PaketPLUS Marketing GmbH (hereinafter “PaketPLUS”): Terms and Conditions for Dispatch
1. Object and scope of the agreement
1.1. The Dispatch Partner is involved, as an entrepreneur, in the distance selling and consignment to customers of goods of specific product categories. 1.2. Under the URL (hereinafter the “PaketPLUS website”), PaketPLUS operates a platform from which a dispatch network for the dispatch of package inserts is organised. PaketPLUS procures promotional inserts such as flyers, product samples and vouchers (hereinafter “Advertising Material”) from the advertising partners participating in the network (hereinafter “Advertising Partners”) and passes these on to the Dispatch Partner. The Dispatch Partner places the Advertising Material procured by PaketPLUS in with its consignments of goods and sends these to its customers. 1.3. PaketPLUS provides and delivers the Advertising Material to the Dispatch Partner free of charge. The Dispatch Partner receives an agreed rate of compensation for enclosing and dispatching the Advertising Material with its consignments. 1.4. These Terms and Conditions (hereinafter “Terms and Conditions”) apply to all the business relationships which PaketPLUS and the Dispatch Partner enter into in connection with the object of the agreement as described above. The procurement of Advertising Material for dispatch by the Dispatch Partner is subject in every individual case to a separate written agreement between PaketPLUS and the Dispatch Partner. Neither these Terms and Conditions nor the Dispatch Partner’s registration with the dispatch network, as laid down in section 2, constitute an obligation on the part of PaketPLUS to procure and provide Advertising Material for dispatch by the Dispatch Partner. 1.5. Only these Terms and Conditions shall apply. The Terms and Conditions of the Dispatch Partner, should they deviate from, contradict or expand on these Terms and Conditions, shall only be considered part of the contract if and to the extent that PaketPLUS has expressly accepted their applicability in writing. 1.6. The agreements entered into in the individual written contracts between the parties, and any other one-off agreements entered into (including subsidiary agreements, additions and amendments) shall always take precedence over these Terms and Conditions. The content of such agreements shall be evidenced by the written contract itself or by PaketPLUS’s 2. Registration, conclusion of contract
2.1. Registration on the PaketPLUS website constitutes an offer by the Dispatch Partner to enter into a contract regarding participation in the PaketPLUS dispatch network. After receiving such an offer, PaketPLUS decides at its own discretion whether or not to accept it. If it decides to accept the offer, PaketPLUS sends written confirmation and allows the Dispatch Partner access to the personalised user area of the PaketPLUS website. 2.2. Registration is limited to legal entities, partnerships and natural persons with unlimited legal capacity who are acting in pursuit of their trade, business or profession (entrepreneurs within the meaning of Section 14 German Civil Code). PaketPLUS Terms and Conditions for Dispatch Partners 2.3. The information provided during the registration procedure must be accurate and complete. The data required by PaketPLUS include: first and surname, company, address (not just P.O. box) and telephone number (no premium rate numbers), a valid e-mail address, an authorised representative, the product categories into which the Dispatch Partner’s goods fall and its number of monthly goods consignments. 2.4. A legal entity may only be registered by a natural person who is authorised to represent it and 2.5. Should the information provided change after registration, the Dispatch Partner is obliged to 2.6. The Dispatch Partner agrees to treat its password as confidential information and to take due care to prevent unauthorised access to its User Account. PaketPLUS will not reveal the Dispatch Partner’s password to third parties and will never ask the Dispatch Partner for its password in an e-mail or telephone call. 2.7. The Dispatch Partner is liable for all the activity that takes place via its User Account, except in cases where unauthorised access to the account has been obtained by means beyond the 2.8. The User Account is not transferable to third parties. 3. Ordering Advertising Material
