Terms and conditions of solute GmbH for partner shops

(Version: Karlsruhe, 01.07.2020)

1. Basics

1.1  The subject of this contract is a service provided by solute GmbH, Zeppelinstraße 15, 76185 Karlsruhe, Germany (here referred to as „solute“).
The system offers operators of online shops (here referred to as „customers“) the opportunity of sending data records including descriptions of the products they are offering as well as additional information to solute in order to be able to present their products to users through the solute network.

1.2  Solute only provides the services offered on the basis of these General Terms and Conditions and the request form. The contract shall come into force by order confirmation on the part of solute or with the commencement of the implementation of the services by solute. solute is entitled to amend these General Terms and Conditions of Business with a reasonable period of notice. The announcement takes place exclusively by publishing on the Internet on the pages of solute. If the customer does not object to the changed conditions of the publication on the Internet within one month, the terms and conditions of the modified or supplemented terms and conditions become effective. If the customer objects within the time limit, solute is entitled to terminate the contractual relationship at the time at which the amended or supplemented terms and conditions of business become effective. Deviating, conflicting or supplementary general terms and conditions will - even with awareness - not be part of the contract unless solute has explicitly agreed to its validity in writing.

2. Services and rights of solute GmbH

2.1  Solute offers its partner shops access to the partner area in which, among other things, statistics as well as copies of invoices are available.

2.2  solute presents the products listed by the customer in his data record via the solute network. The solute‘s network includes its own services and those of its partners. Through this, the user has the opportunity land on the customers page with offers by clicking on a link. This is usually a website on which the costumer offers the presented product for sale. This forwarding of the user via the solute network to the website specified by the customer is to be paid by the customer.
The customer is able to see all the partners of the solute network in the customer account. Solute is entitled to change the number of partners by introducing new partners or removing previous ones.
This adjustment of the network is based on solute’s reasonable judgement, whereby a change is only made to an extent that is reasonable for the customer.

2.3  The customer is aware that neither billiger.de nor any other portal that could be connected to the network in the future is obligated to include a specific online store. This means that solute cannot guarantee that each online shop is integrated into all portals of its choice. The customer is entitled to terminate the contract immediately if the online shop is not being accepted by any portal.

2.4  solute implements the electronic integration of the customer‘s product information into the solute database on which end users have access via the portals. A certain form of presentation is not guaranteed. Solute uses (e.g. for the presentation of the offers of the online shop on the websites of the portals) among other things the product information consisting of text and images, including any customer identification marks (here referred to as „content“). solute has the right to change the presentation of the transmitted content of the customer to a standardized presentation on the portal. The link that leads from the portals to the online shop will, if necessary, be adapted to the specifications of the online shop in the best possible way.

2.5  If this is ordered by the Customer, solute has the right to use the whole or part of the Customer datasets in original or supplemented form for displaying ads on paid placement providers (Google, Yahoo! Search Marketing, etc.). The prospects generated thereby are routed directly to the underlying product URL in the Customer dataset via the solute system. If using Bing Ads, the conditions according to the following link https://advertise.bingads.microsoft.com/en-us/resources/policies/microsoft-bing-ads-agreement apply additionally.

2.6  solute has the right to extend, change or improve the offered services or performances only if those changes are reasonable for the customer. Solute is particularly entitled to change services if this is based on changes that are mandatory for solute as it is caused by its cooperation partner (e.g. a portal) and if it is reasonable for the customer.

2.7  The offers of solute are non-binding and subject to change.

2.8  solute is entitled, after written advance notice, to adjust the costs after a period of six weeks.
The changed costs apply if the customer does not disagree to the changed price within those six weeks in written form. The contractual relationship shall then be continued with chanced costs. If the customer disagrees in time, both parties have the right to terminate the contract within a period of four weeks to the end of the month.

2.9  solute has the right to adjust the costs seasonally (e.g. Christmas) for a short time for this period. The customer will be informed about the duration and the amount of the costs four weeks in advanced at the latest through E-Mail. In all other respects, the objection regulation contained in clause 2.8 applies.

