General Terms and Conditions
1. Definitions | Scope
These General Terms and Conditions (hereinafter referred to as „GTC“) shall apply for the use of any online services operated now or in future by the Operator under www.smallbusinesscrowd.com or various top- or sub-level domains (hereinafter referred to as “the Website”) as well as for the use of any services offered through the Website. In this text masculine nouns shall refer to female and male individuals alike. At present, “Operator” is w2on Zandura LLC, 101 California Street Suite 2450, San Francisco, CA, 94111, Germany. Information on the respective operator can be found at any time under the hyperlink “About Us”. “User” is every individual person of legal age and with full legal capacity or any legal person using services offered through the Website.
By registering, the User agrees to the inclusion of these GTC that are available under the hyperlink “Terms & Conditions“ at any time. The wording of the contract is not stored by the Operator. The language of the contract is English. These GTC shall also apply if the User is registered with or logged on to an online service operated by a third party. The Operator’s GTC are exclusive, divergent terms of the User shall only be accepted by the Operator’s individual written approval. In case of an ongoing business relationship between User and Operator, these GTC shall apply to future agreements, if mentioned so when entering into such agreements. Supplement terms that are considered as integral parts of the GTC may apply to special features, such as services or tools. If such supplemental terms shall apply, the User will be informed accordingly before using the respective feature or service for the first time; the User acknowledges the inclusion of the supplemental terms by using the respective feature or service.
2. Entering into the License Agreement
The Operator’s offers shall be subject to change and are non-binding, unless mentioned otherwise in the respective offer. There shall be no claim for registration or providing access to the services accessible only after registration. The Operator is entitled to establish specific registration requirements for services at any time.
Read-only access to publicly available content or services is offered without prior registration, commencing when visiting and terminating when leaving the website.
The license agreement between Operator and User is entered into with registration of the User for the Website (hereinafter referred to as License Agreement). The User enters his personal data into the registration form and mistakes may be revised until submission of the registration form. By confirming the personal data, the User offers to enter into the License Agreement. The registration process will only be successful if all required personal data is submitted. Otherwise, the registration process will be cancelled or the User’s offer is rejected and his personal data will be deleted.
The Operator accepts the User’s offer by submitting an e-mail to the User in which the registration is confirmed and a preliminary password is transmitted. By receipt of this email the License Agreement shall be deemed as entered into. The User confirms receipt of this email by his initial sign in to the Website with his user name and preliminary password. In any case the License Agreement is deemed as valid when the User uses services that are accessible only after registration.
Registration of a company shall only be carried out by an authorized representative individual person that is named as contact person. The Operator is entitled to request proof of identity or authorization at any time.
An agreement on chargeable services is entered into by additional registration of the User for the respective feature or by completing and submitting the order form. The acceptance of this offer by the Operator is then confirmed electronically or simply by providing the service. In any case the agreement is deemed as entered into by User’s usage of the chargeable service. Upon Operator’s discretion any chargeable service may be subject to verification of the User’s identity.
3. Subject Matter of the License Agreement| Change of Subject Matter
The Website offered by the Operator or third parties combines B2B communication, network and office services (information, consulting, tools, services, network and distribution services) designed for founders, entrepreneurs, executives as well as companies and their staff members. The exact range of services results from the respective range of the Website. There shall be no claim for specific features, services or contents of the Website.
For the User's convenience, the offered services are continuously enhanced and renewed. The Operator may cease free services without reasons or prior notice. The Operator may change upon his own discretion – in full or in part, permanently or temporarily – the scope, range or structure of chargeable services if this is technically required or essential obligations of the Operator are hereby not affected and this is in individual cases reasonable to the User under consideration of the Operator’s legitimate interests. A change to which the Operator is required to make due to change of law, a legally binding or provisionally enforceable court or authority decision shall always be deemed as reasonable to the User. The Operator is entitled to limit the time period in which the messages sent or received by the User on the Website are stored as well as the memory capacity provided to the User.
Statements and explanations in advertising material referring to the Website or therein shall only be regarded as description of properties but not as guarantee or warranty of capacity. Warranties or representations of capacity shall only be considered as such if explicitly named so and provided in written form.
The Operator offers Users a platform to contact other Users or third parties and provides technical applications for doing so. The Operator does not guarantee or claim that a contact with other Users or third parties is successfully established and is not part of the communication process between the Users or third parties. If agreements are distributed or entered into by use of the Website, the Operator is not party of such an agreement and not liable for any misrepresentation or breach of contract by the contract’s parties. Only the User is responsible for implementation and performance of such agreements with third parties.
Unless agreed otherwise, the Operator will make every reasonable effort to keep the Website and its applications constantly available. However, a continuous and uninterrupted availability is not guaranteed. Interruptions required by maintenance and repair as well as by breakdowns shall not lead to any restitution claims for the User.
Unless agreed otherwise, registration for the Website is free of charge. The Operator is entitled to extent the Website by chargeable services or change free services into chargeable services at any time. The User will be informed that the respective service is chargeable prior the first use of such service.
The User will be notified if he accesses content or data bases provided by third parties as well as if he is re-directed to a third party’s website. If additional costs arise for the use of the content or service provided by the third party, the User shall be informed accordingly by the third party.
The Operator may provide declarations to the User via message to the User’s account or by usage of the contact details according to the User’s profile.
4. Obligations of the User
4.1. Obligation to authentic and up-to-date information
Any personal data provided by the User, especially about his own individual person (e. g. name, date of birth) and business data (e. g. company data, offered products and services, power of representation) shall be up-to-date, authentic and non-misleading. Pseudonyms or pen names shall not be used. The User is liable for correctness and topicality of any personal data he provides.
The Operator shall be notified by the User about any transfer, lease or winding-up of his company or any change of owner, legal form, trade name, address or bank account information (as far as required for payment purposes) and change the information in its profile accordingly.
