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Terms of Business for Antiquarians 1. Conclusion of the Contract 2. Description of Service 3. Obligations of the Antiquarian 4. Allowed Products 5. Blocking of the Antiquarian 6. Remuneration, Payment 7. Termination 8. Liability 9. Data Protection 10. Final Provisions 1. Conclusion of the Contract 1.1 Acceptance of the application for use by mediantis AG (in the following referred to as Mediantis) entitles the applicant (in the following referred to as Antiquarian) to use the online platform operated at www.zvab.com, www.zvab.de and other internet domains (in the following referred to as ZVAB). There are no rights and obligations under company law or association law in connection with the use. 1.2 In addition to these general terms and conditions of contract, the Antiquarian is obliged to observe the respective valid quality guideline and the respective valid ZVAB format rules. These as well as these terms and conditions of contract can be viewed in their respective valid version on the website www.zvab.com/member/terms in the member area of the site. As far as the quality guideline and the ZVAB format rules are concerned, Nos. 10.1 and 10.2 apply accordingly. In case of discrepancies between these terms of use and the quality guideline or the ZVAB format rules, these terms and conditions of contract take precedence. 1.3 The use is only admitted for entrepreneurs in the sense of Sec. 14 BGB the company object of which includes the operation of an antiquarian bookshop. Therefore, the Antiquarian is obliged to enclose a copy of an extract from the trade register or a trade registration or a corresponding foreign document to the application for use which shows that it concerns a commercially active Antiquarian. 1.4 The order and business transactions of ZVAB are as a rule made via e-mail. For this purpose, the Antiquarian will communicate to Mediantis an e-mail address and a valid telephone number, at which the Antiquarian can be reached during the usual business hours, together with the application for use. 1.5 The Antiquarian is obliged to immediately inform Mediantis about all changes of the records to be communicated according to Nos. 1.3. and 1.4. Mediantis is entitled to deliver exclusively to the e-mail address communicated. 1.6 The use of ZVAB is exclusively regulated by the provisions of these terms and conditions of contract. Insofar as the Antiquarian uses general terms and conditions with regard to the use of ZVAB vis-à-vis Mediantis, such are herewith excluded. 2. Description of Service 2.1 Mediantis provides the Antiquarian with the opportunity to use the online platform ZVAB. For this purpose, Mediantis grants to the Antiquarian the non-exclusive licence in the software required for the use, which is limited for the term of this contract, for the following types of use: The Antiquarian is entitled to insert allowed products in the sense of No. 4 in the catalogues provided on the online platform ZVAB and in this way offer them for purchase to potential customers of the Antiquarian (in the following referred to as Customers). For this purpose, the Antiquarian has to use the data to be called in electronic form. 2.2 Mediantis owes an endeavour to make accessible to the public the data contractually transmitted by the Antiquarian within a reasonable period of time (as a rule approx. 21 days for the X-AntiVirus: checked by AntiVir MailGuard (Version: 8.0.0.18; AVE: 8.1.0.30; VDF: 7.0.3.165) first-time inclusion of a catalogue and/or approx. 3 working days for the manual update and/or amendment of a catalogue by employees of Mediantis and approx. 36 hours for the online update and/or amendment of a catalogue by the Antiquarian) via hardware provided for ZVAB and the internet connected to this and in this manner offer the products of the Antiquarian to Customers for purchase. Mediantis assumes no liability for the success of the ability to call data. 2.3 All member data records are automatically updated by Mediantis unless the member chooses to update the records personally via the "online update" option. Automatic electronic updates are made on a weekly basis and require that the member notify ZVAB of all changes in electronic form according to formatting guidelines and prior to a pre-arranged deadline determined by Mediantis. 2.4 At its own discretion, Mediantis will advertise ZVAB, technically service and maintain it to an appropriate extent. Mediantis endeavours to keep ZVAB at all times up to the current state of technology. Therefore, Mediantis reserves the right to change or edit the appearance and the offered features of ZVAB or to replace such by other features and functionalities. 2.5 Mediantis provides the means of operation (e.g. servers, software, personnel) required for the operation and maintenance of the platform. 2.6 Insofar as Mediantis renders other services, in particular the procurement of Customers, within the framework of the online platform ZVAB, there is no legal claim to these services. 3. Obligations of the Antiquarian 3.1 The use of ZVAB and the preparation of the offers and contents of the Antiquarian within the framework of ZVAB will be made exclusively at the own responsibility of the Antiquarian. Insofar as design proposals are made by Mediantis within the framework of ZVAB, the Antiquarian has to examine such for their legal admissibility at its own responsibility. 3.2 The Antiquarian solely has to take care that the legal provisions and the provisions of these terms of use are adhered to. The Antiquarian in particular has to ensure that the Antiquarian's internet appearance within the framework of ZVAB does not infringe any ancillary copyrights of third parties, is unobjectionable with regard to competition law and does not violate any other statutory prohibitions. The Antiquarian is in particular obliged not to request customers procured by Mediantis to by-pass ZVAB when placing orders or to discredit ZVAB vis-à-vis such customers. 