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General Terms and Conditions of Internet Advertisement

General Terms and Conditions of ERASOFT



Media Sales

1. Scope
2. Conclusion of the Contract
3. Rights and Obligations of the ERASOFT
4. Client’s Rights and Obligations
5. Granting of Rights
6. Prices and Payment Terms
7. Term and Cancellation
8. Warranty / Liability
9. Final Provisions

 

1. Scope


1.1 The following conditions shall apply for the advertising services of the ERASOFT, Erik Schmuck B.A., Na Valticke 700/67, 691 41 Breclav, Czech Republic, represented by Erik Schmuck ("ERASOFT") on the web pages operated by the ERASOFT as well as for the advertising services of the ERASOFT on web pages not operated by the ERASOFT (hereinafter referred to as “Online Advertising”). This shall include, but not be limited to, advertising banners, pop-ups, sponsoring of services including sponsored coupons and e-commerce sponsoring, as well as the areas of thematic link placements, special interest placements, and keyword placements.

1.2 Even if the ERASOFT should have knowledge of any deviating, opposing and/or supplementary general terms and conditions, such terms and conditions shall not form part of the Contract unless the ERASOFT has expressly agreed to them.

 


2. Conclusion of the Contract


2.1 A contract between the ERASOFT and the advertiser, an advertising agency, or any other third party (hereinafter collectively referred to as “Client”) relating to Online Advertising shall be deemed entered into upon acceptance of Client’s order by the ERASOFT.

2.2 The ERASOFT shall enter into a contract for Online Advertising with an advertising agency or an advertising broker only for Clients that are clearly identified by name. Upon request the advertising agency and/or the advertising broker must supply proof that they have been duly commissioned.

 


3. Rights and Obligations of ERASOFT


3.1 The ERASOFT shall provide the requested advertising according to the data specified in the order form. Client shall not be entitled to demand that the Online Advertising be placed at a certain location within the web page in question.

3.2 In so far as compensation is calculated on a TCP basis the ERASOFT shall, upon request, inform Client of the number of AdImpressions and AdClicks as well as about the AdClick rate (ratio of AdClicks and AdImpressions) of the web pages on which Client’s Online Advertising has been placed; if compensation is calculated on a Pay-Per-Click basis, the ERASOFT shall inform Client of the number of actual clicks as illustrated at URL http://www.erasoft.info/.

3.3 To the extent that the Online Advertising is not obviously recognizable as advertising, the ERASOFT may identify it as such, in particular by marking it with the word “advertising” and/or distinguishing it spatially from the editorial content in order to clearly emphasize its advertising character.

3.4 The ERASOFT may render partial performance of services to the extent that this does not burden Client unreasonably.

3.5 The ERASOFT reserves the right to delay the publication date of Online Advertising to the extent that there exist legal reservations about the publication, that the stipulated service for the Online Advertising is not available for legal reasons, or that technical circumstances prevent publication on the agreed date. The ERASOFT, when delaying a publication date, shall show due consideration for those interests of the Client of which the ERASOFT is aware, to the extent that this is possible and reasonable.

3.6 If contents and materials for online advertising are not received in time by the ERASOFT, i.e. a minimum of 3 working days prior to first publishing, as well as a minimum of 5 working days prior to publication for special advertising formats, and if for that reason the delivery of the online advertisement of the ERASOFT is delayed or, regarding wait orders, it is impossible to start delivery at all, the ERASOFT are released from their obligation to perform for the duration of the delay. The operating figures that are to be achieved by the ERASOFT are reduced respectively. Even then the ERASOFT is entitled to claim their payment as agreed in the contract to the full extent.

3.7 The ERASOFT is entitled to interrupt the online advertisement or to reject any material and contents made available for online advertising by the customer, if and when there is reasonable suspicion for the material including the contents referred to via link within the online advertising to be an infringement of the applicable law or any government regulations, a violation of any third party’s rights, or if they were objected to in an appellant process by the Advertising Counsil or if and when their publication is impossible or unacceptable due to their technical form.
If the contractor arbitrarily amends any already published advertising medium subsequently, also inasmuch data referred to via a link are concerned, and if the amendment complies with the requirements of paragraph 1 of this item, the ERASOFT is likewise entitled to block the respective advertising media or the order and to terminate its publication.
In this regard, however, the ERASOFT is not bound to screen advertising media of their customers for possible infringements of applicable law, especially of item 4.5 of these Terms and Conditions
The ERASOFT shall inform Client without delay of any such block, stating the reasons therefor. In such a case the ERASOFT may offer to change the Online Advertising in question. Any additional costs resulting from the repeated programming and/or re-programming of the web pages including Online Advertising shall be borne by Client, subject to the prices listed in the media data; any expenses shall be reimbursed.

