General Terms and Conditions
1. Validity and conditions
These General Terms and Conditions for services shall apply – subject to individual agreements – to all services, deliveries and offers of getaline GmbH (getaline), as well as to all future transactions with customers with whom getaline has ongoing business relations. getaline shall not acknowledge customers’ General Terms and Conditions in derogation hereof, unless getaline approved these General Terms and Conditions expressly and in writing.
The General Terms and Conditions shall apply only to companies within the meaning of Sec. 14 (1) German Civil Code, to legal entities under public law and special funds under public law.
2. Offer and conclusion of contract
getaline only offers services. All orders transferred to getaline will be handled on a service contract basis, except as otherwise agreed. Offers shall always be subject to change without notice. Orders placed by the Customer and verbal agreements require getaline's written approval.
3. Claims arising from a defect, liability
If, for exceptional reasons, getaline committed itself to supplying an article and the service rendered by getaline is defective for reasons for which getaline is responsible, getaline has the right to make up the defect within a reasonable time limit. If getaline is unable to make up the service within a reasonable time limit for reasons for which getaline is responsible, the Customer shall have the option to reduce payment in a reasonable amount (price reduction) or withdraw from the agreement.
In the case of defective services, getaline is authorized, but not obliged, to make up or remedy the services within a reasonable time limit before the Customer is able to assert its legal rights.
If getaline is contractually obliged to provide services on a continuous basis, the Customer may terminate the agreement for an exceptional reason, if a further adherence to the agreement is no longer reasonable. This shall not affect the obligation to pay fees for the services rendered.
getaline is not obligated to examine the advertising measures or specimens, items or orders submitted by the Customer for their compliance with statutory regulations, in particular, the law of competition or industrial property rights (e.g., with respect to third-party copyrights). The Customer is obliged to perform such a legal verification. If getaline discovers such a breach, the Customer will be notified. getaline is not authorised to refuse executing the requested service, should this be in breach of legal or official regulations. The Customer shall indemnify getaline against all third-party claims and reimburse getaline for any loss incurred, which is based on a breach of these regulations for reasons that lie outside the Customer's territory.
The Customer agrees to ensure that the processing and use of the address records supplied by the Customer for active telephony are in compliance with the legal requirements and, in particular, are covered under the Law Against Unfair Competition and the Federal Data Protection Act by way of an effective consent by the persons concerned. The Customer must at any time upon getaline's request be in a position to verify the consent of the person concerned.
The Customer shall indemnify getaline against all third-party claims, and compensate getaline for damages based on an absent legally valid consent on the part of the person in question with respect to the processing and use of its personal data. This shall apply also to reasonable costs for getaline's legal defence.
getaline's liability for damages for whatever cause shall be excluded. This shall apply in particular to consequential damage, such as lost profits. getaline however shall be liable, if such a liability is mandatory under the law (e.g., in the case of claims arising from § 1, 4 Product Liability Act) or if the damage is caused by:
- Intent on the part of getaline or its employees or vicarious agents;
- gross negligence on the part of getaline's management, employees and vicarious agents;
- in the case of a breach of substantial contractual duties, which at least are negligent (duties, the compliance with which the contracting party may trust)breach of guarantees;
- in the case of negligent injury to health and life.
In all cases of negligence, getaline's liability shall be limited to foreseeable and fundamental contractual damage.
The statutory period of limitations of the Customer's damage claims based on faulty performance in the case of services and warranty claims in the case of services based on contract work in derogation of Secs. 195, 199 (1), (3) German Civil Code, shall be 18 months as of the end of the year in which the Customer's claim arose and the Customer obtained or ought to have obtained knowledge without gross negligence of the circumstances substantiating the claim and of the debtor's identity, at the latest, however, five years after the occurrence of the claims. When supplying an article, the Customer's warranty claims from services based on sales or service contracts shall fall under the statute of limitation one year after the transfer of risk and/or delivery in the case of purchase agreements. The statutory periods of limitation shall apply, if getaline has concealed a defect with the intention to deceive or acted with intent or is liable in accordance with the Product Liability Act. These statutory periods of limitation shall apply also to all other claims arising from the breach of a duty, including claims arising from a tortious act, consultation and due to liability for fault prior to the conclusion of contract.
