As of: 17.06.2015
1 Scope of Application
(1) The following Advertiser Terms & Conditions regulate the business between FranchisePORTAL GmbH, Heidestraße 30a, 53797 Lohmar (hereafter “FranchisePORTAL”) and its clients that wish to book advertising space (hereafter “Client”).
(2) FranchisePORTAL provides its services exclusively to business owners and freelancers. Specifically, these services are not targeted at consumers as defined in Section 13 of the ‘BGB’ (German Civil Code).
(3) All services provided are subject exclusively to these Advertiser Terms & Conditions. Deviating, conflicting or supplementary General Terms & Conditions of the Client shall only become a part of this Contract if FranchisePORTAL expressly approves their validity. FranchisePORTAL’s approval shall be required for each individual case also, for example, if FranchisePORTAL provides a service and is aware of the Client’s General Terms & Conditions.
2 Conclusion of the Contract
(1) Unless agreed on otherwise in writing, a contract shall be considered concluded after an order, filled in and sent by the Client by post, fax or email, has been confirmed in writing by FranchisePORTAL or a service has been provided by FranchisePORTAL in response to an order (Section 151 BGB [German Civil Code]).
(2) FranchisePORTAL has the right to turn down orders for which it has not yet sent written confirmation without giving its reason for doing so.
3 Subject Matter
(1) FranchisePORTAL operates a virtual franchise exhibition on its websites, franchiseportal.de, franchiseportal.at and franchiseportal.ch, which is targeted at people interested in franchising/potential leads.
(2) FranchisePORTAL markets all types of advertising space in online and offline media.
(3) The subject matter of this Contract covers the publication of one or several advertisements in information and communication services, in particular on the Internet, for the purpose of dissemination in accordance with each individual agreement (hereafter “Advertising Order”).
(4) Within the context of these Advertiser Terms & Conditions, the term ‘advertising media’ covers all elements and materials used for an advertisement. Advertising media can in particular consist of images, texts, sound sequences and/or moving pictures (incl. banners) as well as of hot spots, which when clicked on create a link to other pages in the Client’s domain or the domain of a third party via an online address provided by the Client. Advertising media can also be made up of several of the elements named above.
(5) FranchisePORTAL gives its Clients password secure online access to the “back office” of their system’s profile as well as to their virtual exhibition stand and passes on enquiries from potential leads interested in contacting them.
4 Collaboration with Consultants
(1) If the Contract is concluded on the part of the Client by a consultant, agent or recruiter (hereafter “Consultant”), the Consultant must confirm that the franchise system(s) they have been commissioned to represent has given them the required authorisation to do so and that the enquiries they receive from customers shall be used solely for the franchise system they are representing in this case.
(2) If the Contract is concluded on the part of the Client with the respective franchise system, then FranchisePORTAL shall, at the request of the Client, give the Client’s consultant (as defined above) their own access to the “back office” of the system’s profile and its virtual exhibition stand (hereafter “Consultant Access”) provided the following preconditions have been met.
(3) Preconditions for setting up such a “Consultant Access” are that the Consultant first signs the “Consultant Declaration” form, in which they acknowledge and agree to comply with all contractual obligations, in particular regarding data protection, and that FranchisePORTAL has no doubts as regards the reliability of the Consultant.
(4) If and as soon as the collaboration between the Client and their Consultant comes to an end, the Client is obliged to inform FranchisePORTAL of the date immediately so that the Consultant Access can be blocked.
5 Obligations of the Client
(1) The Client acknowledges and agrees to provide all advertising media, documents and information needed by FranchisePORTAL to produce the texts as agreed on and to publish the Client’s data on time and in a sound technical condition.
(2) The Client acknowledges and agrees to only make truthful statements. Should information about the Client change, in particular its name, address, email address and/or telephone number, then the Client is obliged to inform FranchisePORTAL of these changes immediately.
6 Data Protection, Copyright, Contractual Penalties
(1) The contractual parties acknowledge and agree to adhere to data protection laws when transferring contact details via the virtual exhibition stand. Potential leads fill out a form linked to the virtual exhibition stand, in which they agree to their details being used solely to make contact to the Client to initiate a franchise agreement with the respective franchise system they are applying to.
(2) The Client also acknowledges and agrees vis-à-vis FranchisePORTAL that they shall not pass on any details to a third party or process them for any purpose other than to initiate a franchise agreement between the Client and the potential lead. Moreover, details may only be passed on to a Consultant if the preconditions stipulated in Section 4 of these Advertiser Terms & Conditions have been met.
