User Terms for the Werbeagentur.de platform
1. Sphere of Validity of the User Terms and Conditions
(1) These User Terms and Conditions shall be valid for the free-of-charge online web site called “Werbeagentur.de” which is accessible on the Internet at Werbeagentur.de and operated by ecomars gmbh (Germany). Werbeagentur.de is a platform where users (searchers) can find agencies and, by creating an account, save results or contact agencies as well as create user (agency) accounts and profiles and publish contents.
(2) The currently-valid User Terms and Conditions can be accessed and printed out via (link) Werbeagentur.de User Terms and Conditions.
2. Conclusion of the Contractual Agreement and Account
(1) By completing the online registration process and approving the User Terms and Conditions, a User Agreement shall be considered to have been concluded with the Operator. The object of the User Agreement shall be the free-of-charge use of the account.
(2) In order to create an account, the creation of a user account shall be required. This user account shall consist of at least a user name and a password (“Log-In Data”).
(3) It is possible to create an account by the User providing only a current e-mail address. At the same time, this e-mail address shall serve the purpose of communicating with the Operator.
(4) The User shall ensure that the data used during the creation of his account (“Profile Data”) are accurate and complete. The usage of pseudonyms shall be impermissible.
(5) The contractual languages shall be English and German.
(6) During any and all communication between the User and other users, any relationships created shall be exclusively between the participating users. The Operator shall be considered to be neither the representative nor himself a partner in such a relationship.
3. Usage of the Profile
(1) During the usage of the profile, the User–in this case, searchers and agencies–can utilise various services:
◦ Searchers shall have the option of compiling and saving lists of results via free-of-charge scorings.
◦ Searchers shall also have the option of inquiring about services rendered by agencies and applying for the posted jobs upon a free-of-charge basis. In order to do so, a form must be filled out and the User Terms and Conditions must be accepted and submitted. The data on the form shall then be forwarded to the agency.
◦ Agencies shall be considered to be companies or legal entities which render commercial services, employ at least two workers and appear as an agency on the web site and in the Imprint section. Freelancers shall not be permitted to create an agency profile.
◦ Agencies shall have the option of publishing their own contents in the form of an agency profile and contributions (texts, photos, etc.) within the portal.
◦ Agencies shall also have the option of making bookings within Werbeagentur.de. They shall be regulated during the booking via special business terms and conditions.
(2) The Operator shall be at any time entitled to block access to individual pieces of content, e.g. if the suspicion exists that such contents violate applicable law or third-party rights. The User shall have no claim to the continued usage of individual functionalities of the portal.
(3) The Operator shall endeavour to ensure the disruption-free operation of the portal. This shall naturally be restricted to services over which the Operator has control. The Operator shall be at liberty to restrict the access to the portal owing to maintenance work, capacity issues and as the result of other events which are not in his control, in whole or in part, temporarily or permanently.
4. User’s Cooperation Obligation: Publication of Contents
(1) The Operator shall not conduct an editorial review of the published contents–neither before nor after the publication thereof by the User. The User shall be obliged, during the creation and use of his own contents, to follow applicable law (e.g. criminal, competition and youth protection law) and to violate no third-party rights (e.g. naming rights, trademark rights, copyrights and data protection rights).
Insofar as the published contents depict persons (e.g. in photos or in videos), the User assures that, insofar as this is required, the depicted persons consent to such publication.
The Operator reserves the right, without querying this and without providing prior notice, to delete the published contents as well as to ban members from the usage of individual sections of the web site or the entire web site of Werbeagentur.de.
(2) The User shall be obliged to the Operator to ensure that any and all contents which are published on the portal violate neither applicable law nor good morals through his contents or the form of his contents. In this regard, the User shall ensure particularly that he is either the author of the contents or holds the corresponding rights to publish the contents and grants the Operator the aforementioned usage rights. The same shall be valid for the placement of external links. Not permitted shall be particularly the dissemination of contents which depict, refer to or contain the following:
• Glorification of violence and extremism of any kind
• Calling for and instigating criminal acts and violations of the law, threats against life, limb or property
• Agitation against persons or companies
• Statements which harm other people’s personal rights, libel, defamation and malicious hearsay about users and third parties as well as violations of competition law
• Copyright-violating contents or other violations of intellectual property rights
• Sexual harassment of users and third parties
• Materials and language which is offensive, sexist, obscene, vulgar, repulsive or disgusting.
In the event of violations, the Operator reserves the right to undertake legal measures and delete the respective contents.
(3) Copyright-protected contents may not be published verbatim in contributions without the consent of the respective holder of such rights and only in accordance with the applicable copyright law on quotations. Quotations must be labelled with a footnote symbol and the crediting of the source. Quotations in foreign languages must also be translated into German so that at least the general gist of the content is evident. In particular, contributions that are not correctly cited may be removed by the Operator. The dissemination and/or the public broadcasting of any and all contents from the portal shall be forbidden without the Operator’s consent.
5. User’s Additional Cooperation Obligations
(1) The User may, without the Operator’s express consent, use Werbeagentur.de only for the purpose of making contact between the searcher and the agency and vice versa as well as to create an agency profile and not to do advertising for third parties. This shall mean particularly that the User may send no messages containing advertising contents without the consent of the Operator and the recipient (particularly: spam messages).
(2) In the event that the User utilises the option to notify third parties of the existence of the portal via the recommendation function provided by the Operator, he must ensure that the third party consents to the sending of the promotional recommendation e-mail.
