputes, impossibility of performance by RIEK or its suppliers without any fault on their part, the periods for delivery or performance shall be extended for the duration of such impairment.

5.         Liability:
In the event that performance has become impossible due to fault on the part of RIEK, or RIEK is in default or renders deficient performance of its contractual obligations, any damages claims of the Customer for nonperformance shall be limited to the invoice amount of the appropriate order (not including postage). However, RIEK’s liability shall not be subject to any limitations, if such damages were caused by the intentional or grossly negligent conduct of RIEK or its agents.

6.         Shipment:
The Customer shall bear the costs and risk of the shipment of goods. Should the shipment be delayed for reasons attributable to the Customer, the risk shall pass to the Customer at the time RIEK notifies the Customer that the goods are ready for shipment.

7.         Retention of Title:
RIEK shall retain title to all delivered products until the purchase price has been fully paid.

8.         Applicable Law, Place of Performance, Judicial Forum
8.1 All transactions between RIEK and the Customer shall be governed by the laws of the Federal Republic of Germany. The Uniform Law on the International Sale of Goods (“EKG”) and the Uniform Law on the Formation of Contracts for the International Sale of Goods (“EAG”) shall not apply.
8.2 The place of performance for all services to be rendered pursuant to the terms and conditions set forth below shall be Bad Homburg, unless the parties provide otherwise.
8.3 The judicial forum, likewise, shall be Bad Homburg, provided that the Customer is a merchant fully qualified under the German Commercial Code.

II.         Specific Services of RIEK

1.         Deliveries of Addresses
1.1 Unless the Customer issues instructions to the contrary, all deliveries of addresses shall be made in the form of self-adhesive labels.
1.2 RIEK shall issue a separate invoice for each address collection. Address collections of up to 1,000 addresses shall be invoiced at the unit price per collection, and address collections of more than 1,000 addresses shall each be invoiced at the price per 1000 addresses. The minimum price per order shall be DEM 300, unless stated otherwise. Double, multiple, or long-term use of addresses shall result in additional charges. Special orders, e.g., excerpts from address collections and processing of special formats, likewise, shall result in additional charges. Due to the continuous addition and withdrawal of addresses, the number of units in a given address collection is subject to fluctuation. RIEK at all times shall deliver to the Customer the number of addresses last available. Any resulting customary increases or decreases in the delivery amounts shall be reflected by corresponding increases or decreases of the prices shown in the price list, unless it would be unreasonable to require the Customer to accept such price changes.
1.3 In consideration of the peculiar nature of the address publishing business, RIEK cannot guarantee that the address material delivered to t    the Customer are the correct mailing addresses or is otherwise correct and complete. The addresses are undergoing constant changes, and errors may occur at a stage as early as the address source. Moreover, RIEK cannot guarantee that the addressee is, or continues to be, that which the addressee purports or is purported to be. As a result, returns (mailings returned with a postal notice that the material is undeliverable) are inevitable, despite the fact that the addresses are constantly updated by RIEK. Each return shall entitle the Customer to reimbursement in the amount of DEM 0.60, provided that the Customer furnishes proof that the material was undeliverable, by submitting the appropriate envelopes or cards within three months of delivery of the addresses. In the event that the addresses include telephone numbers and the participant can no longer be reached under the specified telephone numbers, the Customer shall notify RIEK thereof within the time period stated above; such notice shall also include the respective address numbers. Any liability for additional damages, in particular consequential damages, shall be excluded, unless RIEK’s conduct was intentional or grossly negligent.
1.4 With regard to all other complaints, the Customer shall at his own risk provide RIEK with the entire delivery of addresses, including the original packaging, for inspection.
1.5 Use of Addresses, Contractual Penalty
1.5.1 The Customer shall not use any addresses delivered by RIEK, regardless of whether such addresses include telephone numbers, more frequently than contractually agreed. Unless the parties expressly provide otherwise, any addresses delivered to the Customer may be used only for one mailing or telephone advertising campaign. Advertising campaigns by telephone shall be permitted only to the extent that the addresses received include telephone numbers. However, delivery of an address that includes a telephone number does not signify that the respective addressee has agreed to telephone solicitations for advertising purposes. The risk of possible warning notices by individual addressees shall be borne by the Customer.
The sale or surrender of addresses to third parties, as well as the use of addresses for additional advertising mailings, whether by reproduction, transfer, handwritten or machine copying, or transfer onto data carriers, as well as joint advertising shall not be permitted. RIEK shall control compliance with this provision by including control addresses in each collection of addresses, as well as control telephone numbers in each collection of addresses which include telephone numbers.
Should the Customer intend to engage in multiple use of any addresses delivered by RIEK, the parties shall enter into a separate written agreement specifying the frequency and time period of such use. Should the Customer intend to engage in long-term use of any addresses delivered by RIEK, the parties shall enter into a separate long-term lease agreement. As a general rule, the compensation to be paid for long-term use is 10 times the amount of compensation for one-time use of the addresses. Under a long-term lease agreement, the Customer shall have the right to use the addresses for its own advertising purposes without any limitations as to time or frequency. All use of addresses, whether or not they include telephone numbers, shall comply with the provisions of the Federal Data Protection Act (“BDSG”).
1.5.2 The Customer shall pay a contractual penalty for each use of an address in violation of the agreement. The amount of such contractual penalty shall be equal to 10 times the compensation paid for the entire delivery that included the contractually misused address (with or without a telephone number). Submission of the control address or control telephone number shall be sufficient proof of such violation. RIEK’s right to assert additional claims for damages shall remain unaffected by the foregoing provision. However, any contractual penalty paid by the Customer shall be set off against such claims.