4. 2. User Account | Personal Profile
Establishing more than one account per individual person is prohibited. The User’s account shall not be assigned. If the User submits photographs to his profile, he must be duly recognizable (no sunglasses or masks) and the photograph shall not be older than five years. The User assures that he has the license rights necessary for publishing the photograph in public. The usage of illustrations, logos, avatars or graphics is prohibited.
4.3. Obligation to Maintain Secrecy
The User is obliged to keep his account information and password secret in such way that no third party will receive knowledge thereof. He must not enable other Users or third parties to access the Website with his account information. In the event of loss of account information, password or of unauthorized use or suspicion hereof, the User shall notify the Operator without further delay. The User is liable for any activities undertaken by usage of his account information unless the User is not responsible for misuse and has not infringed any due diligence.
4.4. Obligation to Cooperate
The User establishes any prerequisites required for usage of the Website (e. g. hardware, system software, browser, access to the internet) by himself, on his own cost and liability and will adjust the hard / software accordingly if this is necessary due to further development of the Website. The User is obliged to duly secure his system, especially to use the well-established security settings of his browser, carry out regular data back-ups and implement anti-virus software.
The User is solely responsible for compliance with legal documentation and archiving requirements, especially tax (e.g. Sect. 146 German Fiscal Code) and trade law (e.g. Sect. 257 German Trade Code) obligation to keep records and he is obliged to take any required precautions. This shall also apply, if the Operator provides storage space on a central server in which the User may store any data created or processed with software provided by the Operator for the term of this License Agreement. The Operator makes no guarantee or claim, especially for completeness, readability and availability of any data, documents and information stored with the Operator. For a reasonable period of time after termination of this License Agreement, the User is allowed to access the content and data stored with the Operator for reading purposes only.
Unless agreed otherwise, the User shall submit any data or content (including texts, graphics, photos, videos, files) to the Operator only by using the Operator’s interfaces and data bases and accepted file formats. As far as data and content provided by the User comply with the respective requirements, the Operator is entitled but not obliged to processing them. If a User becomes aware of any usage of the Website that does not comply with legal requirements or the License Agreement (including the use of pseudonyms or fake identities) by other users, he may report this to the Operator.
The Operator is entitled to establish a code of conduct for the usage of the Website which the User shall obey. The Operator will inform the User accordingly by email or within the sign in area. Any introduction or amendment of the code of conduct shall not be regarded as amendment of these Terms and Conditions.
4.5. Scope of Accredited Users
From the scope of accredited users may be excluded such individual or legal persons that offer or procure such advising, support and/or procurement services that are or shall be offered by the Operator himself or via third parties. Especially but not limited to, these are the following services: employment agency, accounting, financial advice, equity advice, startup consulting services, consulting services, marketing, insurance brokerage and insurance consulting services. The Operator is entitled to lock accounts of such Users that do not comply with the scope of accredited users at the time of registration or later.
5. Groups and Boards
User may join together in groups with locked or unlocked participation for the purpose of business-related communication. User’s posts shall be business-related, factual and correspond with the topic of the explicit group. Conversation shall be polite and matter of fact. The User is solely responsible for his posts and comments.
New groups shall be initiated upon User’s suggestion upon the Operator’s sole reasonable discretion. There shall be no claim for activation of a group or admission as a group member. The User may terminate its group membership by confirming the respective button within the group profile.
The Operator provides the technical infrastructure for groups; however, he is not responsible for the behavior of group (co-)hosts or group members. A User’s request for admission to a group shall be decided by the (co-)host or Operator respectively upon its reasonable discretion in accordance with the respective admission criteria. In case of breach of contractual or legal provision or undue behavior, the (co-)host or Operator are entitled upon their own discretion to delete any content or expel the User from the group temporarily or permanently. See also Provision 10 of these GTC.
Being a (co-)host shall be deemed on a voluntary basis only and shall not be construed as an individual instruction of the Operator towards the User without claim for remuneration. Upon his own discretion, the Operator is entitled to discharge a (co-) host without giving reasons. Termination of the License Agreement between User and Operator shall also affect discharge of participation in or being (co-) host of a group.
6. Company Profile
License Agreements referring to services offered exclusively towards entrepreneurs shall not be concluded with consumers in terms of Sect. 13 German Civil Code (BGB). The User hereby confirms that when entering into this License Agreement he acts as entrepreneur in terms of Sect. 14 German Civil Code (BGB), i.e. in exercise of his trade, business or profession.
The explicit scope of features of free offers is based on the respective scope of features within the Website. The range of chargeable offers is based on the respective description of services in the schedule of prices, if applicable.
6.1. Scope of Features
Entrepreneurs in terms of Sect. 14 German Civil Code (BGB) may create and maintain company-related profiles (hereinafter referred to as Company Profile) for the purpose of presentation of his company, his products and services, but is subject to legal business purposes. A Company Profile shall only be created by a person that is registered and authorized for representation of the company. Creating multiple profiles for one company shall be permitted. The Company Profile is not assignable.
Company Profile’s content shall have substantial relation to the respective company. Excessive punctuation, capital letters or undue content is not allowed. The Company Profile may be branded with a company logo subject to any material relation to the respective company. The company affirms to be duly entitled for the respective use of the logo. Within the Website, the Operator may only publish content, data and/or information that complies with legal provisions, common decency or these GTC, that are not improper or if their publication is not unacceptable to the Operator. The Operator is not liable for the compliance of the company with legal information requirements.
6.2. Company Contact Person
The User establishing the company profile is visible for other users as contact person of the company. The Company may appoint a new contact person at any time. The Company is obliged to do so if the License Agreement between Operator and Contact Person is terminated. Unless the Company appoints another person, the contact person shall be responsible for Company Profile's content (especially blog, company news etc.). Contact Persons appointed by the Company shall be deemed as authorized to give or receive any declarations with effect for and against the Company. The Company is responsible for its contact person’s liability to the same extent as for any fault on his own part.
