General terms and conditions of business
AMA Digital Networks GmbH
In den Teilern 8a
1. scope, exclusive application
1.1 The following terms and conditions shall apply to the "advertising measures" carried out by AMA Digital Networks GmbH (hereinafter referred to as "ADN") for the Client.
1.2 Any other terms and conditions of the Client shall not be valid, even if ADN does not object to them in individual cases.
2. advertising measures, labelling
2.1 "Advertising Measures" in the sense of these General Terms and Conditions shall be all "Advertising Media" bookable with ADN and other services of ADN bookable within the scope of advertising (e.g. support in the creation of advertising media, translations, implementation of advertising campaigns).
2.2 "Advertising Media" are offers consisting of images and/or text and/or sound and/or moving images and/or a sensitive area which, when clicked on, is connected to a web address provided by the Customer (e.g. link). In addition to classic banner advertising, this can include in particular product and company entries, sponsoring or e-mail campaigns.
2.3 ADN shall, at its own discretion, clearly separate advertising material that is not clearly recognisable as such from other content, e.g. by identifying it as an "advertisement".
3. conclusion of order
3.1 A contract for advertising measures shall be concluded by written confirmation from ADN or by provision of the advertising service. The order shall be deemed rejected if it is not confirmed or provided within two weeks. Verbal or telephone declarations are not legally binding and require written confirmation to be effective.
3.2 ADN's Client shall be the direct contractual partner, i.e. either an agency or an advertiser who concludes advertising contracts directly with ADN (direct client). Agencies conclude advertising contracts in their own name and on their own account. The contractual relationship with the Advertisers, in particular with regard to pricing, invoicing and other conditions, shall be the responsibility of the Agency. A contractual relationship between advertisers and the ADN shall only exist if the Agency is directly commissioned as a direct customer or, exceptionally, if the Agency acts as a proxy for the advertiser. The Agency shall draw attention to this in text form, stating the Advertising Client.
4. provision of the advertising material by the client
4.1 Insofar as the Advertising Media are to be placed by ADN, the Client shall make the Advertising Media available to ADN at the latest five working days before the agreed date of first publication. Data shall be delivered in accordance with the current "Technical Requirements" of ADN. Should it not be possible for ADN to publish the Advertising Material properly and on time due to late delivery or delivery not complying with the "Technical Requirements" of ADN, the Client's obligation to pay shall remain unaffected.
4.2 The Client shall bear the risk of the timely delivery of Advertising Media.
5. Duties of the Client, Release from Liability
5.1 The Client shall ensure that the Advertising Media transmitted or placed by him are free of harmful code, such as viruses and Trojan horses, by using suitable state-of-the-art protection programs.
The client guarantees that the advertising measures transmitted or posted by him do not violate applicable laws (e.g. the applicable criminal laws, the regulations for the protection of young people and the law of unfair competition) or infringe the rights of third parties (e.g. trademark rights, personal rights, copyrights). In particular, the advertising measures may not contain any slanderous, credit-damaging, pornographic, violent or war glorifying content. Insofar as contact persons are named in the advertising material, the client assures the existence of the consent of each natural person named by name.
5.2 The Client assures that he has obtained the necessary rights in respect of all authors of the advertising material, which enable him to grant the rights in accordance with clauses 9.1 and 9.2 to ADN. The same shall apply to any necessary agreements with collecting societies (in particular the GEMA). He shall assume the amounts claimed by these collecting societies.
5.3 ADN shall not be under any obligation to check the advertising measures of the Client.
5.4 If a claim is made against ADN by a third party, a court or an authority due to culpable behaviour on the part of the Client, in particular due to a culpable violation of the above-mentioned obligations, the Client undertakes to indemnify ADN from any claims as far as legally possible and to assume the costs of legal defence. ADN shall immediately inform the Client of the assertion of such claims. The Customer shall support ADN in the best possible way in defending itself against such claims. If the Customer does not fulfil this obligation within a reasonable period of time to be set by ADN, ADN shall be entitled to settle the attack of the third party at its own appropriate discretion, taking into account the factual and legal situation as it presents itself to ADN. The costs of this settlement shall be borne by the Customer, even if the settlement subsequently proves to be disadvantageous due to information not provided by the Customer.
