General terms and conditions online media

The following terms and conditions apply to advertising space and other means of advertising offered in online media and to the use of the online products offered by the individual publishing companies within Keppler Medien Gruppe. These terms and conditions apply exclusively. Deviating agreements require separate approval to be given in writing by both parties in order to be recognised. These GTCs also apply if the respective publishing company executed the advertisement order unconditionally in the knowledge that the customer's terms and conditions were in deviation from their own.

For printed displays and advertising materials, please refer to the separate GTCs for advertisements, third party inserts and other forms of advertising.

Definitions

"Advertisement order" within the meaning of the following General Terms and Conditions denotes the contract (including those concluded verbally or by telephone, or by other communication channels, including email and social media) relating to the publication or linking of advertising material belonging to an advertiser or other buyer of advertising space in an online medium (including e-magazines) for the purpose of distribution.

"Advertising material" denotes all technically possible online advertising formats, including those designed for mobile end devices. An advertisement can consist of one or more of the following elements:
-    an image or text,
-    music and moving images,
-    a sensitive area which, when clicked, links to further details that fall within the customer's or third party's sphere of responsibility by means of an online and mobile address provided by the customer.
Examples of this include: advertising banners, buttons, pop-ups, interstitials, superstitials, sticky ads, advertorials or other online forms of advertising by the customer on online media operated by one of Keppler Medien Gruppe's individual publishing companies, including applications for mobile end devices. The following conditions also apply to all special advertising formats such as associate programs, sponsoring, B2B features and similar forms of advertising. The advertising material can be given to the contractor by the customer in current file formats as well as in script form, code, source code or similar.

An "E-magazine" is a publication that is distributed solely in electronic form without a carrier medium, the editorial and promotional content of which is usually independent (as well as different from the content of any printed edition of a newspaper of the same name) and is independently marketed with regard to the advertisements it contains (independently of any printed edition of the same name).

"Customer" is the advertiser.

"Contractor" is the respective individual publishing company belonging to Keppler Media Gruppe, with whom an advertisement order is placed for inclusion in their online media.

"Online media" are media or media formats that are distributed via the internet, such as a website, an app for smartphones or a closed user group in an internet portal.

"Publication" means the distribution of advertising material through one or more forms of online media on the internet.

Relationship between Customer and Contractor

These General Terms and Conditions, in addition to the price list that forms an integral part of the contract (cf. Clause 16 for further information), shall apply exclusively to advertisement orders.

Clause 1 (Order Placement)
The contract first becomes effective following
a) confirmation from the contractor, provided either in writing or by email, or
b) the online distribution of the advertisement.
The advertising material must be delivered to the contractor in a timely manner prior to the date upon which it becomes active, in a clean, suitable electronic state. If the documents are clearly unsuitable or damaged, the contractor shall immediately request a replacement. Further changes to advertising material and placements are not permitted within seven working days prior to the date of publication. In the event of delayed delivery or corrections communicated by telephone, the contractor assumes no liability for the proper distribution of the advertising This also applies if defects in the submission only become apparent at the time of publication. Subsequent changes desired by the customer shall be invoiced on a time and materials basis. The contractor shall determine remuneration at its reasonable discretion.

Clause 2 (Order Execution)
The digital transmission of data takes place at the risk of the customer. Accidental changes to the data, such as transmission errors, are the responsibility of the customer. They are not justification for a reduction or compensation. If the customer identifies such a change, it must notify the contractor of this immediately following publication in an online medium, and no later than five working days following placement. At the customer's request, and in return for payment for the work involved, the contractor shall then replace the previously delivered data with the newly transmitted data. The customer must maintain an available destination address (URL: page, file etc.) for the purposes of executing the contract, for the full term of the contract. The customer is permitted to specify another destination address and stipulate that the advertising material be linked to a different destination address at any time. If such an amendment is acceptable to the contractor, the link shall be changed immediately. In the event of errors relating to the linking of the advertising material to the destination page, the customer shall immediately notify the contractor of these errors in text form, or, in the case of advertising materials containing integrated links to external websites, deliver the amended advertising material to the contractor.

Clause 3 (Additional Expenses)
Additional charges incurred by the contractor for the editing of advertising materials shall be invoiced separately. Remuneration shall be determined at the contractor's reasonable discretion. The contractor reserves the right to turn down editing requests without justification.