(3) FranchisePORTAL is the sole copyright owner of the layout of its website as well as of the graphics and images used, the collection of texts and the individual contributions drawn up and published on the pages. The reproduction or use of these in other electronic or printed publications not intended for private use is, therefore, prohibited without the explicit prior consent of FranchisePORTAL.
(4) If the Client culpably breaches its data protection obligations as stipulated in Section 6 Point 2, it shall pay a contractual penalty for each individual breach, the amount of which shall be determined by FranchisePORTAL at its discretion and can be reviewed by the court responsible in the case of a legal dispute. As a rule, the parties agree that a penalty amount of €500 shall be considered an appropriate sum in the case of a first breach, although the severity of the breach of each individual case shall be the determining factor (guideline). Irrespective of the contractual penalty, FranchisePORTAL shall continue to have the right to terminate the Advertising Contract without notice for good cause and/or to apply for an injunction, as well as to seek damages (from which any contractual penalty shall be deducted) and/or to demand information.
7 Non-Disclosure of Online Access Data, Contractual Penalties
(1) In order to comply with data protection and copyright obligations, the Client acknowledges and agrees to treat the online access data, given to it for its online access as per Section 3 Point 5, as strictly confidential and not to pass it on to a third party. Moreover, it may not pass this information on to a Consultant.
(2) If the Advertising Client culpably breaches its non-disclosure obligations as stipulated in Section 7 Point 1, it shall pay a contractual penalty for each individual breach, the amount of which shall be determined by FranchisePORTAL at its discretion and can be reviewed by the court responsible in the case of a legal dispute. As a rule, the parties agree that a penalty amount of €500 shall be considered an appropriate sum in the case of a first breach, although the severity of the breach of each individual case shall be the determining factor (guideline). Irrespective of the contractual penalty, FranchisePORTAL shall continue to have the right to terminate the Advertising Contract without notice for good cause and/or to apply for an injunction, as well as to seek damages (from which any contractual penalty shall be deducted) and/or to demand information.
8 Contract Term & Cancellation
(1) The Advertising Order is concluded for a fixed period of time, in individual cases for a specified period of time (hereafter “Booking Period”).
(2) The Advertising Order shall automatically be extended by a further Booking Period, if the Contract has not been terminated in writing by one of the parties in accordance with the notice period of 10 days before the end of the respective Booking Period.
(3) The right to terminate the Contract without notice for good cause remains unaffected by this.
(4) The termination of the Contract for good cause must be preceded by a warning letter.
9 Prices & Terms of Payment
(1) Unless agreed on otherwise in another written agreement, the prices valid are the prices in the price lists published by FranchisePORTAL on the Internet at the time the order is submitted.
(2) FranchisePORTAL shall issue an invoice in advance for the service to be provided for each Booking Period. The invoice amounts are payable in full without any deduction within 14 days.
(3) If the Client provides FranchisePORTAL with a SEPA business-to-business direct debit mandate, then FranchisePORTAL shall grant the Client a discount of up to 5% on the invoice amount. If the Client chooses to issue a SEPA business-to-business direct debit mandate, then the Client is obliged to ensure that the amount set out in the previously issued invoice is paid on its due date.
(4) Price increases affecting an Advertising Order shall become effective if FranchisePORTAL announces the price increase at least one month before the beginning or the extension of an order that is to be provided at the new price. In such cases, the Client has the right to terminate the Contract in writing within 14 days of receiving the notification of the price increase.
(5) FranchisePORTAL has the right to make the provision of its services dependent on the payment of its invoice.
(6) Should FranchisePORTAL have justified doubts about the Client’s ability to pay an invoice, then it shall have the right to refuse to provide the service agreed on in the Contract and/or to suspend the provision of the service until the invoice amount owed has been settled.
(7) The Client may only set off and/or assert its rights of retention if its counterclaims are undisputed or determined to be valid by a court of law. The Client’s legal right to counterclaim remains unaffected by this if a product supplied by FranchisePORTAL is defective.
10 Advertiser’s Legal Rights arising from Product Defects; Liability of FranchisePORTAL
(1) FranchisePORTAL shall make every effort to reproduce the advertising media in the best possible way in line with normal technical standards and within the scope of the foreseeable requirements. However, the Client is aware that it is not possible to create a programme that is completely free of errors with today’s technology. For this reason, FranchisePORTAL assumes no liability for minor display errors, in particular errors caused by
- the use of unsuitable display software and/or hardware (e.g. browser) or
- a disruption in the communications networks of other operators or
- a computer breakdown resulting from a systems failure or
- incomplete and/or out-of-date offers on so-called proxies (temporary storage) or
- a breakdown of the ad server that does not last longer than 24 hours (ongoing or added together) during the first 30-day period following the publication of the advertisement agreed on in the Contract.
