This Agreement (the “Agreement”) is entered into between
Schleich GmbH, Am Limes 69, 73527 Schwäbisch Gmünd, Germany, (“SCHLEICH”)
and you (“You”) as the user of the portal (as defined below).
By clicking on the “Accept” button during the log-in process, after you have actively consented to the validity of this User Agreement, you irrevocably commit yourself personally, as well as in the name of and on behalf of SCHLEICH's distributors for which you work, to compliance with this Agreement, and you explicitly acknowledge this. Upon entering into this Agreement, any user agreements you have entered into with SCHLEICH for the use of the Portal expire. The use of the Content is governed exclusively in accordance by this Agreement or the most recent version of the User Agreement, regardless of the time at which it is made available irrespective of the time of its provisioning [14th Nov 2018].
§ 1 The Portal
1.1 SCHLEICH is a leading manufacturer of toy figurines and related products (the “Products”). SCHLEICH has built up a global distribution network. In order to facilitate global distribution of its products, SCHLEICH enables its distribution partners (distributors, agents, wholesalers, and merchants) to access SCHLEICH's online brand portal (the “Portal”), which is made available for retrieval under the URL "brandportal.schleich-s.com"
1.2 Via the Portal, SCHLEICH makes certain content, including pictures, graphics, catalogues, product news, price lists, marketing materials, etc. (the “Content”), available to you at its sole discretion, which can be used in accordance with this Agreement and any supplementary guidelines and provisions in order to facilitate the sale of its products.
1.3 SCHLEICH reserves the right to modify or close the Portal, or to remove its retrievable Content, at any time and at its sole discretion. None of the provisions contained in this Agreement shall be interpreted to mean that by the provision of access to the Portal you are awarded a perpetual right or claim of access to the Portal, or its provisioning, or the right to use the Content without limits with respect to time or manner.
1.4 Upon entering into this User Agreement, you are authorised on behalf of and by order of the company for which you work, and which is engaged in a permanent commercial relationship with SCHLEICH as a distribution partner. In case of doubt, please clarify your authorisation to enter into this Agreement with your supervisor before consenting to this Agreement, if you are not the owner or Managing Director.
§ 2 Access to the Portal
2.1 To receive access to the portal, you must apply with SCHLEICH online, and completely and correctly fill out the form provided by SCHLEICH. SCHLEICH can accept or reject your application at its reasonable discretion. SCHLEICH shall notify you of acceptance or rejection of your application by email. SCHLEICH is not obligated to justify a rejection of your application. Similarly, SCHLEICH may grant you access to only certain parts of the Content at its sole discretion.
2.2 In case of acceptance of your application, SCHLEICH shall provide you with a user ID and a password (the “Access Data”). You are obligated to store the aforementioned Access Data in a safe location. You are not permitted to make the Access Data accessible to any third party, including people with whom you work in the same company. You are the only person permitted to use the Access Data, and you may not grant use of the Access Data in question to anyone else, including people with whom you work in the same company. If your company requires more users of the Portal, independent access must be requested for these individuals.
2.3 You shall only receive access to the Portal once you have actively agreed to the notice on the use of data and the user agreement on the log-in page of the Portal prior to its respective use.
§ 3 Use of the Portal and its Content
3.1 You agree to use neither the Portal nor the Content made available by means of the Portal for purposes other than the distribution or sale of products permitted to you by SCHLEICH.
3.2 You agree to maintain the confidentiality of any Content that is marked as “confidential” or that must be kept confidential in light of its character. Even without being marked “confidential,” illustrations of new products may be used by distributors for purposes of non-public preparation of sales promotion (such as for the purpose of creating marketing materials) no earlier than 6 months prior to their respective launch, where illustrations of new products may be displayed by distributors to retailers no earlier than 10 weeks prior to their respective launch. Display of the illustrations of new products to the end consumer is in no case permitted earlier than 4 weeks before the date of product launch by SCHLEICH! If a product launch is not designated with a concrete date, the aforementioned deadline shall be calculated from the 1st day of the calendar month or calendar week designated by SCHLEICH.
3.3 Any intellectual property rights or other rights in relation to the Content remain with SCHLEICH. With the exception of the use of the respective Content expressly authorised under this Agreement, you do not acquire any other rights to use the Content.
3.4 All your advertisements, advertising spots and other marketing materials (e.g. flyers, catalogues, posters, billboards, online advertising, etc.) for the products must correspond in every respect to the current branding and marketing guidelines, as well as any of Schleich's other guidelines, provided by SCHLEICH through the Portal and updated from time to time; further, any usage instructions provided in connection with the Content must be strictly observed. You are obligated to release all individualised advertisements, advertising spots and marketing concepts to SCHLEICH at least thirty (30) days prior to their printing, publication, broadcasting, release or other use by means of the email address brandportal(at)schleich-s.de. SCHLEICH shall not refuse or delay this release without grounds. All advertisements, advertising spots, concepts or programs that are not rejected by SCHLEICH within twenty-one (21) days after their submission to SCHLEICH shall be deemed accepted, and may be used unchanged for a period of six months from release, so long as SCHLEICH has not has asked for further information or an extension of the review period in the meantime. The unmodified use of marketing materials provided by SCHLEICH through the Portal is permitted for the respective period of six months from download from the Portal, without the need for a release.
