During Utah’s 2017 General Legislative Session, Senate Bill 43 was drafted to value special purposes properties using a replacement cost approach and relying on contract rents. Specifically, the bill stated that in assessing such properties, the assessor was to “consider, as a primary factor, the cost of constructing improvements that are equivalent to the improvements currently on the property” and also “shall consider the terms of the agreement that provides for the rental or lease of the special purpose property.” This would have essentially asked for a “value in use” and a “leased fee” valuation rather than the constitutionally mandated “value in exchange” and “fee simple” standard of valuation. Industry offered its opposition to this bill and the bill ultimately did not pass.
In a recent ruling, the Utah State Tax Commission (the “Commission”) did not allow a reduction to an income approach for lease-up costs because “the subject property was fully occupied as of the lien date [and it] should be valued as such, rather than as if it was an unoccupied property.” Commission Appeal Nos. 15-319 (decided June 13, 2016). However, the Commission implied that if the property was vacant on the lien date, then it would be appropriate to consider such costs. The Commission’s rationale appears to focus on the facts as they exist on the lien date. Additionally, the Commission stated that allowing lease-up costs for a fully occupied property would be giving too much consideration to what a buyer might be willing to pay for the property over the price for which a seller would be willing to sell the property.
Recently the 9th Circuit Court of Appeals held that land held in trust by the United States government for the use of a tribe exempts not only the land, but also “exempts permanent improvements on that land from state and local taxation.” Chehalis v. Thurston County Board of Equalization, 724 F.3d 1153, 1179 (9th Cir. 2013) Id. at 1157. Additionally, the court explained that the improvements were exempt “without regard to the ownership of the improvements. ” Id. at 1159. Thus, even though the improvements in that matter were only owned 51% by an Indian tribe and 49% by a private entity, 100% of the improvements were exempt from property tax.
The Utah State Tax Commission declined to follow Chehalis in a recent decision, reasoning that Utah is within the 10th Circuit and thus not bound by the 9th Circuit decision. The Commission stated that “Chehalis does not support the position that the tribal exemption should be applied to permanent improvements on trust lands regardless of ownership” and that doing so would be a departure from how the Division historically has assessed other properties on trust lands. Appeal No. 14-45 et al. Thus, until a higher court rules otherwise, the percentage of ownership will be applicable in determining the amount of exemption improvements on trust lands will receive.
Utah law allows for a reduction in property taxes if the property is actively used for agricultural purposes. This is known as greenbelt assessment. Instead of such property being taxed at its fair market value, it is taxed based on “the value that the land has for agricultural use” which is significantly lower than the property’s fair market value. Thus, when property qualifies for greenbelt assessment, the taxing jurisdiction provides two assessed values, one at the agricultural use value and the other at fair market value. Additionally, Utah law requires appeals relating to the assessed value of property to typically be filed by September 15. When property is no longer used for agricultural purposes and no longer qualifies for greenbelt assessment, a five year rollback tax applies. This means that the taxing jurisdiction looks back five years and imposes property tax based upon the property being valued at its fair market value rather than the reduced agricultural use value. Consequently, if a taxpayer ignores the fair market value assessment when it is issued (which often occurs because it qualifies for greenbelt assessment) it is barred from challenging that assessment for the five year rollback when the property falls out of greenbelt status. This is exactly what happened in a recent decision from the Utah State Tax Commission. See Appeal No. 14-461. Therefore, even though your property may currently be in greenbelt status, be sure to review the fair market value assessment each year and file an appeal if the value is excessive to preserve your rights in the event the property is removed from greenbelt status.
The State of Utah has begun to treat operating leases as debt when considering the capital structure of a company for purposes of utilizing the income approach to value. This has the effect of placing a greater percentage on the cost of debt and thus a lower percentage on the cost of equity, resulting in a lower weighted average cost of capital (“WACC”). All things being equal, a lower WACC result in a higher valuation. While this appears to be a minimal adjustment, it can create dramatic swings in value for certain taxpayers. This issue is yet to be resolved in Utah, but it is finding its way into multiple disputes. Thus, review assessments carefully for this treatment of operating leases and be cognizant of the potential valuation increase created thereby.
During the 2014 legislative session, the Utah legislature passed SJR 7 and SB 19, which are meant to ensure that Utah's Tax Commissioners are qualified for the job. The State of Utah has a Tax Commission which is comprised of four members and is charged to "administer and supervise the State's tax laws," including deciding tax disputes. Utah Const. art. XIII, § 6. Historically, no more than two of the four members could belong to the same political party. The legislature passed SJR 7 requesting an amendment to Utah's Constitution to remove that requirement and focus more on qualifications rather than political affiliation. In order for this constitutional amendment to take effect, a majority of those voting in this year's general election must approve the amendment. Coordinated with SJR 7 is SB 19 which lists certain qualifications that a member of the commission must have, including "expertise in the theory and practice of ad valorem taxation." Additionally, before appointments to the Commission are made, the Governor is to obtain recommendations of qualified individuals from practitioners in the industry. Such modifications to Utah's Constitution and statutory code are intended to ensure that Utah's tax commissioners have the requisite knowledge and expertise to "administer and supervise the State's tax laws."
Utah imposes property tax on the tangible personal property of businesses. This personal property tax is self-reported and self-assessed. Businesses are required to annually submit a signed personal property statement to each county in which they own property. Utah Code Ann. § 59-2-306. The businesses are required to identify the acquisition prices and vintages for their personal property in these statements and then multiply the prices by a provided percent good factor to determine the estimated fair market value for each property. The business then multiplies the resulting value by the county's tax rate to determine the tax due and sends a check for the taxes in with the signed statement. Unfortunately, application of the percent good tables provided by the state does not always equate to fair market value of the property. If the business believes that the application of the percent good tables does not accurately estimate that fair market value of its property, the business should either (1) file an appeal challenging the valuation on the same day it files the personal property statement, or (2) reduce the reported value on the statement to what it believes is the correct fair market value and then properly identify the requested reduction and include supporting information. Failure to take one of these actions on the statement filing date will typically preclude the taxpayer's rights to challenge the assessment.
Union Pacific Railroad Company recently won a key victory regarding property tax valuations in Utah's Second Judicial District Court. Two of the main issues decided by this case were (1) the proper method of valuing and accounting for operating leased property in unitary assessments, and (2) the proper valuation and removal of intangible properties. The Court agreed with Union Pacific that the proper way to capture the value of operating leased property is to treat the property as if owned. Thus, the appraiser should disallow the rent expense, allow a depreciation expense, recalculate the appropriate income tax obligations, and make an appropriate allowance for capital expenditures to maintain the property. This was in direct contrast to the counties' and Commission's approach which attempted to account for the value of operating leased property by calculating the present value of future lease payments and adding onto that a terminal value. The Court also agreed with Union Pacific that the value of its custom computer software should be removed from the unit, and held it was appropriate to value such software via the replacement cost model and remove that value from the unit value established via the income approach. These two holdings represent significant precedent in Utah and a very favorable result for Utah taxpayers.
The Utah Legislature recently closed its annual general legislative session. Among the property tax bills passed were H.B. 67, Property Taxation Revisions, and its companion bill S.B. 35, Property Taxation of Business Personal Property. These bills were meant to ease the onerous personal property tax filing requirements placed upon small businesses. Utah imposes a business personal property tax wherein a business must list every item of personal property it owns and then pay a tax thereon. H.B. 67 and S.B. 35, among other things, increased the personal property tax exemption from $3,500 to $10,000. Therefore, small businesses which own personal property with an aggregate value of $10,000 or less no longer need to file a business personal property tax return, known as a "signed statement." This bill goes into effect on January 1, 2014 and it is anticipated that it will affect approximately 26,000 Utah small businesses.
Many western state assessors promote the standards espoused by the Western States Association of Tax Administrators' ("WSATA") Appraisal Handbook and the National Conference of Unit Valuation States ("NCUVS"). However, challenges have arisen regarding the appropriateness of these standards because they often conflict with generally accepted appraisal principles. Such a challenge was recently made in Montana wherein the Montana District Court held that portions of the WSATA Handbook and NCUVS standards were inconsistent with statute. See Gold Creek Cellular of Montana Limited Partnership d/b/a Verizon Wireless; and AT&T Mobility, LLC. v. State of Montana Dept. of Revenue, No. DDV-2011-154 (dated Aug. 10, 2012 and released Oct. 10, 2012).
