General Terms and Conditions for online advertising with Haufe Lexware GmbH & Co. KG:
Haufe Lexware GmbH & Co. KG (hereinafter referred to as "HL") markets advertising space on websites and on other Haufe Lexware electronic media. HL executes received and accepted orders as commissioned by the advertising client (hereinafter referred to as "Client") in each case under its own name and on own account.
2.1 "Advertising order" in terms of the General Terms and Conditions below constitutes the contract concluded on the placement of advertising material or materials in information and communication services, especially the Internet, for distribution.
2.2 All current and future advertising orders are subject exclusively to the General Terms and Conditions set out below. HL does not accept clients' conditions that differ from these General Terms and Conditions. The latter shall not become part of the contract, irrespective whether HL specifically objects or not.
2.3 HL is entitled to change the General Terms and Conditions at any time. HL shall notify its contractual partners of any changes at least one month in advance. The amended General Terms and Conditions are deemed accepted unless the Client objects in writing (by mail, fax or e-mail) within four weeks after receipt of the relevant notification.
3.1 Advertising material in terms of these General Terms and Conditions may comprise one or more of the following elements:
– a picture and/or text,
– sound sequences and/or moving pictures,
– a sensitive area which, on activation, establishes a connection to further data at an online address given by the Client and located either in the Client's field or that of a third party (e.g. a link).
3.2 HL reserves the right to clearly identify advertising material not evident as such due to its design with the word "Advertisement".
3.3 Only formats shown in the valid HL price list are available for the placement of advertising material. Special formats and special forms of advertising are possible, subject to consultation with and verification by HL.
4.1 The advertising order placed by the Client on HL shall be validated either on the basis of a written (by mail, fax or e-mail) order confirmation by HL or by completion of the order by HL. HL shall be entitled to reject unconfirmed orders without furnishing reasons.
4.2 The Client's verbally communicated orders or changes to confirmed orders are effective only once they have been confirmed by HL in writing.
4.3 HL accepts orders only under the condition that the advertising material does not violate existing laws or rights of third parties.
4.4 All advertising orders are subject to the agreement of the specific owner of the online offer.
4.5 Insofar as advertising agencies or agents place orders, the advertising order shall, in case of doubt, be deemed given by the advertising agency, unless explicitly otherwise agreed in writing. Orders by advertising agencies or agents shall be accepted only in case of named advertisers. HL is entitled to demand proof of mandate from the advertising agency or agent.
5.1 The insertion period is individually determined according to the booked contacts and period (fixed placement) or in accordance with the booked period and contacts.
5.2 In order to achieve the booked page impressions, HL is entitled to show the advertising material on other than the booked websites, without any arising liability of HL towards the Client.
5.3 If orders include placement instructions, such orders are deemed binding even if the placement instructions cannot be complied with. The prices as set out in the tariffs are charged for accepted placements.
5.4 If several advertising materials are supplied for an advertising order, HL will rotate these as per standard, unless the Client has submitted a schedule for the placement of each advertising material.
6.1 The Client is obliged to observe the necessary advertising materials components that must be provided for publication, the technical specifications to be met by the advertising materials, the method by which the advertising materials must be submitted and the latest date by which said materials must be provided. The Client is obliged in particular to ensure that the target URL through which the advertising material is linked to the webpage of the advertiser remains active for the duration of the insertion of an order. If the Client should become aware of disrupted links between the advertising material and the target URL, he shall inform HL of such disruption without delay.
6.2 Advertising materials should generally be submitted seven working days at the latest before start of placements. Delivery is to: email@example.com. The Client carries the risk of transfer of specific advertising material for publication, especially the risk of loss of data, unless such loss was caused by transfer problems for which HL is carrying the risk.
6.3 HL does not accept any responsibility for the supplied advertising or other material and is not obliged to return such to the Client. HL's obligation to store advertising material ends three months after the last distribution.
6.4 HL will request replacements for unsuitable or damaged material. HL offers no guarantee for the agreed distribution of the advertising material in the event of improper or especially late or subsequent delivery, especially for achieving the booked page impressions.
6.5 In the event that the advertising order cannot be fulfilled due to improper, especially incomplete, late or lacking delivery of advertising material, the Client is obliged to pay HL the agreed fees in compensation.
7.1 Cancellation without costs is possible only until five working days before the agreed placement at the latest. Cancellation must be in writing (by post, fax or e-mail). In the event of cancellation at short notice, HL is entitled to charge up to 80% of the net order value of the still to be delivered campaign volume. This is in addition to the fees charged for already placed online advertising. In this respect, the discounts applicable to the reduced volume are applied.
7.2 If the Client terminates the advertising order without good reason (see Paragraph 649 Sentence 1 BGB [German Civil Code]), he shall pay for the services delivered free of defects up to the date the notice of termination becomes effective. The Client is also obliged to pay HL a lump sum compensation for damages in the amount of 10% of that part of the order amount which was not performed. The Client shall bear the burden of proof that the damages to HL were minor or nil. The assertion of an exceptionally high claim to damages by HL in an individual case is not excluded.
