§ 1 Jurisdiction and General Provisions
1.) These terms and conditions apply to all existing and future business relations, even if TDU does not expressly refer to them in further contracts - particularly with regard to orders by phone, facsimile or email. A subsequent sending of an acknowledgement of an order is additionally deemed to be an acceptance of the general terms and conditions.
2.) Clients, with whom business relationships are established, are exclusively enterprises, i.e. individuals, entities or legally responsible partnerships, acting in the exercise of a commercial or self-employed professional activity. TDU does per se not provide any marketing services to consumers.
3.) Any varying, contrary or complementary terms and conditions shall, even in the event of notice, not constitute an integral part of the contract, unless this has been expressly approved in writing.
§ 2 Subject of Contract and Partner Offers
1.) Subject of these terms and conditions is the execution of any kind of advertising in any kind of media relevant to TDU, such as telecommunication – including mobile phone networks- audio and video sequences (text, data, graphics), TV, Internet (see special provisions in § 12), etc, promotion, sports and print.
2.) TDU relevant media are in particular offers from so-called partners. These are numerous enterprises with which TDU has entered agreements or cooperations that also authorise TDU to place advertisements/campaigns in the offers of the partners. The client may exclude the placement of his advertisements in individual partner offers, by informing TDU in writing.
3.) A contractual relationship between the client and the partner is not directly entered through the placement of an advertisement. The client expressly punishable obligates himself not to contact the partner directly, but to conduct all communication, regarding the placement of his advertisement in a partner offer, exclusively with TDU.
§ Conclusion of Contract and Term of Contract
1.) A marketing or advertising offer of TDU is initially always subject to change. Technical modifications as well as changes in volume and design are permissible within reasonable limits. The actual placement of an advertisement takes place according to the specifications of the client, but is dependent on advertising consumer demand. No warranty can be given as to when or exactly where the client’s advertisements/campaigns will be visibly placed in or on the advertising space marketed by TDU. As far as details are given with regard to AdImpressions/Caption insertion and/or response rates, they are merely non-binding estimates. TDU owes, in particular, no tangible success regarding the requested advertising and marketing activities.
2.) Advertising and marketing orders of the client are binding and, as a rule, have to be submitted in writing to TDU. In duly justified exceptional cases, the client may withdraw from the contract subject to a term of six weeks prior to the first placement of an advertisement. The withdrawal request must be submitted in writing to TDU. The withdrawal only becomes effective if TDU has expressly agreed to it in writing. Cancellation fees/losses are at the expense of the client.
3.) The TDU has the right, exercising all due care and diligence, to refuse orders, respectively individual ad impressions included in a deal, if the content or form of the advertisement, infringes on any moral and ethical standards or if its placement is unacceptable to TDU. Unacceptable are e.g. in particular advertisements, which in their message or form of design include any politically, denominational or religiously extreme, xenophobic or morally (e.g. sexist or similarly offending) infringing content or which are otherwise contradictory to the interests of the media operator.
4.) The advertising and marketing contract only comes into effect through the written booking confirmation by TDU and has the term of contract set out in it. An early termination is only possible in exceptional cases and only with the consent of the TDU. The right of termination for good cause remains unaffected. Good cause is established when the other party is unable to pay its debt, insolvency proceedings are applied for, instituted or rejected for insufficiency of assets or repeatedly breaches any material term or condition of the agreement and – despite formal notice with penalty of non-performance- fails to remedy such breach within 30 days of a receipt of such notice.
§ 4 Compensation, Default and Compliance with the Prices set out in the Contract or Price Lists
1.) The price lists valid at the time of booking and available on the Internet shall apply, including special conditions (discounts etc.) even if they include a difference to the printed price lists. All prices are net prices, without VAT, unless expressly stated otherwise.
2.) The contractual prices are valid for the period in which the order is executed in the current calendar year. For the extension period the respective list prices apply, coming into effect one month after disclosure; in case of an increase by more than 10%, the client may withdraw from the contract prior to it becoming effective.
