Terms and Conditions

citykids.at

 

1. 1.      Applicability

1.1. The following Terms and Conditions (henceforth also referred to as „T&C“) apply to all our legal transactions and business relations, pertaining in particular to advertisements on our website www.citykids.at (henceforth referred to as „website“) and in our newsletters, as well as to the use of the website and its features (forum, marketplace etc). In the case of consumer business within the scope of consumer protection laws, they apply only if they do not conflict with mandatory provisions of these laws.

1.2. The following T&C also apply to any future business transactions as well as the future use of the website and its features, even if they are not expressly stated.

1.3. Any contrary terms and conditions by a business associate or user (henceforth referred to as “contracting party”) are hereby superseded.

 

1. 2.      Copyright

2.1. Any and all of our services, including services by third parties that we use, remain our sole intellectual property unless otherwise agreed upon in writing. This also pertains to photos, images, logos, texts, etc.

2.2. Our services and works may not be used, changed, further developed or transferred onto third parties without our express written consent (and, in the case of services or works provided by a third party, that of the author).

 

1. 3.             Registration, use

3.1. Until revoked, the use of the website is free of charge. However, we reserve the right to charge for the use of the website and its features. When using services and features that are subject to payment, the contracting party is obliged to pay the respective fee upon receipt of the corresponding bill.

3.2. In order to use certain features of the marketplace, particularly to announce that one is offering or searching for items and services, to post comments on the forum and to receive newsletters, it is necessary to register on the website. Until revoked, this registration is free of charge.

3.3. Data provided as part of the registration process has to be entered in a correct and complete manner. Registrations may only be carried out in one’s own name. Should there be any change in the data, the registered contracting party is obliged to inform us of those changes without delay. The username chosen by the contracting party and the e-mail address provided for communication must not be indecent or obscene in any way, nor are they allowed to infringe on the rights of registered brand names and trademarks of third parties. We reserve the right to check the entered contact data, e.g. by sending a confirmation to the address provided and to make the processing of the registration dependent on the return of that confirmation. If the contracting party wishes, they can be allocated a code, through which they can be contacted by other users.

3.4. The contracting party is obliged to keep the access data obtained during the registration process (username and password) in a safe and secure place and not to share it with, or make it otherwise accessible to, any third party. Should a third party obtain said data, the contracting party is obliged to inform us without delay. The contracting party is liable for any potential misuse of the access data.

3.5. Only legal entities based in Austria and natural persons with permanent residence in Austria, and the latter only if of legal age and fully accountable, are allowed to register. The registration by a legal entity may only be carried out by an authorized agent. Each person is only allowed to register once.

3.6. The contracting party has no claims to the registration. It can be denied without our giving reasons. We are further able to delete registrations at any time and without our giving any reason and to thus prevent the contracting party from using certain features of the marketplace and forum. Banned users may not re-register without our prior written consent.

3.7. The contracting party has the right to demand that we delete their registration at any time and without giving reasons by sending an appropriate e-mail from the e-mail address provided for the registration to info@citykids.at. Upon receipt of that demand, we will delete the data of the contracting party, provided it is not still needed for billing or for the use of the marketplace or forum (e.g. due to rights by third parties). This does not apply to any contents published by the contracting party on the website (e.g. posts on the forum or announcements made on the marketplace that are still valid), which will remain on our server and will still be retrievable.

 

1. 4.      Marketplace

4.1. In order to announce that one is offering or searching for items or services on the marketplace (also called „CityMarket“), the contracting party has to be registered. Any such offers are non-binding.

4.2. The contracting party is aware of the fact and accepts that the conclusion and processing of any contract concerning long-distance transactions always bears certain risks, particularly as the two contractual partners do not know each other, can not verify each others’ identities, can not examine the items and are reliant on information provided by the respective partner. Although this is not permissible, one of the contractual partners could provide false information about the item to be sold, about themselves, their abilities or liquidity. Rights and responsibilities could be infringed and neglected as a result. We are not obliged to check either the data provided by the contracting party or any information published by them. For this, we do not assume any responsibility.

4.3. Contracts on the marketplace are concluded according to the following subitems directly between the contractual partners. We merely provide a technical platform and do not assume any liability regarding the conclusion and fulfillment of these contracts. We do not examine the items or services on offer, do not check any information provided, do not verify the identities of the contractual partners and do not assume any responsibility for the conclusion or fulfillment of the contracts (such as delivery or collection and payment).

