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General Terms and Conditions for Print and Digital Media Advertising

Jan 21, 2021

1. Advertising order
(1) "Advertising order" as used in the following General Terms and Conditions means the contract for utilising an advertising medium or multiple advertising media in print or digital media for the purpose of distribution.
(2) Advertising orders are exclusively subject to these General Terms and Conditions and the publisher's price list, which in turn constitutes a key contract component. The validity of any terms and conditions put forward by the customer or any other advertising space buyer are expressly excluded to the extent they are not congruent with these General Terms and Conditions. As regards orders for advertising in relation to other media, the corresponding General Terms and Conditions pertaining to the respective medium will apply accordingly.
2. Advertising media
(1) Advertising media as used in these General Terms and Conditions include the following examples:
• Standard format advertisements in print media;
• Ad specials and exclusive positioning in print media (front page sponsoring, image and text promotion, exclusive positioning, banderols, inserts, flyers, bookmarks, agenda planners, etc.);
• Ad specials and exclusive positioning in digital media (content marketing, Firmen-Channel, display advertising, week newsletter, e-mail advertising, Rote Couch, etc.);
• All further publisher advertising forms.
(2) Advertising media not recognizable as such due to their design will be clearly marked as advertising.
3. Contract conclusion
(1) Notwithstanding deviating agreements, the contract is fundamentally established via order confirmation performed in writing or via e-mail. Cases involving verbal or telephone confirmation will also be subject to these General Terms and Conditions.
(2) In the event an order is placed by an advertising agency, in cases of doubt the contract will be concluded with the advertising agency, notwithstanding other written agreements. If an advertiser is the customer, then the advertising agency will have to name the advertiser accordingly. The publisher has the right to request that an advertising agency present proof that it has a mandate.
(3) Advertising for goods or services of more than one advertiser or miscellaneous advertising space buyers within one advertisement is subject to an additional agreement, to be concluded in writing or via e-mail.
4. Processing period
If a customer right to call individual advertising media is conferred within the scope of an agreement, then the corresponding order must be processed within one year from the time of contract conclusion.
5. Order expansion
Once a contract is concluded, the customer has the right to call further advertising media beyond the volume cited in the order within the agreed period or the period named in Section 4, subject to capacity being available.
6. Discount reimbursement
(1) If an order is not fulfilled due to circumstances for which the publisher is not responsible, then the customer shall - notwithstanding Section 16(2) nor any further potential legal obligations - reimburse the publisher for the difference between a discount granted for a certain purchase volume and the actual purchase volume.
(2) Unless otherwise agreed, the customer has a retroactive right to a discount corresponding to the actual advertising media purchased within one year provided the customer concluded a contract at the start of the period granting the right to a discount based on the price list. The right to a discount will expire if it is not claimed within three months of the end of a one-year period.
7. Delivery of advertising media
(1) The customer shall deliver the corresponding advertising media sufficiently in advance before advertising begins, yet no later than the official finalization date, duly, especially in line with the format or technical guidelines of the publisher.
(2) The documents shall be delivered in digital form to the publisher (via e-mail to dispo@publish-industry.net, upload to the publisher's FTP server). The publisher disclaims all liability in the event an e-mail delivery is made to a deviating e-mail address. Delivery must include a template with a binding colour scheme. If that is not the case, then the publisher disclaims all liability for correct reproduction. Otherwise, the publisher's binding guidelines for delivering digital data, which will be sent to the customer upon request, will apply.
(3) The publisher's obligation to store an advertising medium ends three months following the last distribution.
(4) The publisher's costs pertaining to changes which the customer has requested or for which the customer is responsible shall be covered by the customer.
(5) The customer bears sole liability in the event of delay as regards costs incurred due to the delay of an order and loss of income the publisher incurs based on situations such as late submission of print documents needed (templates and products) or late return of corrections. The customer will also hold liability in the event release is not issued or in the event of an unfounded cease-and-desist order, unless the customer provides proof that the customer is not culpable. The customer has the right to demonstrate that no additional costs or income losses were incurred, or that the publisher's additional costs or income losses were lower than the figures stated.
