Business Terms of K.I.N.D.-Online Service
1. General Terms
- K.I.N.D. Online-Service [KOL] is a service carried out by Jürgen Skibbe. It presents an Internet register, where pharmaceutical companies, contract manufacturers (finished products) and service companies as CROs, laboratories etc. worldwide can be put down within several categories. Furthermore job offers can be entered into within different categories. KOL does not claim to be complete and aims exclusively at companies and staff of the pharmaceutical market.
- KOL is directed to visitors of the Service [users] as well as to companies whose data are put down in the register [participants].
- The following terms of conditions shall regulate the relationship between KOL and the above mentioned persons (b.) even if the wording does not refer to them explicitly. Amending or completing Business Terms and Conditions of the above mentioned persons (b.) are not accepted.
- Amendments of this Terms and conditions must be in writing.
2. User ship
- The Internet Service enables the user to find the information of contents pointed out in No. 1 a. To take up this Service is on user's own risk.
- Use and application of the information is only allowed if user observes the Laws of Germany and especially intellectual property rights as copyright, licenses, patents, trademarks, unfair competition rules etc. as well as data protection rules. Any misappropriate use or application is forbidden.
- It is especially not allowed to use the complete information of KOL or parts hereof, for commercialized or industrial address- or information services or as base for creation or completion of registers of any kind and in any manifestation (printing, electronically, CD-ROM etc.) as well as Selection of the whole register or parts thereof for any commercial or industrial purpose. The misuse will be pursued by the owner of KOL according to the Laws and in any course of Law possible.
KOL offers the possibility of a participation in a register entry free of charge and another register entry at the participant's expense in form of commercial advertisement [banner] (commercial participant). The graphical and artistic designing and the classification [incl. creation of rubrics and arrangements of participants within those rubrics] is solely up to KOL. The domain name and is content can be changed by KOL at any time.
- KOL solely decides about an entry submitted by the participants. A justification of the rejection is not necessary. An applicator's claim of entry does not exist.
- In case of conclusion of a contract KOL presents the agreed upon data on Internet within two weeks after complete payment [in case of commercial advertisement] and complete receipt of the data which is to be published [logos have to be send to KOL by e-mail or on disk as graphical documents]. The company's data will be saved temporarily, published on Internet and deleted after termination of the contract.
- The review of already published data is to be carried out by the participants and is realized by annual mailings (up to 15.01.) of the published data by KOL. Provided that the participants do not send back this form respectively as long as they do not send back a contradiction, the contract continues for another calendar year.
- Corrections or amendments of existing entries will be carried out on explicit participant's notice even apart from the above in No. 3 a. II. mentioned date. KOL reserves the right to oppose to the changes applied for.
- The participant grants the right to KOL to make the published data available to third parties at their disposal and /or to use such data for own advertising purposes. The rights granted do not enclose to make the logos available to third parties.
- Participation free of charge [register entry]
- Participants of a register entry may enter the data online into the forms created for that purpose. The contract is concluded provided that KOL sends a confirmation of the entry to the participant within 8 days.
- Participation at participant's expense [commercial advertisement; banner]
- Commercial participants may enter the data online into the forms created for that purpose. The herewith made offer for a commercial advertisement [banner] of the participant will be accepted by KOL by a written confirmation. KOL reserves the right to reject the participant's offer without justification of the rejection.
- Once KOL has accepted the offer, KOL publishes the commercial advertisement [banner] for the contractual period of time. The decision of placement of the commercial advertisements is solely up to KOL.
- KOL reserves the right to reject the commercial advertisement delivered by the participant.
- Duration of contract / Termination
- The participation contract is concluded for 365 days.
- The participant has the right to terminate the contract extraordinary and to have its data deleted, if KOL opposes to legitimate wishes of the participant for amendments of already published and accepted data. Legitimate are such amendments that have to be observed by KOL legally or for liability reasons.
- The contract can be terminated extraordinary at any time. A reason for an extraordinary termination is especially the misuse of or publishing of wrong data although otherwise stated /asked for amendments by the participant. A reason is furthermore a delay of payment in case of commercial advertisements [banner] or a stop of the services of KOL. The other party can disprove the a.m. assumption respectively pay immediately and continue the publishing of the data by those activities. A prolongation of the contractual period because of the interruption will not take place.
- Technical changes in the sense of technical improvements are reserved. Changes according to shape, colour and functions are reserved within the scope of reasonability.
- KOL does not guarantee the availability of its Internet-Homepages (except from the fact that KOL is responsible for the breakdown) and the correctness and completeness of the register entries/commercial advertisements.
- KOL removes defects/faults up to its free choice either by repairing or republishing. User's and participant's rights are excluded in so far as insignificant defects/faults are concerned.
