General Terms and Conditions of EINSTIEG GmbH for Online Advertising within the Scope of the EINSTIEG Internet Site

 

Issued: January 2007

 

1. Scope of application and basis of contract

1.1  These General Terms and Conditions (hereinafter GTC) are an integral contractual element in respect of all contracts concluded between EINSTIEG GmbH, Im MediaPark 6d, 50670 Cologne (hereinafter EINSTIEG) and any advertiser or other third party (hereinafter “customer”) for the publication of single or multiple advertising media on EINSTIEG Internet pages, in particular at www.einstieg.com (hereinafter “online advertisement”), effected for the purpose of disseminating and publishing such advertisements.

1.2 These GTC apply to natural persons and legal persons, in addition to unincorporated companies holding legal capacity that, in placing their order, are exercising their commercial or self-employed professional activity (enterprise); hereinafter “customer”.

1.3 Insofar as not otherwise stated in these GTC or alternative individual contractual agreements, and particularly within written advertising orders, EINSTIEG’s published advertisement prices and service descriptions contained within the current price lists at the time of conclusion of contract apply.

1.4 Through its acceptance without objection of these conditions, the customer agrees that these conditions apply exclusively in respect of the contractual relationship and any subsequent transactions. The authority of any deviating general terms and conditions of the customer is hereby rejected, including where EINSTIEG is notified of such terms and conditions in confirmation communications or by any other manner.

 

2. Formation of contract and withdrawal 

2.1 The advertising order is binding upon the customer with legal effect. Subject to alternative agreements, formation of contract is principally effected through the written or emailed order acknowledgement from EINSTIEG. These GTC also apply to the contract in the event of any verbal or telecommunicated acknowledgement. Subsequent amendments to performance and/or remuneration are subject to written agreement in respect of their nature, extent and the commensurate adjustment in value. Prior to agreement and subject to alternative effective individual agreements, EINSTIEG is entitled to suspend execution of the contract.

2.2 Subject to alternative written agreement, insofar as orders are placed by advertising agencies, in the event of doubt the contract is concluded with the respective advertising agency. Where an advertiser is the customer, the advertising agency must state the name of the customer. EINSTIEG is entitled to require that the advertising agency provide evidence of the customer mandate.

2.3 EINSTIEG reserves the right to refuse advertising orders, including individual call-offs within the scope of a framework agreement, particularly where, at the due discretion of EINSTIEG

2.3.1  - their content infringes the law and/or official regulations;

2.3.2  - their content and/or form has been the subject of objection in a complaints procedure by the German Advertising Council (Deutscher Werberat) or the German Press Council (Deutscher Presserat);

2.3.3 - publication is unacceptable on the part of EINSTIEG owing to the content, design, origin or technical format.

2.4 EINSTIEG is not obliged to examine the advertisement in respect of its legal permissibility. In placing the order, the customer guarantees that publication of the online advertisement is not contrary to any laws or official regulations.

2.5 Further, in placing the order, the customer also guarantees that it holds all necessary copyrights, ancillary copyrights and any other rights (particularly the right to copy, disseminate, transfer, send, publish, retrieve from a databank and call-up) required for the use and dissemination of the advertisement, which exist in relation to the advertising documentation and intellectual works provided by the customer.

2.6 EINSTIEG is entitled to withdraw from the contract for important reason, of which it has only first become aware following conclusion of the contract. Circumstances deemed to be important reason include, in particular, those stated under 2.3 above.

 

3. Implementation of contract and additions to order 

3.1 Where the customer is granted the right to call-off individual advertisements and subject to alternative effective individual agreements, all such advertisements are to be called-off by no later than one year following conclusion of contract.  

3.2 Subject to available capacity, within the agreed period - or in the absence of an agreed period, within the period stated under 3.1 above - the customer is also entitled to call-off additional advertisements above the quantity stated in the order.

 

4. Cancellation  

Cancellation of the contract is to be effected in writing or via email.

 

5. Performance by EINSTIEG

5.1 EINSTIEG will render performance of the due services in accordance with all applicable statutory and contractual provisions with the due care and diligence of a prudent businessman. In particular, performance comprises the dissemination and publication of advertisements in the Internet, on the agreed Internet page, within the scope of possible options afforded by the advertising documentation and to the extent specified below:

5.1.1 EINSTIEG is under no obligation to disseminate and publish the advertisement while maintenance work is being carried out on the said Internet page, provided such maintenance work does not extend for a period of more than 24 hours (continuously or in total) within any given month.