2.10  The customer can only assert counterclaims to solute’s claims with own unchallenged or legally established claims.
The customer has a right of retention only if its counterclaim is based on the same contractual relationship. The assignment of the customer‘s claims against solute to third parties is excluded.

2.11  Any objections to solute‘s invoices must be raised within four weeks of the due date in written form to solute. If solute does not receive any objections within that time period it counts as approval. solute will send information about the legal consequences of an omitted objection in time separately but sends a note on the invoice.
If the customer has failed to meet the objection deadline through no fault of his own, he may let solute know about the objections in written form within two weeks after removal of the obstacle. The customer is responsible for the proof of the obstacle. The customer’s legal claims of the with objections after expiry of the time period remains unaffected. If solute has to delete data at the time of data collection, caused by legal regulations or explicit instructions, solute is not obligated to provide evidence for correctness of the invoice.

2.12  If the customer’s payment of the invoices is delayed, solute is entitled to stop the services and to take the customer’s online shop offline. Solute will set a time limit when notifying the customer of this action.

3. Availability of solute services

3.1  solute is trying to provide the service during the entire term of the contract for 24 hours a day on 7 days a week also in consideration of account maintenance and repair work as well as downtime for updates. The use of the services is at the customer‘s own risk. Solute does not guarantee that the services will be available at all times without any interruption or errors as well as in time and safely.

3.2  Service interruptions are possible. This particularly applies during maintenance and/or repair work and/or updates and for periods when the web server is unavailable and cannot be reached via the Internet due to technical or other problems that are not caused by solute (force majeure, the fault of thirs parties, failure of communication networks and gateways of other operators, technical faults of the respective provider, etc.).

3.3  If the interruption of the service is caused by maintenance and/or repair work or not caused by solute, the customer needs to pay the agreed costs. Especially in the event of a service or server interruption caused by the customer.

4. Duties and obligations of the shop partner

4.1  The costs to be paid by the customer is calculated according to the price agreed and results from the contract or from other agreements between the customer and solute. A settlement is made on the basis of the clicks indicated in the invoices; unless there are special agreements between the customer and solute.

4.2  The customer has to inform himself about the respective access configuration in the specific technical design at solute before starting the cooperation and has to ensure that the technical components (hardware and software) are compatible. solute does not guarantee the functionality and compatibility of the offered services with the customer’s equipment (hardware and software).

4.3  If data is transmitted to solute - regardless in which form - the customer needs to make backup copies. Solute is not liable for loss of data. The servers are regularly backed up.

4.4  The customer is obligated to keep the passwords received from solute secret and to only give a specified group of persons access to it.

4.5  The customer operates his online shop and his website in such a way that its form, content and/or intended purpose does not conflict with legal prohibitions/bids, the good customs and rights of third parties (especially name, copyright, brand, design, data protection rights, etc.). The customer is fully responsible for the legal admissibility of the product offer. If the customer offers goods/products/services that do not contain a youth clearance and require an age rating according to the USK/FSK regulations, the customer ensures that those products are labelled according to the regulations and are not sold to minors. In addition, the customer ensures that alcoholic beverages, tobacco products, weapons and/or other goods and services whose offer and/or distribution are subject to legal restrictions, are only offered and distributed in compliance with those restrictions. The customer can proof that labelling has been made and that required control mechanisms (e.g. age verification) have been carried out, if solute requests proof.

4.5.1  In particular, the customer undertakes to exclusively sell goods/products/services in his online shop which are not subject to prohibitions in pharmaceutical legislation and which are not covered by the statutory provisions of the buyer‘s country.

4.5.2  The customer commits himself, regarding his online shop and website, not to present any pornographic content or content that glorifies violence or incites people to hatred. The customer also obligated not to encourage or provide guidance on criminal offences.

4.5.3  Furthermore, the Partner shall especially not transmit any content,
a) which glorifies war,

b) which is likely to endanger the morals of children or adolescents, in particular those who have been included in the list of publications and media contents harmful to minors (§ 1 GjSM) or which are suitable to promote the physical, mental or spiritual well-being of children and teenagers. (§ 6 para. 2 JÖSchG),

c) which presents people dying or suffering from severe physical or mental issues in a manner that offends human dignity or content that reflects actual events, without huge, legitimate interest of people in this form of representation,

d) which otherwise violates human dignity.