3.8 The ERASOFT may furthermore reject any contents and material, if and when their content or quality does not comply with the technical specifications of erasoft.info. In such a case Client shall be entitled to provide the ERASOFT with a changed version of the Online Advertising. If this replacement advertising is not received by the ERASOFT in time, i.e. at least 12 hours prior to the first scheduled publication, the ERASOFT is still entitled to the contractually agreed-upon compensation even if the Online Advertising is not published or is not published on time. In case this surrogate advertising is not received in time by the ERASOFT, item 3.6 is to be applied respectively.

3.9 Further, the ERASOFT reserves the right to refuse Online Advertising from the ERASOFT’s competitors. The parties have agreed that the ERASOFT shall be entitled to a right of termination on exceptional grounds if, after conclusion of the Contract, the ERASOFT gains knowledge of circumstances that justify a refusal. In such a case Client shall have no further claims.

3.10 The ERASOFT shall also have the right to enter into agreements regarding Online Advertising with Client’s competitors.

3.11 At any time the ERASOFT is entitled to develop their own services or to have them developed on their own behalf, thereby fully or substantially substituting the contractual services of the contract partners. As far as the ERASOFT makes use of this right or intends to do so, the ERASOFT is entitled to terminate the present contract with 3 months notice to the end of the month.

3.12 The ERASOFT shall not be obligated to produce graphics and/or advertising copy. To the extent that the ERASOFT should render such services based on individual agreements, the costs for producing graphics and/or advertising copy shall be paid for separately on the basis of the prevailing the ERASOFT rates at that time.

3.13 The ERASOFT is entitled to remit the groß advertising rates of the client on product level and allocation unit for the publication to R.E.P. FILM.

 


4. Client´s Rights and Obligations


4.1 No later than three business days prior to the scheduled publication, Client shall provide the ERASOFT with the materials and information, complete and free from defects, which are necessary for the Online Advertising. Client is obligated to check the lawfulness of the materials and the type of advertising prior to their submission to the ERASOFT. Client shall warrant that the material is suitable for the agreed-upon purposes, in particular for screen display, in the various links and in the contractually agreed upon type and size.

4.2 Client undertakes to comply with the technical and content specifications pursuant to the contractual provisions. Particular specifications regarding media data shall also apply. These may be retrieved at the URL https://www.erasoft.info/, or they may be requested in hard copy from the ERASOFT.

4.3 Any and all of the ERASOFT’s services shall be subject to the precondition that the ERASOFT receive that which is necessary for the performance of the ERASOFT’s obligations hereunder in an accurate and timely manner, and that Client fulfill and/or perform any and all obligations and cooperative actions. Client shall appoint an employee as contact person and inform the ERASOFT accordingly.

4.4 The customer warrants that the online advertisement itself as well as its contents comply with any and all of the relevant legal provisions and that they particularly do not infringe any provisions of criminal or competition law and that no rights of any third party (right to bear a name, copyright, data privacy laws, etc.) is violated. If the customer is using personally identifiable data (e.g. pseudonymized profiling) from a third party for the delivery of Online Advertising through ad formats by ERASOFT, the customer is making sure that the personal data will be processed appropriate to its purpose constituted on its legal basis. In this context the customer may not infringe statutory prohibitions, morality and any third party’s rights with their form, content or the pursuit of the purpose of their online advertisement. The customer specifically commits himself to consider this within the framework of their online presence, as well as not to display any pornographic contents, neither to glorify violence or to incite to hatred between segments of the population or minority groups, not to incite to criminal offences and not to offer or allow anybody to offer services which deal with pornographic contents (e.g. nude shots, peep shows, etc.) there.



4.5 The customer is obligated to adhere to the applicable data protection provisions – specifically the European Union as well as the data protection provisions for teleservice – and to impose this obligation on their employees also.

4.5.1 Should the customer obtain or collect any data from the release of advertising media on the online offers of the ERASOFT by using specific techniques such as e.g. cookies or web-bugs, the customer warrants, that they shall adhere to the stipulations of the Law on Telemedia or the State Treaty on Broadcasting respectively, as well as the Data Protection Provisions, when ascertaining, processing and using personal data.