The Montana Department of Revenue (the "DOR") attempted to narrow the definition of intangible property, limit the definition of goodwill to only accounting goodwill, and adopt standards and definitions from the WSATA Handbook and NCUVS standards by amending its administrative rules. Verizon Wireless and AT&T Mobility filed complaints against the DOR seeking to have the administrative rules declared invalid because they conflicted with statute. The court agreed with Verizon Wireless and AT&T Mobility and held that the amended administrative rules placed additional requirements that were contradictory to the statute exempting intangible property from taxation, that the amendments were out of harmony with statute, and rejected the DOR's use of the WSATA Handbook and NCUVS standards to the extent they were contrary to Montana's intangible property exemption statute. Id. at 7, 11.
Personal property taxes in Utah are generally self-assessed by the taxpayer pursuant to percent good tables published by the Utah State Tax Commission. See Utah Code Ann. § 59-2-306; Utah Admin. Code R884-24P-33. However, the Utah State Tax Commission is authorized to perform audits of personal property taxes. See Utah Code Ann. § 59-2-705. Such audits often result in the reclassification of property which has the effect of increasing the value of property. These audits are then given to the individual counties, who then send deficiency tax notices to the taxpayer. The Utah Code states that a taxpayer has 60 days to appeal such a deficiency tax notice. Utah Code Ann. § 59-2-1005(1)(a)(ii). However, the counties throughout Utah are not uniform in allowing taxpayers 60 days to file appeals; some counties only allow 30 days. Therefore, in order to be safe and avoid an unnecessary fight over whether an appeal is timely, it is advised to file an appeal of personal property taxes resulting from a tax notice within 30 days after receiving the tax notice.
There is a continuing disagreement between taxing jurisdictions and taxpayers regarding whether the stock and debt approach is a reliable indicator of value for taxable properties owned by centrally assessed businesses. Utah has a regulation stating that "the stock and debt method typically capture[s] the value of intangible property at higher levels than other methods" and that relatively less weight should be given to this method in the reconciliation process. Utah Admin. Code R884-24P-62(4)(b)(ii). However, in a property tax dispute regarding the value of PacifiCorp, Inc.'s property ("PacifiCorp") for the tax year 2006, the counties in Utah attempted to use the stock and debt approach and the sale of PacifiCorp to MidAmerican Energy Holdings Company ("MECHC"), which occurred on March 21, 2006, as evidence of the value of PacifiCorp's taxable property for the tax year 2006.
The District Court rejected the counties' appraiser's estimation of value based on the stock and debt approach and held that the stock and debt indicator used by the appraiser was unreliable. Findings of Fact, Conclusions of Law and Final Decision at ¶ 7, Beaver County v. Property Tax Div. of the Utah State Tax Comm'n, No. 080905451, (3rd Dist. Ct. Utah, Feb. 15, 2012). This is a significant holding reiterating the unreliability of the stock and debt approach to accurately measure the value of the taxable tangible property.
Utah imposes a privilege tax on a property user for "the privilege of beneficially using or possessing property in connection with a for-profit business, when the owner of that property is exempt from taxation." Alliant Techsystems, Inc., v. Salt Lake Board of Equalization, 2012 UT 4 at ¶ 1 (citing Utah Code § 59-4-101(1)(a)). However, on January 20, 2012, the Utah Supreme Court held that Utah's privilege tax could not be imposed upon a user of exempt property unless the lessee had "exclusive possession" of the property. Id. The Court explained that "exclusive possession" means "exclusive possession as against all parties, . . . including the [exempt] landowner. Id. at ¶ 24. As a result of the Court's holding, an entity using property, whose owner is exempt from taxation, is only subject to Utah's privilege tax if that entity has the right to exclude the property owner from occupying the property, is able to make broad use of the property, and has power over a definite space for a definite time. Id. at ¶ 33.
The Utah Supreme Court expounded on what constitutes double taxation by clearly establishing three elements a taxpayer must prove to show that property has been subjected to double taxation: "(1) the tax must fall on the same property, (2) the burden of the tax must fall on the same person, and (3) other similarly situated property must be taxed only once." Summit Water Distribution Co. v. Utah State Tax Comm'n, 2011 UT 43, ¶ 23, 259 P.3d 1055.
In Summit Water Distribution Co. the court held that the value of a water company's property was not taxed twice when a tax was imposed upon the distribution facilities themselves, as well as the increased value of property serviced by the water company, which values had increased due to the water company providing water to such property. The court stated that the distribution facilities are different from the real property the distribution facilities serve, and the burden of the taxes are imposed upon different persons, the water company and the owners of the real property. Because all three elements were not met, no double taxation occurred.
The Utah Supreme Court recently issued a landmark decision in T-Mobile USA, Inc., v. Utah State Tax Commission holding that goodwill constitutes intangible property and that the value of goodwill is not subject to property tax. 2011 UT 28, ¶33, 254 P.3d 752. T-Mobile appealed the assessed value of its property, arguing that the assessment improperly included the value of intangible property because the assessment included the value of goodwill. The Court agreed, and stated that goodwill is consistent with the generally accepted definition of intangible property and thus is not taxable. Id. at ¶32. According to the Utah Constitution, the legislature can choose to tax intangibles as property or the income from intangible property. Id. at ¶29. Because Utah taxes the income from intangibles, it is prohibited from taxing the intangible property itself. Id. at ¶35. Therefore, goodwill is exempt from property taxation in Utah.
Property owners with a lis pendens filed on their property which affects the property’s highest and best use, may want to consider appealing the assessed value of that property. In recent years, the Utah State Tax Commission (the “Commission”) has dealt with whether a lis pendens placed on property affects its fair market value. In Appeal No. 07-0348 the Commission held that a lis pendens did not affect the subject property’s value; however, the Commission stated the result might be different if the lis pendens affected the highest and best use of the property. Recently, the Commission provided such an example, and stated, “it appears appropriate to consider the effect on value that [a] . . . lawsuit and lis pendens may have on . . . property . . .” Utah State Tax Comm’n, Appeal No. 10-0059 (Initial Hearing Order Aug. 19, 2010).
In Appeal No. 10-0059 the taxpayer owned a 35.22 acre parcel of land in Davis County. The highest and best of the parcel was for it to be developed into residential lots. However, a lawsuit was brought seeking a right-of-way over the property and a resulting lis pendens was placed on the property. The Commission stated that a buyer aware of the pending litigation might reasonably anticipate development could be delayed and therefore might pay less for the property. As a result, the Commission reduced the property’s assessed value. Therefore, if a lis pendens placed on property affects its highest and best use and the assessment does not reflect that possible negative impact, it is likely that the property has been over-assessed.
Non-capitalized leased assets ("operating leased" assets) can pose a concern for appraisers. The cost of these assets does not show up on the taxpayer's balance sheet, but the lease payments will be shown as a deduction on the income statement. These lease payments reflect the income going to the lessor of the operating leased assets. If the appraiser is preparing an income indicator of value these lease payments are effectively removing a portion of the value of the operating leased assets from the income indicator. If one is in a state that requires the valuation of the fee interest in the property, an adjustment may need to be made to the income approach to add the lessor's interest in the leased property back into the assessment. The Utah State Tax Commission recently affirmed a method for adding a value for operating leased property into a yield capitalization income approach. The Commission explained that it would be appropriate to estimate the value of the operating leased property by capitalizing the resultant amount of the lease payments made for the property less depreciation associated with lease property. This capitalized amount for the leased property would then be added to the yield capitalization income amount derived for the taxpayer owned operating property.
On June 12, 2009 the Utah Supreme Court issued its decision in the ABCO Enterprises case upholding the assessment of "a privilege tax on a leasehold interest at the same amount that a fee simple interest would be assessed." When otherwise tax-exempt property is use to conduct a for-profit business a privilege tax may be assessed in the "same amount as the property taxes that would have been owed by an owner of nonexempt property." The Court determined that "it is not unreasonable to impose the pro rata share of raising governmental revenue upon a lessee of exempt property," and ruled that an assessment on the leasehold interest did not violate the uniform operation of laws provision of article I, section 24 of the Utah Constitution or the Equal Protection Clause of the Fourteenth amendment to the United States Constitution.
Utah law provides that all property which "operates as a unit across county lines" is subject to central assessment by the Utah State Tax Commission. Utah Code Ann. § 59-2-201(1)(a). On June 27, 2008, Qwest Corporation submitted a rulemaking request to the Commission wherein it requested that the Commission amend its central assessment rule to explicitly included cable companies that provide two-way telecommunications services within its umbrella of central assessment. Qwest argued that the current operation of certain cable companies in Utah clearly satisfies this statutory requirement for central assessment. Comcast and other cable have opposed the rule claiming that they should be viewed as local operating units because of the franchise agreements they are required to enter into to with cities and counties in order to provide services. The Commission should issue a decision by the end of September as to whether they are willing to entertain rulemaking procedures on this issue.
