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General terms and conditions of business

In case of differences between the German and English version of this Agreement, only the German version shall be decisive and applicable.

 

1. Scope
 

1.1. Unless otherwise expressly regulated in individual cases, the provisions of these General Terms and Conditions (hereinafter "GTC") apply to all contracts for the provision and use of the campaign tool (hereinafter: "AutLay Campaign Tool" or "Software") of AutLay -Automatisches Layout GmbH , Unter Käster 14-16, 50667 Cologne (hereinafter "AutLay") with those entrepreneurs who use the services of AutLay (hereinafter "customer"; AutLay and customer also individually "party" or together "parties"), as well as the implementation of printing and shipping services in the form of print mailings (hereinafter: "print mailing campaign") and the performance of additional consulting and implementation services by AutLay. The version of the GTC valid at the time of conclusion of the contract is decisive. 
 

1.2. These terms and conditions apply exclusively to business transactions with entrepreneurs and legal entities under public law and special funds under public law. A contract is not concluded with consumers.  
 

1.3. These GTC apply exclusively to the services of AutLay, even if they are not mentioned in subsequent contracts. The validity of general deviating contractual or business conditions of the customer is expressly excluded. This also applies if AutLay has not expressly objected to the customer's conditions and/or renders services without objection. There are no verbal or written ancillary agreements to these General Terms and Conditions.

 

1.4. The contract between AutLay and the customer consists of these terms and conditions and the appendices (collectively: "Contract"). All systems mentioned in these terms and conditions are a binding part of the contract. 

 

1.5. AutLay may use third parties, in particular print service providers, to fulfill the obligations arising from this contract or to exercise rights. 

 

1.6. Rights that AutLay is entitled to under the law beyond these terms and conditions remain unaffected. 

 

1.7. Terms have the meaning defined in these GTC, unless the context otherwise dictates. 
 

2. Subject of the contract, conclusion of the contract
 

2.1. The subject of these GTC is the provision of the AutLay campaign tool and the execution of print mailing campaigns and of consulting and implementation services by AutLay (hereinafter collectively: "Services"). The provision of services is determined in detail according to the following provisions. 

 

2.2. The conclusion of the contract with regard to the provision of the AutLay campaign tool takes place when the customer registers in the AutLay campaign tool. Only entrepreneurs and legal entities under public law and special funds under public law are entitled to register. The customer is obliged to truthfully declare the authorization to register. 

2.3. On the basis of the contract concluded for the provision of the AutLay campaign tool, the customer can commission AutLay to carry out print mailing campaigns. To do this, the customer sends the respective individual order by pressing the corresponding order button in the AutLay campaign tool. The contract for the implementation of a print mailing campaign is only concluded when AutLay has confirmed the order.   

2.4. The conclusion of the contract with regard to the provision of additional consulting and implementation services takes place when the customer accepts an individual offer from AutLays.  

3. Provision of the AutLay campaign tool 

3.1. AutLay provides the customer with the AutLay campaign tool as software-as-a-service for contractual use over the Internet. The contractual use includes access to the AutLay campaign tool and the input, storage, processing and retrieval of data for creating campaign layouts (hereinafter: "Layouts") via the AutLay campaign tool. Software is not handed over. The AutLay campaign tool is operated exclusively on the AutLay systems. Access to the AutLay campaign tool is via the customer's personal user account. Setting up additional user access to the user account must be ordered separately (consulting and implementation services according to Section 5). If AutLay expressly offers the customer to invite other users to his user account, such user access will be set up without additional charge.  

3.2. AutLay takes reasonable measures to enable and maintain the availability of the AutLay campaign tool under these GTC. However, it may happen that the campaign tool is temporarily unavailable, for example due to an internet connection failure, hardware problems or maintenance work. In such a case, AutLay endeavors to restore availability as quickly as possible, provided that the cause of the non-availability is within its own sphere of influence. Overall, AutLay guarantees an availability of the service of 97% calculated on an annual average. 

3.3.Unavailability of the AutLay campaign tool for installing updates and other maintenance measures will be carried out by AutLay at night or at the weekend if possible and will be announced in advance in a suitable form, unless immediate action is indicated due to updates that are necessary at short notice (e.g. to close critical security gaps). Such an unavailability does not affect the accessibility according to the above number 3.2. 

3.4. In addition, AutLay provides the customer with contact options (especially email) for support requests. 

4. Implementation of print mailing campaigns 

4.1. If the customer commissions AutLay to carry out a print mailing campaign, AutLay prints the layouts created with the AutLay campaign tool and hands over the print mailings to the shipping service provider. The service is provided as a service in accordance with §§ 611 ff. BGB.
 