3.1. Once PaketPLUS has activated the Dispatch Partner’s User Account, the Dispatch Partner will be able to view the available Advertising Material on the PaketPLUS website. Should the Dispatch Partner wish to enclose any of the depicted Advertising Material with its consignments, it can make its choice from the material depicted and submit a non-binding order request via the PaketPLUS website. 3.2. PaketPLUS will consider the Dispatch Partner’s request and make the Dispatch Partner a written offer regarding the delivery and dispatch of the available Advertising Material. The contract governing the procurement of Advertising Material by PaketPLUS and its dispatch by the Dispatch Partner shall come into being with the written acceptance of this offer by the Dispatch Partner. The Dispatch Partner has no claim to a particular type or particular amount of Advertising Material and PaketPLUS can, at its own discretion, reject the Dispatch Partner’s request or make it an offer which deviates from its original request. The Dispatch Partner is not obliged to accept offers which deviate from its original request. 3.3. The offer submitted by PaketPLUS may include a binding deadline by which the Advertising Material in question has to be dispatched by the Dispatch Partner (hereinafter “Dispatch Deadline”). Where this is the case, the parties may agree on a date for the delivery of the Advertising Material to the Dispatch Partner (hereinafter “Delivery Date”). 4. Delivery of Advertising Material; transfer of ownership
4.1. PaketPLUS shall deliver the agreed Advertising Material free of charge to the Dispatch Partner at the contractually agreed delivery address. 4.2. In cases where a Delivery Date has been agreed (see section 3.3), PaketPLUS will deliver the Advertising Material by this date at the latest. Should PaketPLUS be unable to deliver by this date for reasons beyond its control (e.g. because the Advertising Partner has provided the Advertising Material late or because the Advertising Material was flawed, or for reasons of force majeure), PaketPLUS may set a new Delivery Date. In the event of the late delivery of Advertising Material, the Dispatch Deadline will be extended by the amount of time the delivery was delayed. Should this extension of the Dispatch Deadline following a delay not suffice (e.g. because the Dispatch Partner does not have a high enough number of goods consignments during the period in question), the parties will agree amicably on an extension of the Dispatch Deadline or a reduction of the amount of Advertising Material to be dispatched so that the Dispatch Partner is able to dispatch all the Advertising Material by the 4.3. PaketPLUS is not obliged to check the Advertising Material delivered to it by its Advertising Partners for flaws before forwarding it to the Dispatch Partner. 4.4. Should PaketPLUS, for reasons beyond its control, not receive the Advertising Material from the Advertising Partner by the agreed deadline, not receive the agreed amount of Advertising Material or receive Advertising Material which is flawed, it may withdraw from the contract entirely with regard to the Advertising Material in question (or withdraw in part in the event of a short delivery). Its declaration of withdrawal must be made in writing. PaketPLUS will inform the Dispatch Partner without delay should any of the above situations arise and will let the Dispatch Partner know as soon as possible whether it is withdrawing from the contract as a 4.5. The Dispatch Partner acquires no ownership rights to the Advertising Material through its taking delivery, storage and consignment of it. Until the Advertising Material reaches the Dispatch Partner’s end customer, ownership of the Advertising Material remains with the Advertising Partner who has produced it. However, the Dispatch Partner is both authorised and obliged to transfer the ownership of the Advertising Material to those of its customers to whom the Advertising Material is consigned. Upon receipt of the Advertising Material, the end 5. Obligations of the Dispatch Partner
5.1. Upon receipt of the Advertising Material, the Dispatch Partner agrees to check immediately that it is free of obvious flaws (e.g. transport damage, short delivery, wrong delivery, obvious printing mistakes such as “blank paper”). The Dispatch Partner must report any flaws it discovers to PaketPLUS without delay. Flaws must also be reported immediately if the Dispatch Partner discovers them at a later date. The Dispatch Partner is not obliged to dispatch flawed Advertising Material but must follow PaketPLUS’s instructions on what to do with the flawed or excess Advertising Material (e.g. return or destroy flawed Advertising Material at PaketPLUS’s cost). For the rest, section 4.4 applies. 5.2. The Dispatch Partner agrees to handle the Advertising Material provided to it with due care and attention, in particular with regard to storage, packaging and transport. The level of diligence with which it treats the Advertising Material must be at least that which it generally displays in relation to its own affairs. For the consignment of the Advertising Material, the Dispatch Partner will use accepted industry carriers (e.g. DHL, Hermes etc.). 5.3. The Dispatch Partner will enclose the agreed amount of Advertising Material with the agreed number of goods consignments and send these to its end customers. No more than one piece of each agreed Advertising Material may be enclosed with any one goods consignment. In total, a maximum of three different Advertising Materials provided by PaketPLUS may be enclosed with any one goods consignment. 5.4. The Dispatch Partner will not enclose the Advertising Material in consignments of goods which it is legally prohibited from offering for sale and distance selling, goods which violate third party rights or goods which offend taste and decency. 