General Terms and Conditions of B2B Media Group USA Corporation
1.) Advertising order/validity in the Multi Channel Ad Network
1.1) These General Terms and Conditions (“GTC”) are entered into between the Advertiser ("Client") and B2B Media Group USA Corporation ("Company").
1.2) The Company markets the Internet advertising space, databases and other channels of the Company and partners.
1.3) The Client is defined in more detail in the relevant Advertising Order.
1.4) “Advertising Order” within the meaning of these GTC applies to any contract (“Insertion Order” or “I/O” or the like) between the Client and the Company for the commissioning of one or more solutions, advertising media and the like in the Multi Channel Ad Network of the Company and partners.
1.5) These GTC as well as the price list and any individual discount scales of the Company shall apply exclusively to the Advertising Order. Deviating GTC of the client are expressly excluded unless they have been expressly agreed or are consistent with these GTC.
1.6) The Company may update these GTC at any time. The Company will inform the Client about any material changes in time. The change is considered accepted by the Client, if it does not object to the change within four (4) weeks.
2.) Advertising material
2.1) Advertising media in the sense of these GTCs are all elements and materials used for advertising. Advertising material can consist in particular of pictures, texts, sound sequences or moving images, as well as sensitive surfaces which, when clicked, establish a connection via an online address provided by the Client to other pages within the Client’s or a third party’s area. Advertising media can also be composed of several of the elements mentioned.
2.2) The formats shown in the price list are generally applicable for the placement of advertising media. Special formats and special forms of advertising are possible in individual cases after consultation and examination by the Company.
3.) Conclusion of contract
3.1) In principle, the offers made by the Company are binding for the defined period of time. Change or special requests of the Client can change the price calculation. The Company has to inform the Client about this in time and obtain its approval before passing on or processing the order.
3.2) Additional costs which arise due to subsequent changes in the circumstances prevailing after submission of the offer and conclusion of the contract, with regard to price increases at suppliers or due to special requests of the Client, or additional costs which arise due to the change of supplier/manufacturer necessary for reasons of deadlines or due to increased or desired quality requirements of the Client, are to be compensated by the Client.
3.3) The information in the media data has been determined as best as possible, but is only approximate and not binding.
3.4) An advertisement contract (Insertion Order – I/O) is concluded when the order of the Client is accepted by the Company in writing, usually by an order confirmation, or when the service is partially provided.
3.5) As far as an order is placed by an agency, the contract is concluded in case of doubt between the agency and the Company. The Company has the right to demand a proof of representation from the agency in relation to its Clients.
3.6) Advertising for goods or services of several Clients within one advertising presence (banner, popup, etc.) shall be commissioned by an additional agreement with the Company. The above conditions for the conclusion of this contract apply accordingly.
4.1) The advertising material is to be delivered by the Client in due time, in compliance with the technical requirements specified by the Company. The delivery shall take place at the latest five working days before the agreed date of insertion. In the event of a late delivery of the advertising material, a proper and punctual placement of the booked Advertising Orders is no longer guaranteed. Any claims of the Client, in particular for reduction of the remuneration, due to delayed fulfilment are excluded in this case.
4.2) If a contract has been concluded for on-call advertising media, the advertising media must be called up for placement within one (1) year after conclusion of the contract.
4.3) The obligation of the Company to retain the advertising material ends three (3) months after the last placement.
4.4) The Client is not allowed to set cookies on the sites marketed by the Company.
4.5) The Client shall transmit the advertising material delivered by it free of harmful software, such as viruses, Trojans, etc. The Client undertakes to use the latest software for checking purposes. If a delivered advertising material nevertheless contains outdated software, the Company shall be entitled to delete the affected advertising material immediately without prior notification of the Client in order to avoid further damage.
4.6) Lead generation in general: The Company always delivers leads to the Client with a single opt-in. Other agreements shall be noted in writing on the respective IO. The Client is obliged to check the quality and completeness of the leads immediately after receipt. Complaints about the leads can only be considered by the Company up to 14 days after delivery.
4.7) Lead generation for webcasts: If a firmly booked number of leads for a live webcast is not achieved by the scheduled date, the Client is obliged to provide the Company with one or two white papers. These will be used to generate the remaining outstanding leads for the Client. The lead time for applying for a webcast is at least six (6) weeks.
5.) Power of refusal
5.1) The Company is entitled to reject or block individual advertising media as well as individual call-ups within the framework of a contract conclusion if their content violates applicable law or official regulations, or has been objected to by a Advertising Council in a complaint procedure. The same applies in the event of technical or content-related unreasonableness for the Company.
5.2) The Company may also withdraw advertising material that has already been published, if the Client or other third parties subsequently make changes to the advertising material, which lead to violations according to section 5.1, or if the contents to which reference is made by a link in the advertising material is subsequently changed.
6.) Warranty and indemnification by the Client
6.1) The Client assures and guarantees that it owns all necessary rights for the placement of the commissioned advertising material and that the advertising material complies with the applicable legal provisions. The Company is not obliged to check the advertising material provided by the Client itself. The Client shall indemnify the Company against any claims asserted by third parties against the Company on the basis of any rights to the advertising material to which they are entitled. The same applies to any infringements of the advertising material against legal regulations and against the rights of third parties. The indemnity also includes any costs of an eventual legal defence.
6.2) The Client assigns to the Company all rights of use and exploitation required for the commissioned advertising placement in a non-exclusive form. The rights are transferred without spatial limitation and entitle the Client to placement by means of all forms of Internet advertising by all known or future technical processes.