4.5.2 Inasmuch as the customer accrues any anonymous or pseudo-anonymous (and as such personal) data due to his access to advertising media they supplied for the online offers of the ERASOFT, then the customer may analyse those data in the framework of the respective campaign for the benefit of the actual advertiser, who commissioned the customer with releasing the respective campaign. This analysis may comprise only those anonymous and pseudo-anonymous data generated by releasing the advertisement on the online offers of the ERASOFT.

4.5.3 Furthermore the customer is enjoined from any further processing, utilization and dissemination of any and all data (anonymous and personal) beyond the respective online offers of (Contractual Partner) due to his access to those advertising media they supplied for the online offer of the ERASOFT. The customer is particularly not entitled to save those data accrued from the release of advertisements on the online offers of the ERASOFT for their own purposes and/or analyse them, use them otherwise or impart them to any third party. For example, this applies to IP addresses which are required for a basic technical functionality process of our ad delivery system. The customer has to immediately anonymize or delete such personally identifiable data. This prohibition also covers the compilation of profiles of the usage pattern of the user on the online offers of the ERASOFT and their further utilization.

4.5.4 If the customer employs the systems of any third party for the release of advertising media on the online offers of the ERASOFT, they guarantee, that the operator of the system also adheres to this agreement. The customer assures that in case of a user’s withdrawal (opt-out) future data processing will end immediately and no cookies or other recognition identifiers will be used.

4.5.5 For each and any violation of the obligations arising from item 4.5 to item 4.5.4, the customer shall have to pay a contractual penalty amounting to the tenfold price of the order, the improper utilization of data stems from. Any possible further claims for damages remain unaffected.

 


5. Granting of Rights


5.1 Client shall grant the ERASOFT the worldwide, non-exclusive exploitation rights that are necessary for unrestricted Internet use in performance of this Contract, limited to the term of this Contract, in and to the contents provided in conjunction with the Online Advertising, and in particular the advertising contents.

5.2 The granting of rights shall be limited to the term of this Contract. The exploitation rights shall expressly be granted only as non-exclusive rights, i.e. Client shall remain entitled to dispose of the rights in and to the contractual contents and materials. Upon termination of this Contract, the ERASOFT shall relinquish the exploitation rights to the contents that were provided for the purposes of this Contract, and shall either return any materials provided by Client or provide proof of their destruction.

5.3 Client warrants that Client has the right to insert the hyperlinks connected with the Online Advertising. To the extent that Client, according to Client’s Online Advertising contract with the ERASOFT, uses the product keyword placement, Client warrants that it has the right to use the specified keywords and is authorized to use such keywords in the context of the Online Advertising.

5.4 Client warrants that it has at its disposal any and all rights granted to the ERASOFT under this Contract including, but not limited to, the necessary exploitation rights under copyright and neighboring copyrights. Further, Client warrants that the personal rights or any other rights of third parties will not be infringed upon by the exploitation of the contents in conformity with the Contract.

5.5 Client shall release the ERASOFT from any third-party claims which may be asserted in conjunction with the contractual exploitation of the contents or through non-compliance with Client’s obligation pursuant to Section 4. As far as the client causes advertising services by the ERASOFT on web pages not operated by the ERASOFT, the ERASOFT is entitled to release the particular operator of these web pages also correspondingly from any third-party claims, and the Client is obligated to release the ERASOFT from claims of the particular operators of these web pages or from such third-party claims. Costs to be reimbursed shall include reasonable costs of bringing an action and/or costs of legal defense which may accrue to the ERASOFT in the enforcement of rights granted to the ERASOFT hereunder or in the defense of third-party claims. However, the ERASOFT shall notify the Client without delay of any anticipated action or legal defense, in order to give the Client the opportunity to institute proceedings against a third party and/or third parties itself.

In case of a violation of the obligations pursuant to this item, item 3.7 of these Terms and Conditions applies.

 


6. Prices and Payment Terms


6.1 To the extent that the prices are not expressly stipulated in the order form, they can be found in the regularly updated media data, which may be retrieved at the URL erasoft.info, or requested from the ERASOFT in hard copy.