8.1 HL has the right to refuse or to block advertising material, including individual access within the framework of an order, if the content of such advertising material violates laws (e.g. copyright, competition, press or criminal laws) or official regulations or if said content had been objected to by the German advertising council in the course of an appellant process, or if it would be unreasonable to expect HL to publish same, due to content, origin or technical form.
8.2 HL is entitled in particular to withdraw already published advertising material if the Client himself makes subsequent changes to the content of the advertising material or if the data to which a link refers is changed in retrospect, thereby meeting the requirements of Section 8.1.
8.3 HL will inform the Client without delay of any refusal or blocking. In this case, the Client is entitled to make changed or new advertising material available to HL which complies with HL's requirements. HL may charge the Client for additional costs arising from this.
8.4 HL has a claim to the agreed fee, even if a substitute placement under Section 8.3 is no longer possible. If the Client cannot be held responsible for the refusal or blocking, he may demand (pro rata) compensation from HL for payments already made, minus costs already accrued to HL. Further claims by the Client are excluded. Should the Client not have made any such payments yet, the Client shall be obliged to reimburse HL for already accrued costs.
9.1 The Client guarantees and assures that he has obtained all the rights required for the placement of the advertising material and that he has in particular obtained all the required rights of use from the owners of copyrights, ancillary copyright and other rights to the advertising documentation and text he has provided and may freely dispose of such.
9.2 The Client exempts HL from all third party claims against HL which may arise from the violation of copyright, competition, press or criminal laws or other legal stipulations. The Client furthermore exempts HL from the costs of necessary legal defence. The Client is obliged in good faith to support HL with documentation and information in legal defence against third parties.
9.3 To the extent in time, volume and content necessary for the execution of the advertising order, the Client transfers to HL all the required copyrights, rights of use and ancillary copyrights required for the use of the advertisements in online media of all kinds, including the Internet, including especially the right to copy, transfer, transmit, process, read and download from a database. The above rights are transferred spatially unlimited in all cases and entitle to placement using all known technical means and forms of online media.
10.1 HL guarantees, within the framework of predictable requirements, the best possible reproduction of the advertising material under the current technical standards. The Client is aware, however, that it is not possible according to state-of-the-art to create a programme totally free of errors.
10.2 An error in the presentation of the advertising material is particularly not given if the impairment is caused by the use of unsuitable display software and/or hardware (e.g. browser), by faults in the communication networks of other operators, by third party computer failure (e.g. other providers), by incomplete and/or not activated offers on so-called proxies (intermediate storage) or by failure of the Adserver lasting no longer than 24 hours (continuous or added up) within 30 days of the start of the contractually agreed placement.
10.3 If the AdServer should fail for a considerable period (more than 10% of the booked time) in the course of a time-limited fixed booking, HL shall endeavour to supply the missing media service later or to extend the insertion time. If this should not be in the interest of the Client or if later supply is impossible, the Client shall not be obliged to pay for the period of the defect. Further claims are excluded.
10.4 If the quality of the presentation of the advertising material is not satisfactory, the Client is entitled to substitute advertising of good quality, but only to the extent that the purpose of the advert has been impaired. Should HL not deliver within a reasonable period given to him or if substitute advertising is impossible, the Client has a right to a reduction in fees or to cancellation of the order.
10.5 The Client is obliged to inspect the advertising immediately after its placement or its appearance on the website or on other electronic advertising media and to lodge a complaint about obvious flaws within a week after placement or appearance at the latest. If the complaint is not lodged in good time, the Client's guarantee claims are voided. Should possible flaws in the advertising material not be obvious, the Client has no claim in respect of unsatisfactory publication. The same is applicable in case of flaws in repeated advertising placements, unless the Client points out the flaw before publication of the next advertising placement.
10.6 In the event of flaws in the execution of an advertising order, the Client is not entitled to refuse payment of another advertising order.
If an advertising order is not executed for reasons for which HL cannot be held responsible (e.g. caused by software or for other technical reasons), especially due to computer failure, force majeure, strikes, legal regulations, defects for which third parties are responsible (e.g. other providers), network operators or service providers or other comparable reasons, the order will, as far as possible, be made good. In case of an order made good after an appropriate and reasonable time after remedy of the defect, HL's claim to compensation remains valid. HL shall inform the Client in the event of a considerable postponement.
12.1 HL does not guarantee uninterrupted access to the website; neither does it guarantee that specific results will be achieved by placing the adverts.
12.2 Claims for compensation of damages arising from active violation of contractual duty, culpability at contract conclusion and illegal action are excluded in case of slight negligence of HL, its representatives or vicarious agents. This does not apply to lack of assured properties and the violation of significant contractual duties, in which case liability is limited to foreseeable damage. Claims for damages arising from impossibility of the service and delay are limited, in case of slight negligence, to compensation for foreseeable damage.
12.3 In case of gross negligence of common vicarious agents, liability towards businesses is limited to the amount of the foreseeable damage. This does not apply to the violation of essential contractual duties.