8. Right to denial
(1) The publisher reserves the right to deny or freeze advertising orders - including individual calls within the scope of a conclusion -, if
• The content violates laws or governmental provisions, or
• An objection to the content was raised by the Deutscher Werberat (German Advertising Standards Council) in an objection procedure, or
• It is unreasonable to expect the publisher to publish them based on content, origin, or technical form.
(2) In particular, the publisher can withdraw an advertising medium that has already been published if at a later time the customer makes its own modifications to the advertisement's content or changes data referred to via link, thereby meeting the conditions laid out in Paragraph 1.
(3) Orders for print media inserts will only be binding for the publisher after submission of an insert sample and its approval. Inserts will not be accepted if they create the impression of being a component of the print medium based on format or design or if they contain third-party advertisements.
9. Guarantee of rights
(1) The customer guarantees that it holds all rights necessary for executing the advertising medium. The customer shall indemnify and hold harmless the publisher within the scope of an advertising order with respect to all potential third-party claims based on violation of legal provisions. Furthermore, the publisher will be indemnified and held harmless as regards the costs corresponding to the requisite legal defence. The customer shall support the publisher in good faith with information and documents throughout the course of legal defence against third parties.
(2) The customer transfers to the publisher all copyright, usage, service protection, and miscellaneous rights to the publisher requisite to use of the advertising media, especially the right to duplicate, distribute, transfer, send, extract from a database, or call, and does so within the scope necessary for executing an order with regard to time and content. In all cases, the aforenamed rights are transferred without geographical restrictions and provide authorization for executing all print and digital media in all known technical processes and all known forms.
(3) With respect to orders where service also includes the publisher creating and transferring photographs of customer products for content, the publisher grants the customer the right to use the photographs from the order for the customer's own website. To that end, the customer especially receives the right to modify the photographs; to use them in another context, including commercial settings; to use excerpts of the photos; to cut, retouch, or in some other manner modify the photos, provided the photographer's inherent author copyright rights are not violated.
10. Publisher guarantee
(1) The publisher guarantees within the scope of foreseeable requirements that the best possible advertising medium production in line with standard state-of-the-art technology. However, the customer is aware that, with state-of-the-art technology, it is not possible to create a programme that is entirely free of errors, especially as regards digital media in line. This guarantee does not apply for insignificant errors. A significant error in the visualisation of advertising especially applies when it is caused
• Due to the use of inadequate visualisation software and/or hardware (e.g. browser), or
• Due to disruption in the communication networks of other operators, or
• Due to computer outage based on system failure, or
• Due to incomplete and/or non-updated calls to proxies (interim storage), or
• Due to outage of a web server lasting not more than 36 hours (continuously or accumulatively) within 30 days after contractual start date for execution.
In the event of server outage over a significant period of time within the scope of a firm time-bound booking, the customer's payment obligation will be waived for the duration of the outage. Further claims are excluded.
(2) In the event of insufficient advertising medium reproduction quality, the customer will have the right to reduced payment or flawless replacement advertisement, yet only to the extent that the advertising medium's objective was compromised. If a replacement advertisement fails or is unreasonable to expect, then the customer will have a right to payment mitigation or order withdrawal.
(3) If there are any non-apparent flaws in print documents, templates, and products, then the customer will have no rights in the event of non-sufficient publication. The same will apply in the event of flaws in repeated advertisement if the customer does not make reference to the flaw prior to publication of the subsequent execution of advertising.
11. Service disruptions
If order execution is disrupted for reasons for which the publisher is not responsible (such as software or other technical grounds), especially computer outage, force majeure, strike, legal provisions, disruptions in the sphere of responsibility of a third party (e.g. other providers), network operators, or service providers or other comparable grounds, then order execution will be carried out as possible. The publisher's right to compensation will remain intact in the event of execution within an adequate time that is reasonable to expect of the customer following remediation of the disruption.
12. Liability
(1) The publisher holds full liability for damages pursuant to the German Product Liability Act; for damage based on injury to life, body, or health; and furthermore for miscellaneous damage in the event of premeditation or wanton negligence; in the event of original impossibility as laid out in German law in connection with knowledge or lack of knowledge of the service hindrance due wanton negligence. Furthermore, the publisher holds liability in the event of violation of significant contract obligations (cardinal obligations) in line with legal provisions, yet limited to the foreseeable damages typical in contracts.