6.3. Deletion of Company Profile
The Company Profile shall be deleted if the License Agreement with the company’s representative is terminated and no authorized representative remains as registered User or if the company does not or not any more comply with the scope of accredited Users; there is no claim for company profile reactivation if the requirements of the scope of accredited Users comply at a later date.
7. Special Provisions for Individual Services
The services provided by the Operator or its vicarious agent or its sub-contractors are subject to the following provisions. Any agreed specifications of the services provided for the User are additionally determined by their scope of features. The Operator makes no warranties with respect to suitability of the rendered service for a specific purpose, irrespectively if the suitability is missing before or after usage of the services. The risk of suitability shall be solely borne by the User.
Section 312e Para. 1 Sent. 1 No. 1 to 3 German Civil Code shall not apply, if the User is - when using the offered services – acting in exercise of his or its trade, business or profession. The User is obliged to provide any data or information required for the usage of the agreed services in due time and in full details by usage of the communication way selected by the Operator. The User authorizes the Operator to issue any declarations to third parties with effect for and against the instructing party, if this is required to perform the agreed services (e.g. against registries). If necessary, the User will submit a written proxy to the Operator. The User is obliged to accept the terms and conditions provided by the respective third part operator.
7.1. Providing Browser-Based Software
The Operator offers the User different – also chargeable – software solutions supporting office processes and provides the software browser-based and/or for download via the Internet. The respective scope of features as well as the hard and/or software requirements on User’s side shall be determined in the provided user's manual (if applicable). Not included is any transfer of software on data carriers or download for local installation, unless determined otherwise in the specification of services. Inasmuch as the User uses the Operator's free services or services provided through the Operator or services beyond the described specification of services, this is free of charge and not resulting in a claim. In the event of chargeable services, the following provisions shall apply:
The Operator’s liability regardless of fault for initial software defects is excluded. The Operator continuously observes the functionality of software and eliminates any software defects as soon as possible. The Operator owes an average annual availability during working days of 97.5%. The Operator is only liable for such defects occurring within his scope of regime. The services are available, as long as the User may use individual features without restrictions and is able to access individual documents and/or information. The following periods shall be not considered for periods of availability of the Website: periods of non-availability of the Website due to permanent or non-permanent lack of technical prerequisites necessary to use the Website which are to be provided by the User (e.g. malfunction of User’s hardware); periods of non-availability due to defects of data transfer or in the responsibility of the internet service provider; periods of non-availability of the Website due to force majeure, especially electricity black out that cannot be influenced by the Operator as well as scheduled maintenance works that shall be carried out by the Operator - if possible - between 6 p.m. and 8 a.m. of the next day or commencing Saturday from 12 a. m. until Sunday 12 am. The User shall be informed about any maintenance work exceeding the aforementioned dates in due time and in suitable manner before start of the maintenance works.
The Operator analyses and removes any proven, repeatable software defect by the help of competent personnel and in accordance with common industrial standards. The Operator is not liable for removal of such defects and gives no warranty or representation insofar. In particular, such defect is deemed given, if the software does not run appropriately and hereby the software usage is considerably restricted or even impossible. Any bugs that are neither repeatable by the Operator nor the User shall not be deemed as defects. In addition, the legal provisions shall apply. The Operator is not obliged to any installation, consulting and/or instruction services.
7.2. Information, Research, Procurement or other Services
The Operator provides the User with several free and chargeable services (e. g. information, research). Details for scope and form shall be determined in the respective description of services. As far as the Operator provides the User with information, these are without responsibility and shall not be considered as consulting services. A certain result, a certain economical success or the suitability of the information for a certain purpose shall not be claimed. Any automated comparative costing, research results or data base results of the Operator (especially containing data, charts and other information) shall not substitute individual consulting considering all individual issues and shall not be considered as recommendation to enter into agreements. The Operator does not make any warranty and is not liable for research results defects or comparative costing and for correctness, completeness and topicality of the provided information. Information provided by third parties shall not be checked by the Operator if being correct prior forwarding to the User. Especially, the Operator is not liable for any consequences of economic decisions by the User made as a result of the provided information and as a result of any comparison. Information shall only be provided to Users that are entrepreneurs according to Sect. 14 German Civil Code. Any usage of the product information for other business or commercial purposes or the forwarding of information to third parties is prohibited.
If the Operator – regardless if by himself or by the help of third parties - provides the User with information about products of third parties as well as their prices and conditions, this shall be deemed only as legally non-binding information about the third party’s offers, but not as binding offers of the Operator or the respective third party. Only the User and the third party shall enter into agreements. The User is obliged to check all required information or the respective agreement as well as their topicality by himself by use of information details provided by the third party. The Operator does not make any warranty for completeness, topicality of the information or suitability for a certain purpose of any products or services provided by the third party. The Operator does not make any warranty that any of the offered products and services are actually offered by the third party and may be acquired by the User.
7.3. Services in the Field of Marketing
The Operator provides browser-based software for creating and designing of company-identifying distinguishing marks (hereinafter „Logo“) to which the User may add individual content (e. g. company’s name, slogan). The User is liable for any content he provides. The User is not allowed to use any marks that are identical or may be confused with other trademarks unless he is authorized by the owner of the right accordingly. He is not allowed to infringe any third party’s rights (e.g. personal rights, copyrights, trademark or other intellectual property rights) or choose such design option that is considered as an imitation of third party’s protected rights.
Except for content provided by the User (e.g. company’s name, slogan), the Operator is owner of any intellectual property rights regarding the individual design elements, including but not limited to all design varieties and combinations, that may be assigned to the User. If the Logo is created by use of the browser-based software provided by the Operator, the Operator assigns to the User free of charge the simple right of use without territorial restrictions, however restricted for exclusively usage of the Logo created by the User within the Website as well as any other service offered through the Website. If the right of use is limited in time according to the description of features, the Logo will be deleted after the operating time expired. When the operating time expires, all assigned rights of use of the Logo shall be re-assigned to the Operator unless agreed otherwise between Operator and User. The User is obliged to hand over any corporate copies to the Operator or delete any electronic copies hereof in due time.
