General Terms and Conditions of zmail GmbH
For the execution of an advertising order between zmail GmbH and an advertiser (hereinafter "Client"), exclusively the following general terms and conditions are applicable. The legal force of other general terms and conditions of the Client is explicitly excluded, even if zmail GmbH does not object to such legal force individually.
- Scope
Within the scope of marketing advertisements in or via online media, zmail facilitates or places advertisements in its online offers and offers of its partners as well as other advertising measures (e-mail, sms and WAP, etc.).
- Material
The Client shall be responsible for delivering the complete and correct information, data, files and other material necessary in due time and corresponding to contractual agreements and in such condition that it is suitable for the stipulated purpose, particularly the corresponding screen layout for the respective environment as well as manner and size stipulated. If not stipulated otherwise, graphics shall be provided in GIF or JPEG format. The respective destination addresses of the links (URL on internet, cross reference) shall be provided by the Client. Javascript, forms and flash files shall be avoided, as, at some addressees, these elements - depending on security settings of their e-mail clients - may be suppressed and not depicted correctly. The material shall have been received by zmail two work days prior to the placement of the advertisement. Delivery may be carried out via e-mail.
- Release
zmail shall be entitled but not obliged to adapt and, to the extent necessary or advisable for an optimum solution, alter and revise the material provided by the Client, particularly as regards dimensions. The Client shall be obliged to examine the placed advertisement immediately after the first placement / release e-mail and to immediately notify zmail of any errors or mistakes. For the purpose of the acceptance, the Client shall be informed of the placement of a test site / test mail. Acceptances and complaints shall be made in writing after receipt of notice.
- Content of Online Offer
zmail übernimmt keinerlei Gewähr für die Aktualität, Korrektheit, Vollständigkeit oder Qualität der bereitgestellten Informationen. Haftungsansprüche gegen zmail welche sich auf Schäden materieller oder ideeller Art beziehen, die durch die Nutzung oder Nichtnutzung der dargebotenen Informationen bzw. durch die Nutzung fehlerhafter und unvollständiger Informationen verursacht wurden, sind grundsätzlich ausgeschlossen, sofern seitens des Betreibers kein nachweislich vorsätzliches oder grob fahrlässiges Verschulden vorliegt. Alle Angebote sind freibleibend und unverbindlich. Die zmail behält es sich ausdrücklich vor, Teile der Seiten oder das gesamte Angebot ohne gesonderte Ankündigung zu verändern, zu ergänzen, zu löschen oder die Veröffentlichung zeitweise oder endgültig einzustellen.
- References and Links
In the case of direct or indirect references to third parties' websites ("hyperlinks") which are not included in zmail's scope of responsibility, zmail shall only be liable if zmail knows of the contents of this website and if it is technically possible and reasonable for zmail to prevent the usage in case of illegal contents. zmail hereby explicitly declares that there were no noticeable illegal contents on the websites to be linked at the time the sites were linked. The operator has no influence on the current or future design, content or authorship of the linked or integrated websites. Thus, the operator hereby explicitly disassociates itself from any content of all linked or integrated sites which have been altered since the time of linking or integration. This statement shall be applicable for any links and references set within zmails own internet offers, as well as for any entries of third parties in guest books, discussion forums and mailing lists provided by zmail. The provider of the website which is being referred to shall be solely liable for all and any illegal, incorrect or incomplete contents, and particularly for damage resulting from the usage or non-usage of such information provided; the party merely referring to such sites via links shall not be liable.
- Copy Right and Trademark Law
In all publications zmail shall strive to comply with the copy right of all used graphics, sound documents, video files and texts, and to use graphics, sound documents, video files and texts created by zmail itself or to resort to graphics, sound documents, video files and texts requiring no license. All and any brand labels and trademarks which are stated within zmail's internet offers and, if applicable, protected by third parties, shall, without limitation, be subject to the regulations of the respective applicable trademark law and the possessive right of the respective registered owner. Solely on the basis of a mere mentioning, it must not be concluded that the trademark is not protected by rights of third parties! The copy right for published objects created by zmail shall exclusively stay with the operator of the sites. The use or copying of such graphics, sound documents, video files and texts in other electronic or printed publications shall not be permitted unless explicitly permitted by zmail.
