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General Terms and Conditions of Business for Online Shops
The following Terms and Conditions are deemed incorporated into each client (as referred to below) side letter and/or registration form (as applicable) and/or the separate agreements entered into between a client and the portals (as referred to below) accepted by Pangora pursuant to these Terms and Conditions:
In these Terms and Conditions, the contracting parties will be Pangora and the client as set out in the client side letter and/or registration form (as applicable) and the term "agreement" means these Terms and Conditions and the terms of the relevant client side letter and/or registration form and/or the separate agreements entered into by a client and the portals.
1.: PRINCIPLE TERMS.
1.1
Pangora GmbH is located at Neureuter Straße 37a, D-76185 Karlsruhe (hereinafter referred to as "Pangora"). The Pangora service offers operators of search engines and portals as well as operators of Affiliate Programme Pages (all hereinafter referred to as "portals" or "portal"), with whom separate agreements are concluded through Pangora, the opportunity to integrate within their own web pages information on products that are available online from various online shops. Operators of online shops (hereinafter referred to as "clients" or "client") are given the opportunity to transmit to Pangora data records containing descriptions of the products offered by them and also additional information, which enables them to present their product offers on portals. The following Terms and Conditions shall apply to operators of online shops.
1.2
Pangora provides the services offered in these Terms and Conditions solely on the basis of; (a) these Terms and Conditions; and (b) a side letter and/or registration form completed by a client. Subsidiary agreements or undertakings by employees or agents of Pangora that extend beyond the contents of any such side letter and/or registration form or these Terms and Conditions must be agreed in writing with Pangora. Pangora's offer, which is accessible via the website www.pangora.com shall be subject to change without notice and shall not be binding until Pangora has accepted in writing the client's side letter and/or registration form.
1.3
The preferred method of correspondence is e-mail, which shall be deemed the equivalent of postal correspondence. In the following text, the term "correspondence" shall include e-mail; but for the avoidance of doubt this shall not apply to the conclusion of a client's side letter and/or registration form, which must be sent by letter or by fax.
2.: SERVICES PROVIDED BY PANGORA.
2.1
Pangora shall offer the Pangora system to various portals. The client's product offers shall be integrated into all web sites of all associated portals, unless (1) a portal is entitled to market its Internet presence itself and takes independent decisions regarding the inclusion of clients or (2) the client and Pangora expressly agree Internet presence on only certain selected portals.
2.2
Pangora shall be entitled to offer the Pangora system into which the client’s product offers are integrated to other portals as well. In such cases Pangora shall inform the client of a change in the portals and/or of new portals in due course. The client shall be entitled to lodge a written objection before the client’s product offers appear on the new portal. If Pangora does not receive any written objection from the client, Pangora shall be entitled to include the client’s product offers on the new portal and the client will be deemed to have given its permission for Pangora to do so. The client as its sole remedy is entitled to terminate its agreement with Pangora if Pangora reproduces a client's data on portal pages even though the client is proven to have objected to this in the manner described above. If the same portal solution is offered to multiple portals, Pangora shall not be required to inform the client of a change in the portals and/or of new portals, nor is the client entitled to lodge a written objection to being included on the new portals. The client is only entitled to lodge an objection to the complete portal solution. This especially applies to the product BNS (“BuyCentral Network Solution”).
2.3
The client is aware that no portal is obliged to include its online shop. This means that Pangora cannot guarantee that a client's online shop will be integrated in all of the portals it chooses. The client shall be entitled to terminate its agreement immediately if its online shop is not accepted by any portal at all.
2.4
Pangora shall electronically integrate the client's product information within the Pangora database to which end users have access via the portals. No guarantee shall be given regarding any specific form of presentation. Pangora does not offer any dial-up nodes. The client must have Internet access. In order for Pangora to be able to market a client’s online shop on the web pages of the portals, Pangora shall amongst other things be entitled to use the client’s product information consisting of texts and images, including any identifying marks of the client (hereinafter referred to as "contents"). The contents transmitted shall not be amended or added to by Pangora without the express consent of the client, although text and graphics may in some cases be supplemented or enhanced. Where necessary, the link leading from the portals to a client’s online-shop shall be adapted. In this case Pangora will take the client’s online shop's specifications into account as far as is possible.
