General terms and conditions for advertising orders for digital offerings of BurdaForward GmbH
Valid for all advertising orders closed from 23.09.2021.
1.1 BurdaForward GmbH (Commercial Register: Munich Local Court HRB 213375, Value added tax identification number: VAT no. DE 296 466 883) St.-Martin-Straße 66 in 81541 Munich (hereinafter "BurdaForward") is a digital media house. BurdaForward is among other things conducting the commercialisation of its own and of third party operated digital content and services, including conventional and mobile websites, apps, presences in social media and as the case may be other (also future) forms of distribution, especially in the area of content and community (all hereinafter "Digital Offerings”).
1.2 This here General Terms and Conditions (hereinafter "GTC") shall apply to all business relationships entered into by BurdaForward and a business client (hereinafter "Client") with regard to the placement and processing of advertising orders for the Digital Offerings pursuant to clause 1.1 of these GTC.
1.3 Clients may only be business customers. Business customers are natural persons or legal entities – or business partnerships with legal capacity – who, when concluding a legal transaction, act in the exercise of their commercial or independent professional activity.
1.4 This here GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Client are hereby expressly excluded. This also applies if they have not been expressly contradicted and/or BurdaForward provides the contractual services without contradiction, i.e. provides Advertising Services.
2. Advertising Services
"Advertising Services" in the sense of these GTC are all advertising integrations and other services offered by BurdaForward.
2.1 Advertising integrations
"Advertising Integrations" in the sense of these GTC may consist of one or more of the following elements:
- a picture and/or text,
- sound sequences and/or moving images,
- a sensitive area which, when clicked on, establishes a connection to further data, which is within the Client’s sphere of influence, by means of a Digital Offering named by the Client.
Advertising Integrations may be created by the Client himself or, at the Client’s request, by BurdaForward.
2.2 Other services
"Other Services" in the sense of these GTC are all other bookable services of BurdaForward, e.g. creation services (hereinafter "Creation Services").
2.3 Labelling as advertising
Advertising Integrations that are not recognisable as such due to their design will be clearly identified as advertising by BurdaForward.
2.4 Formats / Special forms of advertising / Details
For Advertising Integrations, those formats are generally eligible, which are shown in the price lists valid at the time of the conclusion of the contract, which can be accessed at https://www.burda-forward.de/files/user_upload/BF_Advertising_Pricing_2021.pdf . Special forms of advertising are possible after consultation and review by BurdaForward. Details of an Advertising Integration are specified in the respective Advertising Order.
3. Contracting partners
3.1 The Client has the option of acting directly (hereinafter "as a direct client") for his own company, i.e. the Advertising Services relate to his own goods and/or services, or – for example as an advertising or media agency – to act for his company’s clients (hereinafter "on behalf of third-party clients"), i.e. the Advertising Services relate to the goods and/or services of a third-party client.
3.2 If the Client acts as a direct client, the provisions of these GTC shall apply directly.
3.3 If the Client acts on behalf of a third-party client, the provisions of these GTC shall apply with the following additional regulations:
- Advertising orders for third-party clients will only be accepted for named third-party clients, unless otherwise agreed between BurdaForward and the Client.
- The Client warrants that he has been commissioned by the third-party client to book Advertising Services for him with BurdaForward and that he has received all necessary authorisations / powers of attorney for this purpose.
- The Client warrants that he has fully coordinated each Advertising Order for a third-party client with them, obtained the third-party client’s consent to this Advertising Order and obtained all necessary rights from the third-party client.
- Notwithstanding the above provisions, the Client alone is entitled and obligated as a contractual partner vis-à-vis BurdaForward, i.e. the fulfilment of the contractual obligations is solely incumbent upon the Client. A contractual relationship between the third-party client and BurdaForward does not arise. The Client is liable for any action and omission and any breach of contractual obligations by the third-party client and/or employees of the third-party client as for his own action and omission and breach of contractual obligations. The Client indemnifies BurdaForward from all claims that the third-party client himself has or could have against BurdaForward from the activity related to him. With this regard, the Client shall also bear the costs of the necessary legal defence of BurdaForward, including all court and lawyer’s fees. Upon request, the Client shall without undue delay provide BurdaForward with all available information necessary to defend against such claims.