4.6  If solute becomes aware that the online shops and/or the customer‘s web pages are not in conformity with the form, content or pursued purpose against legal prohibitions/mandatory, rights of third parties or the morality, solute is entitled to remove the illegal information or to block access to it. The access blocking can apply to the entire offer of the customer on all portals if the problem cannot be clearly defined. It is up to the customer to provide evidence for the actual harmlessness of the contents. As soon as this has been provided, the offer will be activated again. Do the online shops and/or websites of the customer violate the above-mentioned prohibitions/bids, the customer is then responsible for this and is liable to solute for the replacement of all damage resulting from that. The customer shall indemnify solute against any named damages arising from these infringements of resulting claims from third parties.

4.7  For the offer, the sale and the completion of orders to consumers is the customers full responsibility. A contractual relationship during an order in the online shop only exists between the costumer and the consumer.

4.8  If it becomes known that the customer is sending undesired mass mailings by e-mail or in newsgroups (so called spamming), which is carried out in connection with the service provided by billiger.de, solute is entitled to immediately block the offer. Programs installed by the customer, which affect the services performance can be uninstalled or locked by solute.

4.9  The customer is obligated to provide all services required in accordance with § 5 TMG to keep information easily recognizable, immediately accessible and constantly available for the business teleservices. This includes especially:

a) the name and address under which he is established and in the case of a legal person the authorized to represent,

b) information enabling rapid electronic contact and direct communication with it including the address of the electronic mail,

c) the commercial, association, partnership or cooperative register in which it is registered and which contains the corresponding register number,

d) in cases in which he has a sales tax identification number in accordance with § 27 a of the VAT Act, the specification of this number.
In addition, the customer is obligated to provide legally prescribed consumer information in the legally defined form for end users.

5. Liability of solute GmbH

5.1  solute shall only be liable for any damages, irrespective of the legal basis, if a contractual obligation (cardinal obligation) was culpably violated or the damage was caused by rough negligence or intent or as far as it concerns a liability for damages from the injury of the life, the body or the health acts. The limitation of liability shall also apply in the event of the fault of a vicarious agent of solute. If the breach of a material contractual obligation (cardinal obligation) does not occur through rough negligence or intentionally, solute‘s liability shall be limited to such typical damages or such typical extend of damage which were reasonably predictable at the time the contract was concluded. This does not apply to liability under the product liability act or in the event of fraudulent intent. As far as not mandatory legal regulations determine any different, the liability shall be excluded in all other respects.

5.2  Limitation period: Regardless of any shorter statutory periods, any claims against solute from or in connection with the use of the service or these terms of use must be made legally within one year after they become effective. This does not apply to damages which are based on a culpable injury to life, body or health as well as in the case of a liability under the product liability law and fraudulent intent.

6. License agreement

6.1  The customer hereby guarantees solute the right to use the data for comprehensive commercial exploitation regarding the marketing of products of the customer that are not exclusively and sublicensed regarding the rights of use and exploitation for unrestricted, full or partial exploitation in all known types of use or exploitation (in particular distribution on the Internet, presentation on websites, etc.) or in connection with the portals and other online advertising media. The use and exploitation rights are explicitly granted only as simple rights, i.e. the customer remains entitled to dispose the rights of the data records themselves. The granting of the rights is locally and spatially unrestricted.

6.2  The above granting of rights includes in particular the following rights:

6.2.1  The so-called online right, i.e. the right to access the data records transmitted by the customer and their contents via fixed and mobile telecommunication networks and telecommunication means are available for the users in places and times of their choice for demand (on-demand), for downloading and for reproduction (including the use of the right to analogue or digital individual transmission), the right of public access and the broadcasting right, i.e. the right to transmit the relevant data records or their contents to users by radio for the purpose of simultaneous or time-delayed broadcast, in each case to the extent that is required for a contractually admissible use.

6.2.2  The right to use and store the relevant data records and their contents for the contractual purposes without any limitations, temporarily or permanently, regardless of the nature of the storage media.

