1. Scope of Application, Amendments, Commencement of Agreement
1.1 These standard terms and conditions (T&Cs) of the company Auszeichnung & Bewertungen im Internet Aubii GmbH (hereinafter AUBII) apply to all services provided by AUBII. These T&Cs regulate the terms applicable to all agreements. The specific contractual terms, especially prices etc., are regulated in the “Performance” section. The provisions for individual services also apply where several services are bundled within the context of a contractual relationship.
1.2 AUBII shall provide all services solely on the basis of these T&Cs. This applies especially where the customer uses standard terms and conditions that contain conflicting or divergent terms in relation to the T&Cs set out herein. The T&Cs set out herein also apply where AUBII, while being aware of conflicting or divergent terms of the customer, unconditionally performs the contract.
1.3 AUBII may amend these T&Cs subject to a reasonable announcement period. If the customer does not object to the amendment within a period set by AUBII, the amendment shall be deemed to have been approved. AUBII shall point out to the customer in the amendment notification that the amendment will become effective unless the customer raises objections within the set period.
1.4 AUBII may publish the full text of the T&Cs by providing a link under which the full text is available on the internet.
1.5 The customer shall request use of the AUBII customer assessment system via an online order form and thus declares that it is acting in the exercise of commercial or independent professional activities. Moreover, the customer shall accept the AUBII T&Cs by ticking the relevant box or by way of its signature. In particular, AUBII requests the following data: full name of the company according to the Commercial Register, legal form, first name and surname, country, address, house number, postal code, town/city, telephone number, e-mail address, technical contact person for installation purposes, banking connection. The data requested during registration shall be provided truthfully. The registration form can be submitted to AUBII online, by post or fax. By granting consent to the T&Cs online or by dispatching the signed form by post or fax, a legally effective contract shall be brought about between the customer and AUBII. If the data provided by the customer during registration should change, the customer shall notify AUBII promptly of such changes.
1.6 Revocation Right
The services offered by AUBII are aimed exclusively at companies, business people and/or entrepreneurs. Consumers in the sense of Sec. 13 of the German Civil Code (BGB) are explicitly excluded from using the services offered by AUBII. Consequently, there is no revocation right for customers of AUBII.
1.7 SEPA Direct Debiting
Where services are provided against payment, if the customer selects SEPA direct debiting as the payment procedure, as a rule the direct debit will be announced by AUBII at least 3 days before it falls due. In an individual case the amount debited can diverge in favour of the customer from the amount notified in advance if, during the period between provision of the advance notification and the due date, the customer has received credit entries or if individual transactions have been cancelled.
2. Performance by AUBII
2.1 The scope of the individual services provided by AUBII is set out in the current description of services at the time of the order.
2.2 After conclusion of the contract, for the term of the contract, AUBII shall permit the customer to use customer and company reviews as well as expert feedback. To this end AUBII shall provide software that enables the collection, administration and presentation of the customer reviews.
2.3 AUBII offers its users the opportunity to use an Aubii seal free of charge or against payment of a fee. The scope of performance regarding the opportunity to use an Aubii seal free of charge or against payment of a fee is set out in its current form at any time in the “Performance” section.
2.4 Reviews submitted shall be verified editorially as to their validity by AUBII customer opinion managers on the basis of AUBII review guidelines. Valid reviews shall be placed in the customer’s review profile. AUBII assumes no liability for the contents of requests for reviews.
2.5 AUBII permits the enterprise to use the AUBII seal that is awarded on the basis of specific quality criteria and that is available for downloading in the customer service area. At the present time the seal only applies for viewing on a website (not mobile).
2.6 All server and system components of the AUBII services are operated in a network using redundant computers. The data configured by the customer shall be safely stored using technology that complies with the latest state of the art. AUBII generally performs planned maintenance work for the AUBII services at regular intervals during off-peak hours.
3. Customer’s Obligations
3.1 The customer shall provide the necessary data in full and accurately, and shall provide prompt notification of changes. This applies especially to address data, the banking connection where direct debiting is concerned, and to the e-mail address.
3.2 AUBII may send information and declarations concerning the contractual relationship to the customer’s e-mail address. The customer shall regularly access the e-mail address that serves as the contact address for AUBII.
3.3 The customer shall set up its systems and programs so that the safety, integrity and availability of the systems used by AUBII in order to provide its services are not impaired. AUBII may block services if the action or reaction of systems diverges from normal operating behaviour and if this impairs the safety, integrity or availability of the AUBII server systems.
3.4 The customer agrees to modify passwords assigned, without undue delay. The customer shall manage passwords and other access data carefully and shall keep them secret. The customer shall also pay for services used or ordered by third parties via its access data and passwords, insofar as the customer is responsible for this.
3.5 If the requirements agreed between the customer and AUBII are not satisfied, AUBII shall be entitled to block access to the AUBII review system in whole or in part, to use technical means to prevent the display of the review profile on the contractor’s websites and/or to terminate the agreement with immediate effect.
3.6 The customer may not misuse the AUBII review system, especially not through positive reviews it has written itself or has caused to be written, which convey an inaccurate impression. The customer may not take measures to ensure that negative reviews do not flow into the review system.
3.7 The customer shall refrain from any activity aimed at manipulating the AUBII review system, rendering it non-operational or making its use more difficult.
3.8 The customer is not permitted to make available for downloading, to offer or otherwise disseminate contents that are unlawful, in particular discriminatory, racist, insulting, that glorify violence, infringe trademarks and/or are pornographic, on the websites onto which the AUBII review system is integrated.