- For claims of third parties arising from advertisements concerning a third-party client, these GTC and in particular clause 8 hereof shall apply unchanged.
4. Advertising order and conclusion of contract
4.1 An "Advertising Order" within the meaning of these GTC is a contract about Advertising Integrations and/or other services in Digital Offerings for the purpose of distribution by BurdaForward.
4.2 A contract is concluded by the offer of BurdaForward to book an Advertising Service (offer) and the unaltered acceptance of this offer by the Client (acceptance), by the confirmation of an order by BurdaForward or by an individual contractual agreement. Any changes to the offer will only become effective upon confirmation by BurdaForward. A contract can be concluded in writing or via email.
4.3 Advertising for goods or services of more than one advertiser within an advertising presence (hereinafter: "Composite Advertising") requires the prior express consent of BurdaForward in writing or by email in each individual case. BurdaForward is entitled to charge a surcharge for Composite Advertising.
4.4 The minimum booking volume of an Advertising Order is nett nett 4,000 euro.
5. Execution of the advertising order
5.1 Supply of content
The Client is obliged to supply the content required for the implementation of the Advertising Services, in particular for the creation of an Advertising Integration (all hereinafter: "Content Supplied"), as agreed in the Advertising Order to BurdaForward in complete, faultless condition and in final, suitable digital form no later than three working days before the agreed Campaign Start. Any deviations must be agreed with BurdaForward immediately in writing or by email. The supply of Content Supplied must be clearly attributable to the Advertising Order in question, in particular by stating the number of the offer or order confirmation or by reference to the individual contractual agreement, and must be sent by email to: firstname.lastname@example.org. For recognisably unsuitable or damaged Content Supplied, BurdaForward requests replacement.
In the event of non-contractual, in particular delayed, supply of Content Supplied or approval and in the event of subsequent change requests on the part of the Client, BurdaForward shall not be liable for any deviations from the agreed execution of the Advertising Order resulting from this. The obligation of the Client to pay the agreed remuneration remains unaffected by this.
If the Advertising Integration requested by the Client is not or not completely created by the Client himself but by BurdaForward, BurdaForward will forward the Advertising Integration to the Client in advance for approval. This approval must take place without undue delay. Details are specified in the Advertising Order.
5.3 Start and duration of an advertising integration
Unless otherwise agreed, an Advertising Integration shall take place either with the start date specified in the Advertising Order (hereinafter "Campaign Start") and respectively for the period specified in the Advertising Order (hereinafter "Campaign Period") or – if a right of issuing release orders has been granted in the Advertising Order – on the issuing of a release order by the Client.
5.4 Release orders
If a right of issuing release orders has been granted, the following special features apply:
- Each release order becomes legally binding only after explicit confirmation by BurdaForward in writing or by email.
- The release order must be issued within one year of the conclusion of the Advertising Order (hereinafter "Insertion Year"), unless otherwise agreed in the Advertising Order.
- The Client is, subject to available capacity, entitled to issue release orders for further Advertising Integrations within the Insertion Year or the period agreed upon in the Advertising Order even beyond the quantity stated in the Advertising Order.
5.5 Technical requirements and specifications
It is the responsibility of the Client to ensure for himself that the technical requirements and specifications necessary for the execution of an Advertising Order are met. Any costs arising from this shall be borne by the Client. The technical specifications for all Advertising Integrations can be viewed in a concise form and in their current version at https://www.burda-forward.de/en/advertising/pricing-media/.
During the Campaign Period, it is only possible to replace or otherwise change Advertising Integrations in whole or in part in consultation with and after approval by BurdaForward. Any costs arising from a replacement or a change shall be borne by the Client.
6. Placement / Delivery / Reproduction / Obilgation of complaint
Unless otherwise agreed, the placement within a Digital Offering and the time of playout of an Advertising Integration are based on the PI volume agreed in the respective Advertising Order. Unless otherwise agreed in the Advertising Order, the Client shall therefore have no claim to placement of the Advertising Integration at a specific time or at a specific position in the Digital Offering concerned. Within a Digital Offering, no exclusion of competition can be granted, i.e. it cannot be excluded that competitors of the Client place advertisements during the same period within the same Digital Offering.