4.4. To announce that one is offering or searching for items or services on the marketplace does not constitute a binding offer to (existing or future) users of the marketplace, but merely an invitation to bargain (invitatio ad offerendum). Should another contracting party be interested in the offered or sought item or service, they are to contact the seller directly without our help or interference, using the contact information provided in the respective announcement and to make an offer if they so wish. Should the offer be accepted, a contract is concluded between the two contractual partners without any help or interference from us. The buyer is then obliged to relieve the seller of the item as per the agreed terms (such as price, delivery or collection) or the arranged service is to be carried out and paid for.

4.5. Announcers have to describe the offered or sought item or service truthfully and at least include such information as is crucial for making the decision to buy the item (especially the price, whether the item is new or used, in the latter case information on the condition of the item, such as signs of wear, damage to the item and the age of the item). Should the seller charge value added tax, they must state the gross price. Additionally, announcers must provide at least one contact detail (telephone, fax or e-mail address) for an interested party to be able to get in touch with them quickly, immediately and without additional charge or provide the code allocated to them by us during the registration.

4.6. In case the announcer is an entrepreneur, they are obliged to provide additional information according to §§ 5ff KSchG (Austrian Consumer Protection Act), especially with regards to the right of withdrawal of the consumer.

4.7. Should the marketplace be divided into separate subcategories, the announcer is to place the offered or sought item or service under the appropriate category. Should we feel that the wrong category has been chosen, we reserve the right to remove the announcement from the marketplace or to place it under the appropriate category.

4.8. Offered or sought items or services are not to be announced more than once, nor are they allowed to be placed under multiple categories. No identical or similar items or services are to be announced within the same period. If an item or service is announced more than once, we reserve the right to delete the announcements.

4.9. Contents used by the contracting party (such as texts, images, logos and hyperlinks used by the announcer to describe their product) must not infringe or violate copyrights and laws on trademarks and related signs or any other rights of third parties. We do not check the contents published by the contracting party. Should we face litigation because of contents published by a contracting party, the contracting party is obliged to indemnify us and to compensate us for any loss of earnings or damage that we might sustain as a result. Should it come to our attention that a contracting party is infringing the rights of others, we reserve the right to immediately remove the relevant announcement from the marketplace without consulting the contracting party first or examining the alleged infringement, and without the contracting party being able to make any claims. Particularly due to technical reasons, it is possible that the contents published by the announcer may appear differently on the website (eg. smaller, blurred, distorted, etc).

4.10.         The announcer must remove the offered or sought item or service from the marketplace immediately after a contract on said item or service has been concluded. We reserve the right to delete the announcement 30 days after it has first been put up or if it has come to our attention that the offered or sought item or service is no longer available or needed.

4.11.         No immovable property (e.g. real estate) may be announced or offered for sale, for rent or for lease.

4.12.         Only movable property that is held in absolute ownership by the announcer may be offered on the marketplace. No items or services may be offered or sought on the marketplace that are either improper or obscene or that violate any laws, in particular the Prohibition Act 1947 (Verbotsgesetz), gun laws, pornography laws, drug laws or the Austrian Criminal Code.

4.13.         If a service is offered on the marketplace, the announcer of said service has to meet any potential regulatory or legal requirements tied to the performance of that service.

4.14.         If legally admissible, the contracting parties pledge to conclude their contracts in such a way as to ensure that they are subject only to Austrian law, excluding its conflict of law rules, and the UN Convention on Contracts for the International Sale of Goods.

4.15.         The contracting parties expressly agree that we are allowed to pass on all the contact information available to us on them if asked to do so by the announcer or an interested party, if the announcer or interested party argues that they need said information in connection with a contract initiated or concluded on the marketplace.

 

1. 5.      Information, newsletter

5.1. We do not assume any warranty or liability for the completeness, correctness or currentness of the information published on our website or contained in our newsletters.

5.2. We merely offer general information that may be of interest to parents in connection with parenting, activities for and with children, furnishing and decorating as well as style and clothing and want to give the contracting parties the opportunity to share their information and experiences. We ourselves and the users of our services offer only personal opinions and experiences. The contracting party acknowledges and agrees that the information on our website does not express expert opinions (e.g. by doctors or psychologists) and that it is not revised by any such experts. The information published on our website can therefore by no means act as a substitute for medical or psychological counseling or care.