3.5 You are solely responsible for ensuring that the materials made available through the Portal are used by you in compliance with and in accordance with all legal requirements in the respective country of use, in particular, but not limited to, compliance with competition law and other advertising-legal norms. The corresponding examination and verification of compliance is solely your responsibility, and SCHLEICH cannot be held responsible for corresponding violations of the law in the country where you use the materials, even in the event of SCHLEICH's taking possession of the materials acquired by you, in unchanged form. In addition, all advertising material in which SCHLEICH's products or materials made available by SCHLEICH are mentioned in any way must meet the requirements of the highest product safety, and it is your responsibility to ensure that they are free of harmful substances, and that they cannot cause any damage in any other way. You agree to indemnify SCHLEICH from all claims by third parties that may be asserted against SCHLEICH due to violation of the aforementioned obligations.
3.6 Any restrictions, requirements, or established practices regarding marketing or advertising which you have promised SCHLEICH that you will comply with under other arrangements (for example, distribution, representation or merchant agreements) shall not be affected by this agreement.
§ 4 Use Free of Charge
You are not charged for use of the Portal.
§ 5 Guarantees and Exemption from Liability
5.1 SCHLEICH explicitly does not assure provision and availability of the Portal or of the Content made available by means of the Portal. Furthermore SCHLEICH accepts no liability for ensuring that the Portal and/or its Content are free of computer viruses, worms, Trojan horses, or similar. You acknowledge and agree that you use the Portal and its Content fully at your own risk.
5.2 Claims for damages resulting from injury to life, limb, or health, or from the violation of essential contractual obligations (cardinal obligations), as well as liability for other damages based on an intentional or grossly negligent breach of duty by SCHLEICH, its legal representatives, or its agents, are excluded from the above exemption from liability under Para. 6.1. Essential contractual obligations are obligations that must be performed in order to attain the purpose of the contract, as well as obligations on whose compliance you may generally rely as contractual partners. Upon breach of essential contractual obligations, SCHLEICH is liable only to a limited extent for contractually typical, foreseeable damages if these were caused by simple negligence, unless there are claims for damages resulting from injury to life, limb, or health.
§ 6 Duration and Termination
6.1 This Agreement is concluded for an indefinite period.
6.2 Both you and SCHLEICH may terminate this Agreement at any time at your or its sole discretion, with or without cause and with immediate effect. Termination shall be expressed in writing via email, and is valid upon being sent to the email address that you specified during the registration process, or in the event that you give notice of termination to SCHLEICH, upon being sent to the email address brandportal(at)schleich-s.de. This Agreement shall end without requiring termination if the distribution agreements that are the basis for this Agreement expire, for any reason. This agreement shall also expire without requiring termination if you agree to an amended version in the case of a future amendment of this Agreement. A termination under this Paragraph 6.2 shall leave untouched any permissions for use under Para. 3.4 and its corresponding commitments that you have entered into in the context of this Agreement.
6.3 Upon termination of this Agreement for good cause or in the case of specific written order from SCHLEICH with good cause, you must immediately cease all use of the Portal and of any Content made available by means of the Portal, or of any Content expressly indicated by SCHLEICH in the order. In the event of the cessation of this Agreement or the prohibition of the use of certain Content for good cause, you are further obligated immediately and permanently to delete the Access Data, as well as all downloaded Content and copies thereof, or else any Content expressly indicated by SCHLEICH. At the request of SCHLEICH, you shall confirm this deletion to SCHLEICH in a sufficient manner.
§ 7 Miscellaneous Provisions
7.1 All changes and additions to this Agreement must be made in text form. This also applies to a change of this text form clause. There are no separate oral agreements.
7.2 If this contract has been issued in multiple languages, in the case of differences in interpretation of the contractual provisions among the different language versions, the German version shall be considered binding.
7.3 SCHLEICH reserves the right to modify or supplement this Agreement, and to make use of the Portal subject to prior approval of the amended and/or supplemented version.
7.4 If any provision or part of any provision of this contract be or become invalid, the validity of the remainder of this contract shall not be affected. The invalid provision must be replaced by an appropriate regulation that most closely approximates what the Parties would have wanted if they had considered the matter at the conclusion of this contract.
7.5 You acknowledge that you enter into this Agreement in the course of your work for the SCHLEICH distribution partners for business purposes, and not for the purpose of private use.
7.6 Stuttgart is the exclusive jurisdiction for all disputes from this contract. The contract is subject to German law, excluding the UN CISG.