5.5. The Dispatch Partner is obliged to update the user section of the PaketPLUS website by entering truthfully and completely the figures relating to the amounts and types of Advertising Material it has dispatched. This information should be updated every working day if possible, and, if not, then at least once a week. As soon as the Advertising Material provided by PaketPLUS has been dispatched in full, the Dispatch Partner must confirm vis-à-vis PaketPLUS in writing that the Advertising Material has been dispatched in full as per the 5.6. The Dispatch Partner agrees that it will not enclose third party advertising material in goods consignments containing Advertising Material provided by PaketPLUS. Furthermore, the Dispatch Partner may not combine within one goods consignment Advertising Material for rival products or services (e.g. two flyers from two different Advertising Partners who both sell face cream). Without prejudice to the previous two provisions, the Dispatch Partner may, however, enclose one of its own promotional flyers (closed format, 1/3 A4) in the consignment, provided that the flyer exclusively promotes goods or services sold or provided 5.7. At PaketPLUS’s request, the Dispatch Partner will provide PaketPLUS without delay with documentary evidence that it really has dispatched the reported amount of Advertising Material with the reported number of goods consignments. Such evidence may include receipts of posting, invoice documents from the carrier company, customer invoices etc.). PaketPLUS shall be authorised to make these documents available to its Advertising Partners. The parties agree to observe data protection regulations regarding any customer data that may be affected by this provision. 5.8. All the statistics and information pertaining to the Dispatch Partner may be viewed by the Dispatch Partner at any time in the user section of the PaketPLUS website. 5.9. For the duration of this contract, the Dispatch Partner agrees not to participate in any dispatch network which could be viewed as a competitor to PaketPLUS. 6. Consideration, conditions of payment
6.1. For every piece of Advertising Material dispatched as per the contract, the Dispatch Partner will receive consideration from PaketPLUS. Whenever it places an order request, the Dispatch Partner will be shown, in the secure section of the PaketPLUS website, the consideration offered for the consignment of the Advertising Material in question. As long as the parties do not come to a different agreement regarding consideration in the respective contract, the consideration displayed on the website shall be deemed to have been agreed upon with the acceptance by the Dispatch Partner of PaketPLUS’s offer as described in section 3.4. Consideration is cumulative, which means that when three Advertising Materials are sent per package, the agreed consideration will be credited for each. 6.2. Unless explicitly stated otherwise, the consideration rates displayed on the PaketPLUS website and in PaketPLUS’s offers are net (they do not include VAT). Where it is legally required, statutory VAT will be paid on top of these net amounts. 6.3. Settlement for performance effected by the Dispatch Partner within a calendar month will be made at the end of the calendar month following performance. Consideration will be paid out within five working days by bank transfer to the account specified by the Dispatch Partner. A transfer will only be made when the Dispatch Partner’s account is at least € 100 (net) in credit (hereinafter “Minimum Payment Amount”). If a Dispatch Partner does not make the Minimum Payment Amount within a calendar month, the total for that calendar month will be carried forward to the next calendar month and so on until the Minimum Payment Amount has been reached. No interest will be paid on credit held with PaketPLUS. 6.4. PaketPLUS shall have the right to amend the consideration schedule at any time with future 6.5. The Dispatch Partner shall only be entitled to set-off or withhold performance if it has a legally 7. Manipulation
7.1. Manipulation describes any attempt to circumvent, by technical or other means, PaketPLUS’s systems and its principle of consideration and settlement. This includes, but is not limited to, providing false information with regard to monthly consignment volumes, reporting false figures for enclosures already sent, not sending, or destroying, enclosures, enclosing more than one piece of the same Advertising Material in one consignment, requesting amounts of Advertising Material which do not correspond to dispatch capacity etc.). PaketPLUS will notify the Dispatch Partner immediately should a suspicion of manipulation arise. Should PaketPLUS and the Dispatch Partner together not be able to find, within a reasonable period, an explanation which completely accounts for the suspicious detail(s) and should concrete indications of manipulation exist, manipulation will, for the purposes of this contract, be 7.2. Where a concrete suspicion of manipulation exists, PaketPLUS is entitled, until the matter has been definitively resolved within a reasonable period, to block the Dispatch Partner’s User Account on the PaketPLUS website, to withhold delivery of any agreed Advertising Material and to withhold payment of any credit that may be related to the manipulation. For 8. Contractual penalty; termination for cause