Any drafts resulting from chargeable marketing services (e.g. stationary, business cards) shall be presented to the User for approval; this can also be done in digital form. The Operator is not obliged to transfer any drafts or to create individual designs. In particular, he is entitled to use any design elements or even parts hereof otherwise. The Operator is entitled but not obliged to consider User’s individual specifications. The Operator is not liable for grammatical and orthographic accuracy or completeness of any content provided by the User, just as well not for any mistakes in typing or reproduction or suitability of a product or achievement of a certain purpose or success. The Operator is not obliged to check any User’s content with respect to infringements of third parties’ copyrights, trademark rights or other individual property rights.
Print jobs are carried out by the Operator automated based on data provided and approved by the User. The User is responsible for all provided data to be properly formatted. It is explicitly pointed out that final products may show deviations of technical nature, especially in color, however without any effect on the agreed features. A warranty with respect to fastness properties of design feature as e. g. colors or lamination shall not be made. It is the User’s sole responsibility that no third parties’ rights or statutory provisions are infringed by transfer or processing of data as well as manufacturing and use of printouts.
7.4. Procurement of Third Parties‘ Products and Services
The User may place an inquiry for products and services (e.g. marketing services) on a virtual market place operated by a third party - or if so in co-operation between the Operator and the third party – by using an online form that is to be completed on the Website and shall be placed on the marketplace in anonymous form. The Operator is only involved as procurer but not as contract party or as authorized representative of the User or the agent. As the case may be, special terms and conditions of the third party may apply. Any drafts provided by contractors according to User’s requirements shall be forwarded to him on the Website; after checking the individual drafts, the User shall receive from the Operator for value the contact details of the respective contractor. The User is aware that any of his information and requirements may influence quality and extent of the drafts.
Companies may present itself in the Operator’s Pages with an individual entry that may be reached also by non-registered users and search engines. The features of free and chargeable modules as well as the respective features are determined in the scope of feature within the Online Service or the respective price list. There is no claim for an entity to be mentioned in the business directory. The Operator is entitled to surround the entries with advertisement – for the same or other business sectors or carry out other measures of sales promotion. A company, that is not registered User of the Online Services, may connect its pages entry with its company profile and in accordance with the chosen module additional contents. The usage of chargeable modules is subject to their activation by the Operator.
8.1. Entering into an Agreement | Delivery| Retention of Title | Passing of the Risk
If the User instructs the Operator with production of fungible, movable goods (e. g. business cards, stationary, rubber stamps), the provisions mentioned hereinafter shall apply in addition to statutory provisions on purchase agreements. By placing an order, the User submits a legally binding offer to purchase the respective product. The Operator will provide the User with a confirmation of receipt of the order in due time. The offer is accepted by the Operator by declaration of acceptance (text form sufficient) or by delivering the goods. Prices, delivery costs, customs or other fees are determined in the respective price list and shall solely be borne by the User.
As long as not explicitly agreed in writing as fixed date, delivery dates and delivery periods shall only be deemed as approximate values. All delivered goods remain the Operator’s property until complete payment of the total amount including all delivery costs.
The User shall indicate a delivery address where receipt of delivery is guaranteed during work days. If an additional delivery attempt is necessary, the User has to bear any costs arising hereof. Agreed delivery periods shall commence to run not before receipt of complete payment and - if applicable - receipt of complete print data and shall be prolonged in the event of force majeure or other unpredictably and inevitably events for the period of the disturbance and an additional reasonable starting period. This shall also apply accordingly in the event of disturbances occurring with agents or sub-contractors of the Operator.
If the User is entrepreneur pursuant to Sect. 14 German Civil Code, the risk of accidental loss or accidental deterioration shall be transferred to him as soon as the good is handed over to the freight agent. This shall also apply, if the delivery is carried out with Operator’s own means of transport or if Operator bears the costs of freight charges or if the delivery starts from another place than the place of performance. The User shall accept a partial delivery if this is reasonable for him. Provided that a special way of wrapping has not been agreed, the wrapping shall comply with custom and usage.
9. Unauthorized Use | Prohibited Actions
With respect to usage of the Website, it is especially - but not limited to - prohibited to the User,
- to use contents that may cause nuisance to or deceives others, regardless whether these contents refer to users, personnel of the Operator or third parties;
- to infringe the reputation of the Website, the Operator, Operator’s personnel or co-operation partner or to undertake any action that may impair otherwise;
- to use any content contrary to common decency or harmful to young people or to promote, offer or procure any products that are contrary to common decency or harmful to young people;
- to use or provide the Operator or third parties with any content (especially but not limited to texts, graphics, video and audio material, maps) protected by law (e.g. by copyright, trademark, patent or other intellectual property law), to promote, offer or procure any products and services protected by statutory law or to choose a design that imitates third party’s protected intellectual property without being authorized to do so;
- to use (also as keywords) such marks that are identical to or may be confused with other trademarks, without being authorized to do so by the respective owner of the intellectual property right;
- to undertake or support any actions that infringe competition law including progressive canvassing (as chain, snowball or pyramid systems and multi-level network marketing) as well as to undertake unfair business practices and harass other users in an unreasonable way; this prohibition does also compile multiple sending and forwarding of identical messages to other Users;
- to offer or promote to other Users any information, consulting, service and/or procurement services that are part of the business subject matter of the Operator or its co-operation partners (see also 14.3);
- to procure other Users or their data to third parties – no matter if with remuneration or free of charge- or to use such data for the purpose of own comparable services or to use the Website on behalf of another user or a third party (see also 14.2);
- to link to websites with unauthorized or illegal content;
- to communicate in an offensive or sexually oriented way;
- to share or publish passwords, codes or serial numbers of any kind;
- to apply any mechanism, software or scripts to block, to overwrite, to modify or copy any content of the Website (in full or only parts hereof); explicitly prohibited is copying by usage of “robot/crawler” search engine technologies (see also 14.1);
- the use of the Website completely, in part or in extracts for the commercial exploitation of addresses, commercial address directories or compilation of directories of other kinds in all kinds of media;
- to undertake any actions that are suitable to disturb the functionality of the Website;
- to copy, publish, to make available in public or utilize in other ways any content available on the Website without the respective right owner’s consent;
- to harm other users;
- to promote sects or contested religious and non-confessional communities;
- to publish contact details outside of the relevant form fields.