4.2. After AutLay has confirmed the order, AutLay will immediately forward the order to its print service provider, allowing AutLay a reasonable period for manual quality assurance. Therefore, the customer can no longer cancel the contract. If the customer declares the cancellation of a confirmed order, he must pay the full amount. The customer is free to prove that AutLay has suffered no or only minor damage as a result of the cancellation.  

4.3. AutLay transfers the print mailings created by the print service provider to the shipping service provider Deutsche Post AG. With the handover, the service is fully effected by AutLay. AutLay is not a contractual partner of the shipping service provider. 

4.4. Upon conclusion of the contract, the customer authorizes AutLay to conclude a contract with Deutsche Post AG for him and in his name for the execution of the dispatch of the print mailings. The GTC BRIEF NATIONAL of Deutsche Post AG apply to the contract between the customer and Deutsche Post AG, available at https://www.deutschepost.de/content/dam/dpag/images/A_a/AGB/dp-agb-brief-national-2021.pdf. AutLay undertakes - after the customer has properly paid the fee in accordance with Section 8 of these General Terms and Conditions - to settle the costs incurred by the customer through the assignment of Deutsche Post AG to Deutsche Post AG. 

4.5. The dispatch takes place exclusively as Dialogpost within Germany. The content of the print mailings may therefore only have advertising content.  


 

5. Consulting and implementation services 

5.1. AutLay will only provide additional consulting and implementation services if and insofar as this has been expressly agreed between the parties. This includes z. B. the customer-specific onboarding to the AutLay campaign tool, the training of employees and the activation of additional user access. The parties determine the type, content and scope of the consulting and implementation services individually in an offer. 

 

5.2. Consulting and implementation services are generally carried out from Monday to Friday between 9:00 a.m. and 6:00 p.m., with the exception of public holidays. If the customer wishes the services to be provided outside of the aforementioned times, AutLay will comply with this request within the scope of its operational possibilities.   

6. Rights of Use 
 

6.1. Upon conclusion of the contract, AutLay grants the customer the non-exclusive, non-transferrable, non-sublicensable right, limited in time to the contract period and unlimited in location, to use the AutLay campaign tool to the contractual extent. 

6.2. The customer has no right to reproduce, decompile or make a back-up copy of the software, unless this is permitted by law. He is also not entitled to pass on the documentation or other accompanying materials to third parties without the prior consent of AutLay. 

6.3. The customer grants AutLay the rights to use the layouts it creates, which are necessary for the performance of the services. This includes in particular the printing of the print mailings and the necessary forwarding of the layouts to the print service provider.

6.4. The customer guarantees that all layouts created by him to carry out the services (in particular the images and texts contained therein) are free of third-party property rights and that he is entitled to make these layouts available to AutLay for this purpose. The customer releases AutLay from all claims of third parties due to the use of the layouts created by him to fulfill the contract. 

7. Customer's obligation to cooperate 

7.1. In order for AutLay to be able to provide the services properly, the customer must carry out all necessary cooperation obligations in a timely and proper manner. As soon as the customer finds that he will not be able to meet his obligations to cooperate, he will inform AutLay of this immediately. If the customer does not properly fulfill his obligations to cooperate or is otherwise responsible for causes that delay, restrict or impede the performance of AutLay, AutLay is released from providing the services as long as the causes exist. If the cause ceases to exist, AutLay will begin to provide the services again within a reasonable time. AutLay can charge the customer for additional expenses if the customer is responsible for the cause. In these cases, the customer is not entitled to claim damage caused by delay. Other rights on the part of AutLay remain unaffected by the above regulations. 

  • The customer is obliged to use the AutLay campaign tool exclusively within the scope of the functions provided.
     

  • The customer is obliged to establish an Internet connection when using the AutLay campaign tool and to maintain it during use. The Internet connection must allow sufficient data throughput.  
     

  • The customer is obliged to take suitable measures to ensure that unauthorized third parties cannot access the AutLay campaign tool and that the software is not damaged by viruses or other malware. This includes, in particular, keeping the access data for the AutLay campaign tool secret and only accessing the AutLay campaign tool via secure IT systems and secure Internet connections. Any actions that are likely to cause an excessive load on the AutLay campaign tool or otherwise impair the functionality of the infrastructure or endanger the integrity, stability or availability of the AutLay campaign tool are to be avoided.
     

  • The customer is obliged to regularly carry out comprehensive backups of the data to be processed with the AutLay campaign tool. The performance of data backups is not part of the services to be provided by AutLay. 
     