6. right of refusal, interruption of the advertising measure
6.1 ADN may reject individual advertising measures if they violate applicable laws or applicable jurisdiction, official or court orders or a cease and desist declaration issued by ADN or if they infringe the rights of third parties or if publication is unreasonable for ADN due to the content, origin or technical reasons.
6.2 ADN shall be entitled to (temporarily) interrupt the execution of advertising measures if there is a well-founded suspicion that the conditions set out in Clause 6.1 have been fulfilled, in particular in the event that a third party asserts a not obviously unfounded infringement of its rights, a warning has already been issued in a similar case or in the event of the commencement of investigations by state authorities. The same shall apply in the event that the Customer subsequently makes changes to the content of the Advertising Media that lead to an infringement pursuant to Section 6.1. ADN shall immediately inform the Client of such an interruption and shall give the Client the opportunity to explain and, if necessary, prove the legality of the advertising measure.
6.3 The Client may also demand that ADN interrupts or removes the advertising measure if a third party makes a claim against it for infringement of rights. If the Customer can remove the Advertising Measure itself or put it offline, it shall in this case be obliged to remove or block the Advertising Measure itself.
6.4 In the event that advertising measures are rejected or interrupted in accordance with the preliminary figures, the agreed remuneration shall nevertheless be paid by the Client, unless ADN was able to allocate the intended advertising space elsewhere. In the event of an interruption in accordance with Clauses 6.1. or 6.2., there shall be no obligation to pay, provided that the Client can prove that the content of the advertising material was lawful and that therefore there were no reasons for the rejection or interruption at ADN's instigation.
7. obligation to give notice of defects
7.1 The Client shall inspect the advertising measure immediately after the first publication date and notify any defects (obligation to notify). In the case of hidden defects, the notification must be made immediately after their discovery.
7.2 Obvious defects are to be notified in writing within five working days of their first appearance, hidden defects within the same period after their discovery.
8. placement of the advertisement; duration; availability
8.1 ADN shall place the Advertising Media within the framework of the booked advertising measure, taking the Client's wishes into account as far as possible. Unless otherwise agreed, the Client shall have no claim to a specific placement or to the exclusion of advertising for goods or services of a competitor of the Client.
8.2 ADN shall place the company and product entries together with the information of other customers in a database and make them available for retrieval by users on the channels booked by the Client.
8.3 In the case of an order for the placement of several advertisements (framework agreement), the individual advertisements must be retrieved within one year of the conclusion of the contract. With regard to the price, the price list valid at the time of placement shall apply. If the one-year deadline is not met, the Client shall be obliged to reimburse ADN for the difference between the discount granted under the contract, taking into account the total volume specified, and the discount corresponding to the actual purchase (discount surcharge).
8.4 Insofar as the Client has booked a certain number of PageImpressions/Clicks for an advertising measure, ADN points out that this information is necessarily based on past experience. If, in exceptional cases, the PageImpressions/Clicks are not reached, the insertion period of the Advertising Measure shall be extended until the booked PageImpressions/Clicks are reached. If the placement booked by the Client has already been allocated to another Customer for the extended advertising period, ADN shall be entitled to switch to a comparable placement, taking into account the interests of the Client.
8.5 The duration of the Advertising Media shall initially depend on the special conditions of the booked Advertising Media, e.g. as stated in the Media Data; in case of doubt, the following duration shall apply:
in the case of a booking by PageImpressions/Clicks, by the period until the number of booked PageImpressions/Clicks is reached
in the case of a booking by time, by the booked period according to the price list, calculated from the day of online publication.
8.6 ADN guarantees an availability of the Internet pages and thus of the advertising media of 95% per month. Not included in this period shall be interruptions within a reasonable scope necessary for the maintenance of the system as well as interruptions due to force majeure or unavoidable causes. Availability is understood as the ratio of actual time (ACTUAL time) to target time (TAR). The availability (in %) is calculated as follows: IZ/SZ * 100.
9. grant of rights by the customer
9.1 With regard to all Advertising Media, the Customer shall transfer to ADN the spatially unlimited rights of use and exploitation that are necessary for the execution of the order. This granting of rights shall include in particular the rights to reproduction, distribution, transmission, storage, as well as the right to place the Advertising Media in databases, to make them available for retrieval and the right to make them publicly accessible.