3.10 The customer is not entitled to attach advertising to requests for reviews.
4. Liability of AUBII
Notwithstanding other statutory requirements regarding claims, the following exclusions and limitations on liability apply to AUBII’s liability for damages.
4.1 In case of gross negligence or intent on its part, AUBII shall be liable for damage in relation to its customers. AUBII is only liable in case of ordinary negligence where there is a breach of an obligation the satisfaction of which enables the proper performance of the agreement in the first place and on satisfaction of which the customer is, as a rule, entitled to rely (so-called material obligation). In all other matters, liability for damages regarding all types of damage is excluded, no matter what the basis of the claim may be, including liability for fault during conclusion of the agreement.
4.2 The above exclusions and limitations of liability shall not apply where a guarantee is assumed by AUBII or with regard to damage to life, limb or health, or to mandatory statutory liability claims, e.g. under the German Product Liability Act (Produkthaftungsgesetz).
4.3 Within the scope of application of the German Telecommunications Act (TKG), the liability provision in Sec. 44a of same Act shall always remain unaffected.
4.4 AUBII’s liability regarding the conclusion of an agreement concerning the seal awarded against payment of a fee is limited to the total amount of the contractual payments made by the customer to AUBII for the period of the 12 months before the occurrence of damage within the context of the specific contractual relationship. Where an agreement is concluded on the seal awarded free of charge, AUBII’s liability is limited to the foreseeable damage typical for that type of agreement. Other limitations on liability shall remain unaffected.
4.5 The above exclusions and limitations on liability also apply in favour of the employees, vicarious agents and other third parties of which AUBII avails itself in order to perform the agreement. Moreover, AUBII is not responsible for damage caused by the lack of availability or malfunctioning of the internet for which AUBII is not responsible, or for other damage and/or malfunctioning caused by the defective nature or incompatibility of customers’ software or hardware.
4.6 AUBII does not assume a warranty for the uninterrupted availability of the website it operates.
4.7 The customer shall indemnify AUBII against any claims for damages, liability claims and any costs whatsoever that AUBII incurs because a claim of a customer’s customer is made against AUBII because arbitration proceedings have failed, because a review is not released or is not released immediately at the customer’s instigation, or because the customer failed to duly inform its customers about the voluntary nature of submitting a review, about the procedure, the set period or the arbitration proceedings where the review is negative, or about the transfer of data.
5. Copyrights, Reservation of Title
The reviews submitted by end customers on the AUBII review submission sites are and shall remain the property of AUBII. AUBII is entitled to publish such reviews in search engines and within social communities. All end customer data, i.e. data from persons who have voluntarily registered with AUBII, are and shall remain the property of AUBII and shall not be disclosed to the customer.
6. Scope of Application
Agreements concerning the conclusion of a seal shall only apply to the domain address provided at the time the agreement is concluded. If the customer wishes to use the seal for another domain address, the conclusion of a further agreement on use of the seal for that domain address is necessary.
7. Term of Agreement, Termination
Provisions on the term of the agreement and the periods of notice in case of termination are set out in the specifications of the individual product selected.
8. Venue, Applicable Law, Miscellaneous
Insofar as the customer is a merchant, a legal person governed by national or foreign law, a partnership acting in a commercial or freelance capacity that is governed by national or foreign law, a legal person governed by public law or an estate governed by public law, the exclusive venue for disputes arising under and/or due to this Agreement is Hamburg. The law of the Federal Republic of Germany applies, to the exclusion of the UN CISG, to any claims whatsoever arising under and/or due to this Agreement.
The German version of these T&Cs alone shall prevail. Any version not in the German language serves solely to provide information and a better understanding to customers who do not speak German.
Should individual provisions of these T&Cs be or become invalid, this shall not affect the validity of the remaining provisions hereof. The contracting parties shall replace the invalid provision with a provision that comes as close as possible to the economic purpose of the original provision. The same applies in case of a gap in this Agreement. AUBII is entitled to amend these T&Cs at any time provided essential terms of the contractual relationship remain unaffected and provided the amendment is necessary in order to adjust to developments that were unforeseeable for AUBII at the time the agreement was concluded and provided failure to take such developments into account would noticeably affect the equilibrium of the contractual relationship. Essential terms concern, in particular, the term of the contractual performance agreed and/or its nature and scope, including provisions on termination. Moreover, amendments can be made in order to fill gaps in the provisions that arise after the agreement is concluded. This is the case especially, but not exclusively, where there are changes to the jurisprudence that influence the provisions agreed in these T&Cs.
Specifications, especially in the “Performance” section, can be modified insofar as the modified performance does not significantly diverge, if there are technical innovations on the market in this respect or if AUBII suppliers change their range of products offered so that modifications become necessary, and provided the customer is not objectively prejudiced by such modifications. Prices agreed at the time of conclusion of the agreement may be increased in order to compensate for increased suppliers’ costs or owing to an increase in statutory VAT. AUBII agrees to inform the customer explicitly by e-mail about the price changes, except where there is a price increase owing to increased VAT. The customer may object to the amended T&Cs within a period of 4 weeks calculated as of receipt of the notification of amendment. AUBII shall expressly refer to this right to object in every notification of amendment. If the customer does not object to the amendment within the set period, the new T&Cs shall apply to that customer as of the date on which the set period expires.
There are no oral covenants. Amendments and/or supplements to this Agreement have to be in writing in order to be valid. This also applies to a waiver of this clause requiring written form. Divergent standard terms and conditions of the customer shall not be accepted.