Clause 4 (Rejection of Advertisement Orders)
The contractor reserves the right to refuse to publish advertisement orders on account of their content or origin or for technical reasons, in accordance with uniform, objectively justified principles, if the content of such violates law, official regulations or public decency, or if the publication of such is unreasonable for the contractor. The contractor shall immediately notify the customer of its refusal to carry out the order. In such an event, any payments already made by the customer shall be returned. No further claims may be asserted.

Clause 5 (Customer's Obligations)
The customer shall observe applicable law when designing and producing advertising material and ensure that no third party rights of any kind are violated. In particular, by placing the order, the customer guarantees and ensures that it is the holder of all user rights required for the purposes of publication, that is to say, the copyright, trademark, performance protection, personal and other rights for all files or other documents delivered or made available to the contractor (e.g. texts, photos, graphics etc.). The customer indemnifies the contractor from all third party claims that could arise as the result of the violation of provisions under competition law, criminal law, copyright law or any other statutory provisions. In particular, the customer is liable for any illegal, immoral, insulting or threatening content, or content that glorifies violence or is of a sexually explicit nature. The advertising material must not contain links to online media that offend religious sensibilities or denigrate those with different political views, or that have the potential to undermine the morals of children and young persons or to adversely affect their well-being. Indemnity also extends to the costs arising from the need to defend rights against third parties. The customer is obligated to act in good faith by supporting the contractor when defending rights against third parties by providing information and documents, if it is possible for the customer to do so without violating its own obligations towards third parties and while safeguarding its own confidentiality interests.

Clause 6 (Granting of Rights)
The customer grants the contractor all rights required to use and publish the advertising material in accordance with the order, particularly the multimedia and online right, database right, broadcasting right and advertising right. These rights are transferable.

Clause 7 (Discontinuation of Publication of the Advertising Material)
Publication of the advertising material can be immediately halted if there is evidence that the advertising material itself and/or the destination page and/or setting of the destination page is in violation of the law and/or third party rights. Evidence of a violation of the law and/or rights will be considered to exist in particular if authorities and/or other third parties take action of any kind against the customer and/or contractor and this action is based on an allegation of illegality and/or violation of rights. The discontinuation of publication shall be revoked as soon as the suspicion of illegality or violation of rights has been allayed. The customer must be immediately notified of the discontinuation of publication of the advertising material and requested to allay the suspicion within a set period of time. If this period expires to no effect, the contractor is granted the right to immediate termination. The customer is entitled to request the use of other advertising material and/or a link to another website within the publication period. The additional costs arising from this are to be borne by the customer.