5.1.2 The same shall apply in the event of failure of the Ad-Server extending for a period of not more than 24 hours (continuously or in total) within 30 days following commencement of the contractually agreed placement.

5.1.3 The precise extent of performance and order processing procedure are determined within the scope of the written advertising order.

5.2 EINSTIEG will not supply proofs or advertising documentation unless performance of this service and the commensurate fees for such have been expressly agreed.

5.3 The obligation incumbent upon EINSTIEG to store the advertisement expires three months following the advertisement’s last publication.

 

6. Customer cooperation obligations

6.1 The customer will fulfil its statutory and contractual cooperation obligations with the due care and diligence of a prudent businessman.

6.2 The customer is responsible for ensuring the prompt provision of advertising material, technical artwork and/or any information necessary for the purpose of implementing the order (hereinafter "advertising documentation"). Within the scope of possible options afforded by the advertising documentation, EINSTIEG will ensure provision of print and display quality as is standard for online media.

6.3 In the event of incorrect advertising documentation, EINSTIEG reserves the right to make commensurate corrections in agreement with the customer and against charge. Advertising documentation submitted by the customer may be checked for defects by EINSTIEG; in the event of which EINSTIEG will advise the customer of evidently incorrect documentation. Where EINSTIEG is unable to identify possible defects in advertising documentation submitted by the customer, or where such defects can only first be identified during implementation of the order, in the event of defective performance by EINSTIEG as a result of such defects the customer will not be entitled to assert any claims for compensation, performance or in relation to the defect. Following consultation with the customer, any such hidden defects will be eliminated either by the customer or at the cost of the customer. Individual requirements for advertising documentation submitted by the customer are regulated here.

6.4 The customer will submit all necessary documentation required to process the order by the agreed date (advertising documentation deadline). In the absence of alternative effective agreement, this deadline shall be no later than five working days prior to the date of publication of the advertisement. The scheduled date of publication can only be adhered to where the advertising documentation is submitted by the customer by the due deadline. In the event that, as a result of a temporal delay on the part of the customer, additional performance becomes necessary in order to observe the agreed advertisement date, the customer will bear any resulting additional costs that are in excess of the agreed remuneration. Insofar as the contract cannot be fulfilled owing to the delay on the part of the customer, EINSTIEG is entitled to require full payment less the value of any expenditure spared.

6.5 The customer will bear the cost of producing the ordered advertising documentation, in addition to the cost of any significant changes to the originally agreed order that are requested or occasioned by the customer.

6.6 In the event that defects in the submitted advertising documentation are not immediately apparent, or only first become apparent during processing, the customer will bear all additional costs or losses incurred during production of the advertisement.

6.7 Advertising documentation that is not recognisable as advertising owing to its design will be designated with the word "advertisement" by EINSTIEG, or will be made clearly distinguishable from the editorial section by means of spatial separation.

6.8 The customer hereby assigns to EINSTIEG all necessary copyrighted rights of use, ancillary copyrights and any other rights, particularly the right to copy, disseminate, transfer, send, publish, retrieve from a databank and call-up, as required for the purposes of publishing the advertisement and to the temporal and contextual extent necessary to implement the order. In all cases, the aforementioned rights are assigned without geographical restriction.

 

7. Payment and invoicing

7.1 The customer will effect payment to EINSTIEG in accordance with the currently applicable price lists. Additional services will be invoiced on the basis of separate agreement. All amounts payable are subject to value added tax at the statutory rate.   

7.2 EINSTIEG will only be bound by the agreed prices and conditions subject to the timely submission by the customer of all relevant documentation and information necessary to process the order. Where the customer delays in submitting such documentation or information, thereby preventing fulfilment of the order, EINSTIEG is entitled to apply the prices and conditions valid at the time the documentation or the information is submitted.

7.3 In the event that the customer cancels an order prior to its completion, EINSTIEG is entitled to require proportional payment in accordance with Section 649 of the German Civil Code (BGB); whereby the following flat-rate cancellation provisions will apply:

• as of 30 working days prior to advertising documentation deadline: 10% of the order value
• as of 20 working days prior to advertising documentation deadline: 25% of the order value
• as of 10 working days prior to advertising documentation deadline: 50% of the order value
• as of 5 working days prior to advertising documentation deadline: 75% of the order value

The customer remains at liberty to furnish evidence that EINSTIEG has not incurred any losses or that losses incurred were for a lesser amount.

7.4 In the absence of any alternative agreement, the agreed remuneration is due and payable without deduction immediately following initial publication of the advertisement and invoicing by EINSTIEG. With respect to new customers entering into business relations with EINSTIEG, EINSTIEG reserves the right to require advance payment to be effected by the advertising document deadline.