2.         Procurement of Addresses
RIEK also acts as a broker of address collections for advertising purposes. Any procurement services rendered by RIEK shall be governed by the following terms and conditions, to the extent that they pertain to special factual situations. In all other cases, the Standard Terms and Conditions and the terms for the delivery of addresses shall apply.
2.1 Relationship with RIEK – Address Owner – and Address User
The address owner owns address lists, which may be valuable for direct advertising mailings. As a broker, RIEK disposes over many customer contacts with companies that “lease” such address lists for advertising purposes. The lessees of such address lists (users), however, do not obtain physical possession of the address lists. The leased addresses, generally, remain outside of the lessee’s sphere of control. The addresses are merely delivered to a person responsible for processing the order, while remaining within the sphere of control of the address owner. During processing of the orders for the address user, the addresses of the owner are affixed to the mailings. RIEK may retain the services of third parties to process the orders. With the express permission of the owner, RIEK may, however, place the addresses in the lessee’s sphere of control to the extent permitted by the Federal Data Protection Act. RIEK shall obtain the owner’s consent prior to the conclusion of each lease agreement with the lessee. This shall apply, even if the owner has granted RIEK custody of its inventory of addresses.
2.2 Conclusion of the Agreement:
The owner instructs RIEK with the leasing of the owner’s address lists for advertising purposes. Accordingly, RIEK shall be entitled to negotiate address lease agreements in the name and on behalf of the owner. The owner agrees that, for purposes of negotiating such lease agreements, RIEK may represent in its regular advertising that it disposes over address lists made available to it by the owner. RIEK shall be authorized in each case to represent the owner with regard to the conclusion of such address lease agreements. The address user hereby acknowledges that the lease agreement is formed directly between the address user and the address owner. The address user, furthermore, agrees that the address owner may refuse conclusion of the lease agreement without having to specify any reasons therefor. RIEK shall provide the address user with the name and address of the owner of the list only at the address user’s specific request.
2.3 Owner’s Obligations to the User
2.3.1 Partial deliveries for testing purposes:
If an agreement is formed, the owner agrees to make partial deliveries of 5,000 units or more for testing purposes. If a cross-section of the address list is demanded for testing purposes, the owner shall ensure that such cross-section is representative of the list as a whole. Approval of the test shall signify the owner’s agreement to make its addresses also available for an identical main mailing.
2.3.2 Reimbursement for returns:
The owner shall reimburse the lessee the lease price for returns on a pro rata basis (mailings returned with a postal notice that the materials are undeliverable), to the extent that such returns exceed 4% of the mailings. The lessee shall furnish proof of such returns to the owner. Furthermore, the lessee shall provide the owner with all returns for review of the percentage rate, in the form of envelopes and other address carriers used. The lessee shall be entitled to compensation for returns, only if the required proof of returns is furnished within 6 weeks of delivery of the address lists. Any additional liability of the address owner, in particular for the correctness of the addresses for mailing purposes, shall be excluded, to the extent permitted by law.
2.3.3 User’s right of rescission:
The address owner agrees that the address lessee may rescind the lease agreement, if after conclusion of the contract, but prior to mailing of the appropriate addresses, the lessee faces circumstances which would make it unreasonable to require the lessee to use the addresses, e.g., if as a result of a change in circumstances the addresses are no longer of use to the lessee. In such case, the details of which the address user shall describe and prove to the owner, the lessor shall have a right only to reimbursement of any technical costs incurred. In such case, no broker fee shall be due and payable.