8.1. Should the Dispatch Partner violate any of the obligations laid down in sections 5.5, 5.6 and 5.7 or be found guilty of manipulation as described in section 7.1, it shall be obliged to pay a contractual penalty equal to the amount of consideration agreed in the contract regarding the Advertising Material affected by the violation. This shall not apply should the Dispatch Partner 8.2. Both parties have the right to terminate the entire contractual relationship without notice for cause pursuant to Section 314 German Civil Code. PaketPLUS shall be deemed in the following situations in particular to have cause for termination without notice: 8.2.1. PaketPLUS has concrete indications that the Dispatch Partner is violating its duty under section 5.5. to report truthfully and completely the amount and type of Advertising Material it has dispatched, thus destroying the basis of trust between the parties; 8.2.2. the Dispatch Partner is violating its duties under sections 5.6 or 5.7 and/or 8.2.3. PaketPLUS has concrete reason to suspect manipulation by the Dispatch Partner as described in section 7 and the basis of trust between the parties is thus destroyed. In the situations described in 8.2.1 and 8.2.3, termination without notice does not need to be preceded by a warning to the Dispatch Partner to no avail. 9. Indemnity
9.1. The Dispatch Partner agrees to indemnify PaketPLUS unconditionally (“on first demand”) from any claims which third parties may assert against PaketPLUS in relation to a violation of their rights by the Dispatch Partner, unless the Dispatch Partner is not responsible for the violation of rights. The Dispatch Partner will also bear the costs of any legal representation required by PaketPLUS, including all court and lawyers’ fees. The Dispatch Partner will, upon request, provide PaketPLUS without delay with all the available information which could aid 10. Liability
10.1. Except in the case of a violation of a material obligation, PaketPLUS shall only be liable for damages if and to the extent that it, its legal representatives, executive staff or other vicarious agents acted with intent or gross negligence. In the event of a violation of a material obligation, PaketPLUS shall be liable for any culpable conduct by its legal representatives, executive staff or other vicarious agents. 10.2. Except in cases of intent or gross negligence on the part of the legal representatives, executive staff or other vicarious agents of PaketPLUS, PaketPLUS’s liability shall be limited in amount to the level of the typical damages foreseeable at the time of entering into the 10.3. PaketPLUS shall only be liable for indirect damage, especially loss of earnings, in cases of gross negligence or intent on the part of its legal representatives, executive staff or other 10.4. The above exemptions from and limitations of liability shall not apply where PaketPLUS has assumed an explicit guarantee, and not in cases of damage arising from loss of life, bodily harm, injury and illness. Furthermore, they shall not apply in cases regulated by law, especially under the Product Liability Act. 10.5. For damages caused by the loss of or damage to the Advertising Material in the period between it being accepted for transport and it being delivered and for damages caused by the missing of the delivery deadline by the courier contracted by PaketPLUS, PaketPLUS shall only be liable - in addition to the above liability limitations - to the extent laid down in sections 425 ff German Commercial Code (shipping and transport), unless the courier has contractually assumed further-reaching liability vis-à-vis PaketPLUS. In this case PaketPLUS will be liable to the same extent as the courier. 11. Confidentiality
11.1. The parties will treat as confidential all the information about the business of the other party, be it of a technical, commercial or organisational nature, which one party (the “Disclosing Party”) makes accessible to the other party (the “Receiving Party”) or which the Receiving Party comes into possession of in the course of the performance of the agreement (together “Disclosure”). This applies in particular to business and marketing strategies, information about price structures, margins and turnover, customer data, marketing plans, cooperation partners, procurement and purchasing conditions and other financial and business data (together “Confidential Information”). 11.2. The parties agree (a) to use the Confidential Information exclusively for the purposes of the performance of this agreement, (b) only to reproduce it if and to the extent absolutely necessary for the same purposes and (c) not to make it accessible to third parties except for those vicarious agents of the parties whose knowledge of the Confidential Information is necessary for the performance of the agreement. 