Utah State Tax Commission equates "value in use" with "fair market value"
The Utah State Tax Commission recently conducted an Initial Hearing involving the valuation of a mid-size retail box leased by a well-known national retailer. Property taxes in Utah are supposed to be assessed on the fee simple estate. The taxpayer's appraiser testified there was little demand for a building of that size with its particular built-to-suit characteristics, and the low demand would drive the purchase price down significantly in a transaction between a willing buyer and a willing seller. The County argued a buyer would pay a higher price because the property was subject to a long-term lease with a strong tenant. The Commission chose to consider the effects the lease had on value, and adopted the County's higher valuation. We believe this decision improperly taxes value in use and constitutes a potentially harmful precedent for other taxpayers. We understand this matter will be appealed to a Formal Hearing.
On February 28, 2008, the Utah State Tax Commission issued its decision in the PacifiCorp case and clarified that deferred federal income tax expenses ("DIT") should not be added into the cash flow to capitalize in the yield capitalization model "without making an offsetting adjustment for replacement capital expenditures." The Commission found that "when a mature cost regulated utility is expected to make . . . constant replacement capital expenditures into the future, the resulting DIT expense will be offset by the payment of taxes previously deferred and the net cash flow to [the utility] of DIT will be $0." The Commission also concluded that "any net present value benefits associated with DIT would be passed through to the rate payers." Inasmuch as these present value benefits would not accrue to the benefit of a would-be buyer, any present value benefits associated with DIT should not be "included in the cash flow to be capitalized under the yield capitalization approach" to value.
The Utah State Tax Commission issued a decision in November 2007 clarifying how amortization expenses should be accounted for in deriving the cash flow to capitalize in a yield capitalization income model. The Commission stated that if the amortization expense is associated with assets that will be replaced, the amortization should be added to the cash flow, but the addition should be offset by any equivalent replacement capital expenditure. The Commission also ruled that if the amortization expense is associated with an intangible that is not expected to be replaced, i.e. customer lists, an appropriate amount of amortization expense should be added to the cash flow without and offsetting capital expenditure deduction. Typically, the amortization expense associated with an intangible like customer lists declines quite rapidly. Thus, the Commission indicated that the appropriate amount of amortization expense to be added to the cash flow should be the current year's amortization expense adjusted downward to "reflect the declining pattern" of the amortization expense.


(2) Unless otherwise expressly agreed, these Terms and Conditions shall apply exclusively in their version valid at the time the contract was concluded. Conditions of the customer which deviate from or oppose the following provisions do not apply, unless the provider expressly agrees to their validity in writing.
(3) Customer within the meaning of these Terms and Conditions are exclusively entrepreneurs (hereinafter referred to as “customer”). Entrepreneurs within the meaning of the terms and conditions are natural persons or legal entities or partnerships with legal capacity, who act in the exercise of their commercial or independent professional activity upon conclusion of the contract with the provider, including, in particular, public corporations and registered associations.
(4) The terms and conditions may be changed by the provider, provided that this does not affect the essential provisions of the contractual relationship and they are necessary to adapt to developments that were unforeseeable at the time of conclusion of the contract and their non-consideration would significantly disturb the balance of the contract. Significant regulations are in particular those concerning the type and scope of the contractually agreed services and the term, including the rules on termination and liability. Furthermore, adjustments or additions to the terms and conditions can be made, as far as this is necessary to eliminate difficulties in the implementation of the contract due to loopholes resulting from the conclusion of the contract. This may, in particular, be the case if the jurisdiction or legal regulations change and one or more clauses of these terms and conditions are affected. Intended changes to the General Terms are communicated to the customer at least six weeks before they take effect in written form (e.g. letter, email) under emphasis of the respective changes.
(4.1) Insofar as the changes do not merely give the customer a legal advantage and the customer does not agree with the changes, he may object in writing within six weeks after receipt of the notification of the change. In the case of an objection, the previous regulations initially remain unchanged. If the customer does not object, the amended regulations apply after expiry of the opposition period.
(4.2) Customers who make use of recurring services of the provider (so-called subscription, or perpetual obligation) are entitled to a special right of termination in case of a change of these terms and conditions by the provider, which entitles them to terminate the corresponding continuing obligation with the provider before the proposed effective date of the change without notice and free of charge in writing. If the customer does not cancel in writing within six weeks after receipt of the notification of change, the changes become part of the contract at the time of the effective date.
(4.3) The customer is informed of these consequences in the change notification.
(1) The provider’s offering includes a variety of services in the areas of online platform content marketing (e.g. sub-licensing platform content, cartography, DMS, apps, online marketing, content management, software development, technical support, etc.).
(2) The provider provides the concrete service after placing the order to the terms of the specified service description. This applies, in particular, to the type and scope of the services as well as prices and the processing time in which the provider completes the order.
(1). The presentation and promotion of articles on the website of the provider at https://corporate.outdooractive.com/ does not constitute a binding offer to conclude a purchase agreement by the provider, but serves to make a binding offer by the customer (order).
(2) The provider sends the customer a customized and binding offer with an order form. The offer can be bindingly accepted by the customer by signing the order form and returning it to the supplier by post, fax or scan. With the receipt of the signed order form with the provider, the contract with the provider is concluded.
The provider saves the order of the customer and the specified order data. The customer has the option to print both the order and the terms and conditions before sending the order to the provider.
(1) Costs and prices result from the respective product offer of the provider. All prices quoted are final prices. They include all price components, including VAT. The amount of a possibly additionally incurred administration fee also depends on the product and results from the respective product offer.
(2) Payment by the customer shall be made in accordance with the payment plan attached in the offer of the provider. The methods of payment accepted by the provider are prepayment and direct debit.
(2.1) Bei der Zahlungsart Vorkasse durch Überweisung nennt die Anbieterin dem Kunden ihre Bankverbindung in der Auftragsbestätigung. Der Rechnungsbetrag ist vom Kunden auf das angegebene Bankkonto der Anbieterin zu überweisen. Bei Überweisungen aus dem nichteuropäischen Ausland sind etwaige Bankspesen vom Kunden zu tragen.
(2.1) In the payment method “advance payment by bank transfer”, the provider shall inform the customer about his bank details in the order confirmation. The invoice amount is to be transferred by the customer to the specified bank account of the provider. For transfers from non-European countries, any bank charges are to be borne by the customer.
(2.2) In the case of the payment method SEPA direct debit and the successful transmission of bank details by the customer, the provider is revocably authorized to collect the invoice amount from the specified (giro) account (SEPA mandate). By specifying the current account, the customer confirms that he is entitled to direct debit via the corresponding checking account and that the account has sufficient cover so that the amounts due can be collected by the provider. The invoice amount is due for payment after a SEPA direct debit mandate has been issued, but not before the deadline for the preliminary information has expired. Pre-notification is any communication (such as an invoice) by the provider to the customer that announces a debit of the account via SEPA direct debit. If the customer is an entrepreneur, the deadline for the preliminary information is shortened to one day for both direct debits and follow-on direct debits. The preliminary information on the collection of the SEPA direct debit is sent to the customer by email to the email address provided by him. If the direct debit is not redeemed due to a lack of adequate account coverage or due to an incorrect bank account or if the customer objects to the debit, although he is not entitled to do so, the customer shall bear the fees resulting from the non-payment or the chargeback of the respective credit institution, if he has to represent this.
(3) Contracts with customers from countries outside the EU may incur additional costs for which the provider is not responsible. These are to be borne by the customer. These include, inter alia, costs for the transfer of money by credit institutions (e.g. transfer fees) or import duties or taxes (e.g. customs duties).
(4) The services rendered are charged to the customer by the provider. Unless otherwise agreed in writing, the agreed-upon fee shall be due immediately upon receipt of the invoice. The provider reserves the right to withhold services until the invoice is settled.
(5) During default, the interest rate is 9 percentage points above the base rate. The provider reserves the right to prove and assert a higher damage caused by delay.
(6) Recurring services are billed by the provider according to the individually agreed intervals in the payment plan. If the customer defaults in his contracts for two months or more with monthly payments, the provider may terminate the contract without notice.
(7) The customer shall only be entitled to offset if his counterclaims have been legally established or are undisputed or have been acknowledged by the provider or are in a close synallagmatic relationship with the provider’s claim. The customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
(1) The provider offers various services in the field of online marketing and design services, as well as coaching and training in the field of content management. In addition to the analysis of the customer’s Internet offer, the provider also defines goals and measures with the customer for a tailor-made concept, or a campaign of content management or online marketing.
(2) The provider advises and assists the customer in optimizing the reach of his content via the output channels of the Outdooractive platform. However, the provider owes no specific ranking, no specific positioning and no specific traffic or conversion rates of the contents of the customer. Nor does the provider owe a specific economic purpose or advertising success beyond the agreed performance by optimizing the ranges.