2.4 Owner’s Obligations to RIEK
The owner shall provide, to the best of its knowledge, RIEK with adequate information regarding all addresses material offered for advertising purposes, in particular regarding the quality (likelihood of returns, etc.) of such addresses. The owner authorizes RIEK to use any information provided to RIEK for this purpose. The owner guarantees the correctness of all such information, to the extent that the owner’s information is not qualified by expressions such as “circa” or “approximately” indicating that the information involves only estimates. The owner shall make all estimates to the best of its knowledge. If the owner delivers the addresses on magnetic tape or if RIEK is in charge of delivering the addresses, the owner shall grant a volume discount.
2.5 RIEK’s Obligations to the Owner
RIEK shall inform the owner of the identity of all parties leasing the addresses. The owner shall have the right to refuse to lease its addresses to interested parties without having to specify any reasons therefor. The lease of addresses may be made conditional upon the approval of a sample advertising mailing. Furthermore, the owner shall have the right to check the proper use of addresses by means of control addresses. The owner shall assert any rights to contractual penalties imposed against address users in its own name.
2.6 User’s Obligations to the Owner
The lease, generally, entitles the lessee to a one-time use of the addresses. At the lessee’s request, the lessee may also lease only a partial list of addresses. Moreover, the lessee and the address owner may agree to the multiple use of leased addresses in return for additional higher consideration. Any agreement regarding the possible long-term use of the address material shall require the prior express consent of the address owner. In the event that the use of any address material provided violates the lease agreement, a contractual penalty shall be imposed pursuant to the provisions of Section II. No. 1.5.2 set forth in these Terms and Conditions. The lease price shall also include the printing costs of Cheshire lists for machine processing. If the lessee contracts with third parties for additional processing of the addresses, the lessee shall ensure that such third parties comply with the provisions of the Federal Data Protection Act. The lessee shall be fully liable for any misuse.
2.7 User’s Acquisition of Title to the Addresses
To the extent that persons place orders or request offers in response to the lessee’s advertising, title to the addresses of such persons shall pass to the lessee. This shall, however, not apply to addresses of participants of gambling schemes, prize contests, and similar events. Without the express consent of the owner, the lessee shall not identify the origin of the addresses in its advertising materials.
2.8 Payment:
RIEK shall be authorized to collect payments from the user in the name and on behalf of the address owner. The owner shall issue invoices for the leased addresses to the broker. RIEK shall pay the owner, subject to receipt of the invoice amount of the address user, at its own discretion either within 8 days after deduction of a 2% cash discount or within 30 days without any deduction. Such payment is expressly made subject to payment of the address invoice amount by the lessee. The owner hereby assigns any rights to the collection of invoices to RIEK. RIEK hereby accepts this assignment.
2.9 Other Contractual Relationships RIEK – Lessee:
If RIEK renders any services to the lessee in addition to address procurement, such services shall be deemed performances pursuant to the lessee’s orders, thereby creating a contractual relationship between RIEK and the lessee. RIEK shall have the right to employ third parties to render any services to the user. Matters as to which this provision is silent shall be governed by RIEK’s General Terms and Conditions.
2.10 Liability of RIEK:
As a broker, RIEK shall not be liable for any errors in the addresses or for the accuracy of the information and representations provided by the owner. The address lessee shall assert any possible rights of recourse directly against the address owner. The address user and address owner hereby expressly acknowledge this arrangement, and agree to settle any possible claims for damages among each other.