 

8. Default in payment 

8.1 Interest and collection costs will be charged in the event of default in payment or any deferment of payment. Upon default in payment, EINSTIEG is entitled to suspend further implementation of the current order until such time as payment is received and require advance payment in respect of the remaining advertisement placement period.

8.2 In the event of objectively justified doubt as to the customer’s ability to pay, EINSTIEG is entitled to make the placement of further advertisements conditional upon advance payment of the due amount and settlement of any outstanding invoices, including where this occurs during the contract period and irrespective of the originally agreed payment term.

 

9. Discount 

Where a contract is not fulfilled for reasons not occasioned by EINSTIEG, irrespective of any other legal obligations, the customer will reimburse EINSTIEG with the difference between the discount price granted and that relating to actually purchased goods (discount).

 

10. Liability for defects

10.1 In the event of defects, the customer is initially entitled to require supplementary performance. Where the defect relates to wholly or partially unreadable, incorrect or incomplete publication of the advertisement, supplementary performance is to be effected through publication of a flawless replacement advertisement to the extent to which the purpose of original advertisement was adversely affected by the defect.

10.2 Should supplementary performance prove unsuccessful, the customer may reduce payment or withdraw from the contract as it so chooses. Any claims to compensation for loss remain without prejudice; such claims are, however, limited in accordance with Section 11 below.

10.3 Complaints in respect of obvious defects must be notified by the customer immediately upon its gaining knowledge of the defect. Complaints in respect of non-obvious defects are to be submitted within six weeks from the initial placement of the advertisement.

 

11. Liability

11.1 The customer bears sole, unlimited responsibility and liability for the content and legal permissibility of the advertisement. In particular, the customer guarantees that the content of all documentation submitted by it (including any changes initiated on its part) and the publication of the advertisement in the agreed format do not infringe any statutory provisions, official regulations and/or third-party rights (particularly, copyright and personal rights). To this extent, the customer hereby indemnifies EINSTIEG against all third-party claims irrespective of their nature, which are asserted against EINSTIEG on the basis of an infringement of the above-stated guarantee. This indemnification also applies in respect of all necessary costs associated with the legal defence of such claims.

11.2 Irrespective of cause in law, claims to compensation as well as claims to compensation of futile expenditure on the part of the customer are precluded, provided that the cause of loss is not founded on a grossly negligent or intentional breach of duty, or at the least, on the negligent breach of a substantial contractual obligation (cardinal obligations); whereby, in the latter case, liability is limited to typically foreseeable damages.

11.3 The above-stated limitation of liability does not apply in respect of damages resulting from injury to life, body or health, any liability in accordance with German product liability law (Produkthaftungsgesetz), or to the extent that EINSTIEG has - as an exception - assumed a guarantee.

 

12. Limitation of actions

12.1 Claims for payment by EINSTIEG are barred by limitation upon expiry of a five-year period. 

12.2 Contractual claims to compensation and any claims to compensation for futile expenditure on the part of the customer are barred by limitation upon expiry of a two-year period.

12.3 In deviation to Section 12.2 above, contractual claims to compensation and any claims to compensation for futile expenditure on the part of the customer in respect of a defect in the advertisement, in addition to the customer’s right to require supplementary performance in accordance with Section 10.1 above, are barred by limitation upon expiry of a period of one year.

12.4 Sections 12.2 and 12.3 above will not apply in the event of an intentional or grossly negligent breach of duty, any infringement of a substantial contractual obligation (cardinal rights), or in cases specified in Section 11.3 above. In all such cases, the statutory periods of limitation will apply.

 

13. Other provisions  

13.1 Verbal supplementary agreements and any exclusions, amendments and/or supplements to these terms and conditions will not be valid without express written confirmation from EINSTIEG. The same applies for any elimination by agreement of this written form requirement.

13.2 Assignment of rights by the customer is subject to the prior written approval of EINSTIEG. Any offsetting or retention by the customer in respect of claims asserted by EINSTIEG will only be permissible insofar as the outstanding counterclaim is judicially non-appealable or uncontested.

13.3 The effectiveness of this contract will not be prejudiced by the inoperativeness of any individual terms of these GTC, other contract terms or any gaps in the provisions. Any inoperative term or gap in the provisions is to be replaced or remedied by means of a valid term that most closely meets the intended meaning and purpose of the inoperative term and all remaining provisions of the contract.

13.4 Place of performance and exclusive legal venue for all disputes arising from or in connection with services forming the object of these GTC is Cologne. German law exclusively applies to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.