Terms and Conditions for Online advertizing
1. Exclusive Scope, agreement
1.1 In its own name and for its own account, the Ebner Media Group GmbH & Co KG, Karlstrasse 3, D-89073 Ulm (hereinafter referred to as "publisher") markets advertizing appearances for the websites and for the smartphone or tablet PC applications that it operates.
1.2 The following terms and conditions are exclusively valid for all contractual relationships between the publisher and the advertizing contractual partner (hereinafter referred to as "customer") with regard to the placement of advertisements. The validity of any general terms and conditions of the customer is expressly excluded, even if the publisher does not contradict in individual cases.
1.3 The publisher agrees to comply with the regulations of the minimum wage (MiLoG). This is also valid, insofar as the publisher orders other contractors with attendances.
2. Services of Online advertizing Media
2.1 "Services" within the meaning of these terms and conditions are all online advertizing media which are bookable from the publisher, as well as other services of the publisher which are bookable in the context of the advertizing (e.g. the programming of advertizing media, microsites, implementation on marketing programs, etc.).
2.2 "Online advertizing media" are offers that consist of an image and/or or text and/or sound and/or moving images and/or a sensitive area (e.g. a link) which, when the user clicks on it, will connect the user to a web address that has been predefined by the advertiser. In addition to classical banner advertizing, these can also include product and company entries, sponsoring, email campaigns or microsites. Also included are the customer's so-called "download offers," such as video ads, e-books, or other download or streaming offers which the publisher keeps available.
2.3 "Advertizing order" is the contract for the placement of an online advertizing medium or other services for the purpose of dissemination by the publisher.
3. Conclusion of the Contract
3.1 An advertizing order fundamentally comes into being upon written or email confirmation, or upon (partial) rendering of the services by the publisher.
3.2 If the booking comes via an intermediary (an advertizing agency), then, in case of doubt, the contract comes into being with the advertizing agency itself. If an advertiser becomes a client, then the agency must inform the publisher of same, including mention of the new customer by name.
4. Customer's Obligation to Cooperate
4.1 If the online advertizing media are to be placed by the publisher, then the customer must make the advertizing media available to the publisher no later than four workdays prior to the agreed date of first publication. The data must be provided in compliance with the publisher's current technical format requirements. If a delayed delivery or a delivery which does not comply with the technical requirements makes it impossible for the publisher to publish the advertizing in an orderly and punctual manner, then the customer's payment obligation shall remain unaffected by this. The customer shall bear the expenses for the preparation of error-free material or for changes in the agreed versions which the customer requests or for which the customer is responsible.
4.2 The customer has the right to include links to a target URL if clicking the link causes a new browser window to open. The use of other technical means which reroute the user away from the website or collect data about the user is prohibited; in particular, express written permission from the publisher is required to permit the usage of over-the-page (DTP) advertizing, the insertion of prompts requesting the user to input personal data, and the placement of cookies.
5. Customer's Obligations, Exemption from Liability
5.1 Through the use of appropriate and up-to-date protective software, the customer shall ensure that the advertizing media which he transmits or inserts are free from malicious codes, e.g. viruses and/or Trojan horses.
5.2 The customer is responsible for the contents of the online advertizing media and for ensuring that the online advertizing media do not infringe upon third-party rights. The publisher is not obliged to monitor the online advertizing media to verify its compliance with currently valid legal regulations. The customer shall exempt the publisher from third parties' claims resulting from the implementation of the contract, even if the contract is cancelled.
5.3 With respect to all authors of online advertizing media, the customer affirms that he has acquired, insofar as possible, the necessary usage and exploitation rights, pursuant to the
granting of rights to the publisher as specified in sections 10.1 and 10.2. The same applies to any necessary agreements with collecting societies (especially the GEMA). The customer shall bear all costs charged by these collecting societies.
6. Right to Refuse, Interruption of the Advertizing Campaign, Identifiability
6.1 The publisher can refuse individual online advertizing media if the media violate applicable law or case law, disobey official or court orders, infringe on the rights of third parties, or if the publication is unreasonable for the publisher because of the content or origin of the media or because of technical reasons. This right also exists for individual online advertizing media which are to be published in fulfillment of a framework contract with the customer.
6.2 The publisher has the right to (temporarily) interrupt the implementation of advertizing measures if there is reason to suspect that the conditions specified in section 6.1 are satisfied. The publisher especially has this right in the event that: a third party submits an apparently not unfounded claim asserting that his rights have been infringed upon; a warning has already been issued in a similar instance; or governmental authorities have begun investigations. The same applies in the event that the customer makes subsequent changes in the contents of the advertizing media and these changes lead to a violation pursuant to section 6.1. The publisher will immediately notify the customer about any such interruption and will give him the opportunity to explain the legality of the advertizing measures and, if applicable, to prove their legality.