In the case of force majeure and circumstances, which were unforeseeable for getaline and for which getaline is not be responsible, such as strike, lock out, lack of the means of transportation, procurement difficulties, government orders, late delivery by suppliers, getaline shall not be responsible. This also shall apply to technical failures of data transmission paths, data networks and computers, as well as telephone systems, in particular when getaline operates outside means (such as telecom).
When shipping goods and merchandise, getaline may determine the shipping route and the carrier in consideration of the Customer's interests; except as otherwise provided. getaline shall be liable to the carrier only with respect to its due selection. Upon the Customer's request, getaline shall provide insurance cover for the shipping; the charges shall be borne by the Customer.
4. Right of use
All copyrights and other rights in the concepts, patterns, designs, discussion guidelines and similar services shall remain with getaline. The Customer will receive a non-transferrable, nonexclusive right of use for the contractually intended use. The right of use shall apply exclusively to Germany, subject to getaline's express written consent.
5. Data protection
getaline agrees to collect, process and transfer personal data only in compliance with the applicable regulations of the Federal Data Protection Act and other applicable data protection regulations. Processing or using data for purposes other than the contractual purpose shall be permissible only under the requirements of Sec. 28 (2) to (4) Federal Data Protection Act, and subject to safeguarding the legitimate interests of the person in question. For the purpose of fulfilling its duties, getaline shall engage subcontractors to whom the personal data will be transmitted. The person in question is authorised to demand that getaline provide information on the transferred data as well as the recipients. getaline thus fulfils its information obligation according to Sec. 33 Federal Data Protection Act.
getaline agrees to maintain confidentiality on all business and operating secrets of which it obtains knowledge in connection with cooperating with the client and affiliated companies. This diligence and confidentiality obligation shall extend beyond the termination of the agreement and also shall be valid if cooperation does not materialise.
Invoices issued by getaline are payable exempt from costs and charges within 30 days. Discount deductions are not permissible, except as otherwise expressly negotiated. In the case of the Customer's payment default, getaline is authorised to charge interest of eight percentage points p.a. above the respective base rate of the European Central Bank. getaline reserves the right to claim further damages.
The Customer shall have further rights of set-off and retention only if its counterclaims are legally valid or undisputed. The Customer is authorised to exercise a right of retention and a right to withhold payment only if its counterclaim is undisputed or recognised by declaratory judgment and furthermore is based on the same contractual relationship.
8. Code of honour
As a member of Deutscher Direktmarketing Verband e.V. (DDV), getaline executes its orders on the basis of the code of honour created by this professional association. The Customer may inspect the code of honour, which will be sent to the Customer upon request.
9. Cancellation agreement
A notice to terminate prior to the expiration of the negotiated fixed contract terms shall be excluded. In those cases in which the Customer is authorised to terminate the agreement before the expiration of the negotiated term, for which getaline is not responsible, getaline shall be entitled to the statutory claims of compensation. In addition to compensation for rendered (partial) services, getaline shall have the option to charge the Customer 50% of the remaining negotiated compensation as a flat rate. The Customer is authorised to prove that the flat rate is substantially inflated due to the costs that getaline will save by the termination and because of getaline's income from other uses or the use of its economic capacity that it wilfully omits. This shall not affect the right to terminate without notice for good cause.
If a negotiated starting date is postponed due to reasons for which the Customer is responsible, getaline may impose upon the Customer the resulting costs. getaline may charge the Customer EUR 140.00 for each telephone agent/day, if the Customer is unable to prove considerably lower expenditure for the provision of telephone agents. This flat rate also applies correspondingly to the above regulation in item 8, paragraph 1, sentence 3.
10. Severability clause
Should a provision of the General Terms and Conditions or the Agreement be in breach of the statutory provisions in whole or in part or be void for other reasons, this shall not affect, among other things, the validity of the General Terms and Conditions or the Agreement. The parties shall agree that the void provisions shall be replaced by a provision, which analogously comes as close as possible to the content of the void provision.
11. Place of performance, jurisdictional venue
The place of performance is Hamburg. The jurisdictional venue for all claims from and in connection with this contractual relationship is Hamburg, if the Customer is a merchant. getaline is also authorised to sue the Customer at its ordinary place of jurisdiction.