11.3. In keeping the Confidential Information secret, the Receiving Party will display at least the same level of care and diligence that it would to protect confidential information of the same nature of its own, putting into place those protective measures that it itself would take. At the very least it must display ordinary care and attention. In particular it will take adequate steps to protect the Confidential Information against unauthorised disclosure, reproduction and 11.4. The obligation to treat information as confidential does not apply to information which (i) the Receiving Party was demonstrably already in possession of before Disclosure, and (ii) which was already in the public domain at the time of Disclosure. Furthermore, the obligation does not apply to information which (i) the Receiving Party can prove it received, without being bound to confidentiality, from a third party after conclusion of this contract, as long as the third party in question did not violate its own confidentiality obligation vis-à-vis the Disclosing Party by passing on the information, and (ii) which the Receiving Party can prove entered the public domain through no fault of its own after conclusion of this agreement. Equally, the confidentiality obligations do not apply to information which has to be disclosed by law or as the result of a final court decision or official directive. Where legally permissible, however, the party required to disclose the information is obliged to inform the other party of the disclosure in advance or as soon as possible after the event. It must also take steps to ensure that the information is not generally publicised and attempt to procure a confidentiality agreement to protect it. 11.5. The obligations laid out in section 11 are valid for the term of this agreement and for three 12. Term and termination
12.1. The contractual relationship between PaketPLUS and the Dispatch Partner governing participation in the PaketPLUS dispatch network has an unlimited term. 12.2. The contractual relationship can be terminated in writing by either party with three months’ notice to the end of the month. If at the time the termination becomes effective individual contracts governing the procurement and dispatch of Advertising Material exist for which performance has not yet been effected or not yet been completely effected, the individual contracts will still be carried out in accordance with these Terms and Conditions. 13. Miscellaneous
13.1. These Terms and Conditions and all the legal relationships between the parties connected with the object of the agreement are subject exclusively to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes connected with this contractual relationship and the individual contracts based on it, including disputes concerning their effectiveness and that of later amendments and additions, is Berlin. PaketPLUS, however, shall also have the right to bring suit at the Dispatch Partner’s place of 13.2. Where it is stipulated in these Terms and Conditions that the written form is required for certain declarations, this requirement will be deemed to have been met if such declarations are sent by fax or by e-mail to the fax numbers and e-mail addresses provided by the parties. A rescission or waiver of the requirement of written form must itself be in writing. However, in contrast to the stipulations of the previous 2 sentences, a termination of this agreement must be both in writing and sent by recorded delivery. 13.3. To assign to a third party the rights and obligations they have under this contractual relationship and under the individual contracts based on it, the parties require the consent of the other party. Without prejudice to the previous sentence, PaketPLUS can, however, transfer its rights and obligations under this contractual relationship and the individual contracts based on it, in full or in part, to an affiliated company within the meaning of sections 15 ff Stock Corporation Act. In the event of this happening, PaketPLUS shall be subsidiarily liable for the obligations it assumed vis-à-vis the Dispatch Partner. 13.4. Should one or more of the provisions of these Terms and Conditions be found to be invalid, the validity of the remaining provisions shall not be affected. Section 139 German Civil Code shall not apply. The parties agree to replace invalid provisions with valid provisions that correspond to that which the parties would have agreed, based on the intent of the contract, had they been aware of the invalidity of the provision(s) in question upon entering into the contract. The same applies mutatis mutandis to loopholes in the contract. 13.5. PaketPLUS reserves the right to amend these Terms and Conditions at any time without having to state its reasons. The amended Terms and Conditions will be sent to the Dispatch Partner by e-mail two weeks at the latest before they are due to come into effect. Should the Dispatch Partner not have raised any objections to the new Terms and Conditions within two weeks of receipt of the e-mail, the amended Terms and Conditions shall be deemed to have


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