6.2.3  The archive and database law, which means the right to store the data records and their contents for the contractual purposes in analog or digital form online or offline to access it at any time and to enable third parties to access it as part of the contract.

6.2.4  The right to use the records and their contents in any form of advertising for and through the portals in unchanged or retouched form in posters, brochures, advertisements, picture or sound carriers, commercials, advertising banners, online text ads, demo versions, multimedia shows, test versions or similar means of communication.

6.3  Online advertising: solute is unrestrictedly entitled to use the data records provided by the customer and their contents and to connect or let connected them with advertising in the portals, in particular advertising banners or other media forms via adserving, and to place them in the immediate close to the data records and their given content. Revenues from this are only attributable to solute or its affiliated companies.

6.4  solute is entitled, for the purpose of fulfilling the contract, to use the trademarks, titles of works, names or designations of the customers. The same applies to the specific portals.

6.5  solute is entitled to sublicense all mentioned rights to further partners of the network, as far as this is necessary for the integration of the product offers with the partners. Furthermore, solute is entitled to use third parties for the fulfilment of its contractual obligations and as far as it supports the fulfilment of the contractual obligations, to grant the mentioned rights.

6.6  The granting of rights also includes the right to transfer the mentioned rights of use to the users of the portals and to sublicense for an unlimited period of time as far as this is necessary for the contractual use of Internet users.

6.7  The granting of the mentioned rights shall be valid for the duration of the contract between solute and the customer.

6.8  The content published on billiger.de can be processed and used by solute for advertising and market research purposes.

7. Duration of contract and termination

7.1  The duration of the contract results from the order or from the separate agreement between the customer and solute.

7.2  Notice of termination shall be given at any time after the expiry of a minimum contract term in compliance with a period of four weeks to the end of the month. The date of the declaration receipt decides whether the deadline is met or not. Notice of termination must be given in written form, i.e. a handwritten signature of an authorized representative of the party giving notice is required. Sending the letter of termination by well readable fax is sufficient.

7.3  Both parties are entitled to terminate the contract without notice if there is an important reason. An important cause, which entitles solute to terminate the contract without notice, exists in particular when

a) contractual relationships with existing contractual partners of solute are compromised due to the behavior of the customer;

b) the customer is in default of payment for two consecutive months;

c) the customer becomes insolvent, in particular by proposing the insolvency proceedings;

d) the customer violates the essential provisions of these terms and conditions;

e) the data/contents made available by the customer violate the legal commandments/prohibitions, morality or the rights of third parties.

7.4  Termination without notice shall be implemented after prior warning by solute, unless the warning has been issued by no prospect of success and/or holding on to the contract is not bearable for solute.

8. Newsletter

The customer agrees to receive newsletters with several offers for individual services of solute and its cooperation partners on a regularly basis to the given e-mail-address. The customer can always veto receiving the newsletters for now and regarding the future without having any other transmission costs that are incurred according to the basic tariffs.

9. applicable law, place of jurisdiction, written form

9.1  This contract and its implementation are only governed by the law of the Federal Republic of Germany and not by private law.

9.2  Karlsruhe shall be agreed as the place of jurisdiction if the customer is a merchant. The same applies if the customer does not have any general place of jurisdiction within the country or if his residence or habitual abode from has changed during the scope of application of the law or is unknown.

9.3  If the contract provisions and the general terms and conditions require the written form, an e-mail will fulfill this requirement (shops@solute.de).

9.4  The parties agree not to disclose the contents of the contract, in particular the conditions.

9.5  Severability clause: Should one or more provisions of this contract be or become fully or partially invalid or impracticable, this shall not affect the validity of the remaining provisions of this contract.
In place of this ineffective or unenforceable provision, the parties agree on a regulation that is similar to the legal and actual economic purpose of the invalid or unenforceable provision.
The same applies to incompleteness.

Contact

solute GmbH

Zeppelinstraße 15
D-76185 Karlsruhe

Tel: +49 (0) 721 86956 60
Fax: +49 (0) 721 86956 70

E-Mail: shops@billiger.de

Managing Directors:
Dr. Thilo Gans
Bernd Vermaaten

commercial register: Amtsgericht Mannheim
HRB 110579

UST-IdNr. DE234663798

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