(3) Insofar as the subject matter of the contractual service of the provider is the organization of in-house training, this will be provided by the instructor named in the service description in the premises of the customer on site. If necessary, the provider is entitled to replace the intended speaker with another suitable person. Suitable training facilities with computer workstations for demonstration purposes are to be provided by the customer for the purpose of organizing the training. Expenses (e.g. meals, accommodation, conference expenses) as well as travel expenses incurred by the provider are not included in the price for in-house training and must therefore be paid separately by the customer.
(1) Notwithstanding § 5 (4) sentence 2 of these provisions, the remuneration for agreed and performed work performances of the provider shall be due on acceptance of the service by the customer, unless otherwise agreed in the payment plan. The customer is obliged to accept the substantially contractual performance at the request of the provider.
(2) The provider is entitled to demand from the customer one or more partial acceptances of definable parts of the work to be performed. If all parts of service have been accepted, the last partial acceptance is at the same time the final acceptance. A partial or final acceptance is the same if the customer does not accept within a reasonable time set by the provider after delivery or refuses the acceptance or if the service is used by the customer.
(3) The provider guarantees that the services rendered in accordance with the sales contract and the contract for work and services correspond to the contractually defined performance specifications.
(3.1) The customer is obligated to examine the service of the provider, as far as this is in accordance with orderly business transaction, immediately after delivery and to reprimand any defects without delay. If the customer fails to report the defect, the service is deemed to have been approved, unless it is a defect that was not identifiable during the investigation. If such a defect later arises, the notification of the defect must be made immediately after the discovery in writing, otherwise the performance shall also be considered as approved in view of this defect. § 377 of the German Commercial Code (HGB) remains unaffected. The customer is not exempted from his obligation to inspect, even in the case of recourse of the entrepreneur according to § 478 of the German Civil Code (BGB). If, in such cases, he does not immediately indicate the defect asserted by his customer, the service shall also be deemed approved in view of this defect.
(3.2) Ist die Leistung der Anbieterin mangelhaft, so ist die Anbieterin zur Nacherfüllung berechtigt. Die Anbieterin ist unter Berücksichtigung der Art des Mangels und der berechtigten Interessen des Kunden berechtigt, die Art der Nacherfüllung zu bestimmen. Eine Nacherfüllung gilt nach dem erfolglosen dritten Versuch als fehlgeschlagen. Diese Ziffer gilt nicht im Fall des Rückgriffes nach § 478 BGB.
(3.3) In the event of subsequent performance in the event of defects, the provider shall only be obliged to bear the expenses required for this, in particular transport, travel, labor and material costs, as these are not increased by transferring the item to a location other than the registered office or commercial branch of the customer to whom the goods have been delivered. This number does not apply in the case of recourse to § 478 BGB.
(3.4) The claims of the customer including claims for damages become time-barred in one year. This does not apply in the case of recourse to § 478 BGB, this also does not apply in the cases of §§ 438 (1) no. 2 BGB and § 634a (1) no. 2 BGB. This also does not apply to claims for damages for injury to life, limb or health or due to a grossly negligent or intentional breach of duty by the provider or their vicarious agents. The sale of used goods is subject to exclusion of any claims for defects.
(4) Until full payment, the goods ordered by the customer remain the property of the provider.
(1) The respective contract period is based on the contractually agreed service ordered by the customer. Payments are due from the beginning of the month following the delivery of the product that can be processed or from the period agreed for campaigns.
(2) Contracts which have a limited contract period shall end with the expiry of the contractually agreed service period, without the need for separate termination.
(3.1) The provider reserves the right to grant the customer corresponding transit time discounts for the conclusion of a subscription, which depend on the contract period chosen by the customer.
(3.2) After the expiry of the agreed contract period, the contract is automatically extended by the period originally selected by the customer, but not by more than one year, unless it is given four weeks prior to the end of the respective contract period in text form (e.g. email, letter, fax) is terminated.
(4) The right to extraordinary termination for cause remains unaffected.
The transfer of rights and obligations under this contract from the customer to third parties requires the express and written consent of the provider.
(1) An essential factor for the provision of the contractually agreed services by the provider is the cooperation of the customer. The customer will support the provider in providing the contractual services to an appropriate extent. In particular, the customer provides the provider with all data and documents necessary for the provision of services free of charge and will provide the provider with all necessary information upon request.
(2) If the services of the provider exist in the preparation of concepts or analyzes or the support of the customer in their preparation, the customer shall provide the necessary cooperation and undertake measures for the implementation of the concepts within the framework of the economically appropriate.
(3) The customer will take the necessary precautions to measure the number of visitors and install the Outdooractive Tracking.
(4) If the customer does not fulfill his duties to cooperate or insufficiently, the provider is released from its performance obligations for this period, as far as the respective services cannot be provided due to insufficient or insufficient fulfillment of the obligations to cooperate or only with disproportionate effort.
(1) The contracting parties will comply with the respectively applicable data protection regulations, in particular those valid in Germany, and oblige their employees employed in connection with the contract and its implementation with the data secrecy according to § 53 of theFederal Data Protection Act, insofar as these are not already generally obligated accordingly.
(2) Both the provider and the customer undertake to keep secret any business or company secrets or confidential information that are received or known, unless these are generally known.
(4) If the customer collects, processes or uses personal data, he shall declare that he is entitled to do so in accordance with the applicable provisions of the data protection law and, in the event of a breach, indemnify the provider against claims of third parties.
(5) For the security of the data transmitted to him, the customer is fully self-concerned and undertakes to carry out measures for data protection and against unauthorized access to data in accordance with the current state of the art.
(6) The obligations under paragraphs 1 to 5 exist as long as application data are within the sphere of influence of the provider, even beyond the end of the contract.
(7) If the customer violates a duty under paragraphs 1-6 for reasons for which he is responsible, the provider may claim damages in accordance with § 12 of these GTC.
(1) The provider shall be unlimitedly liable – irrespective of the legal grounds – for intentional or grossly negligent damages (gross negligence). In the case of ordinary negligence, the provider is liable, subject to a more lenient standard of liability according to legal provisions (for example, for due care in own affairs) only for damages resulting from injury to life, limb or health or for damages resulting from the violation of cardinal obligations. Cardinal obligations are the essential obligations that form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfillment of which the customer may rely. The liability in this case is limited to the foreseeable, contract-typical damage. Incidentally, claims for damages are excluded.
(2) As far as the subject matter of the contractual service of the provider is the publication of contents and / or hyperlinks on third-party websites, the provider does not guarantee the duration of the availability or the stock of these publications.
(3) In the event of damage due to loss of data to the customer, the provider shall only be liable to the extent of the expense incurred if the customer regularly and adequately performs data backup and thereby ensures that lost data can be recovered at a reasonable cost. This limitation of liability does not apply in the case of intent and gross negligence.
(4) The provisions of the Product Liability Act remain unaffected.
(5) Insofar as the liability of the provider is excluded or limited, this also applies to the personal liability of the employees, representatives and vicarious agents of the provider.
(1) Legal responsibility, in particular tele media – as well as press-law and competition-law responsibility for the content of the website of the customer, is the sole responsibility of the customer. The content of the editorial part of the website remains the sole responsibility of the customer. The customer is obliged to check carefully and to ensure that the contents do not violate legal provisions.
(2) The customer warrants that he holds all rights required for the contractual use of the website, in particular that he has the necessary copyright, trademark, ancillary copyright, personal rights and other rights and that he has the right to fulfill the contract the provider may transfer, in terms of time, location and content, to the extent necessary for the performance of the contract.
(1) The customer grants the provider all rights of use for copyrights, ancillary copyrights and other industrial property rights required for the contractual provision of services, in particular the right to reproduce, distribute, make available to the public as well as processing, in terms of time, place and space. This granting of rights continues even after termination of the contractual relationship. The granting of rights also includes the right to transfer or sublicense the aforementioned rights of use to third parties commissioned to perform the contract, as well as to grant search engine marketing rights to the search engine operators. The user rights to be granted to the provider are simple usage rights.
(2) All copyrights, ancillary copyrights and other rights to all online products created by the provider and / or third parties on behalf of the provider for the customer, in particular images, texts, articles, contributions, comments, banners, graphics, page layouts, concepts, designs and analyses remain with the provider. The provider grants the customer for the duration of the contract period on these online products not exclusive (simple) and spatially unlimited rights to use them in the extent necessary for the execution of the contract, store, reproduce, distribute, make publicly available, perform in public and play in public. With regard to cartography products (print and digital maps), the aforementioned rights apply with the restriction that the customer may only reproduce the cartography products to the extent contractually agreed. Any further duplication is not permitted. Any further duplication requires the conclusion of a license agreement.
