Terms & Conditions of BurdaForward Advertising GmbH
1. ADVERTISING ORDER
(1) The advertising order as defined by the following General Terms and Conditions shall be the contract governing the placement of one or more advertising media in information and communications services, particularly the Internet, for dissemination purposes.
(2) The General Terms and Conditions, together with the price list of the Supplier, which shall constitute an essential component of the contract, shall have exclusive validity for the advertising order. The validity of any general terms and conditions of the Customer or other advertising clients shall be explicitly precluded in so far as they do not correspond to these General Terms and Conditions.
(3) Orders for the placement of advertisements in online and other media shall be subject to the general terms and conditions for the medium in question.
2. ADVERTISING MEDIUM
(1) An advertising medium as defined by these General Terms and Conditions can, for example, comprise one or more of the following elements: a picture and/or text, sequences of sounds and/or moving pictures (including banners), a sensitive area which, when clicked on, sets up a connection to other data within the Customer's area via an online address specified by the Customer (e.g. link).
(2) Advertising media which, because of their design, are not recognizable as such shall be identified clearly as advertisements.
(3) Delivery of advertising media
The advertising medium must be delivered 3 (three) working days in advance in the case of banner advertising placement and 5 (five) working days in advance in the case of special ad formats and rich media formats. The banners shall be delivered to: firstname.lastname@example.org. In the event of delayed delivery and the additional expense which this involves, we shall levy the following charges for special ad formats and rich media formats:
3-2 working days before the campaign launch: EUR 50.00 per advertising medium/motif;
1 working day before the campaign launch: EUR 100.00 per advertising medium/motif;
On the day of the campaign launch: EUR 150.00 per advertising medium/motif.
(4) If the advertising medium is delivered late, the proper fulfilment of the campaign can no longer be guaranteed and reimbursement in the form of a credit note is not possible.
3. CONCLUSION OF A CONTRACT
(1) Provided that there are no individual agreements to the contrary, the contract shall always come into existence by means of an order confirmation given in writing or by e-mail. Confirmations given verbally or on the telephone shall also be subject to the General Terms and Conditions.
(2) If advertising agencies place orders, the contract with the advertising agency shall, in cases of doubt, come into existence subject to other written agreements. If an advertising client becomes the Customer, he/she must be specified by name by the advertising agency. The suppliers shall be entitled to demand proof of mandate from the advertising agencies.
(3) Advertising for goods or services from more than one advertising client or other advertisers within a single advertisement (e.g. banner or pop-up advertising) shall require an additional agreement concluded in writing or by e-mail.
(4) The order must be received no later than 5 (five) working days before placement is due to start (exceptions: rich media advertising media and special ad formats). The terms stipulated in the order confirmation shall be authoritative for placement and for the proper performance of services.
4. HANDLING PERIOD
If, within the scope of a contract, the Customer is granted the right to request individual advertising media, the order must be handled within one calendar year of the contract being concluded.
5. ORDER EXTENSION
Contracts that are concluded shall entitle the Customer, subject to available capacity, to request further advertising media within the agreed period, or the period specified under Item 4, also over and above the quantity specified in the order.
6. DISCOUNT REFUND
(1) A campaign shall be deemed fulfilled if the reserved volume of ad impressions has been achieved for all of the placements.
(2) If an order is not fulfilled for reasons that are beyond the control of the Supplier, the Customer, notwithstanding any other legal obligations, must reimburse the Supplier with the difference between the discount that was guaranteed and the discount that resulted from the actual quantity purchased.
(3) Provided that nothing to the contrary was agreed, the Customer shall be entitled to a discount that corresponds to the actual quantity of advertising media that he/she purchases within one calendar year if, at the beginning of the period, he/she concluded a contract that entitles him/her to a discount from the outset on the basis of the price list. The entitlement to the discount shall lapse if it is not asserted within 3 (three) months of the one-year period expiring.
7. DELIVERY OF DATA
(1) The Customer shall be obliged to deliver complete, faultless and suitable advertising media no later than 3 (three) working days before their placement commences. Any deviations must immediately be agreed, either in writing or by e-mail, with the Supplier.
(2) The obligation of the Supplier to preserve the advertising medium shall expire 3 (three) months after its last dissemination.
(3) Costs incurred by the Supplier in making an alteration to the advertising medium that was desired or occasioned by the Customer shall be borne by the Customer.
8. BOX NUMBER ADVERTISEMENTS
(1) If the placement of box number advertisements is provided for, the incoming replies shall be preserved or stored for 4 (four) weeks. Replies that are not collected or retrieved during this period shall be destroyed or deleted.
(2) Letters that exceed the permissible European (DIN) A4 format (weight 50 g) shall not be accepted; the same shall apply to consignments of merchandise, books and catalogues, and small parcels. Incoming e-mails shall be forwarded only if their data volume does not exceed 300 kilobytes per e-mail.