10. remuneration, terms of payment, default
10.1 The remuneration applicable between ADN and the Client shall be determined by the order confirmation. In the absence of a written order confirmation or if no remuneration can be inferred from the order confirmation, the price list valid at the time of placing the order shall apply.
10.2 The price list may be changed at any time. However, for orders already confirmed by ADN, price changes shall only be effective if they have been announced at least one month in advance. Otherwise, the Client shall have the right to terminate the contract, which must be exercised in writing within five working days of the announcement of the price increase. Further claims of the client are excluded. If no notice of termination is given, the price increase shall also be deemed to have been approved for existing orders.
10.3 Unless otherwise agreed, the invoice amount to be paid by the client is due for payment within 14 days. The date of first publication of the advertising material is decisive for the calculation of the period.
10.4 If the Client is in default or if the Client unjustifiably allows bills of exchange or cheques to be protested, or if an application is made for the opening of insolvency proceedings against the Client's assets, ADN shall be entitled to defer the further execution of current orders until payment has been made, to remove advertising material already published and to demand advance payment for the remaining discontinuation of the advertising material.
11. assignment, set-off
11.1 The assignment of claims arising from the advertising order by the Client requires the prior written consent of ADN.
11.2 The Client may only set off claims against claims of ADN if the Client's claim is undisputed or has been legally established.
12. warranty for defects by ADN
12.1 ADN shall guarantee the quality and publication of the Advertising Media in accordance with the customary quality and publication of the Advertising Media as specified in the order confirmation and the "Technical Requirements", taking into account the data provided by the Customer.
12.2 If the publication of an Advertising Material does not correspond to the quality owed due to circumstances for which ADN is responsible, the Client shall be entitled to an extension of the publication period or an immediate replacement placement in a comparable environment. However, ADN shall not be obliged to extend the publication period or to provide a replacement.
12.3 If the extension of the publication period is unreasonable for the Customer or if it fails, or if ADN seriously and finally refuses to provide a replacement, the Customer shall be entitled to cancel the (part) order concerned or to reduce payment to the extent that the purpose of the Advertising Material has been impaired.
12.4 Warranty claims shall become time-barred within 12 months.
13. liability of ADN
13.1 ADN shall only be liable for intent and gross negligence as well as for breach of a material contractual obligation (cardinal obligation). In the event of a slightly negligent breach of a cardinal obligation, ADN's liability shall be limited to damages that were foreseeable at the time of conclusion of the contract and are typical for the contract. ADN shall not be liable in the case of a slightly negligent breach of secondary obligations that are not cardinal obligations. In cases of initial impossibility, ADN shall only be liable if it was aware of the impediment to performance or if its ignorance is based on gross negligence, unless it is a cardinal obligation.
13.2 The above exclusions of liability shall not apply in the event of fraudulent concealment of defects or in the event of the assumption of a guarantee of quality, for liability for claims based on the Product Liability Act and for physical injury (life, body, health).
13.3 Insofar as the liability of ADN is excluded or limited, this shall also apply to the personal liability of its employees, workers, staff, representatives and vicarious agents.
13.4 With the exception of claims in tort, the Client's claims for damages for which liability is limited under this clause shall become statute-barred after one year calculated from the statutory commencement of the limitation period.
14. data protection
14.1 The Client shall not be permitted to store, transmit or in any other way evaluate or use personal, anonymous or pseudonymous data from the advertising material supplied by ADN. This shall not apply to the use of anonymous or pseudonymous data within the scope of the campaign booked by the Customer for the specific advertiser.
14.2 In the event that the Client obtains or collects data from the placement of advertising material by ADN, the Client shall be responsible for compliance with the provisions of data protection law, in particular with regard to the Teleservices Data Protection Act (TDDSG), the Telemedia Act (TMG) and the Federal Data Protection Act (BDSG).
15. place of performance, applicable law, written form
15.1 Neustadt am Rübenberge (Germany) is the exclusive place of jurisdiction.
15.2 This contract is subject exclusively to the law of the Federal Republic of Germany.
15.3 Amendments and supplements to these contractual conditions must be made in writing to be effective. This also applies to the cancellation or amendment of this written form clause itself. As far as in the context of these General Terms and Conditions the written form is mentioned, this means text form in the sense of § 126 b BGB.