The provider grants the customer for the duration of the contract to content that was produced individually on behalf of the customer (example: special programming, landing pages, road networks, tour descriptions), after acceptance and complete payment by the customer a non-excludable (simple) and unlimited right to use, store, reproduce, distribute, make publicly available, publicly perform, publicly present, and publicly reproduce, to the extent necessary for the use of its website. The customer does not have the right to be the author of the materials. The provider remains in any case – even if individual contractual exclusive rights of use were granted – entitled to use the materials created in the context of self-promotion in all media.
(3) The rights of use granted to the customer are not transferable to third parties and are not sublicensable without the written consent of the provider.
(4) The provider is to be named as author in every reproduction, distribution, exhibition and / or public reproduction of the materials. If the client violates the obligation to name the author, he is obliged to pay compensation to the provider.
(5) The materials may not be changed in the original or in the reproduction without the express consent of the provider. Any complete or partial imitation or processing is prohibited. In the event of a breach of this provision, the client must pay the vendor damages.
(6) If the customer wishes to register formal industrial property rights for registration in an official register with regard to the materials created by the provider, he must obtain the prior written consent of the provider.
(7) If third parties assert claims against the provider with the claim that the content of the customer or its use by search engine operators or other users violates legal provisions and / or the contents violate their rights, the customer shall be the provider of all claims of third parties indemnify the provider for the first request and compensate for any additional costs and damages, in particular exempting the provider from the costs of an appropriate legal defense. However, this does not apply if the customer is not responsible for the infringement of the rights of third parties or statutory provisions. The customer is obliged to support the provider within the scope of the reasonable by providing information and documents in the legal defense against the third party. The provisions of this paragraph shall apply mutatis mutandis if third parties for the non-compliance of assurances of the customer under § 13 of these terms and conditions assert claims against the provider.
The provider is entitled to transfer the rights and obligations arising from this contract to a third party. It will bring the transfer to the customer in writing. In the event of a transfer by the provider, the customer is entitled to an extraordinary termination right. Termination must be received by the provider within 14 days of receipt of the transmission notice from the provider in text form. It will take effect at the time of the transfer.
The provider is entitled to cooperate with the customer in publications, e.g. in the context of company brochures or on their own website etc. The provider is also entitled to use image and text documentation on the cooperation with the customer in the context of public relations work.
The contracting parties conclude a data processing agreement. The corresponding contract according to the EU-GDPR including the legally required attachments is available on the provider’s website on https://corporate.outdooractive.com/en/privacy-policy-at-outdooractive/.
(1) The law of the Federal Republic of Germany applies excluding the United Nations Convention on Contracts for the International Sale of Goods.
(2) The place of fulfillment for all services arising from the business relationships with the provider is Immenstadt, if the customer is a merchant, a legal entity under public law or a special fund under public law.
(3) If the customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from the business relationship between the provider and the customer is the place of business the provider. For complaints against the provider, the place of business of the provider is the exclusive place of jurisdiction. Mandatory statutory provisions on exclusive jurisdictions remain unaffected by this provision.
(4) The contract language is German. In the event of any doubt regarding the interpretation of the translation of these General Terms and Conditions, the German version alone shall be valid.
In addition to the General Terms and Conditions of Outdooractive GmbH & Co. KG for corporate customers, the following additional terms and conditions apply to contracts for Software as a Service (SaaS) services provided by the provider to the customer.
The customer requires standard software applications and storage space to store the generated application data to perform their business processes. The provider offers the temporary use of such software applications via a telecommunication connection as well as the possibility to store application data for a fee. With this contract the contracting parties agree that the provider provides the customer with the possibility of using the required software applications for access via a telecommunication connection as well as storage space for his application data.
The subject matter of the contract is the provision of the respectively agreed software applications (hereinafter referred to (also plural): application) for the use of their functionalities, the technical enabling of the use of the application and the granting or brokerage of usage rights to the application as well as the provision of storage space for the customer generated by use of the application and / or the data required for the use of the application (hereinafter: application data) against payment of the agreed fee. The scope of performance of the respective application results from the performance description in the order confirmation.
The provider sends the customer a proposal tailored to him on the terms of the provision of the application, which is not yet a binding offer. By returning the signed proposal by post, fax or scan, the customer makes a binding offer to the provider to conclude the contract. The contract is concluded when the provider sends the customer an order confirmation by post, fax or scan. If the order confirmation contains deviations from the offer, which serve to clarify it or which the provider could count on in good faith with the consent of the customer, the order confirmation constitutes a commercial confirmation letter.
(1) From the date agreed in the order confirmation on one central data processing system or several data processing systems (hereinafter referred to (also plural): server), the provider shall hold the application agreed in the order confirmation in the current version for use in accordance with the following provisions.
is free of viruses and similar malware, which invalidates the suitability of the application for the contractual use.
(3) The provider shall provide the customer with the number of user names and user passwords stipulated in the order confirmation. All user names and passwords must be changed by the customer immediately in names and passwords known to him. Further safety measures are agreed on in the order confirmation.
(4) Insofar as the provider obtains the use of third parties, it must make available the last version of the respective application generally available on the market for use by the customer no later than three months after the manufacturer’s general market release. Insofar as the provider produces an application himself, he ensures that the application made by him always corresponds to the proven state of the art.
If and in so far as the provision of a new version or change involves a change in the functionality of the application that is detrimental to the customer, application processes supported by the application and / or restrictions on the usability of previously generated data, the provider shall notify the customer of this at least six weeks prior to the effective date of such change in writing. If the customer does not object to the change in writing within a period of two weeks from receipt of the change notification, the change becomes part of the contract. The provider shall inform the customer of any announcement of changes to the aforementioned deadline and the legal consequences of its expiry if the possibility of contradiction is not perceived.
(5) From the date of the operational provision for the application data agreed upon in the order confirmation, the provider shall keep storage available on the server within the scope agreed in the order confirmation. Further details on storage space and application data can be found in the order confirmation, if necessary.
(6) The application and the application data are backed up regularly on the server, at least on calendar days. The customer is responsible for compliance with commercial and tax retention periods.
(7) Delivery point for the application and the application data is the router output of the provider’s data center.
(8) The system requirements on the part of the customer arise from the order confirmation. For changes to the technical system of the provider, the objection according to of paragraph 4 subsection 2 shall apply. The provider is not responsible for the quality of the required hardware and software on the part of the customer as well as for the telecommunication connection between the customer and the provider up to the delivery point.
(1) Unless otherwise stated in the order confirmation, the provider owes the following agreed availability of the respective application and the application data at the delivery point. By availability, the parties understand the technical usability of the application and the application data at the transfer point for use by the customer.
(2) The provider shall provide the customer with the application from the time specified in the order confirmation, but excluding the agreed times of announced unavailability.
(4.1) The provider is entitled in times of announced unavailability to maintain the application and / or server, make backups or other work. Announced unavailability and its estimated duration will be announced to the customer at least 7 days in advance. This period may be shortened in justified exceptional cases.
If and insofar as the customer can use the application in times of the announced unavailability, there is no legal claim to this. If the use of an application in times of announced unavailability leads to a reduction or discontinuation of service, the customer has no claim to liability for defects or damages.
Die Anbieterin trägt im Falle von ungeplanten Nichtverfügbarkeiten der Anwendung dafür Sorge, dass die Störungsbeseitigung innerhalb angemessener Zeit eingeleitet und der Kunde hierüber informiert wird. Der Anbieter trägt ferner dafür Sorge, die gemeldete bzw. bemerkte technische Störung in einer dem Umfang der Störung angemessenen Zeit beseitigt wird.
In case of unscheduled unavailability of the application, the provider shall ensure that the fault clearance is initiated within a reasonable time and the customer is informed thereof. The provider shall also ensure that the reported or noticed technical fault is eliminated in a time appropriate to the extent of the fault.
(1) If the provider does not fully comply with the obligations stipulated in §§ 3 to 4, the following regulations shall apply.
(2) If the provider falls into arrears with the initial operational provision of the application, liability shall be governed by section A § 12. The customer is entitled to withdraw from the contract if the provider fails to meet a two-week grace period set by the customer, i.e. within the grace period does not provide the full agreed functionality of the application.
(3) If, after the first operational availability of the application and / or the application data, the provider does not fulfill all or part of the agreed obligations, the monthly usage fee according to § 9 (1) shall be reduced pro rata for the time in which the application and / or the application data was not available to the customer to the agreed extent or the storage space was not available to the agreed extent. When assessing the reduction, the severity, timing and duration of the disturbance shall be taken into account. The amount will be credited to the customer’s account.