10. Sanctions Imposed for Breach of Duty or Non-Permitted Actions by the User
If the User infringes culpably duties out of the License Agreement, especially determined in Sect. 9 of these GTC, or statutory provisions, the Operator is entitled upon his own discretion without prior notification and without giving reasons as well as under exclusion of any restitution claims however under consideration of the User’s legitimate interests to delete any authorized User’s content, to temporarily or permanently restrict User’s access to the Website or to permanently delete User’s account.
There shall be no claim for re-registration as User. The extra-ordinary termination right according to Sect. 20 shall remain unaffected. Initiation of civil or criminal legal proceedings, especially assertion of compensation of damages and/or filing of a criminal complaint shall remain expressly reserved.
11. Liability for User Generated Content
The Operator is not liable for completeness, content wise correctness and topicality of any data provided by the User or any content generated by the User including any infringement of third parties’ rights. The Operator is not liable for any misuse of information and is not able to verify if the User’s registered identity complies with his personal authentic identity and if any information provided by the User is authentic, suitable for a certain purpose or serves a particular purpose.
The Operator is not liable if user-generated content infringes any third parties’ intellectual property rights (trademark rights or copy rights etc.) or personal rights or other third parties’ rights protected by the law. In the event of infringement of third parties’ rights by user-generated content, the User shall - upon the Operator’s choice and at the User’s expense - provide the right to use the relevant content or cease the use contrary to this License Agreement or statutory requirements in due time and design the content without third parties’ rights protected by the law.
This exclusion of liability shall also apply for any website content that is linked to the Website without the Operator’s awareness. Any external links provided by the Operator are only made available for information purposes. The Operator does not have any influence on the current or future design or content linked by hyperlinks or otherwise linked tele-media and does not monitor these websites. The Operator explicitly dissociates himself from design and content of such tele-media. If the Operator becomes aware of any legal infringement on the linked services, such hyperlinks shall be deleted without any further delay.
The Operator explicitly dissociates himself from any posts, comments, information, opinions and any other content (e.g. graphics, pictures) provided by the User, these shall not reflect Operator’s opinion; he does not promote them. Liability or warranty for any other User’s content activity shall not be made by the Operator.
12. Liability for defects of quality and defects in title
The Operator’s liability for defects of quality and defects in title shall be excluded with respect to free services, especially supplying information, software or documents. The Operator is not liable for completeness, suitability for a certain purpose, topicality and correctness of any search results or other information; especially topicality on a daily basis shall not be warranted. If objects are submitted for a limited period of time only, the Operator is not liable for any defects which were already present at the time of hand-over.
User’s claims due to defects of quality or defects in title shall prescribe with respect to purchase objects within one year after hand over, with respect to work performance within one year after acceptance. The User is obliged to give a notice of defects for any obvious or manifesting defects within two weeks. Notice of defects must include a description of the defects as detailed possible. A delayed notice of defects shall exclude any User’s claims. As far as the Operator is obliged to removal of defects and the User demands remedy of defect, the Operator has a free right of choice to remedy the defect or supply an object without any defects.
13. Limitation of Liability
As far as not agreed otherwise, the Parties are liable against each other for damages and compensation of unsuccessful expenses, regardless of the legal cause, subject to the following provisions:
User’s claims against the Operator for damages shall be excluded. Excluded shall be User’s claims for damages due to infringement of live, body, health or due to infringement of essential contractual obligations (cardinal obligations) as well as liability for defects resulting from intent or gross negligence of the Operator, his authorized representatives or agents. Essential contractual obligations are duties on the observance of which the User relies on and the fulfillment of which is required for the due execution of a contract.
In the event of infringement of essential contractual obligation, the Operator is liable only for contract-typical, foreseeable defects to a maximum amount of $1,000 in each individual case, if the damage is caused with ordinary negligence unless the User’s claims is resulting from an infringement of life, body or health. In this event, the liability is unlimited. The User may inform the Operator if he is considering that in the individual case the amount of damages shall be determined higher or lower. The Parties shall mutually consider the amount that shall be applicable instead.
In addition, the Operator shall be unlimited liable for defects resulting from statutory provisions, e.g. German Product Liability Act as well as in the event of explicit warranties. Limitation or exclusions of liability shall also apply with respect to authorized representatives and agents of the Operator, if claims are filed directly against these and also in the event of claims against any Operator’s affiliated companies or its co-operation partners as well as their authorized representatives and agents.
14. Contractual Damages | Damages
The Operator’s claims for damages as well as for extraordinary termination of the License Agreement according to Sect. 20 of these GTC shall remain unaffected from the contractual damages mentioned hereinafter.
If the User culpably infringes an obligation resulting from the License Agreement and forfeits contractual damages, he shall also be obliged to removal of risk of recurrent infringements by submitting a declaration of discontinuance with a penalty clause to the Operator.
14.1. Electronic Attacks
Electronic attacks of any kind whatsoever of the Website or individual Users are prohibited. Each electronic attack shall lead to User’s immediate exclusion and shall be prosecuted under civil and criminal law. As electronic attack are considered - especially however not limited to – hacking-attempts (i.e. attempt to overcome safety barriers, to circumvent or override otherwise), use of computer programs for automatic reading of data as e. g. crawler (also spider or robot), the intentional use and/or distribution of viruses, worms, Trojans, use of hyperlinks, software programs or other processes that might harm the Operator or Users or are deemed to do so.