6.2 In the event of price increases of more than 5% over the previous price, Client shall be entitled to terminate the Contract for exceptional grounds. Client must state its intent to exercise this right in writing to the ERASOFT within ten business days after receipt of the price change notification, otherwise the price change shall be deemed approved.

6.3 The prices published by the ERASOFT are net prices. The ERASOFT shall indicate any statutory sales tax separately.

6.4 Payment for the ERASOFT’s advertising services shall be due the first day of publication of the Online Advertising against an invoice issued by the ERASOFT. To the extent that Online Advertising is not published due to Client not fulfilling its obligations, or due to sub-section 3.6, the first day of the scheduled publication shall be decisive for the due date.

6.5 Client has to state any objections to the ERASOFT over the invoiced amount within 6 weeks after receipt of invoice in written form. Failure to object in time shall be accounted as approval. This fact shall be pointed out by the ERASOFT on every invoice.

6.6 In case an order is not executed, for reasons which the ERASOFT is not liable for or due to a justified termination without notice by the ERASOFT, the contractor has to reimburse the ERASOFT the difference between the discount granted de facto and the discount respective to the real amount of booked services.

6.7 In case of a delay or deferment of payment, interest to the amount of 8% on top of the base lending rate, or 5% on top of the base lending rate, if the customer is a consumer in terms of Civil Code, shall be charged. The ERASOFT charges, in addition to possible bank charges, a processing fee of 10.00 Euro for every back posting of a bank transfer or any cancellation of a debit entry. The customer has the right to prove a more minor damage.

6.8 The ERASOFT is entitled to verify those documents and books relevant for the accounting of payments by a third person, subjected to professional discretion, during normal business hours. In case of reasonable doubt about the accounting of the ERASOFT a verification is possible at any time. The verification has to be announced with a period of 5 working days in advance. The ERASOFT is liable for the costs of such verification, unless the verification proves a divergence of more than 3% to the disadvantage of the ERASOFT. In such a case Client has to pay the costs. This right on the part of ERASOFT shall be effective for 5 years beyond the expiration of the contract.

6.9 A rebate according to the sales discount scale is only granted on each individual order, which fulfils the requirements of the rebate scale. Any orders whose contractual conditions diverge from the standard price list erasoft.info are not eligible for rebate.

 


7. Term and Cancellation


7.1 The term of the Contract is stipulated in the sales offer and/or in the ERASOFT’s order confirmation, the latter having priority.

7.2 Client may cancel advertising orders after conclusion of the Contract. The cancellation must be in writing. The ERASOFT shall terminate publication of the Online Advertising promptly upon receipt of the cancellation.

7.3 Cancellation up to two weeks before the start of publication is possible at no cost. In the event that cancellation occurs within a shorter period of time, the ERASOFT shall be entitled to bill the following amounts:

7.3.1 for cancellation after 2 weeks before start of publication up until start of publication: 30% of the net order value;

7.3.2 for cancellation after start of publication, 50% of the net value of the ordered advertising that has not yet been published at the time that publication of the Online Advertising is discontinued. In addition the price for the already published Online Advertising shall be billed. For this billing, the discount rate for the lesser volume shall apply.

7.4 In deviation from the above provisions, a cost-free cancellation of regularly scheduled bookings shall be possible only up until two weeks prior to the publication date. A regularly scheduled booking, in contrast to bookings for dynamic advertising space that contains continually changing advertising content, shall be understood to mean such advertising space that can be published only on a certain fixed date or only at a certain advertising location, including, but not limited to, advertising space in newsletters which are sent at fixed dates, or regularly booked subpages within the Portal Page (Microsite). If a regularly scheduled booking is cancelled less than two weeks prior to the publication date, the ERASOFT shall be entitled to charge the Client 100% of the net order value unless the Client proves to the ERASOFT that the advertising space may be sold otherwise by the booked date. In the event of a replacement booking, the ERASOFT shall be entitled to bill Client for the difference between the new and the cancelled net order value plus a handling fee of 30% of the cancelled net order value.

 


8. Warranty/ Liability


8.1 In the event of defects in the Online Advertising, the ERASOFT may opt to provide either correction or replacement. Should such re-performance fail, Client may demand a price reduction or rescission of the Contract. In the event of minor defects Client shall not have the right to cancel the Contract.

8.2 Client must notify the ERASOFT in writing of any apparent defects in the Online Advertising within 5 business days from live publication of the Online Advertising; should Client fail to do so, a warranty claim shall be excluded. The timely dispatch of the notification of defects shall be deemed sufficient for keeping the deadline.