9. POWER TO REJECT
The Supplier reserves the right to reject or block advertising orders, also individual requests within the framework of a contract, if their content infringes laws or public regulations or their content was objected to by the German Advertising Council (Deutsche Werberat) in complaint proceedings or their publication is unreasonable for the Supplier because of their content, origins or technical form. In particular, the Supplier may withdraw an advertising medium that has already been published if the Customer retrospectively makes alterations to the content of the advertising medium himself/herself or if the data to which reference is made by means of a link are altered retrospectively, and as a result the requirements under Item 1 are fulfilled.
10. GUARANTEE OF RIGHTS
(1) The Customer shall guarantee and give his/her assurance that he/she possesses all of the rights that are required to place the advertising medium. The Customer shall release the Supplier from all third party claims that can arise as a result of the infringement of statutory provisions. Furthermore, the Supplier shall be released from any costs of legal defense that may be necessary. The Customer shall be obliged to support the Supplier in good faith with information and documents in the field of legal defense against third parties.
(2) The Customer shall assign to the Supplier all of the copyright-related usufructuary rights, ancillary copyright and other rights - particularly the right to reproduce, disseminate, transmit, send, process, remove from a database and retrieve - that are required to use the advertisement in online media of all kinds, including the Internet, to the extent required for the fulfilment of the order in terms of time, place and content. The rights specified above shall always be assigned without restriction in terms of place and shall entitle their holder to place advertisements using all known technical procedures and all known forms of online media.
(3) Furthermore, the Customer shall authorize the Supplier to pass on an appropriate volume of advertising information to acknowledged market research undertakings for market research purposes. If the Customer is not prepared to do this, he/she must notify the BurdaForward Advertising of this in writing when the contract is concluded.
(4) If the Customer extracts or gathers data from the placement of advertising media on the online outlets of BurdaForward Advertising by using special technologies, e.g. by using cookies or web beacons, the Customer gives his/her assurance that he/she shall comply with the requirements of the German Telecommunication Data Protection Act (TDDSG), the German Media Services Treaty (MDStV) and the Federal Data Protection Act (BDSG) when gathering, processing and using personal data.
(5) If anonymous or pseudonymous (and therefore relatable to persons) data accrue to the Customer from access to the advertising media supplied by him/her for online offerings of BurdaForward Advertising , the Customer may exploit these data within the scope of the respective campaign for the specific advertising client who entrusted the Customer with the placement of the respective campaign. This exploitation may encompass only the anonymous and pseudonymous data that were generated by advertising placements on the online offerings of BurdaForward Advertising.
(6) Over and above this, it shall be prohibited for the Customer to engage in any further processing, use and forwarding of any data (anonymous or relatable to persons) arising from access to the advertising media supplied by him/her for online offerings of BurdaForward Advertising. In particular, the Customer may not, for his/her own purposes, store, analyze or otherwise use data from advertising placements on the online offerings of BurdaForward Advertising or forward them to third parties. This prohibition shall also cover the creation of profiles from the user behavior of users on the online offerings of BurdaForward Advertising and their further use.
(7) If the Customer uses third-party systems to place advertising media on the online offerings of BurdaForward Advertising, he/she shall ensure that the system operator also adheres to this agreement.
11. GUARANTEE BY THE SUPPLIER
(1) The Supplier, within the scope of the foreseeable requirements, shall guarantee the best possible reproduction of the respective advertising medium in accordance with the usual technical standard. The Customer is nevertheless aware that the current state of technology does not make it possible to create a program that is completely free from defects. In particular, a defect in the presentation of the advertising media shall not be deemed to be present if the impairment is brought about by the use of an unsuitable presentation software and/or hardware (e.g. browser), malfunctioning of the communications networks of other operators, computer breakdowns on the premises of third parties (e.g. other providers), incomplete and/or not updated offerings on so-called proxies (intermediate stores) or by a breakdown of the AdServer that lasts for no more than 24 hours (continuous or accumulated) over the period of 30 days from the commencement of the contractually agreed placement. If the AdServer breaks down for a considerable period of time during which a fixed booking was made for a particular period, the payment obligation of the Customer shall lapse for the duration of the breakdown. Further claims shall be excluded.
(2) If the quality of the reproduction of the advertising medium is inadequate, the Customer shall have the right to a reduction in payment or a faultless substitute advertisement, but only to the extent to which the purpose of the advertising medium was impaired. If the Supplier allows a reasonable period granted to him for this purpose to expire, or if it is impossible to provide a substitute advertisement, the Customer shall have a right to a reduction in payment or the rescission of the contract.
(3) If any defects in the advertising documents are not obvious, the Customer shall have no entitlements if distribution proves to be inadequate. The same shall apply to defects in repeated advertising placements if the Customer does not point out the defect before the dissemination of the next advertising placement.