5.3. In order to receive newsletters, the contracting party must be registered with us. The contracting party gives their express consent to these newsletters containing advertisements both for our own products and services as well as for the products and services of third parties. This consent may be revoked at any time in writing (addressed to Blink Media, Rooseveltplatz 11/4A, A-1090 Wien, Fax 01/408318850, e-mail info@citykids.at)

 

1. 6.      Forum

6.1. The contracting party acknowledges and agrees that the contents published on the forum (also called „CityTalk“) are written by other users and are neither checked nor revised by us in any way. The contracting party therefore acknowledges that we do not assume any liability for the contents published on the forum.

6.2. Comments may only be posted by registered contracting parties. These contents are made accessible to other users immediately upon posting.

6.3. Contents published by the contracting party (such as texts, images, logos and hyperlinks) may not be indecent, insulting, offensive, defamatory or in any other way objectionable or untruthful and must not infringe or violate copyrights and laws on trademarks and related signs or any other rights of third parties. We do not check the contents published by the contracting party. Should we face litigation because of contents published by a contracting party, the contracting party is obliged to indemnify us and to compensate us for any loss of earnings or damage that we might sustain as a result. Should it come to our attention that a contracting party is infringing on the rights of others or is found to be in breach of the aforementioned rules of conduct, we reserve the right to immediately remove the postings or parts thereof from the marketplace or to modify them without consulting the contracting party first or examining the alleged infringement or breach, and without the contracting party being able to make any claims.

6.4. By publishing posts on our website, the contracting party grants us the irrevocable and non-exclusive right to save the contents without regional limitations and for an unlimited amount of time on our server, to publish them on our website and to modify, edit and translate them.

 

1. 7.      Data protection, consent to receiving advertisements

7.1. When using the website, in particular the forum and marketplace, when registering on the website, and when accepting an assignment or offer concerning advertisements, the contracting party’s personal data, such as title, first and last name (or company name), address, date of birth, contact details (especially telephone number and e-mail address), username, password, time and date as well as the duration of page views and IP-addresses is identified and processed. The contracting party expressly agrees to this. The contracting party further consents that we will store and process this data in order to be able to send newsletters (provided that the contracting party has registered with us), to operate the forum, to process advertisements and to simplify future orders and transactions.

7.2. The contracting party furthermore expressly consents to our use of cookies, with which information on the user’s type of browser, operating system, the type of information accessed on our website, the date and duration of page views, the user’s IP-address and the IP-address of the provider is automatically stored. The contracting party hereby declares that they are aware that cookies can be deactivated on their computer if they do not wish to use them (or no longer wish to use them). The contracting party accepts that by deactivating said cookies, they may no longer be able to use certain features of the website or that their use may be restricted.

7.3. The contracting party furthermore gives their express consent to receiving advertisements from us (including via e-mail and fax) both for our own products and services as well as for the products and services of third parties. This consent may be revoked at any time in writing (addressed to Blink Media, Rooseveltplatz 11/4A, A-1090 Wien, Fax 01/408318850, e-mail info@citykids.at).

 

1. 8.      Warranty, compensation

8.1. In general, we are only liable in cases of intent and gross negligence. This does not apply to personal injuries. Except in the case of consumer business, the injured party has to be able to prove negligence.  No further claims may be made against us or our agents, especially no claims for default damages or for the inability to perform a service, no compensation for indirect injuries, no consequential damages, no damages from interruption of operations, no loss of earnings, no loss of potential savings, nor any other monetary claims or claims resulting from charges brought against the contracting party by a third party or resulting from unlawful acts, as far as is admissible according to civil law (i.e. at all events in cases of slight negligence and ordinary negligence).

8.2. We assume no liability for any damage caused by faulty or harmful software of third parties (viruses, Trojan horses, etc).

8.3. Should the website be temporarily unavailable or only partly accessible, e.g. due to maintenance work or for other reasons, the contracting party has no rights to any claims; for advertisers see item 9.10.5.

8.4. This only applies to entrepreneurs: claims to damages expire by limitation within six months after the contracting party first became aware of the injury and the injuring party.

8.5. This only applies to entrepreneurs: our liability in the event of damage or loss corresponds to the respective net contract value but is limited to a maximum amount of EUR 1.000.

 

1. 9.      Additional terms for advertisers

9.1. Offers

9.1.1. Our offers for advertisements, including information pertaining to prices and fees, are always non-binding and are only submitted in writing (via mail, fax or e-mail). Possible indications of prices on the website merely serve as non-binding points of reference. Our offers are only valid in terms of the entire package of services offered, unless the possibility of using only parts of these services is expressly stated.

9.1.2.All prices are understood to be in Euros plus value added tax at the statutory amount.