(2) FranchisePORTAL shall make every effort to ensure its ad server achieves the highest possible levels of availability. A reduction in price shall be excluded if the server is, on average, able to be reached for not less than 90% of the Booking Period.
(3) The Client shall not be entitled to assert any claim for defects if the product deviates only slightly from the quality agreed on or its usability is only slightly affected.
(4) Should FranchisePORTAL fail to rectify the defect, then the Client has the right to demand a reduction in price. Should the Client no longer be interested in the service provided if FranchisePORTAL fails to rectify the defect, then it has the right to withdraw from the Contract. Two unsuccessful attempts shall constitute a failure to rectify a defect.
(5) FranchisePORTAL has no influence on the design or content of external Internet pages. For this reason, it expressly distances itself from all external content, even if a banner or a link has been set up on FranchisePORTAL’s Internet portals and related websites that leads to these external pages. This applies to all links shown and to all content on the pages accessed via the banners and links.
(6) FranchisePORTAL’s liability is restricted to cases of intent or gross negligence and limited to the foreseeable damage typically occurring under this type of contract. This limitation of liability shall not apply to cases involving loss of life, physical injury or damage to health nor to claims based on the violation of a major contractual obligation, i.e. of an obligation without which this Contract cannot be carried out.
11 Right of Refusal/Suspension of Advertisements
(1) FranchisePORTAL reserves the right to refuse or suspend an Advertising Order after a Contract has been concluded if the content of the advertisement is in violation of laws or official regulations, the ‘Deutscher Werberat’ (German Advertising Standards Authority) issues a complaint regarding its contents or if the publication of the advertisement is unacceptable to FranchisePORTAL as a result of its content, origin or technical form. The same shall apply if the Client subsequently makes changes to the content of the advertising media itself or subsequently changes the data accessed via a link and as a result of this meets the conditions set out in Sentence 1.
(2) FranchisePORTAL shall inform the Client immediately if it intends to assert its right to refuse or suspend an advertisement. In such cases, the Client has the right to provide FranchisePORTAL with an amended version of the advertisement motif or advertising media due to be published and/or the target URL to which a link should be set up. Any additional costs incurred by this shall be paid by the Client. If the Client fails to provide the amended version on time, then FranchisePORTAL reserves the right to claim payment of the price agreed on as a flat-rate compensation amount even if the advertising media is not published or not published during the whole of the Booking Period agreed on. The Client retains the right to prove that FranchisePORTAL suffered no damage or considerably less damage than the value fixed.
12 Client’s Warranties & Indemnity
(1) The Client is responsible for ensuring that it owns all rights required to have the advertising media published.
(2) The Client agrees, within the scope of the Advertising Order, to indemnify FranchisePORTAL in respect of all claims arising from third parties resulting from a violation of a legal regulation, including any legal defence costs arising from this, upon first demand.
(3) The Client acknowledges and agrees to act in good faith and support FranchisePORTAL and to provide it with information and documents for its legal defence against a third party.
(4) Throughout the term of the Contract, the Client shall grant FranchisePORTAL all non-exclusive rights of use, ancillary copyright and other rights needed to carry out the Advertising Order, in particular the right to copy, distribute, transmit and send data as well as extract data from a database and retrieve data. The above-mentioned rights shall, for all cases, be granted without geographical limitation and authorise the advertisement to be published using all known technological methods and in all known media forms.
13 Final Provisions
(1) Place of fulfilment and the only place of jurisdiction in the event of any dispute resulting from or in connection with a Client’s Advertising Order shall be Cologne (Germany). FranchisePORTAL, however, reserves the right to file a suit in the city where the Client is based.
(2) These Advertiser Terms & Conditions shall be governed exclusively in accordance with the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(3) FranchisePORTAL reserves the right to amend these Advertiser Terms & Conditions at any time. The Client shall be notified of such changes in writing in good time. It shall be deemed that the Client has accepted the amendments, if it does not object to the amendments within 14 days of receiving the notification letter.
(4) Should individual provisions of these Advertiser Terms & Conditions be or become invalid, the other provisions will remain in force. In such a case, the invalid provision shall be replaced by a provision – also if necessary via a justified reduction – that shall reflect as closely as possible the economic intent of the provision to be substituted. The same is true should an unintended omission be found whilst carrying out the Advertising Order.