8.3 Events of force majeure which render the performance of a service and/or the fulfillment of an obligation considerably more difficult or impossible shall give the affected party the right to postpone the performance of such service and/or the fulfillment of such obligation for the duration of the force majeure events plus an appropriate recovery time. The same provisions as those governing force majeure events shall apply to industrial disputes in the parties’ own companies and/or in third-party companies. If, because of the type of disturbance, it cannot be expected that the service can be performed within a reasonable period of time, each party shall be entitled to rescind this Contract, in whole or in part, due to the part of the service not yet performed.

8.4 Client shall release the ERASOFT from any third-party claims which may be asserted in conjunction with the contractual exploitation of the contents or through non-compliance with Client’s obligation pursuant to this contractual relationship. Costs to be reimbursed shall include reasonable costs of bringing an action and/or costs of legal defense which may accrue to the ERASOFT in the enforcement of rights granted to the ERASOFT hereunder or in the defense of third-party claims. However, the ERASOFT shall notify the Client without delay of any anticipated action or legal defense, in order to give the Client the opportunity to institute proceedings against a third party and/or third parties itself.

8.5 For all other purposes, the ERASOFT shall be liable only to the extent that the ERASOFT, the ERASOFT’s agents and/or the ERASOFT’s legal representatives have acted with intent or gross negligence. This shall not apply to the extent that primary obligations to perform under this Contract have been violated by the ERASOFT, the ERASOFT’s agents and/or the ERASOFT’s legal representatives.

8.6 In the event of slight negligence, liability of the ERASOFT and/or the ERASOFT’s agents and the ERASOFT’s legal representatives for financial loss shall be excluded with respect to indirect damage, including, but not limited to consequential, unforeseeable, or atypical damage, and lost profit.

8.7 For financial loss in the event of slight negligence, the ERASOFT’s liability shall be limited to the overall amount to be paid by the Client according to Section 6.

8.8 Any legally prescribed strict liability of the ERASOFT, in particular any such strict liability arising from the Product Liability Act and/or any liability arising out of an implied warranty, shall remain unaffected by the limitations of liability delineated in sub-sections 8.4 through 8.6 above. Further, sub-sections 8.4 through 8.6 shall not apply to the ERASOFT’s liability in case of culpable injury to the Client’s life, body, and/or health.

8.9 Sub-sections 8.4 through 8.7 encompass any and all contractual and non-contractual claims resulting from this Contract and/or the use of the services and/or the ERASOFT site.

8.10 Any claims of Client against the ERASOFT arising from defective performance or defects in the Online Advertising shall become time-barred one year after the claim arose and after knowledge or grossly negligent or intentional lack of knowledge of the circumstances that gave rise to the claim. This shall not apply to claims in tort and claims which are based on the ERASOFT’s intentional conduct.

 


9. Final Provisions


9.1 Any alterations, modifications, amendments or supplements to these General Terms and Conditions must be made in writing, by facsimile or by e-mail. Failure to meet this form requirement will render any such alterations, modifications, amendments, or supplements null and void. This shall also apply to any changes and/or modifications to this sub-section.

9.2 Venue shall be the ERASOFT’s registered office to the extent that Client is a "Buyer" as defined in the Commercial Code, a public law entity, or a public special fund. The same shall apply if Client should have no domicile or habitual place of abode in the European Union at the time legal proceedings are instituted.

9.3 Client shall not be entitled to assign or transfer claims under this Contract without the ERASOFT’s prior written consent. Client’s right to set-off or retention shall be limited to uncontested claims or claims recognized by declaratory judgment.

9.4 The parties to this Contract shall not make, publish and/or otherwise make available to third parties any press information, statements to the press and/or other public statements regarding the entering into or performance of this Contract without mutual prior agreement. Irrespective thereof the ERASOFT shall have the right to make reference to the cooperation provided for in this Contract.

9.5 This Contract shall be governed by the laws of the European Union with no application whatsoever of UN sales law (CISG).

9.6 A possible invalidity of one of the stipulations contained in these Terms of Use does not affect any of the remaining stipulations therein. Invalid stipulations are to be substituted by such stipulations as are closest to the invalid stipulations in their commercial relevance. The same is to be applied in case any gaps appear which need to be filled in.



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General Terms and Conditions of Internet Advertisement

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