An Advertising Order is considered fulfilled when the booked Advertising Services have been achieved across all placements. The booked Advertising Services are generally delivered within the Campaign Period. However, a daily and consistent delivery cannot be guaranteed. Should the booked services exceptionally not be able to be delivered within the Campaign Period, the Parties will coordinate individually for clarification.
The reproduction of an Advertising Integration is carried out within the scope of the foreseeable requirements in the best possible manner in accordance with usual technical standards. However, the Client acknowledges that 100% freedom from errors and availability is not always technically feasible. Temporary disruptions or failures may occur, in particular for, but not limited to maintenance, security or capacity reasons, as well as for reasons beyond the control of BurdaForward, whether due to unsuitable technical infrastructure of the internet service provider or end user or due to other events (such as disruptions of public communication networks, power failures, etc.).
An error in the availability and/or reproduction of the Advertising Integration thus particularly does not exist in the following cases:
- in the event of temporary disruption of the communication networks (e.g. line or power failure) or
- in case of temporary malfunction of the ad server used by BurdaForward or
- impairment due to the use of unsuitable display software and/or hardware (e.g. browser) of the internet service provider or end user, or
- in case of incomplete and/or not updated cached offers on so-called proxy servers (caches) or in the local cache or
- if the interference with the reproduction of the Advertising Integration does not substantially impair its purpose.
In the event of a failure of the ad server used by BurdaForward over a considerable period of time within the scope of an individually agreed, time-bound booking, the Client’s obligation to pay shall not apply in this respect for the period of the failure. In such a case, BurdaForward will without undue delay inform the Client of the failure and – unless the Parties agree otherwise – reimburse any remuneration already paid for the period of the failure. Further claims do not exist.
6.4 Obligation of complaint
The Client shall check the Advertising Integration immediately after the first publication date and give notice of any defects in writing or by email (Obligation of Complaint).
7. Refusal / Blocking / Withdrawal
BurdaForward reserves the right to refuse or block Advertising Orders, including individual calls within the scope of an Advertising Order, if
- their content violates laws or government authority regulations or
- their content has been objected to by the German Advertising Council in a complaints procedure, or
- their publication is unreasonable for BurdaForward due to the content, origin, design or technical form or
- the Advertising Integration contains advertising by or for third parties.
BurdaForward is entitled to temporarily block an Advertising Integration if there is sufficient suspicion of illegal content on the internet presence to which a link in the Advertising Integration refers. This applies in particular in cases of investigations by state authorities or warnings issued by a person whose rights have been allegedly infringed, unless such a warning is obviously unfounded. The Client must remove the allegedly illegal content without undue delay or demonstrate its legality and, if necessary, prove it.
BurdaForward may offer the Client to replace the Advertising Integration with another Advertising Integration and/or with a link to another internet presence, whereby the additional costs incurred in this respect may be charged to the Client after BurdaForward has provided proof. The decision on this is up to BurdaForward.
The blocking shall be lifted as soon as the suspicion has been invalidated.
BurdaForward is also entitled to withdraw an Advertising Integration, even after the Campaign Start, if the Client subsequently makes uncoordinated changes to the Advertising Integration or subsequently makes uncoordinated changes to the URL of the link or the content of the internet presence to which the link is made, and if the requirements of clause 7.1 or clause 7.2 are thereby fulfilled. In this case, the Client shall not be entitled to a replacement free of remuneration, whereby BurdaForward shall retain its agreed claim to remuneration.
7.4 Communication and impact
The Client will be informed without undue delay of the refusal, blocking or withdrawal of an Advertising Integration.
The exercise of a right of refusal, blocking or withdrawal in accordance with this clause 7 by BurdaForward shall not affect the provisions of clause 8.3 and in particular not the allocation of responsibility set out therein.
8. Granting of rights / Warranty
8.1 The Client guarantees that he owns all rights required for the creation and publication of an Advertising Integration and that he marks them to the required extent. This especially applies with regard to all Content Supplied for the Advertising Integration, in each case including the title / name of the campaign, used texts, photos, art works, designs and all other components.