12.4 Liability for personal injury and under the Product Liability Act remains unaffected.
12.5 Insofar as HL is obliged to compensate for damages, HL shall position the Client such that the contract appears not to have been concluded (negative interest); compensation of damages arising from non-performance is excluded.
13.1 Unless individually otherwise agreed, the valid HL price lists at the time of conclusion of the contract are applicable to advertising orders.
13.2 HL reserves the right to change the prices. This is not applicable to those who are not businessmen if the order affected by the change is not part of a framework agreement and is intended for execution no later than four months after conclusion of the contract. For orders confirmed by HL, price changes are only applicable if they are announced by HL at least one month before publication of the advertising material. The Client has the right to cancel in the event of a price increase. The right to cancellation must be exercised within five working days after receipt of the notice about the price increase.
13.3 Advertising agencies and other advertising agents are obliged to adhere to the HL price list in their offers, contracts and accounting involving potential clients of HL.
13.4 Discounts are determined in accordance with the HL price list valid in each case.
13.5 The Client grants HL the right, in the event of over-delivery of campaigns, to invoice an additional amount of up to 5% of the agreed volume.
13.6 The prices do not include the cost of production of the graphics and advertising material text.
13.7 All prices in the price lists are net and exclude the statutory VAT applicable at the time.
14.1 Invoices are generated on the day the advertising appears. Unless otherwise agreed in writing, invoices shall be paid into an account specified by HL within 10 days of the invoice date, without any deductions. The credit advice shall determine whether the payment was in time. A special written agreement is required for the deduction of discounts.
14.2 HL may in principle request advance payment in the case of new customers and for the dispatch of newsletters.
14.3 All invoices are based on the reports HL compiles for the customer. HL must be notified of objections to reports in writing within seven days. The basis of calculation is deemed accepted unless objections are raised in time.
14.4 Differences may occur between the statistics of HL and those of the Adserving system of the customer in the case of redirected campaigns. In accordance with the industry standard, differences up to 15% do not justify a complaint. HL is prepared to investigate the reasons in the event of larger deviations. The customer must for this purpose grant HL full access to his Adserving system for the relevant campaign. Unless such access is granted to the full extent, the figures of HL shall be definitive even in case of deviations exceeding 15%. HL shall submit a research report to the customer detailing the reasons for the deviations. The specific report thereby accepted as valid shall be accepted as the basis for the final account.
14.5 Exercise of a right of retention or set-off against own claims against HL claims is only allowed provided the Client's claims are uncontested or were established before a court of law.
15.1 In the event of payment arrears or deferral, HL is entitled to charge interest of 8 percentage points annually above prime lending rate pursuant to § 247 BGB [German Civil Code]. If the damage suffered by HL following arrears is higher, HL shall be entitled to assert this. HL can furthermore, in case of arrears, postpone further execution of the current advertising order until payment has been made and demand advance payment for the remaining placements.
15.2 Objectively justified doubt about the paying ability of the Client constitutes justification for HL to make further appearances of this or further advertising material dependent upon advance payment and the settlement of unpaid accounts, irrespective of any originally agreed method of payment. In justified cases, HL reserves the right to demand prepayment or security deposits.
HL is entitled to give written notice of extraordinary termination (by post, fax or e-mail) especially if the Client has not complied with his duty to pay after two warnings, if an insolvency procedure has been filed against his assets or if the Client has repeatedly violated his contractual duties. In the case of an extraordinary notice of termination, HL is entitled to cease placement of the advertising material(s) with immediate effect.
The advertising order is executed in compliance with the current legal data protection stipulations, with specific reference to § 33 BDSG [Federal Data Protection Act].
The Client is not entitled to sell, cede or otherwise transfer rights and duties under the contract to third parties without prior written consent by HL. HL is entitled to cede or transfer rights and duties under the contract to a third party at any time. The Client explicitly agrees to this.
19.1 The headquarters of HL are the place of execution.
19.2 The place of jurisdiction for legal disputes concerning business transactions with business people or legal entities under public law or in case of a special fund under public law, shall be the responsible court where HL is headquartered, but whereby HL may also assert claims against the Client at any other court responsible for that Client. Insofar as claims by HL are not asserted by dunning procedure, the place of jurisdiction for entities other than business people shall be their place of residence. If the domicile or usual place of residence of the Client, also in the case of entities other than business people, is unknown at the time a claim is filed or if the Client has moved his domicile or usual place of residence away from the region of validity of the law after the conclusion of the contract, then the place of jurisdiction, if the contract was concluded in writing, shall be the responsible court where HL is headquartered.
19.3 German law shall be exclusively applicable to concluded contracts.
19.4 Amendments or addenda to an advertising order, including supplementary agreements, shall be in writing to be legally effective.
19.5 SShould individual parts of these General Terms and Conditions be or become ineffective, the remaining stipulations shall remain unaffected thereby. The contractual partners are obliged to substitute the ineffective stipulation with an effective arrangement to approach the economic intentions of the ineffective stipulation as closely as possible. The same shall apply to a gap that needs to be filled.