(4) If the use of an application is not restored within a reasonable period of time after the provider has become aware of the defect, the customer may, irrespective of the reason for non-performance, but not in the event of force majeure, terminate the contractual relationship with respect to the use of the affected application without notice.
(5) The provider must state that he is not responsible for the reason for the delayed provision or the loss of service. If the customer has not indicated the loss of performance of the provider, then he has to prove in case of dispute that the provider has otherwise obtained knowledge of that.
(1) At the end of the time unit agreed upon in the order confirmation, the provider sends the customer, upon written or textual request, a separate copy of all application data on standard data carriers (backup) for a separate fee. The obligations of the provider pursuant to article 20 of the EU-GDPR remain unaffected. Further details are agreed on in the order confirmation.
(2) The provider shall provide the customer once, upon the start of the contract with an electronic, printable user manual written in German as pdf available for every application. In addition, the customer is provided with a link under which the respective user manual is permanently available for retrieval.
If an update of the application according to § 3 section 4 is agreed and takes place, the user manual will be adapted accordingly.
The customer is entitled to save, print and reproduce the provided documentation while maintaining the existing trademark rights in adequate numbers for the purposes of this contract. Incidentally, the usage restrictions for the documentation agreed under § 7 apply accordingly to the documentation.
(3) The customer can view an automatically generated report in his DMS at any time.
(4) Further services of the provider can be agreed at any time in writing or in text form, in particular training on applications. Such other services shall be provided against reimbursement of the proven expenses at the provider’s generally applicable prices at the time of commissioning.
(1.1) The customer shall receive in the application simple (not sub-licensable and non-transferable) rights of use limited to the term of this agreement in accordance with the following provisions.
(1.2) There is no physical assignment of the application to the customer. The customer may use the application only for his own business activities by his own personnel.
(1.3) The customer is not entitled to make changes to the application. This does not apply to changes that are necessary for the correction of errors, if the provider is in default with the correction of the error, rejects the elimination of errors or is unable due to the opening of insolvency proceedings for the elimination of errors.
(1.4) Insofar as the provider makes new versions, updates, upgrades or other new deliveries with regard to the application during the term, the above-mentioned rights also apply to them.
(1.5) The customer is not entitled to any rights which are not expressly granted to the customer. In particular, the customer is not entitled to use the application beyond the agreed use or to have it used by third parties or to make the application accessible to third parties. In Particular, it is not permitted to reproduce, sell or transfer the application for a limited period of time, in particular not to rent or lend.
(2.1) The customer shall take the necessary precautions to prevent the use of the application by unauthorized persons, in particular to observe the security provisions resulting from § 10.
(2.2) The customer is responsible for the fact that the application is not used for racist, discriminatory, pornographic, endangering to youth protection, politically extreme or otherwise illegal purposes or contrary to official regulations or conditions or respective data, esp. application data, created and / or saved on the server..
(a) If the customer violates the regulations in paragraph 1 or 2 for reasons for which he is responsible, the provider may block the customer’s access to the application or the application data after prior notification in text form, if the breach can be demonstrably eliminated by this measure.
(b) If the customer unlawfully violates paragraph 2.2, the provider is entitled to delete the data or application data affected by this. In the event of unlawful infringement by the user, the customer must inform the provider, on request, without delay, of all information on the assertion of the claims against the user, especially his name and address.
If the customer continues to violate the regulations in paragraphs 1 or 2 despite written notice of the provider, and if he is responsible for this, the provider may terminate the contract without notice.
(c) For each case in which the customer culpably allows the use of the application by third parties (or by users not determined by the customer), the customer must pay an immediately due contractual penalty in the amount of the monthly basic rate. The assertion of damages remains reserved; in this case, the contractual penalty will be offset against the claim for damages.
(d) If the customer is responsible for the breach of duty, the provider may claim damages.
If and as far as during the term of this contract, in particular by compilation of application data, by this contract authorized activities of the customer on the server of the provider a database, databases, a database or database works, the customer and the provider have the simple, not exclusive, transferable, spatially and temporally unlimited rights of use of this content.
(1) The provider shall inform the customer immediately of rights of third parties or of their assertion and of a resulting impairment of the provision of agreed services and to enable them to have full access to the application data in a suitable manner.
(2) The customer is not obliged to pay if and as far as the rights of third parties affect him in the use of the application.
(3) A non-existing usability of the application and / or the application data according to para. 1 shall be considered as availability within the meaning of § 4 (3) for legal reasons.
(4) Insofar as the provider does not or no longer have the rights required to properly fulfill the contract, in particular the necessary rights of use for software and documentation, and the application is not usable for a longer period than agreed in the order confirmation, § 5 (3) and (5) shall apply mutatis mutandis.
(5) The provider shall indemnify the customer on first request from all claims of third parties, which they assert from their rights against the customer using the application in accordance with the contract. The contracting parties will notify each other immediately in writing if claims are made against them.
(6) The provider is not liable for a violation of the rights of third parties by the customer, if and to the extent that this violation results from exceeding the rights of use granted under this contract. In this case, the customer releases the provider on first request from all claims of third parties.
(1) The remuneration for the services to be provided for the granting of use in relation to the use and provision of storage space, including data backup, consists of a basic lump sum and usage-dependent remuneration in accordance with paragraph 2.
(2) The provider is entitled to increase the agreed prices appropriately for the contractual services to compensate for personnel and other cost increases. The provider will announce these price increases to the customer in writing or by email; the price increases do not apply to the periods for which the customer has already made payments. If the price increase is more than 5% of the previous price, the customer is entitled to terminate the contract as a whole with a notice period of three weeks to the end of a calendar month; if he makes use of this right of termination, the non-increased prices will be charged until the termination takes effect. On this right of termination, the provider will inform the customer together with each announcement.
(3) For the rest, the provisions of Section A paragraph 5 of the General Terms and Conditions of Outdooractive GmbH & Co. KG apply to corporate customers.
if and as far as the technical possibility to do so by mutual agreement is established, regularly back up the application data stored on the server by downloading; The obligation of the provider for data protection according to § 3 (6) and for the transmission of a backup according to § 6 (1) remains unaffected.
(1) The contracting parties will comply with the respectively applicable data protection regulations, in particular those valid in Germany, and oblige their employees employed in connection with the contract and its implementation with the data secrecy according to § 53 BDSG, insofar as these are not already generally obligated accordingly.
(2) If the customer collects, processes or uses personal data, he is responsible for ensuring that he is entitled to do so in accordance with the applicable provisions of the data protection law and, if necessary, has obtained the consent of those affected. In the event of a breach, the customer indemnifies the provider against claims of third parties.
(3) The provider will only collect and use customer-related data to the extent required by the implementation of this contract. The customer agrees to the collection and use of such data to this extent.
(4) The obligations under paragraphs 1 to 3 exist as long as application data are within the sphere of influence of the provider, even beyond the end of the contract.
(5) In accordance with § 62 of the Federal Data Protection Act or article 28 of the EU-GDPR, the contracting parties conclude the agreement on data processing (see attachment 1). In the event of any inconsistency between this agreement and the Data Processing Agreement, the latter shall prevail.
If a contracting party violates a duty under §§ 11 or the supplier an obligation from the agreement on data processing (attachment 1) for reasons for which he is responsible, so for each case of culpable violation to be determined by the infringing party to be determined, a reasonable contractual penalty whose amount in the case of dispute can be checked for appropriateness by the competent court at the instigation of the infringing party.
(1) The contracting parties shall, in writing for the purpose of channeling the communication required in particular in the event of disruptions in the structure of services, determine a main contact person who can make legally binding declarations for the respective contracting party or bring such declarations about within six working days after the main contact person of the other contracting party has communicated a fact and the need for a decision in writing.
(2) If a vote at the level of the main contact persons has not been made within twelve working days after the announcement of the facts and the need for a decision, the matter must be submitted without delay to the respective management of the contracting parties or their appointed representatives for decision. This escalation level should make a final decision within a period of a further twelve working days from receipt of the transaction.
(3) The above-mentioned escalation levels shall not jeopardize reaction, execution, recovery or other periods agreed in this agreement, including attachments.
At the time agreed in the order confirmation, but at the latest upon termination of the contractual relationship, the provider is obligated to download the data stored by the customer and any data otherwise stored on the mass storage provided pursuant to § 2 (5) to him on an internet link to provide, or to send electronically.
In addition, the provider is obligated, on request of the customer, to provide all data stored by the customer to a third party named by the customer on a standard data medium or by means of remote data transmission. The customer is obliged to compensate the provider for the necessary and proven costs. This does not affect the obligations of the provider pursuant to article 20 of the EU-GDPR.