7.) Warranty by the Company
7.1) Within the scope of the foreseeable requirements, the Company guarantees the best possible reproduction of the advertising material in accordance with the usual technical state of the art. Warranty rights do not arise for minor faults or errors. The Client is aware that it is not possible according to the state of the art to enable a completely error-free reproduction of the advertising material at all times. An error in the presentation of the advertising material shall not be deemed to exist in particular if it is caused (a) by the use of unsuitable display software and/or hardware (e.g. the user’s browser or the Internet service provider’s browser), (b) by computer failure due to disruption of the communication network of other operators or providers (c) by incomplete or non-updated offers on so-called proxy servers (intermediate storage) or in the local cache or (d) by a failure of the AdServer which does not last longer than 24 hours (continuous or cumulative) within 30 days after the start of the contractually agreed placement. In the event of a failure of the AdServer over a considerable period of time within the framework of a time-bound fixed booking, the Client’s obligation to pay shall lapse for the period of the failure. Further claims are excluded.
7.2) If the reproduction of an advertising material is faulty to a not insignificant extent, the If the Company fails to meet a reasonable deadline set by the Client for the replacement of the advertising material or if this replacement is finally refused, the Client shall be entitled to a reduction in payment or cancellation of the order. The rights of the Client shall be limited to the extent of the advertising material affected by the warranty.
7.3) If a faulty placement is due to non-obvious defects of the advertising material supplied by the Client, the Client may not assert any claims in case of insufficient publication. The same applies to errors in repeated advertising placements if the Client does not point out the error before publication of following advertising placements.
7.4) The Client’s warranty claims shall become statute-barred twelve (12) months after they arise.
8.) Force majeure
If the proper fulfilment of an order is not possible for reasons for which the Company is not responsible, in particular due to computer failure through no fault of its own, force majeure, strikes, legal provisions, disruptions for which third parties are responsible or for comparable reasons, the execution of the Advertising Order shall be made up for as soon as the reasons for prevention have ceased to exist. In the event of rectification within a reasonable and acceptable period of time for the Client after elimination of the disruption, the Company’s claim to remuneration shall remain in force. If the delay is not just insignificant, the Company will inform the Client accordingly.
9.1) The liability of the Company is limited to cases of intent and gross negligence by legal representatives, executive employees or vicarious agents of the Company. This limitation does not apply to damages resulting from a breach of material contractual obligations (cardinal obligations) by the Company’s, resulting from applicable Product Liability Laws, resulting from fraudulent misrepresentation by one of the aforementioned persons, or resulting from the breach of a quality guarantee assumed by the Company or injury to life, limb or health. The right to claim damages instead of performance remains unaffected.
9.2) In the event of gross negligence or intent, the Company shall be liable for all damages thereon in the full amount. Otherwise, the claim for damages is limited to foreseeable, contract-typical damage.
9.3) Claims for damages against the Company shall become statute-barred after the expiry of twelve (12) months since they arose, unless they are based on a wrongful or intentional act.
9.4) The regulated limitations and exclusions of liability also apply to the personal liability of the Company’s representatives, employees and vicarious agents.
10.1) The advertising rates are based on the respective valid price list or an individually prepared offer. Agreed or granted discounts only apply for the quantity of advertisements ordered and are limited to four (4) weeks.
10.2) The Company reserves the right to change the price list. For contracts already concluded, price changes are only effective, if the Company notifies the Client thereof at least one month prior to the placement of the advertising material and the Client has not withdrawn from the order for this reason within fourteen (14) days.
10.3) In the event of an agreed frame contract, the discounts granted by the Company shall take into account the Advertising Orders placed and paid for with a Client during the period of twelve (12) months (“frame year”). Retroactive discounting of orders already placed shall not take place. Equally disregarded are orders that were placed in the frame year but are only executed thereafter. If the Company has granted excessive discounts in a frame year, taking into account the total placement volume, the Client shall be subsequently charged for the discount. After expiry of the first frame year, a new frame year shall commence in each case.
10.4) The AdServer/LDS used by the Company shall be exclusively decisive for the billing of ad impressions, clicks, lead volumes, etc.
11.) Terms of payment/Delayed payment
11.1) The terms of payment can be found on the contract form on which the order is based. In the event of default or deferral of payment, default interest of 8 % above the base rate shall be charged, unless the customer proves that the Company has suffered a lower loss. The compensation of further damages caused by delay remains unaffected.
11.2) In the event of late payment, the Company is entitled to invoice the current Advertising Order and all other Advertising Orders booked by the Client in full and to make the placement of further advertising media dependent on payment of the full invoice amount. Previously agreed, deviating payment terms shall remain out of consideration in this case.
Accepted and thus legally binding advertisement orders are in principle subject to the cancellation deadlines stated directly on the respective I/O. If no cancellation periods and/or cancellation fees are specified, the following regulation applies:
- Fourteen (14) – seven (7) days before the start of the campaign: 25 % cancellation fee over the entire order value.
- Six (6) – one (1) days before the campaign start: 50 % cancellation fee over the entire order value.
Once a campaign has started, it can no longer be cancelled.
13.1) The Client is only permitted to assign claims arising from the advertising contract with the prior written consent of the Company. The Client may only offset claims against the Company, if these are undisputed or have been legally established.
13.2) The Client may only assert rights of retention if the Company's claim for payment and the Client's claim are based on the same legal relationship.
14.) Final provisions
14.1) Place of performance and exclusive place of jurisdiction for all disputes arising from and in connection with Advertising Orders shall be determined by the registered office of the Company.
14.2) These GTC shall be governed by the substantive laws of the State of Delaware without regard to conflict of laws, excluding UN sales law.
14.3) Verbal agreements do not exist. Changes or additions to these GTC must be made in writing to be effective. This shall also apply to the waiver of the written form requirement itself.
14.4) Insofar as written form is obligatory in these GTC, email, fax and the like are also permissible.