(3) In the event that the contents contain hyperlinks to third-party web pages, the User shall ensure that he has the right to use the hyperlink and that the web site, to which reference is made (“Landing Page”), respects applicable law and third-party rights.
(4) The User shall be obliged to carefully handle his Log-In Data. Without exception, the User shall be forbidden from disclosing his Log-In Data to third parties and/or granting third parties access to the profile while circumventing the Log-In Data.
(5) The User must refrain from any activity which is suitable for restricting and/or overburdening the operation of Werbeagentur.de or its underlying technical infrastructure. This shall include particularly:
• The use of software, scripts or databases in conjunction with the use of the portal;
• The automated reading, blocking, overwriting, modification, copying of data and/or other contents insofar as this is not required for the proper use of the portal;
(6) Because it violates personal rights, it is thus also not permitted to disclose the identity of other users who have chosen to remain anonymous or to disclose information from other users from private messages, e-mails or chats which are not intended for the general public. The User may include no information in his contributions or otherwise provide information regarding the identity of another user or which the User has received from other users exclusively in private messages, e-mails or chats.
(7) If, during the usage of the portal or its functionalities, disruptions should arise, the User shall promptly notify the Operator of this disruption. The same shall be valid if the User obtains information regarding contents published by third parties who obviously violate applicable law or third-party rights.
6. Usage Rights
(1) The User shall grant the Operator a right–which is not restricted by territory and time, irrevocably transferrable to third parties, non-exclusive and free-of-charge–to utilise the published contents on the Operator’s online web site. The Operator shall be entitled at any time to use, edit and exploit the contents. This shall also include particularly the right to reproduce, the right to disseminate and the right to publicly broadcast such contents as well as particularly the right to make them publicly accessible. The User waives the right to be credited as the author of such contents. Unaffected by this provision shall remain the option of the User to grant third parties rights to the published contents based upon certain licensing models.
(2) The Operator shall hold all rights to the contents of the portal. The User shall be forbidden from the reproduction, dissemination and/or publication of contents which the Operator, other users or third parties have published on the portal.
(3) If the User should publish contents for which he holds no usage right, exclusively the User himself shall be liable for the damages which third parties suffer. Upon the request of the holder of such rights, the Operator shall delete these contents in the event that a legal violation becomes evident without consulting with the User and, upon request, notify the holder of the rights who published the contents.
(1) Unrestricted liability: The Operator shall be liable in unrestricted fashion for intentional wrongdoing and gross negligence. For simple negligence, the Operator shall be liable for the damages arising from the loss of life, physical injury and damage to health of persons.
(2) Otherwise, the following limited liability shall be valid: In the event of simple negligence, the Operator shall be liable only in the case of the violation of an essential contractual obligation whose fulfilment only then makes possible the proper implementation of the contractual agreement and upon whose fulfilment the User may regularly rely (cardinal obligation). The liability for simple negligence shall, based upon the amount, be restricted to the damages which are foreseeable upon the conclusion of the contractual agreement which must typically be expected to occur. This liability limit shall also be valid to the benefit of the Operator’s vicarious agents.
8. Right to Indemnification
The User shall indemnify the Operator and his employees and/or authorised representatives from all resulting third-party claims in the event that claims are asserted owing to purported or actual legal violations and/or the violation of third-party rights as the result of actions undertaken by the User in conjunction with the usage of the portal. Moreover, the User shall be obliged to reimburse all costs which the Operator incurs as the result of such third-party claims. The costs to be reimbursed shall also include the costs for an appropriate legal defence.
9. Personal Data
(1) The User hereby grants his consent for the saving of the personal data which he has entered. This shall also be valid for the saving of the IP addresses which are transmitted during each usage of the portal. The User also grants his consent particularly for the displaying of the personal data which he has entered in his profile which are to be displayed in the portal to other users of the portal and third parties who are not users of the portal.
(2) The User also grants his consent for the usage of his personal data for the personalisation of the advertising which is displayed in the portal (a dissemination of the personal data to the advertisers shall not be undertaken). Moreover, the User grants his consent that advertising from third parties–regardless of the type–may be displayed on his profile pages.
(3) The usage of the portal makes the collection, processing and usage of personal data by the Operator unavoidable. The Operator shall ensure that all saved data are carefully handled and processed exclusively in accordance with the User’s consent under data protection law. Any more extensive usage of personal data shall be undertaken by the Operator only insofar as this is permissible by law or the User has approved this in advance.
(4) Moreover, the User declares his consent for the Operator to use his personal data for direct marketing purposes. This shall include sending advertising to the User via e-mail and via the postal service.
10. Contractual Term/Termination
(1) The contractual agreement shall run for an indeterminate duration and may be terminated by either party at any time without being required to provide notice or state the reasons for making such termination.
(2) In addition, the parties shall continue to hold the right to end the contractual relationship by making extraordinary termination owing to an important reason.
(3) For the Operator, an important reason shall be considered to exist for the termination of this contractual agreement if the customer repeatedly violates his obligations in accordance with Clauses 4 or 5 of this contractual agreement.
11. Final Provisions
(1) In the event that the contractual agreement should be discovered to contain invalid provisions, the validity of the rest of the contractual agreement shall remain unaffected.
(2) Exclusively German and EU law shall be applicable to this contractual agreement.