3.         Preparation of Advertising Materials for Mailing (Letter Shop Services)
3.1 RIEK shall prepare and deliver the advertising materials according to the standards customary in the industry.
3.2 RIEK shall charge a postal flat fee for any postal charges incurred in connection with the mailings. Payment of this fee shall be irrevocably credited to one of RIEK’s accounts no later than three days prior to the mailing date and specify the purpose of payment. RIEK shall not be required to deliver the materials by mail until payment has been received. Any other charges incurred by RIEK, including, if applicable, any charges for additional payment for excess weight by the post office, shall be invoiced in the final statement of postal charges subject to set off against the postal flat fee following the execution of the order.
3.3 Provision of Materials
3.3.1 Any materials to be procured by the Customer (e.g., printed documents) shall be delivered prepaid to RIEK free of any defects and freight. Such materials shall not be subject to any inspection as to quantity or quality by RIEK. In order to allow for differences in editions and for losses, e.g., during the process of preparing the advertising materials for mailing, the Customer shall provide RIEK with an additional delivery of 5% of the material to be processed.
3.3.2 The Customer shall be solely liable for any violations of statutory provisions arising in connection with the contents of printing copies or advertising materials furnished by the Customer, including, in particular, any violations of third party rights, e.g., copyrights, arising in connection with the execution of the Customer’s order. The Customer shall indemnify RIEK against any third party claims asserted on the basis of such violations.
3.3.3 The Customer shall bear the risk of the provided materials’ processing capabilities. RIEK shall be released from all liability, if defects occur because of the provided materials’ lacking processing capabilities. In the event that RIEK should be required to perform additional work because materials provided by the Customer cannot be processed, reasonable surcharges for added difficulty shall apply.
3.3.4 RIEK shall destroy any remaining advertising materials following execution of the Customer’s order, unless the Customer requests otherwise within two weeks from receipt of notice by RIEK that there are remaining advertising materials. RIEK shall specifically advise the Customer of these consequences in the aforementioned notice. The postage for any returns of remaining materials, as well as printing copies, manuscripts, documents, and other items delivered by the Customer shall be paid by the Customer. The Customer shall bear the risk of shipment with regard to all such materials.
3.3.5 In the event that RIEK is at fault for any shipping or packaging errors, RIEK’s liability shall be limited to the invoice amount (not including postage) of the relevant order. In the event of loss or damage of materials provided, RIEK’s liability shall be limited to the value of the materials or the production costs.