The User is obliged to reimburse the Operator with contractual damages for culpable violation of the electronic attacks prohibition in the amount determined by the Operator upon his reasonable discretion and in case of disagreement to be checked by the competent court for appropriateness. Additional claims for damages shall remain unaffected.
Upon Operator’s request, User is obliged - without further delay and for each individual case of violation of the electronic attacks obligation - to submit a declaration of discontinuance with a penalty clause that shall comprise essentially (depending on the individual case explicitly or implicitly) the obligation to omit in future continuation of the electronic attack or undertaking a new comparable attack as well as to omit transfer of data material resulting from the electronic attack to third parties.
The User is also obliged
- to inform the Operator without further delay completely and in text form about third parties (names, addresses, full contact details) that received information on the data material, when and in which form this was received, submitted or otherwise made available;
- to delete any digital data material resulting from the electronic attack completely, irrevocably as well as totally wipe out any analog data material (e.g. documents, records, print out etc.) and to confirm the deletion and destroying of data material by written affidavit;
- to remain silent on any received data, existence as well as the content of the declaration of discontinuance as well as all internal information on the Website or the Operator received by the User, especially but not limited to internet forums, blogs, to media, unless disclosure of individual information is legally required towards authorities or towards courts for protection of legal claims.
14.2. Other Infringements Sanctioned with Contractual Damages
If the User offers to other Users under culpable infringement of Sect. 9 of the GTC information, consulting, and/or procurement services or promotes such offers – regardless if directly or indirectly – that are comprised from the Operator’s business scope or its co-operation partners, the User is obliged to reimburse the Operator with contractual damages in the amount determined by the Operator upon his reasonable discretion and in case of disagreement to be checked by the competent court for appropriateness.
If the User distributes services offered by the Operator within the Website (e.g. creation of a business plan) to other Users or third parties - regardless if chargeable or free – or is using the service as basis for own services or is using Operator’s services on behalf of another User or third party, he is obliged to reimburse the Operator with contractual damages in the amount determined by the Operator upon his reasonable discretion and in case of disagreement to be checked by the competent court for appropriateness. The User is obliged to inform the Operator without further delay, truly und completely with all information required for determining the contractual damages and to provide all information required for enforcement of the claim.
15. User’s Obligation to Indemnify Operator from Liability
The User indemnifies the Operator, his personnel or other agents, from all claims, liabilities and expenses that are claimed by other Users or third parties towards the Operator due to their rights’ violation by content provided on the Website by the User or due to other use of the Website under violation of obligations. The User shall reimburse the Operator expenses arising for legal proceedings (both in-court and out-of-court) including court and attorney fees in statutory amount. This shall not apply if the User is not responsible for the infringement. In the event of any third parties’ claims against the Operator, the User is obliged to provide the Operator without further delay, truly and completely all information and materials required for examination of the claims and the defence against the claims. Any additional rights as well as claims for damages of the Operator, his staff and agents shall remain unaffected.
16. Rights regarding User’s Content
The User assigns to the Operator a free of charge, non-exclusive, without restrictions on time and content, free assignable right to use and exploit any content (e. g. text or graphics) provided by the User on the Website as well as to use any input trademarks, design patent, logos and other protected content. The right to use comprises all known types of use as well as such types of use not yet existing at the date of assignment.
The assignment of rights with respect to such content that is posted within the User’s profile, especially but not limited to posted photographs, graphics und any texts and data, shall be limited in time for the duration of this License Agreement. The assignment of rights with respect to any other content provided by the User, such as comments or posts, audio or video data, shall be for an unlimited period of time. After termination of the License Agreement, these data might be rendered anonymous. The Operator is not obliged to delete or render anonymous such comments that refer to the former User’s individual name or that have been created by the former User.
Subject to statutory provisions, all data resulting from the services rendered by the Operator or its co-operation partners shall remain in the sole ownership of the Operator or its cooperation partner, unless agreed otherwise in writing with respect to rights of use and rights of title.
The Operator’s right of use shall comprise especially - but not limited to - the use in context with the Website of the Operator or its co-operation partners, other tele-media as well as other use in electronic networks including the Internet and intranet, in the context of demand services of any kind, in the context of mobile-phone-based applications, in the audiovisual sector, in the context of digital media and multi-media products of any kind as well as in the printing sector. The Operator’s right of use shall comprise especially - but not limited to:
- the right of reproduction, making accessible and distributing to the public, e. g. the right to reproduce, make accessible to the public and reproduce in public any content regardless of the used technology, especially by way of digital integration in the context of the Website and other tele-media services without any limits;
- the right to make content available to the public on demand, i.e. the right to store any content, to hold in readiness for the public, to transfer to one or more demanding persons, namely in all electronic data bases, electronic data and telecommunication networks;
- the right of communication to the public, i.e. the right to communicate to the public the content for commercial or non-commercial purposes by use of sound carriers, picture carrier, audio and visual carriers, multi-media carriers and other data carriers of any kinds, by use of all analog and digital processes and techniques; including the right of electronic or non-electronic communication of texts;
- right of edition, i.e. the right to edit, translate, re-arrange and adjust any content maintaining the author’s individual rights by himself or third party, including the right to publish or exploit the adaption and the right to reproduction of the results in all media, especially but not limited to print media as well as the right to combine the content with the Operator’s logo;
- right of advertising, i.e. the right to use the content for advertising purposes in connection with the Website and other tele-media or other services by the Operator or third parties, also in media of other kinds and outside of the Internet, especially but not limited to print media.
The assignment of rights shall also include a partial use of the content as well as the right to combine the content with and to use in connection with other works. The Operator is entitled to assign the rights permanently or non-permanently pursuant to the aforementioned provisions without further approval in full or in parts to third parties and provide them with an according license.