 

9.2. Conclusion of contract and confirmation of order

9.2.1.Irrespective of the contracting party‘s obligation to hold up their end of the  contract, our obligation only starts  when the contracting party receives our written confirmation of order, unless we unequivocally show that we accept the order  (e.g. if the contracting party can clearly see that we have carrying out the order).

9.3. Information supplied by the contracting party

9.3.1.The contracting party is obliged to supply us with all the information and data necessary for us to perform the agreed service immediately after accepting the respective offer.

9.3.2.The contracting party is obliged to check all the information and data supplied to us (such as photos, logos, images, labels, drawings, drafts, maps, texts, links, programs etc) for potential copyrights or rights to trademarks and related signs as well as any other rights of third parties, as well as for possible violations of legal norms and harmful software (viruses, Trojan horses etc). The contracting party is liable for owning the rights to the information and data necessary for carrying out their contractual duties. Should we face litigation because of a breach of legal norms or damage caused by the information and data supplied to us, the contracting party is obliged to indemnify us and to compensate us for any loss of earnings or damage that we might sustain as a result.

9.3.3.We are not obliged to make backup copies of the information and data supplied to us or to save it in any other way.

 

9.4. Performance of a service, duty to collaborate, cancellation of a contract

9.4.1.We are only obliged to perform a service once all the technical, regulatory and contractual points have been clarified and the contracting party has fulfilled all their commitments, which include supplying the information and data necessary for us to perform the agreed service in accordance with item 9.3.

9.4.2.We are entitled to cancel the contract if  (i) we are unable to perform the agreed service due to the contracting party’s failure to fulfill their duties or if the contracting party does not supply the necessary information and data according to item 9.3. despite being requested to do so and being granted a 14 day period of grace, or if (ii) there are reasonable doubts concerning the contracting party’s solvency and the contracting party fails to make an advance payment or provide suitable collateral despite being requested to do so and being set a time limit, with suitable collateral being merely a savings account in the name of a bearer or a bank guarantee provided by an Austrian bank or a letter of indemnity from a third party with irreproachable solvency, each in the amount of the contract value.

 

9.5. Acceptance

9.5.1.The advertisements are considered operational and accepted as soon as the contracting party has been informed that they have been put online on our website and they have not raised any written objections within 5 working days.

9.5.2.We are not obliged to adjust our website or advertisements to foreign software or to integrate them into it unless otherwise expressly agreed upon in writing. Our website and advertisements are programmed to fit the internet browsers Internet Explorer and Firefox with a resolution of 1024x768 pixels. The contracting party acknowledges and accepts that both the website and the advertisements may appear differently depending on the type of internet browser used and the individual screen resolution.

9.5.3.Once the advertisement has been accepted, we are not obliged to save the data used to perform our service or to store our electronic services.

 

9.6. Deadlines and changes to our services

9.6.1.The time frame stated by us within which we plan to perform a service is non-binding, unless the observance of the deadline has been expressly confirmed in writing. Should we fail to observe a deadline that has been expressly confirmed in writing (whilst taking into account the following rules) the contracting party is only entitled to exercise their rights once they have sent a written reminder and have set an appropriate period of grace of at least 14 days. This period starts upon our receipt of the written reminder.

9.6.2.Each additional service or change to the service requested by the contracting party will result in a change of the agreed deadline.

9.6.3.Should we not be able to start performing the agreed service or should the performance of that service take longer than expected due to circumstances outside of our control, the deadline set by us, even if it has been expressly confirmed in writing, will be delayed accordingly. Possible additional costs arising from that delay have to be born by the contracting party, provided that the circumstances that led to the delay were outside of our control.

 

9.7. Payment

9.7.1.All payments are due from the date of invoice without any deductions and are payable in cash or into the stated bank account. The payment is considered to be received by us on the day that we can dispose of the agreed sum without loss. If we demand a prepayment or bank guarantee, we are only obliged to perform the agreed service upon receipt of said payment or guarantee.

9.7.2.In case of a delay of payment, we are entitled to charge default interest at the statutory amount, but at least at the rate of 12% p.a. In case of a delay of payment, the contracting party pledges to bear the costs occasioned by their default for their legal prosecution. Should we conduct the dunning process ourselves, the contracting party is obliged to pay the sum of €10.90 per written reminder as well as the amount of €3.63 for every half a year that we have to keep their debt history on record.

9.7.3.As soon as the contracting party defaults on even one of their obligations or parts thereof, we reserve the right to cease all services performed on their behalf and to take down advertisements that have already been published on our website.  In case of default we are also entitled to withdraw from the contract and to account for and make due all the services performed on the contracting party’s behalf.