8.2 The Client transfers to BurdaForward, to the extent necessary for the execution of each Advertising Order in terms of time and content, all rights necessary for the publication of the Advertising Integration and the use of the advertising in online media of all kinds, in particular, but not limited to, the trademark rights and the copyright, ancillary copyright and other rights of use, in particular, but not limited to, the right to reproduce, distribute, transmit, broadcast, make publicly available, process, extract from a database and transmit on demand. In all cases, the aforementioned rights are transferred without any territorial restrictions and entitle the user to use all known technical methods and all known forms of online media. All aforementioned rights are sub-licensable and transferable to the extent necessary for the execution of the respective Advertising Order.
If, in connection with an Advertising Integration, a graphic is used or, in any other way, the name, logo, company mark, trademark, work title or any other business designation, the Client grants BurdaForward the non-exclusive, non-transferable right to use the graphic or the named business designations in the respective Advertising Integration for the duration of the Advertising Order.
8.3 The Client bears sole responsibility and liability for the content and legal legitimacy of its Advertising Integrations and all Content Supplied for the creation of this Advertising Integrations as well as for any internet presences linked by the Advertising Integration (hereinafter collectively referred to as "Advertising Content"). In particular, the Client is responsible for ensuring that the Advertising Content is correct, complete and not misleading, that it is free of material defects and defects of title and that it does not violate statutory provisions regarding youth protection, press, competition, data protection, criminal law, media law or other statutory provisions. Furthermore, the Advertising Content may not be pornographic, glorify violence or war and may not infringe the rights of third parties, such as personal rights. BurdaForward is not obliged to check Advertising Integrations for compliance with the aforementioned requirements.
8.4 BurdaForward is entitled to make advertising for medicines and medical or other remedies dependent on a written assurance from the Client or other responsible parties regarding legal legitimacy and admissibility and/or, after consultation with the Client and at the Client’s expense, to have the template for such Advertising Integrations checked for legal legitimacy and admissibility by an expert body. The provision of clause 8.3 shall remain unaffected.
8.5 The Client indemnifies BurdaForward against all claims raised by third parties (including governmental and official bodies) against BurdaForward due to an infringement of their rights or statutory provisions by the Advertising Content. In this case, the Client shall also bear the costs of the necessary legal defence of BurdaForward, including court and lawyer’s fees. Upon request, the Client shall without undue delay provide BurdaForward with all available information necessary to defend against such claims.
8.6 The Client authorises BurdaForward to forward advertising information to a reasonable extent to recognised market research companies for market research purposes.
8.7 Unless otherwise agreed in the Advertising Order, the Client grants BurdaForward, upon conclusion of the contract, the right to use the Advertising Integrations and the Content Supplied for these beyond the scope regulated in clause 8.2 and for an unlimited period of time for its own presentation of the services and offers of BurdaForward, in particular in the showroom on the BurdaForward website, through screenshots and within best-case presentations.
9. Remuneration / Invoicing / Terms of Payment / Discount
9.1 Remuneration and price lists
The remuneration agreed between BurdaForward and the Client results from the contractual agreement in the Advertising Order, e.g. fixed price, CPC, CPM, etc. Unless otherwise agreed in the Advertising Order, the price lists valid at the time of the conclusion of the contract, which can be accessed at https://www.burda-forward.de/files/user_upload/BF_Advertising_Pricing_2021.pdf shall apply complementary.
All prices are in euro and are exclusive of the statutory value added tax applicable at the time of invoicing.
9.2 Invoiving, reporting and terms of payment
The sole basis for the invoicing of Advertising Orders is the reporting, which is created by the ad server used by BurdaForward or by other tools used by BurdaForward. This reporting summarises, among other things, the campaign-related data, at least the number of advertising impressions played per day/per Advertising Integration (motif).
Unless otherwise agreed in the Advertising Order, BurdaForward will provide the Client with at least a final report at the end of the Campaign Period.
Own counts by the Client are irrelevant for the invoicing.