Clause 8 (Guarantee and Liability)
8.1. The publishing house guarantees the best possible reproduction of the advertisement in line with the generally accepted technical standards, within the scope of foreseeable requirements. This guarantee does not apply to immaterial errors. However, the customer is aware that, even with the latest technology, it is not always possible to produce a completely error-free reproduction of an advertisement. An error in the display of the advertisement does not therefore exist if caused by
-    the use of unsuitable display software or hardware (e.g. browser) by the user or internet service provider, or if the way in which the advertisement has been rendered does not have a significant negative impact on the purpose of the advertisement or
-    a disruption to the publishing company's or other operator's communications network (including, but not limited to, line failure or power cuts) or
-    computer failure as the result of system failure or a power cut or
-    incomplete and/or non-updated offers being temporarily saved on proxy servers or to the local cache or
-    a failure of the ad servers used by the publishing company that lasts for no longer than 24 hours (continuous or cumulative) within 30 days following the start of the contractually agreed placement.
8.2. Disruptions resulting from defects in or interruptions to the customer's computer as well as the customer's communication channels with the publishing company's servers are excluded from the guarantee.
8.3. In the event of an ad server failure that lasts for a considerable proportion (more than ten percent of the booked time) of a time-limited fixed booking, the publishing company will endeavour to provide the missing media service at a later date. In the case of failure to provide at a later time, the customer shall no longer be required to pay for the period in which media services were not provided or, as an overall average, not performed. Further claims are excluded.
8.4. Beyond its sphere of control, the publishing company does not accept responsibility for the loss of data during transmission and offers no guarantee and/or accepts no liability for data security. The passing of risk occurs when the advertisement is received by the publishing company's server.
8.5. The publishing company shall rectify any significant faults and failures affecting its server and endeavour to remedy minor impairments within an appropriate period.
8.6. The publishing company is not obligated to check the advertisements or other advertising materials with which they have been provided to ensure that they are correct, up-to-date, complete, or for integrity, quality and/or absence of errors and accepts no risk or liability (expressed or implied) in relation to this.
8.7. The publishing company shall only pay damages
-    in cases involving intent or gross negligence and in the absence of guaranteed properties;
-    in all other instances of a breach of a cardinal obligation, default or impossibility of performance, for damages that could be reasonably assumed to have occurred at the time when the contract was concluded,
but not for any special, incidental, indirect, or consequential damages. In any case, the liability of vicarious agents who are not legal representatives or executives for gross and slight negligence is limited, including in cases involving intent, to damage that is typical and foreseeable in such cases and beyond the control of the customer.
If a cardinal obligation in the aforementioned sense has been negligently violated, the publishing company is liable for no more than the amount of remuneration it shall receive or has received for the placement of the advertising material in question.
8.8. This shall not affect liability for damages due to injury to life, limb and health and in accordance with the German Product Liability Act.
8.9. Damages claims by the customer on account of defects are only permissible if they are attributable to the publishing company in accordance with §§ 276, 278 of the German Civil Code.
8.10. Except in cases of intent or gross negligence, the publishing company accepts no liability for the quality of access and access opportunities, the quality of display, memory failure, disruption, potential delay, deletion or defective transmission in communications.
8.11. Clause 8.10 does not apply in countries or jurisdictions that do not permit the exclusion or limitation of liability for consequential or incidental damage.
8.12. All claims asserted against the publishing company relating to violations of contractual obligations lapse one year after the beginning of the statutory limitation period, provided that they are not based on wilful conduct.
8.13. In the event of interruption to business or in cases of force majeure, illegal labour disputes, unlawful seizure, disruption of transport, a general shortage of raw materials and energy supplies etc. - either in the publishing company's operations or in third party operations used by the publishing company to fulfil its obligations - the publishing company is entitled to full payment for the published advertisement if the orders are fulfilled by the publishing company with sold or otherwise guaranteed circulation reaching 80% of the average for the four previous quarters. Should this percentage fail to be reached, the invoice amount shall be reduced in proportion to the difference existing between actual circulation and the circulation that was originally purchased or otherwise guaranteed.

Clause 9 (Immediate Circulation)
Unless otherwise agreed, advertisement orders are intended for immediate publication. If a right to place multiple advertising materials has been negotiated, the process must be completed within one year following publication of the initial advertising material.

Clause 10 (Non-acceptance)
If the customer does not request the publication of the advertising material within the agreed period or defaults on payment of the invoices, the customer must refund the difference between the discount granted and the discount that corresponds to the actual purchase. More extensive claims by the contractor remain unaffected. If non-acceptance due to force majeure remains within the contractor's range of risk, the obligation to make subsequent payment does not apply.

Clause 11 (Placement of Advertising Materials)
The customer's advertising material shall be placed in agreed locations or locations determined by the contractor according to reasonable discretion in consideration of the customer's interests and maintained there in an accessible state within the scope of the level of availability agreed with the provider of the marketed online medium. The advertising material shall be linked to the customer's destination address via a link or, if possible, the advertising material provided by the customer shall contain the link. The destination address shall be accessed when the advertising material is clicked.
Subject to an individual agreement, the customer is not entitled to request the placement of the advertising material in a specific part of the respective online medium or the observance of a set access time on the respective website. Relocation of the advertising material within the contractually agreed setting is possible, provided that the impact of the advertisement is not significantly affected by such.

Clause 12 (Notices of Defects)
In the case of transactions between the two parties, the customer must immediately check that the advertisement order has been published in the manner stipulated in the contract and notify the contractor of any defects within two weeks. In the case of obvious defects, the notice period begins from the time at which the advertising materials are published, and for hidden defects, from the time at which they are discovered. If the customer fails to give notice of any defects, the advertisement shall be regarded as having been approved. In the case of non-merchant customers, the notice period is six months.

Clause 13 (Guarantee)
If the advertisement is published in a way that is wholly or partially illegible, incorrect or incomplete, or is lacking guaranteed characteristics, the customer is entitled to request that the defect be rectified immediately or, if such is not possible, to request a reduction in payment or a replacement advertisement, but only to the extent by which the purpose of the advertisement has been affected. If the contractor misses an appropriate deadline set for this, or the replacement advertisement also contains mistakes, the customer is entitled, to the exclusion of all other claims, to request a reduction in remuneration or cancellation of the order.