Incidentally, the provisions of Section A of the General Terms and Conditions of Outdooractive GmbH & Co. KG apply to corporate customers.


text:
1.1 Complainant: Soci�t� des Bains de Mer et du Cercle des Etrangers � Monaco, Monte Carlo, Principality of Monaco.
The representative authorized to act in this administrative proceeding is Mr.�Juli�n�Horn, of the Law Firm De Gaulle Fleurance & Associ�s, Paris, France.
1.2 Respondent: Best Creative, Tel Aviv, Israel, with no representative appointed.
2.1 The dispute concerns the domain name <montecarlo-casinos.com>.
2.2 The registrar with which the domain name is registered is eNom, Inc.
3.1 A complaint in accordance with the Uniform Domain Name Dispute Resolution Policy, approved by ICANN on August 26, 1999 (hereinafter the “Policy”), and the Rules for Uniform Domain Name Dispute Resolution Policy (hereinafter the “Rules”), was filed by e-mail with the WIPO Arbitration and Mediation Center, (hereinafter the “Center”), on June 18, 2004. The Center acknowledged receipt on June 18, 2004.
3.2 The registration was verified on June 18, 2004. On June 22, 2004, the complaint was notified to the Respondent. The Respondent did not submit any response to such complaint within the established term.
3.3 On July 16, 2004, the Center contacted Mar�a Baylos requesting her statement of acceptance and declaration of impartiality and independence to act as sole panelist in this administrative proceeding, which she accepted on July 19, 2004. On July�20, 2004, she was appointed once the declaration was received.
3.4 Language of the proceeding. The complaint was filed in the English language and the Complainant has not proposed or reasoned the appropriateness of such language as the language of the proceeding. However, considering that the language of the registration agreement is English, the Panel, using the faculties granted by paragraph 11(a) of the Rules, considers that the language of the proceeding must be English.
It is considered evidenced, since it is supported by documents or statements not contested by the Respondent, that the Complainant is the owner, in the Principality of Monaco, of the trademark No. 96.17407, CASINO DE MONTE-CARLO, applied for on August 13, 1996, and granted on October 30, 1996. The Complainant is also the owner of the application dated December 30, 2002, for the U.S. Trademark US 76479351 CASINO DE MONTE-CARLO for classes 9, 16 and 28 of the International Nomenclator.
- That it is the founder of the Casino de Monte-Carlo, holds the monopoly for casino and gambling industries for the whole territory of the Principality, and has been operating for more than 140 years under the name “Casino de Monte-Carlo”.
- That it is the owner of the trademark CASINO DE MONTE-CARLO in the Principality of Monaco. It has also filed a US trademark application for the same name.
- That the rights of the Soci�t� des Bains de Mer et du Cercle des Etrangers � Monaco in connection with the terms “casino” and “monte carlo” have been recognized by several decisions of the Center. Furthermore, the Center has already recognized the rights of the Complainant in its decision related to the domain name <montecarlocasinos.com>.
- That the Respondent has no rights or legitimate interests in the domain name <montecarlo-casinos.com> since the Respondent owns no trademarks including the terms “casino” and “Monte Carlo” in any jurisdiction as evidenced in Annexes G and H of the complaint.
- That, to the best of the knowledge of the Complainant, the Respondent has not used, and is not using, the domain name in dispute to offer any product or service related to gambling or any other type of activity; it offers its sale.
- That the Respondent resides in Israel, has no link with the Principality and has not received any license or authorization from the authorities of the Principality of Monaco to operate a Casino in Monaco.
- That the domain name <montecarlo-casinos.com> has been registered and is being used in bad faith. Thus, when typing on the Internet the domain name in dispute, the surfer is redirected to the “www.sedo.com” site, where the Respondent requests bids to sell the domain in question, as evidenced in Annexe I of the complaint.
- That, when the Complainant offered the sum of €100 to purchase the domain, the Respondent made a counteroffer of €900. At the time of filing the complaint, the price was €400.
- That given the notoriety of the Complainant’s trademark, the Respondent could not ignore that such registration infringed the Complainant’s rights.
- That the main activity of Mr. Shmuel Sharon and his company, Best Creative, seems to be trading domain names, since this is indicated in the second name of the company, “Domains for sale” (as evidenced in Annexe M) and, even though the registering of and trading of domain names are legitimate activities, this is not the case when dealing with domain names that correspond to well known trademarks.
- That, in consequence, the Complainant requests that the domain name <montecarlo-casinos.com>, subject of this complaint, be transferred to the Complainant.
- The statements and documents submitted by the parties. In this case, the Respondent did not respond to the complaint and, therefore, only the statements of the Complainant will be taken into consideration.
6.2.1. Identity of or confusing similarity between the domain name and the Complainant’s trademarks.
The Complainant has evidenced that it is the owner of the trademark CASINO DE MONTE-CARLO, applied for on August 13, 1996, and registered on October 30, 1996, in the Principality of Monaco.
The disputed domain name includes the two terms to which the Complainant jointly holds exclusive rights “Monte-Carlo” and “Casino”.
The change in the order of the terms “Casino” and “Monte-Carlo”, the elimination of the dash in the name “Monte-Carlo” and the replacement of the word “de” by a dash in the domain name in dispute are not sufficient to prevent the risk of confusion with the trademark. Therefore, the Panel considers that the domain name is similar to the trademark of the Complainant.
The suffix “.com” is not sufficient to differentiate the trademark of the Complainant and the domain name, since this is a compulsory indication of a First Level Domain.
In consequence, the first requisite called for by paragraph 4(a)(i) of the Policy should be considered as met.
The Panel must take into account the decisions in the context of domain names that use the CASINO DE MONTE-CARLO trademark of the Complainant (for instance, Societ� des Bains de Mer et du Cercle des Etrangers � Monaco v. Britannia Finance et al., WIPO Case No. D2000-1315; Societ� des Bains de Mer et du Cercle des Etrangers � Monaco v. International Lotteries et al, WIPO Case No. D2000-1327; Societ� des Bains de Mer et du Cercle des Etrangers � Monaco v. International Services Inc. et al., WIPO Case No. D2000-1328). The exclusive rights derived from the registration of the trademark of the Complainant also cover the combination of the words “Casino” and “Monte-Carlo”, considered jointly and not individually, so that the use of the two terms together could prevent confusion in the mind of the consumer with the “Casino de Monte-Carlo”.
The Complainant maintains that the Respondent has no rights or legitimate interests in the disputed domain name, because (1) the Respondent does not hold any industrial or intellectual property rights on the terms used in such domain name, (2) the domain name is not being used for a bona fide, offering of a product or service, and (3) the Respondent does not hold any authorisation or licence to use the domain name.
On its part, the Panel, to determine whether the existence of rights or legitimate interests, should consider Paragraph 4(c), in connection with Paragraph 4(a)(ii) of the Policy, which establishes a series of non-exclusive circumstances that might illustrate the Respondent’s rights. Therefore, it could be considered that a right or legitimate interest exists if, before receiving the notice of the complaint; the Respondent uses the domain name or has prepared its use; or uses a name corresponding to the domain name through which the Respondent offers a bona fide offer of products or services; the Respondent is already known by such domain name, even though he has no trademark rights; or the Respondent makes a legitimate or non-commercial use of the domain name without any intention of confusing consumers or damaging the good name of the trademark for making a profit.
The Panel considers that none of these circumstances exist in the current case. On the contrary, the Respondent is only interested in the domain name to obtain profits through its sale. In fact, the Complainant has evidenced that the domain name was automatically redirected to a site that hosts domains for sale, and an offer has been made to the Complainant for a price much higher than the out-of-pocket expenses. This evidences that the Respondent has no rights or legitimate interests in the domain name, and that the Respondent only intends to make profits using the renown of the Complainant’s trademark.
Furthermore, the fact that the Respondent has not appeared in the proceeding shows his lack of interest, since he has not even tried to give reasons that might justify any right in the domain name in question.
Similarly, and as affirmed in the complaint, it is evident that the Respondent has no rights, license or authorization for the trademark that reproduces the domain name in dispute.
It is necessary to separately analyse whether the requisites of registration and use in bad faith occur, considering the special circumstances of the case.
Even though Paragraph 4(a)(iii) of the Policy makes no reference to the need for the trademark right of the Complainant to be prior to the date of registration of the domain name, it is evident that, to affirm that there has been bad faith in the registration, the Complainant should show that the Respondent knew, before the registration of the domain name, the right of the Complainant to the mark, and took advantage of this circumstance to unduly take possession of a confusingly similar domain name known as a property of the Complainant. In this respect, Highlight Communications AG v. Auto System Inc., WIPO Case No. D2000-0512, is very illustrative. This decision deals with whether rights acquired subsequently could suggest that registration of a domain name was made in bad faith. The decision concludes by saying that, even though the Policy does not expressly state it, it should be considered that this issue must be examined when judging if the registration has been made in bad faith.