Reporting complaints can only be made during an ongoing Advertising Order and at the latest two weeks after the end of the campaign and receipt of the final reporting. After this deadline, complaints can no longer be taken into account for accounting and compensation purposes.
Invoicing is carried out for new customers before the Campaign Start and otherwise generally on a monthly basis. Unless otherwise agreed in the Advertising Order, payment must be made in advance for new customers and otherwise within 30 days of the invoice date by bank transfer to the bank account stated in the invoice. A 2% discount will be granted if a direct debit mandate is issued.
The Client may be entitled to a discount on the basis of an individual agreement in the Advertising Order. Such a discount is always linked to the Advertising Services actually purchased.
9.4 Default and deferment of payment
In the event of default or deferment of payment, interest and collection costs customary in banking will be charged. In the event of late payment, BurdaForward may defer further execution of the current Advertising Order until payment has been made and demand advance payment for the remaining Advertising Services. Objectively justified doubts about the Client’s ability to pay entitle BurdaForward in deviation from the originally agreed payment deadline, even during the term of the Advertising Order, to make the provision of further Advertising Services dependent on a monthly advance payment during the remaining Campaign Period as well as on the settlement of all outstanding invoice amounts.
10. Price changes
BurdaForward is entitled to change its prices at any time with effect for the future. Price changes for already placed Advertising Orders are only effective towards entrepreneurs if they are announced by BurdaForward at least one month before the Campaign Start and become effective at the earliest five months after the conclusion of the Advertising Order. In the event of a price increase, the Client shall be entitled to withdraw from the contract. The right of withdrawal must be exercised within 14 days of receiving notification of the price increase.
11. Cancellation of advertising orders
The Client is entitled to cancel Advertising Orders. Cancellations of Advertising Orders must be made in writing or by email. Cancellations are, depending on the Advertising Order, possible free of charge up to the time specified here below. Cancellations after this date will incur cancellation fees in order to compensate BurdaForward for its expenses (e.g. processing fees, other services – in particular Creation Services, blocked volumes). In such cases, the Client is at liberty to prove that the amount appropriate in the specific individual case is significantly lower than the cancellation fee.
11.2 Advertising orders without Creation Services
The following regulations apply to the cancellation of Advertising Orders without Creation Services by BurdaForward, i.e. Advertising Orders that have been completely created by the Client:
- Cancellation is free of charge up to two weeks before the start of the Advertising Order for Advertising Orders that have not yet started and up to two weeks before the end of the month with effect from the end of the month for Advertising Orders that are already running.
- In the case of cancellations at shorter notice, the Client will be charged the following cancellation fees:
- Cancellation up to one week before the start of the Advertising Order: 50% of the nett nett campaign value (agency nett 2 (AN2))
- Cancellation up to four working days before the start of the Advertising Order: 80% of the nett nett campaign value (agency nett 2 (AN2))
- Cancellation from three working days before the start of the Advertising Order and later: 100% of the nett nett campaign value (agency nett 2 (AN2))
11.3 Advertising orders with Creation Services
The following regulations apply to the cancellation of Advertising Orders with Creation Services by BurdaForward, i.e. Advertising Orders that have been created in whole or in part by BurdaForward:
- After the conclusion of the contract for such Advertising Orders, a kick-off meeting will take place between the Client and BurdaForward. This is the date in which the concrete implementation of the Advertising Order, in particular its content and the Creation Services to be provided by BurdaForward as well as their framework conditions (e.g. tracking, teaser) are discussed for the first time.
- Before this kick-off meeting, cancellation is possible free of charge.
- From this kick-off meeting onwards, cancellation is only possible against payment of 100% of the nett nett campaign value.
Insofar as the Client wishes to process personal data in Advertising Integrations by means of cookies, tracking pixels (counting the number of times a page is called up), click trackers (counting the number of times a link is clicked on) and/or comparable technologies (hereinafter uniformly referred to as "Cookie Tracking"), the Parties shall agree on the use of Cookie Tracking between themselves in accordance with the following provisions:
12.1 General provisions
With regard to the personal data processed, the Client is obliged in each case to comply with the applicable data protection regulations, in particular those pursuant to clause 13 of these GTC.