The User assigns irrevocably and free of charge to the Operator the unlimited right of use and exploit any ideas, request for further development of services, feedback, recommendations and other information provided by the User or third party in connection with the Website, unless the User expressly reserves such rights and this is recognizable to the Operator.
17. Right to Use of Operator’s Content
The Website, the software and data base it is based on as well as their contents are protected by copyright. Provisioning for use in context of these GTC shall not be deemed as waiver of any copyrights.
In context with the License Agreement as well as the following provisions and special terms and conditions or other agreements and exclusively for the purpose to use the services rendered by the Operator as agreed, the User receives the non-exclusive, limited in time for the duration of the License Agreement, not assignable right of use of the Website and content and applications therein. This shall not refer to any content provided by Users or third parties.
Any reproduction or utilization of content of the Website without the Operator’s explicit written approval is prohibited. Copying, downloading, distributing and procuring as well as saving of content of the Website or of cooperation partners without explicit consent is not permitted. The Operator is entitled to implement all technical actions (e.g. installation of access barriers) to prevent excessive use of the Website. The User must not use any installations, products or other tools to circumvent or overcome such technical actions of the Operator.
The User shall not receive any copyrights that exceed the agreed utilization of the Website. In the event of providing applications or programs, the right of use shall be limited to a use of the applications and programs as software-as-a-service accessible over the Internet; use shall be rendered as remote access only. The granting of rights does not compile the providing of software for local installation on User’s data carriers, unless otherwise mentioned in the service description. The use of the software shall only be permitted in connection with hardware platforms and operating systems approved by the Operator.
Any documents (especially but not limited to templates, forms as well as sample documents) shall only be used in context with this License Agreement and for User’s individual commercial use only. Reproductions shall be granted for individual use only. Any distribution of such documents, regardless whether chargeable or free of charge, is prohibited.
18. Assignment | Right to Set-off
Any assignment of claims by the User is subject to the Operator’s prior written approval. The User’s right to set-off shall only apply if his counterclaim has legally been determined or recognized. The right of retention, especially the defense of unperformed contract, shall remain unaffected.
19. Data Protection and Data Security
19.1. Data Processing by the Operator
19.2. Data Processing on Behalf of Others / Commissioned Data Processing
As far as the Operator collects, processes and uses personal data on behalf of the User, the following provision shall additionally apply. For the purpose of compliance with statutory provisions referring to personal data processing on behalf of the User (Commissioned Data Processing), the Operator offers the User to file in addition a written agreement referring to commissioned data processing.
The User is solely responsible for right of disposal and right of title on any data he collects, processes and uses. The Operator does not control any data or content stored by the User with respect to lawful collection, processing and use; the responsibility for this is solely assumed by the User that assures that the data subject consented to the transmission of data from User to Operator and that data shall only be processed and transmitted within the scope granted by data protection provisions. In the event that the User instructs the Operator with processing of any data referring to legal advice, health care system, health care, addiction and/or life insurance, the Operator shall be act exclusively as professional support agent of the User, who retains control over these data. The User releases the Operator from any claims resulting of the unlawful transmission of personal data from the User to the Operator.
The Operator is obliged to operate any user-specific data in accordance with instructions of the User (e. g. for compliance with duties to delete or restrict access) and in context with this License Agreement. Within the scope of data protection laws, the Operator is entitled to process and use the User’s personal data (e. g. invoicing data for invoicing third parties’ services to the User).
19.3. Data Security
Despite of compliance with legal required technical and organizational measures for securing any personal data stored by the Operator for misuse and unauthorized access, in unprotected communication channels as the Internet, it cannot be excluded that third parties outside of the Operator’s scope of access, are able to unlawfully access the data transfer via the Internet and control any transmitted data. The User is responsible for security and protection of any data transferred or accessible via the Internet.
20. Term of Agreement, Termination and Winding up
The term of use is 12 months. It commences with User’s first registration and shall be prolonged automatically in each case for 12 months, unless the agreement is terminated by either of the parties in writing with 12 weeks’ notice prior the end of term. The termination requires written form and shall contain User’s first und last name, the complete company profile’s trade name as well as the User’s e-mail-address used for sign in. Text form shall be excluded.
The extraordinary termination right due to good reason shall remain unaffected. Such good reason shall exist, if the terminating party - under consideration of the circumstances of the particular case and under consideration of mutual interests - cannot be reasonably expected to continue the License Agreement until the ordinary end of term. The right to an extraordinary termination without prior warning notice especially exists, if the User infringes his obligations according to Sect. 9.
Upon termination of the License Agreement, any information in the User’s account and profile (e.g. messages, profile information, image files) are deleted, unless and insofar the Operator is obliged to store any data due to legal requirements. Such data that was collected in connection with already performed chargeable or free services of the Operator or its cooperation partners shall be deleted after the legal periods of limitation expired. The User is not entitled to claim handover of any content he provided.
21. Instruction on the Right of Revocation Towards Consumers
If the User enters into an agreement with the Operator for a purpose that is outside his trade, business or profession, the following provisions on the right of revocation shall apply for the User as consumer (Sect. 13 German Civil Code).
21.1. Right of revocation
You may withdraw your contractual acceptance in writing (e.g. by letter, fax or e-mail) within fourteen days without stating grounds, or - if the item is placed at your disposal prior to the expiry of this period – also by returning the item.
The period shall commence upon receiving this notification, however, not prior to conclusion of the contract or the delivery of the goods to the receiver (in the case of recurring delivery of similar goods, not prior to the delivery of the first part delivery), nor before the fulfillment of our duties to furnish information pursuant to Art. 246 Sect. 2 in connection with Sect. 1 Para. 1 and 2 Introductory Law to German Civil Code (EGBGB). To comply with the time limit, the dispatch of the withdrawal declaration or of the goods in good time is sufficient.