12. IMPAIRMENT OF PERFORMANCE
If an order is not implemented for reasons that are beyond the control of the Supplier (e.g. for program-related or technical reasons), particularly as a result of a computer breakdown, force majeure, strikes, statutory provisions, malfunctions arising in the area of responsibility of third parties (e.g. other providers), network operators or service providers, or for comparable reasons, the order shall be fulfilled subsequently if possible. If this is done within an appropriate and reasonable period after the malfunction has been rectified, the Supplier shall continue to be entitled to remuneration. In the event of a lengthy postponement, the Customer shall be notified of this.
(1) Damages claims arising from a positive breach of obligations, culpa in contrahendo and tortious acts shall be excluded in the event of slight negligence of the Supplier, his/her representative or vicarious agents. This shall not apply to the infringement of substantive contractual obligations; in such cases the liability shall be limited to the foreseeable damage. Damages claims arising from the impossibility of performance and default shall, in the case of slight negligence, be limited to compensation for the foreseeable damage.
14. PRICE LIST
(1) The price list that is published in the Internet at the time the order is placed shall be applicable, with the proviso that the rates may be altered. This shall not apply to non-firms if the order affected by the alteration is not part of a framework agreement and is scheduled for execution no later than 4 (four) months after the conclusion of the contract. Price alterations for orders confirmed by the Supplier shall, however, be valid only if they are announced by the Supplier at least one month before the dissemination of the advertising medium. In the event of a price increase, the Customer shall have a right of rescission. The right of rescission must be exercised within 14 (fourteen) days of receipt of the notification of the price increase.
(3) One change of motif per 50,000 AdImpressions or per week shall be free of charge. EUR 75.00 shall be charged for each further change.
(4) Additional requirements of the Customer that diverge from the standard handling offered by BurdaForward Advertising can be realised only upon fulfilment of an increased minimum booking volume of EUR 10,000 (gross). In addition to this, the additional expense incurred in campaign handling shall be charged to the Customer.
15. BANKING CONNECTION
The invoice shall be issued on the day when the advertisement appears. Payment shall be made net within 30 (thirty) days of the date of invoice. In the event of default or delay in payment or the extension of the payment period, interest shall be charged at the going bank rate for personal credit lines.
16. TERMS OF PAYMENT / DEFAULT AND DELAY IN PAYMENT
(1) In the event of default or delay in payment or the extension of the payment period, interest and collection costs shall be charged. In the event of default or delay, the Supplier may postpone the further execution of the current order until payment has been made and demand advance payment for the remainder of the placement.
(2) Objectively justified doubts about the solvency of the Customer shall entitle the Supplier, also during the term of the contract, to make the appearance of further advertising media dependent on the advance payment of the amount in question and the settlement of unpaid invoiced amounts, irrespective of any originally agreed period for payment.
(3) Invoicing shall be on the basis of AdImpressions. The calculation and charging of campaigns shall be based on the reporting by the TF AG AdServer. Complaints about the reporting can be submitted only during an ongoing campaign. Once a campaign has been completed and the final report has been received, complaints can no longer be reflected in settlement and compensation arrangements. If the order was awarded via an agency, an agency (AE) commission of 15% shall be granted. The invoice shall be issued on the date when the advertisement appears. Payment must be made net within 30 (thirty) days of the invoice date.
(1) Cancellations of advertising orders must be made in writing or by e-mail. The cancellation period shall be 2 (two) weeks before the commencement of the booking and 2 (two) weeks before the end of the month if the booking has already commenced.
(2) Cancellation fees shall be charged to the Customer in the following cases: cancellation 1 (one) week before the campaign launch: 50% of the net campaign value; cancellation up to 3 (three) working days before the campaign launch: 80% of the net campaign value; and cancellation off 3 (three) working days before the campaign launch or later: 100% of the net campaign value.
18. SUPPLIER'S DUTY TO FURNISH INFORMATION
Provided that nothing to the contrary is agreed, it shall be incumbent upon the Supplier to keep the access figures achieved by the advertising medium within 10 (ten) working days of the order execution ready for retrieval by the Customer.
19. DATA PROTECTION
20. PLACE OF PERFORMANCE / PLACE OF JURISDICTION
The place of performance shall be the registered office of the Supplier. In business transactions with merchants or public law entities or special funds under public law, the place of jurisdiction for legal action shall be the registered office of the Supplier. If claims by the Supplier are not asserted in default action, the place of jurisdiction for non-merchants shall be determined by their place of residence. German law shall apply. If the place of residence or habitual abode of the Customer, including non-merchants, is unknown at the time the action is brought and if the Customer moves his/her place of residence or habitual abode out of the reach of the law after the conclusion of the contract, the registered office of the Supplier shall be the agreed place of jurisdiction if the contract was concluded in writing.