3.3 The Antiquarian is obliged to adhere to the data protection provisions with regard to the processing of order data obtained via ZVAB. S/he has to ensure in particular that data will only be used for advertising purposes if an express corresponding consent of the Customer has been obtained. 3.4 The Antiquarian has to take care at all times that the products offered are available during the time they can be viewed in ZVAB and that a sale as well as a transfer of ownership to Customers are possible without any restrictions. 3.5 The catalogues and their contents are proprietary works of the Antiquarian protected by copyright. The Antiquarian will ensure that the use of the catalogues and catalogue entries within the framework of ZVAB will not infringe third parties' copyrights. The Antiquarian grants to Mediantis a non-transferrable, non-exclusive licence limited with regard to time to the term of the contract to reproduce for purposes of this contract the contents listed by the Antiquarian on servers of Mediantis or third party suppliers and on any number of backup data carriers for the purpose of security backup. Moreover, the Antiquarian grants to Mediantis a non-transferrable, worldwide, non-exclusive licence limited to the duration of 12 months after termination of the contract to make the contents accessible to the public via the data processing network operated by Mediantis or via the internet. Mediantis cannot be made responsible for the storage in cache or proxy memories. 3.6 If the Antiquarian breaches any of the above-mentioned obligations, it is obliged to refrain from any further breaches, to compensate the damage incurred and still to be incurred by Mediantis as well as to indemnify Mediantis against any third parties' claims for damages and claims for compensation of expenses caused by the breach. Other claims of Mediantis, in particular to block the contents and to give extraordinary notice of termination, remain unaffected. 4. Allowed Products 4.1 Basically, only antiquarian books are allowed for insertion in ZVAB. 4.2 Mediantis may in general or in individual cases allow other products to be inserted in ZVAB and determine the conditions for allowance without the Antiquarian having an entitlement to this. 4.3 In any case, only such products are allowed, the possession and sale of which do not violate any German legal provisions or which are not included in the list of media morally harmful to youth in the sense of Sec. 24 German law on protection for youth. Furthermore, Mediantis reserves the right to put individual titles on the index itself. 5. Blocking of the Antiquarian 5.1 Mediantis is entitled to block the contents listed by an Antiquarian in whole or in part to the extent there is a reason for such a blocking. The blocking can be made without prior announcement if Mediantis has a justified interest in an immediate blocking. A reason for a blocking is in particular given if the interruption is required or useful for the maintenance or revision of ZVAB, the Antiquarian violates its obligations from this contract or third parties prove an infringement of a right to the satisfaction of Mediantis. In case of such an allegation of infringement of a right, Mediantis will forward the corresÂponding letters to the Antiquarian. Mediantis is not obliged to examine the contents of the reproaches. 5.2 Mediantis is only obliged to lift the blocking if the Antiquarian proves by way of a written waiver of the complainant or a final judgement that a complaint had been made improperly. X-AntiVirus: checked by AntiVir MailGuard (Version: 8.0.0.18; AVE: 8.1.0.30; VDF: 7.0.3.165) 5.3 If the Antiquarian is responsible for the blocking, the obligation to pay the remuneration according to No. 6 remains in effect. 6. Remuneration, Payment 6.1 The remuneration for the use of ZVAB will in part be made as a fixed remuneration with a variable component which depends on the number of titles and images and in part as a sales commission according to the respective valid price lists of Mediantis. Mediantis is entitled to newly determine the price lists at reasonable intervals. In case of an increase of the prices, the Antiquarian is entitled to a special right of termination which is to be exercised within three weeks after notification of the increase. 6.2 All price information is given in Euro and excludes statutory value-added tax which has to be added at the respective current rate. 6.3 The remuneration is due without deductions, immediately after invoicing by Mediantis. Discounts are not granted. 6.4 Mediantis will invoice the fixed and variable remuneration as well as the sales commission as of the end of each calendar month. 6.5 The sales commission will be determined by Mediantis by recording the purchase offers received from Customers of the Antiquarian via the website and by notifying such in orderly lists to the Antiquarian. Decisive for the determination of the sales commission is the final price shown by the Antiquarian, if applicable including value-added tax; shipping costs are not taken into account. The commission accrues upon existence of a binding order. The Antiquarian is obliged to notify online within 90 days if a sale to the Customer named by Mediantis has not come about contrary to the list entries in the member area. Mediantis will then - as of the end of each month - invoice the sales commission on the basis of the communicated, unobjectioned notification lists. 6.6 If a contract subject to commission - provided the book is available - between the Antiquarian and a Customer is cancelled without instigation of the Antiquarian due to legal reasons (rescission, cancellation or similar), the Antiquarian has to notify this to Mediantis as a rule without delay, however, at the latest within 90 days after placement of the order. Mediantis may demand that the circumstances of the rescission are evidenced. In the event of proper handling, Mediantis offsets the commission accrued for this turnover against subsequent invoices of the Antiquarian. 