2.5
Pangora reserves the right to enhance, amend or improve the Pangora service offered hereunder. Pangora shall in particular be entitled to change the Pangora service if Pangora in its sole discretion deems it necessary to make such a change because of a compelling request to do so by its contracting partner (for example by a portal).
3.: AVAILABILITY OF THE PANGORA SERVICE.
3.1
Taking into account maintenance work and downtime for updating, Pangora shall endeavour to provide the Pangora service 24 hours a day, 7 days a week for the entire term of a client's agreement. Use of the Pangora service shall be at the client's own risk. The Pangora service shall be offered subject to availability. Pangora shall not guarantee that the Pangora service will be available at all times without interruption, or that the Pangora service will be available on time, securely and without error.
3.2
Interruptions to operations of the Pangora service may occur. This shall in particular apply to periods where the web server cannot be reached via the Internet due to technical or other problems that are outside of Pangora's sphere of influence (by way of example but not limited to force majeure, third-party fault, breakdown of other operators' communications networks and gateways, faults in the sphere of influence of the respective cable provider and faults occurring in other network providers' spheres of risk). Client is aware of the fact that, for technical reasons, product updates will be carried out on the portals once during a working day.
4.: CLIENT'S OBLIGATIONS.
4.1
The fee payable by the client shall be calculated on the basis of the relevant applicable fee scale and/or as set out in the client’s side letter and/or from the agreements entered into between the client and the portal. In principle, invoicing shall be on the basis of the number of redirects listed in the client’s invoices and this shall apply unless separate agreements have been concluded between the client and a portal.
4.2
Prior to the commencement of co-operation the client must obtain information from Pangora on the relevant access configurations required and the specific technical design required and the client must ensure that its technical components (both hardware and software) correspond with the Pangora requirements. Pangora does not offer any guarantee whatsoever regarding the functionality and compatibility of the services offered hereunder with the client's own equipment (both hardware and software).
4.3
Regardless of the form in which the data are submitted by the client to Pangora, the client shall make backup copies where data are transmitted to Pangora. Pangora shall assume no liability in the event of client data being lost. The Pangora servers shall be backed up regularly.
4.4.1
The client shall operate his/her online shop and his/her web site in such a way that neither shall infringe any applicable laws. Further amongst other things, the client shall not infringe criminal law or the law on regulatory offences, nor shall it infringe industrial property rights and copyrights, the law on competition and cartels, or any other third-party rights. In particular, the client undertakes in respect of any pornographic contents that it offers or allows to be offered within the framework of its Internet presence that it shall take all measures necessary to ensure that the offer and operation of such pornographic contents is in accordance with applicable laws particularly with reference to the protection of persons under the age of eighteen.
4.4.2
In the event of any infringement of paragraph 4.4.1 above the client shall; (a) remedy the infringement immediately; (b) compensate Pangora for any resultant damage or loss incurred by Pangora; and (c) hold Pangora harmless from any claims made by third parties in respect of any such infringement. In the event of legal proceedings being instituted against Pangora because of the infringement, the client shall support Pangora in the dispute when requested to do so by Pangora. Further in the event of any such infringement Pangora shall be entitled to; (a) suspend its services to the client immediately; (b) delete the links that refer visitors to the client's online shop; and (c) terminate its agreement with the client without notice.
4.5.1
The client guarantees that the contents supplied and their use by Pangora and by the portals do not contravene any applicable legal system. In particular, the client guarantees that it will not transmit any contents the advertising or marketing of which infringe statutory prohibitions (including but not limited to criminal law and the law on regulatory offences), public morals, third-party rights (including but not limited to personal rights, rights to use names, copyrights, trademark rights, data protection rights and other industrial property rights). In addition, the client shall not transmit any contents:
a) that glorify war;
b) that are capable of endangering the morals of children or young people, particularly those contents that are included in the list of writings and media contents likely to jeopardise young people, or that are capable of harming the physical, mental or psychological well-being of children and young persons according to the applicable law in the UK (if any);
c) that show people dying or who are or were exposed to a serious physical or psychological injury in a manner that offends human dignity and that convey an actual event without there being any overwhelmingly justified interest in such a form of presentation;
d) that offend human dignity in any other way; and
e) that contravene the applicable law in the UK that relates to: (a) the control of illegal substances; or (b) illegal medical preparations; or (c) illegal weapons.