- In case the repair/republishing fails, the participant of the commercial advertisement [banner] In case the repair/republishing fails, the participant of the commercial advertisement [banner] may claim reduction of his payment or cancellation of the contract up to his free choice.
- The participant has to communicate (announce) obvious defects/faults within two weeks after announcement of completion; otherwise the claim of guarantee is excluded. To meet the deadline, the forwarding of the communication is relevant; the forwarding in time is to be proved by the participant.
- Does the participant miss to investigate the entry/commercial advertisement [banner] in time, the entry/commercial advertisement [banner] is treated as approved, as long as the defect/fault was recognizable during the investigation. Defects/faults that are recognized later have to be communicated (announced) immediately as well; otherwise the entry/commercial advertisement [banner] is treated as approved. The announcement of defects/faults has to be communicated in writing and to describe the defect/fault in detail. For the rest sections (§§) 377 and following of the German Trade Code (HGB) do apply.
- Claims for guarantee or compensation come under the statute of limitation within one year from the relevant moment according to the German Civil Code (BGB).
4. Liability of the participant
- The participant assures to be able to dispose of all the rights that are necessary for the realization of this contract and the publishing of the entry/commercial advertisement [banner], especially according to intellectual property rights as industrial protection-, copy- and other rights.
- The participant is solely responsible for the content of his entry/commercial advertisement [banner]. He is obliged to prove the contents published within KOL and to eventually correct them. For this purpose the participant may order a print out of the published data as long as he does not have an own Internet access. The participant releases KOL from all claims of third parties according to breaches of Law, especially competition Law, copyright- , name protection- and brand protection- and medicinal advertisement Law of his contents. This release includes costs of defending in legal actions. It is furthermore this duty of the participant to check those legal aspects before publishing.
- User and participant are not allowed to copy, duplicate, reproduction or publish the KOL Internet sites (or parts thereof) without authorization of KOL.
5. Liability of KOL
- Subject to the following rules, KOL is liable for intentionally or gross negligently caused breaches of duty. KOL is not liable for simply negligently caused breaches of duty either caused in personam or by legal representatives or by assistants for fulfillment. In case of simply negligently caused breaches of essential duty ("cardinal duty") the liability of KOL is restricted in respect of the amount to the foreseeable damage.
- The a.m. restrictions of liability do not apply in cases of liability that is granted by law without being responsible, esp. product liability code or in cases of responsibly caused damages of live, body and health.
- The price of the commercial advertisements [banner] is separately agreed upon within the participation contract.
- Is the commercial advertisement [banner] produced by KOL, KOL is entitled to invoice either a lump sum of € 180,- for the production or alternatively invoice € 60,- per hour.
- Later changes of the commercial advertisements [banner] will be invoiced with € 60,-. The minimum charge is € 60,-.
- Independent from the terminating party or the reason for terminating the contract, KOL will in neither case refund the participant with already tributed payments.
- All prices are exclusive value added tax.
- Special payment arrangements are subject to the participation contract.
- The invoice amount has to be paid fully in advance for the agreed period of time. Invoicing will be immediately after publishing on Internet. The invoice amount is payable immediately after invoicing without any cash discount.
- In case of delay of payment the participant is obliged to pay delay-interest of 8 % over "discount rate". KOL reserves the right to claim and prove a higher damage because of delay of payment. The participant is entitled to prove that KOL did not suffer any or a lower damage. In any case KOL is obliged to pay the legally granted interest.
- In case of delay of payment KOL is entitled to postpone the publishing of the user's data at KOL until the full payment of the invoice amount by the user. In case the user still has not paid the full amount after setting a further adequate deadline, KOL is entitled to terminate the contract [No. 3.d.III.] and delete the data.
- KOL is entitled to claim 50 % of the original invoice amount as expense allowance The assertion of further rights of KOL because of delay of payment is reserved.
- The participant is entitled to balance the costs out against each other only if the participant's claims are indisputable, accepted by KOL or established with legal force (by court). A right of the participant to withhold the payment is only possible if based on the same contractual relationship.
8. Final conditions
- The material Law of the Federal Republic of Germany shall apply. The UN Convention regarding contracts of international supply of goods shall not apply.
- Court of jurisdiction for the performance of both parties is Herne, Germany exclusively as far as the participant is businessman or legal person of public Law or public special property. The same applies if the participant does not have a general place of presence in Germany.
- Should one or more of the conditions become invalid as a whole or in parts, or should there be a gap in regulations, the rest of these conditions remain valid.
- The data of the participants will be saved separately as stock and accounting data within valid rules of data protection.
Stand: March 2002 KOL