Consequently, to enable the Panel to reach a conclusion with respect to the existence or non-existence of bad faith when registering the disputed domain name, it is necessary to examine the situation of the rights of the Complainant at the time of the registration, and the eventual knowledge of such right by the Respondent when he registered the domain name.
In this case, the Complainant has evidenced that it applied for the CASINO DE MONTE-CARLO trademark on August 13, 1996, and that the trademark was registered in the Principality of Monaco on October 30, 1996. Therefore, such trademark existed prior to the registration of the disputed domain name.
Similarly, this Panel considers that, taking into account the renown of Casino de Monte-Carlo worldwide, the Respondent can never, in any case, allege the ignorance of the trademark of the Complainant.
Once this question has been analyzed, paragraph 4(b)(i) of the Policy, states that bad faith has occurred if it is shown that the Respondent has registered and is using such domain name (1) to sell, rent or assign the registration for a certain value, (2) to prevent the owner of the trademark from holding it as a domain name, (3) to disrupt the commercial activities of a competitor or (4) to attract Internet users, for making a profit, by creating confusion with the trademark of a competitor.
At this point, it should be pointed out again that the Complainant has evidenced that the disputed domain name redirected, on June 7, 2004, to a site for the sale of domain names, expressly stating on the site, in French, that “the domain name is on sale”. (Annexe I).
Similarly, the Complainant has evidenced that the system used to sell this domain name was through on-line auctions (Annexe J).
However, it should be pointed out that, even though as at the date of this decision the disputed domain name does not redirect to any site, it is considered that it has been sufficiently evidenced that, at the time of filing the complaint, the redirection existed and, therefore, that date is the one that the Panel should take into account to assess and analyse the registration and use made of the domain name in question.
Consequently, it is evident for the Panel that the only intention of the Respondent when registering this domain name was to take advantage of the fame and prestige of the trademark of the Complainant, in order to obtain a profit by a sale of the disputed domain name.
That registering a domain name in order to sell it for an amount exceeding the out-of-pocket expenses, as occurred in this case is bad faith, has been acknowledged by the following decisions, among others: Reckitt Benckiser AG v. Nazim Oren, WIPO Case No. D2002-0286; Z-Tel Technologies, Inc., v. Domain Deluxe, WIPO Case No. D2001-1427; ThyssenKrupp USA, Inc. v. Richard Giardini, WIPO Case No. D2001-1425; BellSouth Intellectual Property Corporation v. Jaclyn aka Jaclyn Thoms, WIPO Case No. D2001-1409.
Therefore, the conclusion of this Panel is that the registration was made in bad faith.
In the context of whether the domain name has also been used in bad faith, we have to refer to the principle already established in many decisions. Such decisions set out that the party that makes a registration in bad faith and without a legitimate interest is also using the domain in bad faith. (J. Garc�a Carri�n v. Maria Jos� Catal�n Fr�as, WIPO Case No. D2000-0239; Port Aventura, S.A. v. Miguel Garc�a Quintas, WIPO Case No. D2000-0751; Real Madrid Club de F�tbol v. Lander W.C.S., WIPO Case No. D2000-1805).
Moreover, in this case, the use in bad faith is evidenced by the fact that the disputed domain name was redirected to a page for the sale of domain names through the system of online auctions, i.e., for a price exceeding the out-of-pocket expenses of the holder. This circumstance is also of paramount significance to evidence the existence of bad faith use of the disputed domain name.
In summary, the conclusion of this Panel is that both the registration of the domain name in question and its use have been made in bad faith. Consequently, the third requisite called for by Rule 4(a)(iii) of the Policy has been met.
Based on the above findings and conclusions, this Panel decides that the Complainant has evidenced the existence of the three elements necessary set out in paragraph 4(a) of the Policy and, consequently, on the basis of paragraphs 4(i) of the Policy and 15 of the Rules, this Panel orders that the domain name <montecarlo-casinos.com> be transferred to the Complainant.

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Our legitimate interest pursuant to Art. 6 para. 1 sentence 1 f GDPR for the collection of data is based on the following purposes: ensuring smooth connection establishment and convenient use of the website, evaluation of system security and stability and for other administrative purposes.
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Justia › US Law › US Case Law › US Supreme Court › Volume 271 › Evansville & Bowling Green Packet Co. v. Chero Cola Co.
Evansville & Bowling Green Packet Company v.
A wharfboat, in a river, used as an office, warehouse, and wharf, but not used or capable of use as a means of transportation, held not a "vessel " within the law allowing limitation of liability. Rev.Stats. § 4283; Act of June 19, 1886, 24 Stat. 79. P. 271 U. S. 22.
Appeal from a decree of the district court dismissing, for want of jurisdiction, a petition in admiralty for limitation of liability.
to appellee's merchandise thereon. Appellant filed a petition in admiralty for limitation of liability. Appellees answered, and after a trial at which much evidence as to the character of the structure was given, the district court found that it was not a vessel within the meaning of the statutes sought to be invoked, held that the court was without jurisdiction, and dismissed the cause. The appeal is under § 238, Judicial Code, and the question of jurisdiction alone is certified.
"The liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, lost [loss], damage, or forfeiture, done, occasioned, or incurred, without the privity, or knowledge of such owner or owners shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending."
The Act of June 19, 1886, c. 421, § 4, 24 Stat. 79, 80, makes the provisions relating to limitation of liability apply to "all vessels used on lakes or rivers or in inland navigation, including canal boats, barges, and lighters."
from ice. While in use at Evansville, it was secured to the shore by four or five cables, and remained at the same point, except when moved to conform to the stage of the river. The lower part of the structure was rectangular, 243 feet long, 48 feet wide, and 6 feet deep. It was built of wood, and, to strengthen it and keep the water out, was lined around the sides and ends, extending 18 or 20 inches from the bottom, with concrete eight inches thick. It had no machinery or power for propulsion, and was not subject to government inspection, as are vessels operated on navigable waters. There was plumbing in the structure, and it was connected with the city water system; it obtained current for electric light from the city plant, and had telephone connections. Appellant's office and quarters for the men in charge were located in one end of the structure. There were floats and an apron making a driveway between the land and a door near each end. The wharfboat was used to transfer freight between steamboats and land and from one steamboat to another. Some shippers paid fixed monthly charges for storage of their goods on the structure and for services in transferring them to and from steamboats. Charges made for services performed by its use were for storage and handling, and not for transportation.
applied having regard to the purposes it is intended to subserve and the reasons on which it rests.
The only question presented is whether appellant's wharfboat was a "vessel" at the time it sank. It was an aid to river traffic, but it was not used to carry freight from one place to another. It was not practically capable of being used as a means of transportation. It served at Evansville as an office, warehouse, and wharf, and was not taken from place to place. The connections with the water, electric light, and telephone systems of the city evidence a permanent location. It performed no function that might not have been performed as well by an appropriate structure on the land and by a floating stage or platform permanently attached to the land. It did not encounter perils of navigation to which craft used for transportation are exposed. There appears to be no reason for the application of the rule of limited liability. Many cases, involving a determination of what constitutes a vessel within the purview of the statute have been before the courts, but no decision has been cited, and we have found none, that supports the contention that this wharfboat was a vessel. Cf. Cope v. Valette Dry Dock Co.,119 U.S. 625, 119 U. S. 629; The Robert W. Parsons, 191 U. S. 17, 191 U. S. 30; Ruddiman v. A Scow Platform, 38 F. 158; Patton-Tully Transportation Co. v. Turner, 269 F. 334, 337.


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1. 1619. Misbranding of canned peas. U. S. v. 190 Cases of Early June Peas. Consent decree of condemnation. Product ordered released under bond for relabeling.
2. 1142. Misbranding of canned peas. U. S. v. 340 Cases of Canned Peas. Consent decree of condemnation. Product ordered released under bond to be relabeled.
3. 4425. Adulteration and misbranding of canned tomatoes. U. S. v. 1,583 Cases, 1,800 Cases, and 73 Cases of Canned Tomatoes. Decrees of condemnation. One lot ordered released under bond for relabeling; one lot ordered released under bond for segregation and destruction of unfit portion; remaining lot ordered given to a charitable institution.
4. 5045. Misbranding of canned tomatoes. U. S. v. 898 Cases of Canned Tomatoes. Decree of condemnation. Product ordered released under bond for relabeling.
5. 11655. Adulteration of canned field peas. U. S. v. 1,797 Cases.
10. 12960. Adulteration and misbranding of canned tomatoes. U. S. v. 1,999 Cases.

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