4.5.2
The provisions of paragraph 4.4.2 above shall apply equally in the event of any infringement of paragraph 4.5.1 above.
5.: PANGORA’S LIABILITY.
5.1.1
Regardless of their legal basis, Pangora shall be liable for damages only if; (a) it knowingly commits a breach of a significant and material contractual obligation such a breach must in effect endanger the objective of the agreement with the client; or (b) the damage is attributable to Pangora's gross negligence or intent; or (c) it concerns liability for damages connected with death, physical injury or injury to health. The restriction on liability shall also apply in the event of fault on the part of a vicarious agent of Pangora.
5.1.2
If the breach by Pangora of a significant and material contractual obligation is not due to its gross negligence or intent, Pangora's liability shall be limited to typical damages or a typical extent of loss that could reasonably be foreseen at the time the agreement with the client was concluded. This shall not apply to a liability specifically stipulated in the applicable law of the UK. Unless specific legal provisions specify otherwise, liability shall be excluded in all other cases.
5.2
Limitation of time: Notwithstanding any shorter statutory time limits that may apply, any claims against Pangora resulting from or in connection with the use of the Pangora service or of these Terms and Conditions must be made through the courts within one (1) year of any such claim arising.
6.: RIGHT OF USE.
6.1
Right of use: For the purposes of comprehensive commercial exploitation within the framework of the Pangora search service provided, the client herewith grants Pangora rights of use to the data records supplied by a client containing the client's product offers (hereinafter referred to as "data records"); such rights of use shall apply to all existing copyrights, industrial property and copyright protection rights and other industrial property rights; the rights of use shall be worldwide and non-exclusive, they may be sub-licensed and shall apply to unrestricted, entire or partial usage in all known forms of use (including in particular dissemination on the Internet, portrayal on web pages) on or in connection with the portals. The rights of use shall expressly only be granted as non-exclusive rights, meaning that the client shall himself remain entitled to use the rights to the data records supplied.
6.2
Exploitation rights included: The granting of rights as specified in paragraph 6.1 above shall in particular include the following rights of exploitation:
6.2.1
The "online right", i.e. the right to provide the relevant data records and their contents to users via fixed and mobile telecommunications networks and equipment and to make them available for retrieval ("on demand") for downloading and reproduction at locations and times of their choice (including the right to use analogue or digital individual transfers), the right to provide public accessibility and the right of transmission, i.e. the right to transmit the relevant data records and/or their contents to users via radio for simultaneous or delayed reception, in all cases to the extent required for usage permitted by the agreement and in all cases irrespective of the type:
- of digital or analogue transmission and retrieval technology used (by way of example but not limited to Hertzian waves, laser, micro-waves);
- of the means of transmission used (by way of example but not limited to fixed telephone network, narrowband and broadband usage-, mobile telephone network, broadband cable network, satellite transmission, terrestrial radio equipment, satellites, and direct satellites);
- of the known and future transmission protocols, standards or formats and languages (by way of example but not limited to TCP/IP, IP, WAP, HTTP, HTML, XML, PAL, GMS, GPRS, UMTS, SMS) and including for the avoidance of doubt availability by streaming);
- of encryption technologies or other access restrictions used; and
- of the user's retrieval equipment (including both stationary and mobile PC, television, video and DVD player, mobile phone, organiser, personal digital assistant (PDA) or other fixed or portable end equipment).