The Client is responsible for ensuring that all Content Supplied by him within the scope of an Advertising Order is free of harmful codes, e.g. viruses, Trojans, etc.
If the Client uses systems of a third party in the Advertising Integrations or for their placement, or if he carries out Cookie Tracking by third parties, the Client shall ensure that these systems also comply with the requirements of this clause 12.
12.2 Coordination before the start of an Advertising Order
Prior to the commencement of an Advertising Order, the Client shall inform BurdaForward in writing of all technical service providers (hereinafter "Vendors") that the Client wishes to use in Advertising Integrations.
If these are exclusively Vendors who have completed a registration procedure ("Status TCV v2.0 Operational") within the Transparency and Consent Framework of the IAB (hereinafter "TCF v2.0") and who at the time of notification have additionally been approved by BurdaForward under the URL www.burda-forward.de/en/about-out-advertising/ (hereinafter "Whitelist"), the use of the respective Vendor is possible without the consent of Burda Forward Advertising. In this case, the Parties shall cooperate on a basis of trust in order to ensure that the respective Vendor is included in the advertising material in a legally compliant manner. A current overview of the Vendors registered according to TCF v2.0 can be viewed at iabeurope.eu/vendor-list-tcf-v2-0/.
If the Client intends to use Vendors that are not included in the Whitelist at the time of notification, the use of such a Vendor requires the prior express written consent of BurdaForward. If the Vendor in question is to be used in accordance with the Parties’ agreement, the Parties shall cooperate in obtaining all information required under data protection law (in particular on the retention period of personal data and categories of personal data processed) from the Vendor.
12.3 Obligations and changes after the start of an Advertising Order
After the start of the Advertising Order, the Client is obliged to check any Vendors used at his own discretion and to compare them with the Whitelist of BurdaForward.
If the Client discovers in the course of such a comparison that a Vendor used is not or is no longer included in the Whitelist, the Client is obliged to inform BurdaForward of this without undue delay in writing. With regard to the coordination process, clause 12.2 shall apply accordingly.
If the Client intends to use a new Vendor after the commencement of an Advertising Order, the procedure under clause 12.2 shall apply accordingly. If the Client integrates a Vendor requiring approval without observing the procedure stipulated in clause 12.2, the Client is obliged to remove this Vendor without undue delay at the request of BurdaForward. Additionally, the Client indemnifies BurdaForward internally against all expenses and damages, in particular regulatory fines, incurred directly or indirectly attributable through the use of such a Vendor to BurdaForward.
13. Data protection
Within the scope of its area of responsibility, the Client shall observe the data protection requirements, in particular the provisions of the General Data Protection Regulation ("GDPR"), the German Federal Data Protection Act ("BDSG") and other national implementation laws, and implement them to the extent required.
Insofar as personal data is processed in relation to the placing and processing of Advertising Orders for the Digital Offerings, this processing establishes joint responsibility within the meaning of Art. 4 No. 7, 26 GDPR. Upon conclusion of the contract within the meaning of clause 4.2 of these GTC, the agreement on joint responsibility pursuant to Art. 26 (1) sentence 2 GDPR attached as Annex 1 shall become a binding and in terms of data protection law concluding part of the contract.
14. Liability and warranty
The liability of BurdaForward, its legal representatives, executive employees or other vicarious agents is, unless otherwise stipulated below, limited to intent and gross negligence. In the case of damages resulting from the breach of contractual obligations, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the other Party may therefore regularly rely (cardinal obligations), BurdaForward shall also be liable in the case of slight negligence, in this case, however, limited to the amount of the damage typically foreseeable at the time of the conclusion of the contract.
The Client is obliged to back up his data at appropriate intervals. In the event of a loss of data for which BurdaForward is responsible, BurdaForward shall only be liable for the expenses that would normally be incurred for the recovery of the data if this obligation were fulfilled.
The aforementioned limitations of liability shall not apply in the event of injury to life, limb or health, in the event of the express assumption of guarantees, in the event of fraudulent misrepresentation and in the event of claims arising from the scope of application of the Product Liability Act.