- Legal Responsibility
The Client shall bare the sole responsibility for the contents of advertising material and advertising spaces. The Client shall guarantee that by placing the advertisement, no rights of third parties are infringed. The Client shall release zmail from all and any claims of third parties arising out of any non-compliance with the aforementioned. The Client shall guarantee that the advertisement contents do not violate applicable law, legal and official restrictions or public morals. zmail shall be entitled but not obliged to examine the contents of the advertisements. zmail shall be entitled to remove advertisements which violate the aforementioned regulations, and links which lead to contents that violate applicable law, legal and official restrictions or public morals from their offers. A previous written warning notice shall not be mandatory. zmail shall without delay notify the Client of such measures taken. The Client shall remain obliged to make the contractually stipulated payment, unless the Client provides evidence that zmail has wrongfully removed the advertisement from the offer. Further reaching damage claims or refund claims of the Client shall be excluded.
- Remuneration
Valid prices shall be listed in the latest price list. All amounts shall be added with the legal value added tax and are payable from the time of receipt of the invoice. In the case of services not being listed in the price list, these shall have to be stipulated separately. zmail reserves the right to adjust prices. If applicable, the Client shall be notified of a price adjustment in writing and four weeks prior to this price adjustment's entry into force.
- Warranty
In all advertising measures, zmail shall exclusively owe the due transmission of the advertisement but shall not be responsible for receipt or retrieval of addressee or notice. In the case of advertising measures of any kind not being placed at the time originally stipulated, or being placed incompletely or improperly, zmail shall be entitled and obliged to make up for such faults within a reasonable period of time. If two rectifications or improvements fail, the advertiser shall be entitled to reduction or repudiation of contract. Further rights or compensations, particularly damage claims, shall be excluded. Otherwise, zmail shall warrant for deficiencies according to applicable statutory provisions. No claims on the grounds of deficiencies which impair the outcome of a service only to a minor extent shall exist. Any deficiencies shall be claimed in writing without delay. zmail shall be entitled to rectification and improvement. Further claims of the advertiser shall only exist after two attempts to improve or rectify have failed, or if zmail refuses improvement or rectification.
- Disturbances on the side of zmail GmbH
In cases of disturbances for which zmail GmbH is resposible or for which zmail GmbH is responsible as a consequence, or if cases of force majeure prevent zmail GmbH from publishing advertisements at the stipulated time, zmail GmbH shall be entitled to publish these advertisements after such disturbances have ceased to exist, provided this is reasonable for the Client. Damage claims shall be excluded. Any complaints except obvious deficiencies shall be made within four weeks of receipt of invoice and document. In the case of an advertisement being displayed partially or entirely illegible, incorrect or incomplete, the Client shall be entitled to reduce the payment for such advertisement or to demand the display of a faultless replacement of such advertisement, provided that zmail is responsible for the aforementioned deficiencies, and only to the extent to which the purpose of the advertisement was impaired. If zmail allows a reasonable time period set for this purpose to pass, the Client shall have the right to withdraw from the order.
- Data Privacy
If the internet offer permits the entry of personal or business data (e-mail-addresses, names, addresses), such surrender of the data by the user is made explicitly on a voluntary basis. The usage and payment of all services offered is - as far as technically possible and reasonable - also permitted without indicating such data or indicating data made anonymous or a pseudonym. The use of the published contact data in line with the imprint or comparable information such as postal addresses, telephone and fax numbers as well as e-mail addresses by third parties for the transmission of not explicitly requested information is not permitted. Legal measures against the forwarders of so-called spam mails in the case of violations of this prohibition are expressly reserved.
- Liabilities
zmail
Damage claims on the grounds of pre-contractual or contractual breach of duty or unlawful action shall only exist in the cases of wilful intent or gross negligence by zmail, its representative or vicarious agents, or violation of essential contractual duties. In the case of negligent breach of essential contractual duties, the liability shall be limited in scope to typical, foreseeable damage and the amount of the advertising rate. In the case of negligence, any claims for damages resulting from the impossibility of performance or delay shall be limited to the replacement of typical, foreseeable damage. In the case of gross negligence of a simple vicarious agent, the liability to companies is limited in scope to typical, foreseeable damage. This shall not apply in cases of breach of essential contractual duties. In cases of injury of life, body or health, zmail shall liable according to applicable statutory provisions.
- Severability Clause
In the case of individual provisions of these terms and conditions being or becoming invalid, the validity of the remaining provisions shall not be affected. In such case, the parties to this contract shall agree upon a new provision which comes closest to the intended purpose of the original provision.
- Place of Jurisdiction
Legal relations between the Client and zmail GmbH shall solely be governed by the law of the Federal Republic of Germany. Place of performance and exclusive jurisdiction for both parties shall be Munich, Germany, registered office of zmail GmbH.