6.3 Conversely, the customer can demand that the publisher must interrupt or remove the advertisements if a third party files a claim against the customer accusing the customer of infringing on the third party's rights. If the customer is able to remove the advertisements or take them offline on his own, then he himself is obliged to remove or stop the advertisements.
6.4 In the event of a refusal or interruption of advertizing measures pursuant to the preceding sections, the customer is nonetheless obliged to pay the agreed sum minus the amount which the publisher has saved by refusing or interrupting the advertisements, unless the publisher has been able to sell the intended advertizing space to another customer. The obligation to pay does not exist if the customer can prove that the contents of the advertisement were legal and that there accordingly were no valid reasons for the publisher to have refused or interrupted the advertizing.
6.5 At the publisher's discretion, advertizing media that are not clearly identifiable as advertizing will be separated by the publisher from other contents, e.g. by labeling the former as "advertisement."
7. Publisher's Warranty, Customer's Obligation to Reprimand, Limitation Period
7.1 As specified in the order's confirmation and in the "Technical Format Requirements," the publisher guarantees the customary quality and publication of the online advertizing medium in accordance with the data provided by the customer.
7.2 If the published online advertizing medium does not uphold the required quality, the customer is entitled to an extension of the publication period or to an immediate substitute placement in a comparable context. However, this entitlement applies only to the extent to which the purpose of the online advertizing medium was impaired. If, despite the setting of a reasonable deadline by the customer, such a replacement advertisement is not published by the publisher, or if its publication is unacceptable for the customer, or if this replacement advertisement is likewise does not uphold the required quality, then the customer has the right to reduce payment to the extent to which the purpose of the online advertizing medium was impaired and/or to cancel the order.
7.3 The customer shall scrutinize the advertisement immediately after its date of first publication and, if any defects are discovered, the customer shall reprimand the publisher for same (customer's obligation to reprimand). If hidden defects are discovered at a later date, the customer shall reprimand the publisher immediately after their discovery. Reprimands for obvious defects must be communicated in writing within five workdays after the first publication; reprimands for hidden defects must be communicated in writing within the same period after their discovery.
7.4 The publisher guarantees the availability of the websites so that the advertizing media are accessible at least 94% of each month. This time period does not include interruptions of reasonable duration which are necessary for the maintenance of the system, as well as interruptions due to force majeure or unavoidable causes. The availability is defined as the ratio of actual time to target time.
8. Placement of advertizing; Use of Data, Period of validity, Availability, Prices
8.1 The publisher will place the advertizing media within the framework of each booked advertizing campaign and with the greatest possible consideration of the customer's wishes. Unless otherwise agreed, the customer has no claim to a particular placement or to the exclusion of advertisements for goods or services of a competitor of the customer.
8.2 If necessary, the publisher will put download offers into a database, along with company or product listings containing information about other customers. The publisher will keep these data available for users to access on the channels which the customer has booked.
8.3 If the customer receives personal or anonymous or pseudonymous data via services provided by the publisher, then these data may be evaluated by the customer only within the framework of the customer's specific advertizing campaign, only in accordance with the currently valid data-protection regulations, and only if such evaluation has been agreed within the context of the advertizing contract. The customer is not permitted to further process and/or to use the data, and he is especially prohibited from conveying the data to third parties. This prohibition also includes creation of profiles based on the users' usage behavior, especially through enrichment of existing data with third-party information.
8.4 The publisher's price list that is valid at the time when the order is placed shall apply to the advertizing order. Price changes are permitted if more than four months pass between the signing of the contract and the agreed first appearance of the online advertizing medium. However, such price changes are effective only if they were announced by the publisher at least one month prior to the publication of the online advertizing medium. The customer is entitled to revoke the order within fourteen days after his receipt of notification about the price increase.
8.5 In the event of an order to place several online advertizing media (general agreement), the revocation of individual advertizing media must occur within one year after the signing of the contract. The price list that was valid at the time when the advertisement was placed shall determine its price. Agreed or allowed discounts apply only to the volumes of online advertizing media that were specified in the order. If the complete revocation of the booked advertizing media does not occur within the one-year period, the customer is obliged to refund to the publisher the difference between the contractually granted discount (taking into consideration the predefined total volume) and the actual total volume (discount adjustment charge).