(2) The publisher disclaims all further liability - irrespective of the legal nature of the damage being claimed. In cases where the publisher's liability is excluded or restricted, the same will apply with regard to personal liability of all publisher employees, representatives, and vicarious agents.
(3) The publisher's liability will expire one year from the statutory start of the limitation period. This does not apply for liability due to premeditation or illegal action.
13. Price list
(1) The price list published at the time of order placement will apply. The publisher reserves the right to make changes with regard to companies. However, a price change pertaining to orders the publisher has confirmed will only apply if announced at least one month prior to the advertising medium's publication. In the event of a price increase, the customer will have the right to withdrawal. The right to withdrawal must be asserted within 14 days of receiving notification of the price increase.
(2) Discounts will be based on the respectively applicable price list. Advertising agencies and miscellaneous advertising intermediaries shall hold themselves to the price lists of the respective publisher in their offers, contracts, and invoices with advertisers.
14. Payment
(1) Advertising orders are payable in full immediately upon receipt of the invoice (net price plus value added tax).
(2) The customer will only have the right to offset, retain, or deny payment in line with § 320 BGB if the customer's counter claim has been legally established, is undisputed, or is acknowledged by the publisher.
(3) New customers will be charged a pre-payment in the amount of 50 per cent of net contract value plus legally applicable value added tax and any potential expenses.
15. Late payment, deficient customer performance
(1) In the event of late payment or deferment, default interest in the legally applicable amount will be charged in connection with a late payment fee. The publisher reserves the right to assert further claims regarding damages and rights due to late payment. The publisher especially has the right to withdraw from a contract in the event of late payment if the respective legal stipulations to that end have been met; or to postpone continued execution of an ongoing order until payment is received and to request prepayment for the remaining advertisement execution.
(2) If it becomes recognisable after contract conclusion that the publisher's right to counter service is endangered due to insufficient customer ability to perform, then the publisher can deny publisher service irrespective of Section 15 (1) until the customer effects counter service or a guarantee can be provided for counter service. The publisher can establish a reasonable deadline by which the customer must effect counter service or provide a guarantee step-by-step, as opted by the customer. If that deadline passes fruitlessly, then the publisher will have the right to withdraw from the contract and/or assert claims for damage or expenditure compensation if the statutory prerequisites are met.
16. Cancellation, late submission of print documents and templates, etc.
(1) Terminations of advertising orders must be made in writing or via e-mail.
(2) If the customer terminates an advertising order based on reasons for which the publisher is not responsible, then the publisher can request the following reimbursements provided the customer or the publisher do not demonstrate that the reimbursement to which the publisher has a right pursuant to § 649 (2) BGB is significantly lower or higher:
• For terminations of standard format advertisements following contract conclusion: a) Prior to copy deadline: 15% of order price, b) After copy deadline: order price;
• For terminations of ad specials and exclusive positioning on print media following contract conclusion: order price;
• For terminations of ad specials and exclusive positioning in print media following contract conclusion: order price;
• For terminations and miscellaneous advertising forms after contract conclusion: order price;
For termination of discounted advertising orders, the order price will apply as laid out in the aforegoing list price clause.
(3) If the customer submits the print documents, templates, and products/information necessary for order execution after document deadline and the order cannot be executed based on reasons for which the publisher is not responsible, then Section 16(2) regarding termination after contract conclusion will apply accordingly. In cases of print postponement, Section 7 (5) will apply.
(4) This does not affect the publisher's legal claims to damage compensation.
17. Data privacy
The advertising order is executed in line with the applicable data protection provisions laid out in German law.
18. Place of performance/Legal venue
The publisher's business domicile is the place of performance. As regards business relations with merchants, legal entities under publish law, or special assets under public law, the publisher's business domicile will apply for determining jurisdiction in the event of litigation. If the publisher's claims are not asserted in a warning procedure, then jurisdiction will be determined based on the residence in cases involving non-merchants. Germany laws apply to the exclusion of the UN CISG. If the customer's residence or temporary residence, including non-merchants, is unknown at the time of lawsuit filing or if the customer has changed its residence or temporary residence beyond the reach of the law, then the publisher's business domicile shall be the reference for determining jurisdiction if a contract has been concluded in writing.
Status in May 2016