6.2.2
The right of reproduction, i.e. the right to reproduce and to store the relevant data records and their contents in pursuance of the contractual objectives on an unlimited, temporary or permanent basis, in all cases irrespective of the type of storage medium;
6.2.3
The right of recitation, representation and reproduction, i.e. the right to enable third parties to hear the data records and their contents in pursuance of the contractual objectives by means of personal performance such as reading out over the telephone, or to make such data records and their contents perceivable to the public in any form by means of screens, loud speakers, video screens or similar technical devices;
6.2.4
The right of adaptation, i.e. the right to amend the data records and their contents in terms of format or in technical terms in pursuance of the contractual objectives while retaining the moral rights of the author, or to combine such data records and their contents with other contents or works and to exploit them in accordance with the above provisions governing the granting of rights;
6.2.5
The archiving and database right, i.e. the right to store the data records and their contents in pursuance of the contractual objectives in analogue or digital form, either online or offline and thus to access the stored work at any time and enable third parties access thereto; and
6.2.6
The right to exploitation for advertising purposes, i.e. the right to use the data records and their contents in any form of advertising for, and by, the portals in unamended or retouched form on notices, commercials, advertisements, sound or visual recordings, advertising banners, demo-versions, multimedia shows, test versions or similar means of communication. The right to exploitation for advertising purposes includes the right to use the data records and contents for all forms of advertisements related to Pangora’s shopping solutions on the portals, even if such usage is not necessarily related, in any concrete way, to the Online-Shop of the client or to the products for which the data records and contents were provided.
7.: TERM OF THE AGREEMENT AND TERMINATION.
7.1
The term of the agreement is given in the client's side letter and/or the registration form and/or in the separate agreement between the client and any portal.
7.2
After expiry of the minimum term for the agreement as specified in accordance with paragraph 7.1 above, the agreement may be terminated at any time by giving four weeks' notice to the end of any calendar month. The date on which the notice of termination is received shall be authoritative when determining compliance with the required period of notice.
7.3
Both parties shall be entitled to terminate the agreement without notice where good cause exists. A good cause entitling Pangora to terminate the agreement with a client without notice shall in particular exist if:
a) the client's conduct jeopardises existing contractual relationships with Pangora's contracting partners;
b) the client defaults on payments for two consecutive months;
c) the client becomes insolvent, particularly if a judicial insolvency procedure is instituted against it; inability to effect payments - for whatsoever reason - shall be deemed the equivalent of insolvency;
d) the client infringes key provisions of these Terms and Conditions; or
e) there is sustained infringement of the quality principles as specified by Pangora.
8.: DATA PROTECTION.
8.1
The contracting parties shall comply with the relevant statutory and official provisions on data protection and data security. Pangora shall only store data to the extent that is necessary and for the period that is necessary in order to integrate the client within the Pangora search facility and to provide evidence of performance in respect of this agreement.
8.2
The client accords Pangora the right to transfer data to selected credit information bureaus if the client’s behaviour is not in accordance with the contract ((e.g. cancellation due to delay in payment, reminder when claims have not been paid and enforcements)
9. CONFIDENTIALITY
Parties to the contract keep the contract and all information related hereto confidential and shall not reveal such information it to a third party for a period of at least 5 years after the termination of this contract
10.: CONCLUDING PROVISIONS.
10.1
This agreement and its implementation shall be governed solely by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on the International Sale of Goods dated 11.04.1980 (“CISG”).
10.2
To the extent permitted by law, the place of jurisdiction shall be Munich.
10.3
No verbal agreements shall be made. In order to be valid, all agreements between the client and Pangora and/or between the client and any portal shall require written form; this shall also apply to amendments and additions and to the renunciation of this paragraph 9.3.
10.4
Pangora reserves the right to change these Terms and Conditions at any time for future transactions. The respective Terms and Conditions valid at the time an agreement is concluded with a client shall be authoritative, as published on the web site of Pangora presently located at www.Pangora.com. Any terms and conditions of the client that conflict with these Terms and Conditions shall not apply.
The Terms and Conditions are valid as specified on the Pangora.com website at the time of contract closure. Contrary Terms and Conditions of the client are not applicable. Pangora reserves the right to change the Terms and Conditions for future business. The changes to the general Terms and Conditions come into effect if the customer does not reject them within one month. Pangora will give due notice to all parties with respect to any changes made.
10.5
Saving clause: If one or more provisions of this agreement are invalid or impracticable, either in whole or in part, this shall not affect the validity of the remaining provisions of this agreement. In replacement of this invalid or impracticable provision a replacement provision shall be deemed to have been agreed that approximates as closely as possible in legal and factual terms to the economic intent of the invalid or impracticable provision.
In the event of a loophole in the agreement that cannot be closed by interpretation of the remaining provisions, then for the purposes of closing the loophole, a provision shall be deemed to have been agreed that approximates, as closely as possible, to the economic interests of the parties had the point been considered.
These Terms and Conditions shall be valid from 19.12.2006.