8.6 If the customer has booked a certain number of ad impressions for an advertizing measure, the publisher points out that these figures are necessarily based on past experience. If the booked number of ad impressions is not reached, the placement interval for the advertizing measure will be extended until the booked number of ad impressions has been reached. If the placement that was booked by the customer has already been assigned to another customer for the extended advertizing period, the publisher has the right to relocate the advertisement to a comparable position that appropriately takes the customer's interests into account. Due to the differences among various systems, counting differences
sometimes occur when third-party ad servers are used. The figures of the publisher always serve as the basis for billing.
8.7 If the publisher provides services that are subject to copyright, the publisher grants to the customer the simple utilization and exploitation rights which are necessary to conduct the advertizing campaigns. Any further utilization and/or exploitation by the customer require written permission from the publisher.
8.8. With the conclusion of the contract, the customer agrees that the publisher will send accompanying information per e-mail. For example, proofs, invoices, statistics, or other product-related informations.
9. Payment Terms, Cash in Advance, Right of Retention and Right of Setoff
9.1 The invoice will be prepared on the first day of appearance of the ordered online advertizing medium and not later than the end of the month in which the ordered advertisement was published. If advance payment has not been agreed, then the invoice is to be paid in full within ten workdays after its receipt. After this period has elapsed, the customer is in default and must pay the sum specified on the invoice plus interest in the amount of 8% above the prevailing base rate according to §247 BGB (German Civil Code).
9.2 If the customer does not comply with his payment obligations as specified in the contract, if he fails to submit payment before expiration of the agreed time period or stops making his payments, or if other circumstances become known which raise doubts about the customer's creditworthiness, then, without prejudice to existing deferred payments and installment payments, the publisher can demand advance payment for services specified in the contract and can also demand payment of all outstanding invoices, including invoices which are not yet payable. Furthermore, the publisher has the right to refuse to provide currently running services until he has received full payment of the outstanding amounts.
9.3 Regardless of any other regulations, the payment will first be offset against the older debt (in this instance: the interest) and then against the principal.
9.4 The customer is entitled to offset or withhold payments only if the claims are accepted by the publisher or the counterclaims are legally established.
10. Granting of Rights by the Customer
10.1 The customer transfers to the publisher the necessary utilization and exploitation rights, as well as other ancillary copyrights, to the online advertizing media and to other contents which are published in the context of the advertizing order. In particular, these rights include the database right, the right to reproduce, disseminate, broadcast and record, and the right to public disclosure.
10.2 With regard to the download offers, and in the interest of comprehensive marketing of the customer's contents, the customer further grants to the publisher the right to license the contents to third parties who keep these contents available in the internet, or to use the contents for offers in other forms (so-called "content syndication").
10.3 The customer grants these rights for the duration of the placement of the advertisement. With regard to the content syndication as specified in paragraph 10.2, the rights are granted in perpetuity, but the grant can be revoked at any time with two weeks' prior notice.
11. Liability of the Publisher
11.1 The publisher assumes unlimited liability for damages caused by his legal representatives or executive employees and for damages caused deliberately by other agents acting on his behalf; in the event of a negligent breach of duty, the publisher is also liable for damages arising from injury to life, body or health. The publisher is liable for product liability damages in accordance with the provisions of the Product Liability Act. The publisher is liable for damages caused by his legal representatives or executive employees arising from the breach of cardinal obligations; cardinal obligations are the essential duties which form the basis of this contract, which were crucial for the completion this contract, and upon the fulfillment of which the licensee can rely. If the publisher has breached these cardinal obligations due to slight negligence, then his liability is limited to the amount that was predictable for the publisher at the time when each service was rendered. The publisher is liable for the loss of data only up to the amount that would have been incurred for recovery of the data if proper and regular backup of the data had been undertaken. Further liability of the licensor is excluded.
12. Place of Jurisdiction, Place of Performance and Applicable Law
12.1 The place of jurisdiction and the place of performance is the head office of the publisher in Ulm, Germany. This applies only if the customer is a merchant in the sense of §§ 1, 2, 3, 5 and 6 HGB (German Civil Code), a legal entity or a special fund under public law, or if the customer's domicile or habitual residence is unknown at the time when the complaint is raised, or if, after the signing to contract, the customer's domicile or habitual residence changes to a location beyond the jurisdiction of the law, or if the customer has no general jurisdiction in Germany. However, the publisher also has the right to sue at the court of law which is responsible for the region in which the customer's head office is located.
12.2 German law applies with the exclusion of the UN Sales Convention.