6.7 If the Antiquarian notifies that a contract with a Customer has not come about although this is not true, Mediantis is entitled to demand a contractual penalty in the amount of the quintuple sales commission for the transaction concerned, however, at least Euro 50.00. The contractual penalty can be offset against a claim for damages by Mediantis. The Antiquarian is entitled to evidence that Mediantis has actually incurred a lesser damage. For this purpose, Mediantis is entitled to make anonymous test purchases. 6.8 If the Antiquarian exceeds a payment deadline by more than 21 days, Mediantis is entitled to block the Antiquarian without prejudice to further rights. The blocking will be lifted within 7 days insofar as the Antiquarian has made all overdue payments. 7. Termination 7.1 The Antiquarian is at all times entitled to give notice of termination for this contract by way of written declaration to Mediantis. 7.2 Mediantis is entitled to terminate the contract on the use of ZVAB according to Sec. 621 no. 4 BGB by way of written declaration, observing a time limit of 6 weeks as of the end of a calendar month. The right of termination without notice for good cause remains unaffected. 7.3 Upon the end of the contract, Mediantis will remove the data listed by the Antiquarian from ZVAB. Mediantis will remove the data from the data base, unless the Antiquarian notifies within 7 working days after notice of termination that the Antiquarian requests their surrender. The surrender of the data will be made via e-mail or reproduction of the data on CD-ROM or another data carrier selected by Mediantis and delivery of the data carrier to the Antiquarian. 8. Liability 8.1 Except for breaches of essential contractual obligations, Mediantis is only liable if and insofar as its legal representatives and vicarious agents have acted intentionally or grossly negligent. If intent or gross negligence are not applicable, the liability of Mediantis is restricted to the damage which could be typically foreseen upon conclusion of the contract. 8.2 Mediantis is not liable for goods delivered or services rendered by third parties in connection with the use of ZVAB (e.g. Freeway parcel stamps). 8.3 In particular, Mediantis is not responsible for any disturbances of the availability or accessibility of the online database ZVAB, unless the causes are within the responsibility of Mediantis. 8.4 The aforementioned exclusions and limitations of liability are not applicable if and insofar as Mediantis has warranted certain qualities or given guarantees. They are furthermore not applicable for damages arising from injuries to life, body or health as well as in cases of mandatory statutory regulations. 9. Data Protection 9.1 Mediantis only collects, processes and uses the personal inventory and use data of the Antiquarians for the purpose of the proper performance of the contract. 9.2 Mediantis will store billing data at most for 6 months after sending of the invoice. If objections are made against the remuneration claims or if such are not settled in spite of a request for payment, the billing data may be kept until the objection has been finally clarified or the remuneration claim has been settled. Sec. 6 para. 8 Teledienstdatenschutzgesetz ("TDDSG" - German law on the protection of tele services data) remains unaffected. 9.3 Personal data of the Customers of Antiquarians will only be processed by Mediantis within the framework of order data management in the sense of Sec. 9 BDSG for the Antiquarian; Mediantis will insofar subject itself to the instructions given by the Antiquarian. The Antiquarian has to ensure that there is agreement in the X-AntiVirus: checked by AntiVir MailGuard (Version: 8.0.0.18; AVE: 8.1.0.30; VDF: 7.0.3.165) relationship to his / her customers as far as the data management is concerned. 9.4 If and insofar as the storage of the personal data is required due to existing legal or fiscal obligations, these data will be blocked for any other access than the legally established purposes. 10. Final Provisions 10.1 Deviating agreements, alterations of the general terms and conditions and any other contractual changes require the written and/or text form in the sense of Sec. 126 b BGB. 10.2 Alterations of the general terms and conditions will be forwarded to the Antiquarian via e-mail and are deemed as agreed upon, unless the Antiquarian objects within 14 days after receipt of the alterations. 10.3 The dispatch of disks and other data carriers to Mediantis is to be made at the expense and risk of the Antiquarian. 10.4 An offset by the Antiquarian against Mediantis is only admissible against recognized counter-claims or counter-claims which have become res judicata. The Antiquarian is only entitled to exercise a right of retention in case of counter-claims from the same legal relationship. 10.5 Place of performance for all obligations resulting from the contract of use and these terms of use and place of jurisdiction for all disputes is - insofar as legally admissible - Munich. 10.6 German law under exclusion of the UN Sales Convention is applicable. 10.7 If a provision of the terms of use or of the contracts of use is ineffective, this does not affect the effectiveness of the remaining provisions. In the event of the ineffectiveness of a regulation, such a regulation is deemed as agreed upon which X-AntiVirus: checked by AntiVir MailGuard (Version: 8.0.0.18; AVE: 8.1.0.30; VDF: 7.0.3.165) economically corresponds as closely as possible to the sense and purpose of the ineffective provision in a manner that is in conformity with the law. The same applies for unrecognized regulation gaps. |