9.7.4.Should the contracting party default on even one payment, payments are used first to cover charges accrued, then default interests and after that to settle the oldest debt due; even if the payment was intended for another purpose by the contracting party.

9.7.5.Checks are accepted by special arrangement and as/in payment only; any expenses hereby incurred are to be paid by the contracting party immediately, but latest within a week of them being announced, in cash. Drafts are not accepted under any circumstances.

 

9.8. Partial billing

9.8.1.For advertisements that are put up on our website for a prolonged period of time, meaning a period of time exceeding one month, or if the advertisement is published in various newsletters, we are entitled to render bills for partial payment. This also applies in cases when the performance of a service is delayed. Should we become aware after the conclusion of the contract that the contracting party is insufficiently solvent or in an otherwise bad economic situation, we reserve the right to account for and make due all the services performed on their behalf immediately and to make the performance of any further services dependent on the provision of suitable collateral by the contracting party, with suitable collateral being merely a savings account in the name of a bearer or a bank guarantee provided by an Austrian bank or a letter of indemnity from a third party with irreproachable solvency, each in the amount of the contract value.

 

9.9. Offsetting, assigning claims

9.9.1.The contracting party may not offset outstanding money they owe us against outstanding money we owe them, unless the amount receivable has been legally determined or acknowledged by us.

9.9.2.No claims against us may be assigned without our express written consent.

 

9.10.         Warranty

9.10.1.     The warranty period is six months.

9.10.2.     Deviations in quality, color, size and width of the advertisements put up on our website do not entitle the contracting party to make a notice of defects, provided that these deviations are minor or down to technical occurrences such as screen resolution or the type of browser used.

9.10.3.     Our warranty does not apply if the contracting party does not give us written notice of the defect immediately after the service has been performed or the item accepted by the contracting party, or, in case of a hidden defect, immediately after the defect has been discovered by the contracting party. The contracting party is furthermore obliged to inform us in writing of any further objections as soon as possible after performance of the service or acceptance of the item, failing which, the performance is considered to be approved. If the notice of defect is not given in time, the contracting party may make no claims arising from the warranty, including compensation for the defect itself and compensation for damage caused by the defect or compensation for a hidden defect discovered at a later time.

9.10.4.     We assume no warranty for our services, such as links or programs provided by us, if they or their respective foundations (such as the content linked to them) have been subsequently changed by the contracting party or a third party.

9.10.5.     We offer an average availability of our website of 98% per calendar year for 24 hours a day, excluding instances of force majeure or interferences by third parties (e.g. by using harmful or faulty software, denial-of-service attacks etc). Only if the availability of the website falls below this average, can the contracting party make claims for pro rata reimbursements.

 

1. 10.   Miscellaneous, applicable law, place of jurisdiction

10.1.         The contracting party consents to us involving third parties in order to be able to ensure compliance and to exercise our rights. The contracting party furthermore consents to us transferring our rights and obligations arising from our contractual relationships either entirely or partly onto a third party.

10.2.         It is inadmissible to contest contracts with us on the grounds of mistake, frustration of purpose or laesio enormis (rescinding the contract if less than half the fair value of the consideration is received).

10.3.         Oral agreements, side agreements, alterations of the contract, changes to or exclusion of our T&C do not become binding until confirmed by us in writing. The same applies to deviations from the requirement of the written form. We, however, reserve the right to amend these T&C at any point and without our giving reasons. Registered users will be informed of any changes via e-mail sent to the last registered address at least two weeks before the changes come into effect. Should the contracting party fail to object to the amended T&C within another two weeks, they are considered to be accepted.

10.4.         The present T&C as well as all our contracts are subject only to Austrian law, excluding its conflict of law rules, and the UN Convention on Contracts for the International Sale of Goods; place of fulfillment is A-1090 Vienna.

10.5.         Should individual stipulations of these T&C or parts thereof become void, it does not affect the validity of the other terms or the other parts of the stipulation in question. Void stipulations or the void parts thereof will be replaced by valid ones, coming as close as possible to the regulatory and economic purpose of the void stipulation or the void part thereof. The same applies to any possible points not covered by the present T&C.

10.6.         This only applies to entrepreneurs: for all legal disputes arising from or in connection with the conclusion or non-conclusion of a contract or these T&C, the relevant court of the 7^th district of Vienna has exclusive jurisdiction.

10.7.         The present T&C are available in German and English; in case of doubt, the German version applies.

10.8.         These T&C are effective as of the 20^th of November 2009.

 

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