  • In the event of inaccuracies or changes in the contact details, the customer is obliged to inform AutLay immediately by correcting the contact details in his user profile. If the customer ceases to be an entrepreneur, the customer is obliged to inform AutLay immediately in text form. 
     

  • The customer will not use any racist, discriminatory, pornographic, endangering the protection of minors, politically extreme or otherwise illegal data or data that violate official regulations or requirements to create layouts. 
     

  • The customer is obliged to provide all documents and information required for the provision of consulting and implementation services in good time and in full and to ensure that suitable contact persons with the necessary specialist knowledge are available on the customer's side for this purpose. The customer creates the necessary technical requirements for the proper provision of services by AutLay (e.g. by maintaining an Internet connection).  

7.2. In particular, the customer is obliged to provide AutLay with all the information required for the implementation of the print mailing campaign (in particular address data of the recipients) correctly and completely in a suitable format (e.g. Excel) and in German so that the dispatch can be carried out correctly can. At the customer's request, AutLay will roughly check the plausibility of the address data (e.g. zip code) transmitted by the customer before the print mailings are handed over to the shipping service provider. In such a case, the customer is given the opportunity to check the address data for completeness before sending the order; AutLay assumes no liability for the completeness of the address data. AutLay assumes no liability for delivery delays or undeliverability resulting from incorrect information provided by the customer. Damage and additional costs based on incorrect information transmitted to AutLay are to be reimbursed by the customer.  
 

8. Compensation 

8.1. The AutLay campaign tool is provided free of charge for the customer.  

8.2. The customer pays the amount shown during the checkout process from the AutLay campaign tool to AutLay for the implementation of the print mailing campaign. The price includes a basic fee for the execution of the print mailing campaign as well as the piecemeal costs for production and commissioning of the mailing service provider. Price lists available on the AutLay website are not binding.
 

8.3. The provision of further consulting and implementation services takes place against payment of a fee, which is calculated according to the time required on the basis of a daily rate. The amount of the daily rate and the billing modalities result from the individual offer of AutLays. Cost of materials, travel expenses and other expenses will be reimbursed separately in the amount actually incurred.  

8.4. AutLay accepts the payment methods specified during the checkout process. AutLay only carries out the order for the implementation of a print mailing campaign after the remuneration has been paid in full. AutLay is not obliged to perform until the remuneration has been paid in full. 

8.5. In individual cases, the remuneration is payable on account. In such a case, the remuneration is to be paid to the account specified in the invoice within 14 days of receipt of the invoice by the customer. If the payment deadline is exceeded, AutLay is entitled to demand default interest of 9 percentage points above the applicable base rate of the European Central Bank. The assertion of further damage is not affected by this. If the customer is in default of payment, AutLay is entitled to demand immediate cash payment for all due and undisputed claims from the business relationship.  

8.6. A payment is deemed to have been made when AutLay can dispose of the amount at the place of business. In the event that AutLay accepts cashless means of payment, only the unconditional credit to the account or the possibility of disposing of the amount owed is deemed to be fulfillment. 

8.7. Invoices must be checked carefully by the customer. Any invoice corrections must be reported to AutLay within 14 days of receipt of the invoice.  

8.8. All prices do not include the applicable sales tax.  

8.9. The amount to be paid to AutLay is regularly based on a scale of prices and discounts, based on the volume of print mailings to be created. If AutLay determines before handing over to the shipping service provider that the customer has not fulfilled his obligation to provide address data properly (cf. Section 7.2) to the extent that the number of layouts to be created after sorting out the wrong address data after the above underlying price and discount scale, the customer is obliged to pay the corresponding amount according to this price and discount scale. This also applies in particular if the total price is higher according to the price and discount scale above it than would be the case according to the price displayed during the checkout process.  

8.10. For services not provided (e.g. due to incorrect address data transmitted to AutLay), a corresponding reimbursement will be made to the customer. If a refund is required due to incorrect information provided by the customer, AutLay may incur damages and additional costs, which must be borne by the customer. Such claims for damages will be offset against the reimbursement. The basic fee will not be reimbursed, not even pro rata. The refund will be made in the following month as a credit. 

8.11. Counterclaims by the customer only entitle him to offsetting and asserting a right of retention if they have been legally established or are undisputed.  

9. Contract term, termination 

9.1. The contract for the provision of the AutLay campaign tool is concluded for an unlimited period. The customer can terminate the contract at any time by removing his user account. 

9.2. If compatible with the type of service and unless otherwise agreed in the individual contract, the contract for the provision of consulting and implementation services can be terminated with a notice period of six weeks to the end of the month. The termination must be in writing.  