4.         Production of Advertising Materials
4.1 In connection with the production of advertising materials, customary increases or decreases in deliveries of up to 10% of the ordered edition shall not provide grounds for objection. RIEK shall invoice the Customer for the quantities actually delivered. The Customer shall be liable for any violations of statutory provisions arising from the contents of such advertising materials. The provisions of No. 3.3.2 above shall apply, mutatis mutandis.
4.2 The Customer shall notify RIEK of all complaints regarding obvious defects of the delivery within four weeks of delivery. The Customer shall ensure that RIEK is given the opportunity to inspect any materials subject to complaints. The Customer shall notify RIEK of any latent defects immediately following discovery of such defects. In the event that the Customer is at fault for any delays, RIEK shall not be liable for the lack of quality control on the part of RIEK or the Customer resulting from the added urgency.
4.3 Defects in parts of a delivery shall not entitle the Customer to reject the entire delivery, unless partial delivery would be of no value to the Customer.
4.4 RIEK shall not be liable for any consequential damages, unless such damages were caused by the intentional or grossly negligent conduct of RIEK or its agents.

5.         Marketing and Agencies Services
5.1 Generally, the Customer shall pay a fee for any advertising consulting services rendered by RIEK. RIEK shall retain title to any copyrights licenses and other proprietary rights in the work provided to the Customer within the context of the presentation. All marketing and agency services shall be subject to a separate agreement between the parties.
5.2 In connection with agency services, any setting, photography, and reproduction costs, as well as any costs incurred for technical services rendered by third parties, shall be invoiced separately, and shall not be included in the fee for the concept, text, layout, and reproduction model. If the Customer desires subsequent modifications, any additional services shall be invoiced based upon the time expended or the costs incurred for services rendered by third parties, for materials, etc. Any services requested but not utilized by the Customer shall be payable in the full amount.
5.3 RIEK shall invoice the Customer for the full amount of any travel expenses incurred.
5.4 Copyrights and Licenses, Liability
5.4.1 The assignment of any copyright licenses related to work delivered by RIEK (drafts, texts, sketches, graphs, documentation, programs, etc.) shall require a separate agreement. Unless provided otherwise by the parties, RIEK shall retain title to any rights pertaining to work not fully paid at the time the agreement terminates.
5.4.2 In performing its contractual obligations, RIEK shall be liable only for intentional and grossly negligent conduct. RIEK shall notify the Customer, if there are any recognizable doubts that the planned advertising measures are legally objectionable. Notwithstanding the foregoing, it shall be the responsibility of the Customer to obtain a legal opinion as to whether the advertising measures proposed by RIEK are indeed legally unobjectionable, in particular in view of unfair competition laws. The Customer shall notify RIEK in writing that the planned advertising measures are legally unobjectionable prior to the dissemination or agreed date of performance (Schalttermin). If such notice is not received within two weeks of release of the concept, RIEK shall be entitled to assume that the advertising materials were reviewed and found to be legally unobjectionable. RIEK shall specifically advise the Customer of these consequences when releasing the concept.
5.4.3 RIEK shall receive 20 free file copies of any advertising materials and components of the advertising campaign which were designed, in whole or in part, by RIEK.
5.4.4 RIEK shall be entitled to use such file copies for its own advertising purposes following dissemination of the advertising materials (e.g., for publication, discussion, depiction, public relations campaigns, participation in competitions, the prizes of which become the property of RIEK).

6.         Data Processing
6.1 In the event that magnetic tapes or lists containing addresses are adjusted according to certain criteria agreed in the order in terms of electronic data processing , any information and presumptions later learned in the process of aligning the modified address tape with the original tape shall not be used for other electronic data processing purposes and shall not be disclosed to third parties.
6.2 In the event that the Customer violates any of the aforementioned obligations, the Customer shall be required to pay a contractual penalty equal to 20 times the invoice amount of the relevant order. RIEK’s right to assert additional damages shall remain unaffected thereby. However, any contractual penalties paid by the Customer shall be set off against such additional claims for damages.
6.3 Liability
6.3.1 Any data processing errors caused by the fault of RIEK or its agents shall be corrected by RIEK free of charge, to the extent possible. If correction is impossible, RIEK’s liability shall be limited to the invoice amount of the order. However, RIEK’s liability shall not be subject to any limitations, if the data processing errors were caused by the intentional or grossly negligent conduct of RIEK or its agents. The Customer shall notify RIEK of any complaints regarding defects immediately upon discovery. In each such case, RIEK shall be given the opportunity to remedy the defect.
6.3.2 With regard to all other claims, regardless of their legal basis, RIEK shall be liable only for intentional or grossly negligent conduct, including the intentional or grossly negligent conduct of its agents, unless the above-mentioned provisions provide otherwise.

Effective as of 1 August 2000