Clause 14 (Claims for Damages)
Claims for damages arising from the violation of contractual obligations, culpa in contrahendo and tort - including orders placed by telephone - are excluded; claims for damages arising from impossibility of performance and default are restricted to replacement of the foreseeable loss and the remuneration to be paid for the advertisement or advertising supplement in question. This does not apply to instances of intent or gross negligence on the part of the contractor, its legal representative or vicarious agents. The contractor's liability for damages caused due to an absence of guaranteed characteristics remains unaffected.
In commercial business transactions, the contractor is not liable for the gross negligence of vicarious agents, unless liability relates to cardinal obligations. In all cases, liability towards merchants for gross negligence is limited in its extent to the foreseeable damage up to the amount of the remuneration for each advertising material in question.

Clause 15 (Force Majeure)
If execution of the order is significantly impeded on a permanent basis due to force majeure or other circumstances beyond the contractor's control (particularly disruptions to the communications network or power supply; labour disputes), there is no obligation to ensure performance or provide compensation for damages. If the advertisement is published within an appropriate and reasonable amount of time following the disruption, the contractor is entitled to request payment in full.

Clause 16 (Price List)
The contractor's price list valid on the date upon which the order is completed applies in each case. Amendments to the price list become effective for ongoing orders following a three-month grace period. Advertising agents and advertising agencies promise to adhere to the contractor's price list in all offers, contracts and invoices that they present to the advertiser. The agency commission guaranteed by the contractor must not be passed on to the customer, in part or in full. Orders for which a discount has been awarded can only be concluded to the benefit of one and the same natural or legal person. Companies in which a majority interest is held can be included in the calculation of the discount.

Clause 17 (Invoicing, Maturity)
With the exception of instances in which advance payment is made by the customer, the invoice shall be issued immediately, within 14 days following the first publication of the advertisement where possible. The invoice must be paid within the period stated on the invoice, which begins at the time the invoice is received, provided that another payment term or advance payment has not been agreed in an individual contract. Offsetting by the customer is only permitted if this counterclaim is legally established or recognised.

Clause 18 (Default of Payment)
In the event of default on payment or deferment, a base interest rate as per Section 247 of the German Civil Code can be charged as default interest in addition to the collection costs. In the event of default on payment, the contractor can postpone the continued execution of the order until payment has been made and demand advance payment for any remaining publications.

Clause 19 (Doubts Regarding Ability to Pay)
If justifiable doubts subsequently arise with regard to the customer's ability to pay, the contractor is entitled, including during the term of the contract, to make execution of further advertisement orders dependent on the settlement of outstanding invoice amounts regardless of the initially agreed payment deadline.

Clause 20 (Applicable Law)
The advertisement order is subject to German law. The application of international private law and the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

Clause 21 (Place of Jurisdiction)
The place of jurisdiction for disputes with merchants and comparable legal entities, legal persons under public law and special funds under public law is Offenbach am Main. If the customer's domicile or place of usual residence is unknown at the time the action is filed or if the customer relocates its domicile or place of usual residence following conclusion of the contract to outside the region in which the law is valid, it is agreed that the place of jurisdiction shall be that of the contractor's head office. The place of performance is Offenbach am Main, provided that nothing to the contrary is stated in the order confirmation.

Clause 22 (Data Protection)
21.1. In accordance with the German Telemedia Act (TMG), German Federal Data Protection Act (BDSG) and other statutory data protection regulations, the customer is hereby informed that the personal data provided within the context of use of the publishing company's services, particularly order placement and execution, shall only be saved in machine-readable format, processed and used for the purposes specified by the customer if no permission for use for another purpose has been given, and for the purposes of accounting and payment.
21.2. The publishing company is entitled to collect, process, save and use the customer's or interested party's personal data as part of the order placement and processing process and within the context of availability enquiries, if necessary in order to enable the customer to enlist and make use of the publishing company's services and to enable settlement. In addition, the publishing company is entitled to access this data in order to maintain its ability to operate. The publishing company shall not disclose personal data to third parties. This shall occur only if there is a legal obligation to do so or if the customer has granted authorisation.
The publishing company guarantees that this data will be treated in a confidential manner.

(As of: 11/2015)