9.3. The right of the parties to extraordinary termination without notice for important reasons remains unaffected. The extraordinary termination must be in writing to be effective. 
 

10. Liability

10.1. AutLay is liable without limitation in the following cases: 

  • for damages, reimbursement of expenses and value resulting from intentional or grossly negligent behavior on the part of AutLays, a legal representative or vicarious agents of AutLays,  
     

  • for damages, reimbursement of expenses and value from injury to life, limb or health, which are based on negligent behavior on the part of AutLay, a legal representative or a vicarious agent of AutLay,  
     

  • within the scope of an expressly assumed guarantee, 
     

  • in the event of liability under the Product Liability Act. 

10.2. Otherwise, AutLay is liable for damages, expenses and compensation due to the violation of a cardinal obligation, ie an obligation that is essential for the fulfillment of the contract and on whose observance the customer can legitimately rely, by AutLay, its legal representatives or a vicarious agent to the typically foreseeable damage.  

10.3. In addition, AutLay, its representatives and vicarious agents are not liable. Claims for lost profits are excluded.  

10.4. If AutLay cannot perform the services or other obligations arising from this contract due to circumstances for which Autlay is not responsible, AutLay shall be released from its performance obligation for the time in which the circumstance preventing the performance of the services exists and for a reasonable start-up period, without being obliged to pay compensation to the customer. The same applies if AutLay or its vicarious agents are made unreasonably difficult or temporarily impossible to fulfill their obligations due to unforeseeable circumstances for which they are not responsible, in particular bad weather, continuous rain, storms, drought, floods, pandemics, official measures or major operational disruptions. The same applies to industrial action, such as strikes or similar, affecting AutLay or its vicarious agents. If the preventing circumstances last longer than 10 working days, both the customer and AutLay can withdraw from the contract without one of the parties being able to assert any claims for damages against the other party because of the withdrawal. At the request of one party, the other party will declare after the deadline whether it will exercise its right of termination or whether it will insist on the provision of the service. 

11. Data Protection 

11.1. The parties will observe the applicable data protection regulations. 

11.2. The parties conclude the contract processing agreement attached below in accordance with Art. 28 GDPR.
 

12. Confidentiality  

12.1. The parties are obliged to treat the confidential information of the other party confidentially and not to pass it on to third parties unless this is expressly permitted or is necessary to fulfill the obligations and exercise the rights arising from this contract. Each party may share the other party's Confidential Information with its employees, vicarious agents or contractors, provided they have a legitimate interest in knowing the Confidential Information and are themselves obligated to maintain confidentiality to a reasonable extent. 

12.2. These confidentiality obligations do not apply to information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known to the receiving party prior to receipt of the Confidential Information; (iii) the receiving party lawfully received from a third party without breach of any duty of confidentiality; or (iv) is developed by the receiving party without using the disclosing party's Confidential Information. A party may also disclose the other party's Confidential Information to the extent required by law or court order, provided it gives the other party advance notice (if permitted by law). 
 

13. Reference and press release 

13.1. Each party is entitled to announce the conclusion of the contract and the contractual cooperation of the parties in any form or to advertise it through the use of company names, trademarks and other protected signs (e.g. in reference lists), if the other party has expressly consented to this beforehand .  

13.2. Each party is entitled to issue a press release reporting in general terms on the conclusion of the contract and the cooperation between the parties. The draft of a planned press release must be agreed between the parties in advance. 

14. Final Provisions 

14.1. Changes and additions to these GTC must be in writing. This also applies to the change, addition or cancellation of this clause 14.1. ​

14.2. The place of performance is the registered office of AutLay. 

14.3. The law of the Federal Republic of Germany applies to this contract. The application of the UN sales law (CISG) is excluded. 

14.4. The exclusive place of jurisdiction for disputes arising from or in connection with this contract is Cologne. 

14.5. Should a provision of these GTC or a future provision included here be wholly or partially invalid or unenforceable or later lose their legal validity or enforceability, the validity of the remaining provisions of these GTC shall not be affected. The same applies if it should turn out that the General Terms and Conditions contain a loophole. Instead of the ineffective or unenforceable provisions or to fill the gap, an appropriate regulation shall apply which, as far as legally possible, comes closest to what the parties wanted or would have wanted in terms of the meaning and purpose of the contractual cooperation, provided that they agreed upon the conclusion or .would have considered the point when later including the relevant provision. 

Order processing contract i. s.d. Art. 28 para. 3 General Data Protection Regulation

(GDPR) + technical and organizational measures

The order processing contract and the technical and organizational measures can be viewed here.

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