The withdrawal must be sent to:
w2on Zandura LLP
101 California Street Suite 2450
San Francisco, CA, 94111
fax: 00 49 180 54 56 583
21.2. Consequences of revocation
In the event of an effective revocation, any product/service received by either party must be returned and where applicable any benefits received (e.g. from interest) are to be surrendered. If you are unable or only partly able to return the product/service received or the benefits or are only able to return it in a deteriorated condition, you may where necessary be under obligation to pay us compensation.
This may cause that you have to fulfill your contractual payment obligation for the period until the revocation nevertheless. You shall only be obliged to compensate deterioration of goods and benefits, if the usage and deterioration is caused by handling the good in a way that exceeds the inspection of characteristics and features. “Inspection of characteristics and features” shall mean any common test of the item as this would have been possible for you in the store, for example.
Goods capable of being sent by parcel post should be returned to us at our risk. The cost of returning the goods shall be for your account if the delivered goods correspond to those ordered and if the price of the goods to be returned does not exceed EUR 40 or where - in the event of more expensive goods - no consideration or a contractually agreed partial payment has been rendered at the time of cancellation. Otherwise the return consignment is free of charge. Goods that are not suitable for consignment by parcel post shall be collected. The returning of the item incurs no costs for you in all other cases. Things that cannot be send as parcels will be picked up at your premises.
Obligations to refund payments must be met within 30 days. The deadline shall commence for you on the date you sent the notice of withdrawal or good and for us, following its receipt.
21.3. Special Information
The right of revocation is also extinguished prematurely, if the contract was performed in full by both parties at your explicit demand before you have exercised your right of revocation.
End of Notification of Revocation.
Legal notice: Please consider Sect. 312a Para. 4 No. 1 German Civil Code for right of revocation and right of return in distance contracts: Unless otherwise specified, the right of revocation does not exist for distance contracts for the supply of goods produced according to customer specifications or clearly tailored to personal needs or which, by reason of their quality, are not suitable for return or may spoil quickly or whose expiration date would be exceeded.
22. Invoicing and Default
If the User claims any chargeable services, he is obliged to pay the respective arising costs. The User shall be informed hereof at the latest before using the service. The price list available on the Website may contain addition provisions that are integral part of these GTC. For non-recurring services the price list shall apply that is valid at the time when the service is used. For recurring services, the price list shall apply that is valid at the time of instruction the Operator with the recurring services. If fees in context with a long-term agreement increase during the term of the agreement, the fees shall be paid in the increased amount from the time of increasing on. If the User has made advance payments, the fees shall not be increased for the advance payment period.
Payment shall be carried out by use of offered payment methods. The Operator reserves the right to exclude payment methods (e. g. cash). Unless agreed otherwise, invoices towards the User shall be issued in electronic form and transmitted via the User’s account or via e-mail. Recurring payments shall be due for the relevant service period in advance and without and deductions. Fees dependant on usage will be invoiced after performance of the service on a monthly basis. Invoiced amounts shall be due upon presentation of the invoice and payable within 7 calendar days to an account indicated by the Operator. After this period expired, the User is in default. Usually, the User shall raise in writing any objections on the amount of debited or invoiced fees within one month after receipt of the relevant invoice or debiting of the fees objected to. The right to any refund shall be decayed after expiration of this period.
If the User delivers its account number, he revocable authorizes the Operator to debit any due invoiced amounts from this account. The Operator is entitled to check the creditworthiness and in the event of a negative feedback or return debit to block this payment method for the User. If payment is not carried out by debit, the Operator is entitled to request a reasonable, additional processing fee due to the additional administration costs in accordance with the relevant price list.
In the event of refusal or withdrawal of direct debit mandate, return debit or credit card charge back the User is liable for, the Operator will charge an additional administration fee in accordance with the relevant price list. The User may proof that no or less damage is occurred to the Operator. If the User is in default with payment obligations, the Operator is entitled to charge additional lump sum reminder costs of €5.00; however, the User is entitled to proof that no or less costs aroused.
23. Final Provisions
23.1. Alterations of the GTC
The Operator is entitled to amend and alter these GTC with effect for the future at any time subject to the following procedure. The User shall be notified about any alterations in the sign in area or via e-mail at the latest four weeks before coming into force. The Operator will notify the User about the opposition deadline and the consequences of an opposition or expiration of the opposition period without opposition. The alteration shall be deemed as approved and shall come into effect at the mentioned date, unless the User opposes within four weeks after receipt of the notification.
If the User opposes in due time, the License Agreement shall be continued with the previous GTC; in this event the Operator is entitled to extraordinary termination with a notice period of four weeks. The contractual termination rights of either party shall remain unaffected.
23.2. Consent for Novation of the Agreement
In performance of his contractual obligations, the Operator is entitled to instruct sub-contractors and/or transfer the agreement or parts hereof to third parties. The User already gives his consent for novation of the respective License Agreement to a third party. The Operator shall notify the User in appropriate form about the novation. In this case, the User is entitled to extraordinarily terminate the agreement.
23.3. Applicable Law
The complete legal relationship between Operator und User as well as any disputes arising from or out of these terms and conditions regardless the legal cause, shall be exclusively subject to the law of the Federal Republic of Germany, however with the exception of CISG and all statutory rules regarding the conflicts of law.
If these GTC are available in multiple languages, the German version shall prevail.
23.4. Place of Performance | Legal Venue| Severability clause
Place of performance shall comply with the Operator’s registered office.
If the User is a merchant, a legal entity under public law or federal special fund under public law, legal venue for all disputes arising from the agreements shall be the Operator’s registered office. Oral side-agreements do not exist. Unless agreed otherwise, alterations and/or amendments to this agreement require written form.
Should any provision of these GTC be or become invalid, the validity of the other provisions of this agreement shall not be affected thereby. In this event, the parties shall be obliged to substitute the invalid provision by a suitable provision which comes as close as possible to the economic intent. The same shall apply to any loophole in the agreement.