Both Parties shall maintain strict confidentiality about their respective Advertising Orders and their execution as long as and to the extent that such information has not lawfully become generally known, there is no legal or official obligation to disclose, which the Party obligated to disclose shall without undue delay notify the other Party in writing after becoming aware of such an obligation to disclose and to the extent legally permissible, or the respective other Party has consented in writing to disclosure in individual cases, even two years beyond the term of the respective Advertising Order.
16.1 Subsidiary agreements, amendments and supplements are possible in writing or by email and require the express consent of BurdaForward in writing or by email. The same applies to the cancellation and/or waiver of this formal requirement.
16.2 The Client is only permitted to use BurdaForward as a reference with the express written and revocable consent of BurdaForward. In particular, BurdaForward reserves the right to use its names, company logos, registered trademarks and/or designs.
16.3 These GTC and all legal relations between the Parties shall be governed exclusively by the laws of the Federal Republic of Germany without regard to its conflict of laws principles and to the exclusion of the United Nations Convention on the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes in connection with this contractual relationship and with orders based thereon, including disputes concerning their validity and also in relation to subsequent amendments and supplements, shall be Munich. However, BurdaForward is also entitled to take legal action at the place of performance of the Client’s obligations.
16.4 The Parties may assign or transfer their rights and obligations under this contractual relationship and their individual contracts to third parties only with the consent of the respective other Party or in the cases permitted by law.
16.5 BurdaForward is entitled to use subcontractors. BurdaForward remains responsible for the performance of the obligations assumed even if subcontractors are appointed.
16.6 Should one or more provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. § 139 BGB is not applicable. The Parties undertake to replace any such invalid provision by a valid provision which corresponds to what the Parties would have agreed, taking into account the purpose of the contract, had they been aware of the invalidity of such provision at the time of conclusion of the contract. This applies accordingly in the case of regulatory gaps.
Annex 1: Agreement between the joint controllers according to section 26 GDPR
This Annex 1 defines the areas of responsibility between BurdaForward GmbH and the Client for joint data processing in accordance with Section 26 GDPR.
1. Purposes and legal bases of processing
The purposes and respective legal bases for the processing of personal data on the digital offerings of BurdaForward GmbH are defined jointly by the BurdaForward GmbH and the respective Client further to the illustrations in the consent and objection management of the respective digital offering (so-called Consent Management Platform, hereinafter "CMP").
2. Means of processing
2.1 The personal data of users of the digital offering is processed via the online advertising technology of BurdaForward GmbH integrated into the digital offering.
2.2 The online advertising technologies of BurdaForward GmbH enables the Client to store cookies or similar technologies on the user's end device; these enable access to or storage of information on the end device for the specified common purposes.
2.3 When using apps, a technology of comparable function is used instead of the cookie, such as the operating system-specific advertising ID, Vendor ID or a randomly generated user ID.
3. Function and relationship vis-à-vis data subjects
3.1 BurdaForward GmbH enables the data subjects to use the digital offering. At the beginning of the use process, the data subject is given the opportunity to determine the scope of the processing of personal data and the access to or storage of information on their end device by making the appropriate settings in the digital offering.
3.2 The data subject has the opportunity at any time to revoke consent given by him/her in the settings in the digital offering or to object to the processing of personal data.
3.3 Depending on the settings of the data subject in the digital offering, technical signals are sent to the Client about the existence of the legal basis for processing the personal data of the respective data subject.
4. Scope of joint controllership
The Client shall each be jointly responsible with the BurdaForward GmbH for processing personal data to the extent that the BurdaForward GMBH provides the respective Client via the integration of the online advertising technologies into the digital offering with the processing of Personal Data from users of the digital offering in accordance with this Agreement, including for its own purposes (hereinafter "JOINT PROCESSING").
5. Duties of BurdaForward GmbH
5.1 The BurdaForward GmbH undertakes to inform the users of the digital offering about the type, scope and purpose of the JOINT PROCESSING of personal data as well as their rights as data subjects further to Section 13 GDPR ). The BurdaForward GmbH also undertakes to provide the users of the digital offering with additional information further to Section 26 GDPR.
5.2 The BurdaForward GmbH undertakes to provide the users of the digital offering with consent and objection management of the digital offering (the so-called Consent Management Platform, hereinafter "CMP") to the users of the digital offering at any time, by means of which the user of the digital offering may at any time make the required settings further to Section 3.1 of this Agreement or amend them further to Section 3.2.
5.3 The CMP must be certified with active status at the Transparency & Consent Framework (TCF 2.0) of the IAB Europe.
5.4 BurdaForward GmbH undertakes to map and the JOINT PURPOSES, including legal bases of JOINT PROCESSING in the CMP.
5.5 The BurdaForward GmbH shall respond to any enquiry concerning data subjects received by the BurdaForward GmbH and relating to the JOINT PROCESSING of personal data within the statutory time limits.
6. Duties of the client
6.1 The Client undertakes to provide the BurdaForward GmbH with the information necessary to comply in a timely manner with the information obligations in Section 5.1 and requests for information in Section 5.5 in each case relating to their JOINT PROCESSING.
6.2 The Client undertakes to observe the respective TCF 2.0 Consent String. This will be provided by the respective CMP on the BurdaForward GmbH’s digital offering so that it can be read and processed by the Client in real time. The Client shall ensure that personal data of the data subject are processed only if the legal basis jointly determined in accordance with Section 1 of this Agreement exists and a corresponding signal has been sent to the Client. The same applies to the retrieval or storage of information on the end device of the data subject.
6.3 The Client undertake to immediately cease JOINT PROCESSING in the event that the legal basis ceases to exist.
6.4 The Clients undertake to implement requests for deletion from data subjects immediately after becoming aware of them and to inform the BurdaForward GmbH of these.
6.5 All Clients shall maintain a list of the cookie domains (domains under which the cookies are stored or read) used by them and make these available to the BurdaForward GmbH on request.
7. Reporting and notification obligations
7.1 In the event of a personal data breach, the BurdaForward GmbH for JOINT PROCESSING shall fulfil the necessary notification and reporting obligations further to Section 34 of the GDPR concerning the data subject in question.
7.2 Insofar as the infringement has not occurred within the sole area of responsibility of the BurdaForward GmbH, the Client shall provide the BurdaForward GmbH in good time with the information required to fulfil the statutory reporting and notification obligations.
7.3 The information to be provided shall also include the information listed in Section 33(3) GDPR. If and insofar as the information cannot be provided at the same time, the respective party concerned may provide this information step-by-step without undue further delay.
8. Further obligations
8.1 Further to Section 30(1) GDPR, each Party shall include JOINT PROCESSING in its processing directory. The Parties shall provide each other with the information necessary for the inventory of processing activities further to Article 30(1) of the GDPR.
8.2 In the event of a breach of the protection of personal data within the meaning of Section 4 (12) of the GDPR in relation to the JOINT PROCESSING, the respective party concerned shall fulfil the necessary notification obligations further to Section 33 of the GDPR vis-à-vis the competent data protection authority.
8.3 Each Party shall always implement and maintain the necessary technical and organisational measures for ensuring an adequate level of protection of personal data and shall document this in an appropriate manner. The Parties shall provide such documentation to the other Party upon request.
8.4 If a Party becomes aware of a breach of any provision of this Agreement or of the protection of personal data in relation to JOINT PROCESSING, it shall immediately notify the Party or Parties concerned. The same shall apply in the event of a breach of the provisions of the TCF Policies.
9. Data transfer to third countries
9.1 The Parties generally process the personal data either solely in a Member State of the European Union ("EU") or in another Contracting State to the Agreement on the European Economic Area ("EEA")
9.2 Any processing of personal data in countries without an adequate level of data protection (hereinafter "third country") only takes place if the legal requirements for data exports to third countries under applicable law (Section 44 GDPR) are met. Where personal data are transferred by the Client to a third country, the Client shall in particular provide appropriate safeguards in accordance with Section 46 GDPR and provide the data subject with enforceable rights and effective remedies.
10. Entry into force and term
10.1 This Agreement shall in each case enter into force upon commencement of the respective JOINT PROCESSING between BurdaForward GmbH and the Client.
10.2 This Agreement shall end automatically upon termination of the JOINT PROCESSING.