3.) Payments have to be made directly and without deductions to TDU within 10 days after invoicing, unless otherwise agreed in writing. Incoming payments are irrespective of their possible determination through the client (1. Costs, 2. Expenses and 3. Contract prices) offset according to their order of maturity.
4.) Complaints will only be accepted, if they are asserted within ten days after delivery of invoice and voucher. In case of variance between the values calculated by the client and TDU for media services, the values calculated by TDU are decisive.
5.) In case of default of payment, interest at the rate of 8% above the base rate is charged, without prejudice to any assertion of claims for damages. In addition, TDU may defer the execution of the contract in case of default of payment and demand advance payment for the remaining contractual services. This also applies in case of reasonable doubt about the solvency of the client, whatever the agreed term of payment.
6.) A right of retention of the client or the set off against claims is only possible, if these claims are undisputed or have been legally established.
7.) The conclusion of the contract does not assign the right to transfer booked advertising space to third parties nor to assign any rights under or in connection with this contract. Advertising agencies or advertising brokers are obligated to adhere to the price lists or agreed prices regarding their offers, contracts or invoicing with clients. In case of transgression, TDU has the right to withdraw from the contract – or to directly enter, at the initial price, into the contract between the advertising agency or advertising broker and its client. In addition, in such case, the agreed contractual penalty is the payment of the amount, which exceeds the price agreed between the client and TDU.
§ 5 Right of Use and Copyright
1.) The copyright on concepts, designs, illustrations, photos and layouts made available by TDU, remains with TDU. The client is only granted a limited right of use. Any further use, publication or distribution of our concepts, designs, illustrations, photos or layouts is again subject to a fee and requires our consent.
2.) Advertising material is regularly made available by the client. In this case, the client warrants that he holds all rights for the placement respectively playing of the advertising material. The client transfers all proprietary rights of use, ancillary copyrights and other rights, in particular, the right of copying, distribution, transmission/broadcast (including any possibly required adaptation rights for the playing of films) extractions from databases and downloads, which are required for the use of advertisements in electronic media. The transfer of rights of use is effected as to time, content and location (in case of online and mobile phone network advertising without any restriction of location) as required in order to fulfil this contract and entitles to the broadcast/placement of advertisements in electronic media by means of all know technical methods as well as of all known formats.
TDU does not monitor or control the content (texts, graphics, pictures, etc.) of advertising materials provided by the client.
3.) The client is liable for all damages caused to TDU as a result of an infringement of aforementioned rights or if the advertisement violates legal regulations or applicable advertising directives, principles or self-binding agreements of the advertising industry and agrees to indemnify and hold TDU harmless from any judicial or extrajudicial or any other claims, asserted by a third party against TDU. In particular the client undertakes to provide a legally unobjectionable advertising material without delay.
§ 6 Delivery and Retaining of Advertising Material
1.) The client has to deliver the advertising material in due time and not less than three days before the distribution. In case of late delivery or if after delivery modifications are made for which the client is responsible, TDU assumes no warranty for the duly distribution.
2.) The client bears the full cost for the generation and delivery of the materials/drafts. This also applies for all expenses incurred for modifications for which the client is responsible.
3.) TDU’s duty to keep and retain materials/drafts ends after three months of last date of distribution of the advertising material. The client expressly agrees that TDU may publish his advertising materials - also after termination of contract - for own purposes.
§ 7 Liability and Period of Limitation
1.) TDU guarantees within the context of foreseeable requirements and provided the duly provision of acceptable and suitable materials/drafts and corresponding to the standard of the booked technology, the best possible rendition of the advertising material. The client is obliged to review the distributed advertising material immediately upon first distribution and to reprimand any defects without delay. In case of hidden defects, the defects notice starts with the discovery of such defect. If notice of defects is not given, then the distribution of the advertising material is deemed approved.
2.) In case of legitimate notice of defects, the client is entitled to faultless compensation distribution, limited to the extent by which the purpose of the advertising material has been affected.
If such compensation distribution is not made within a reasonable period or if TDU ultimately refuses to do so, then the client is entitled to request either the mitigation of compensation (reduction) or the cancellation of the contract (cancellation). If negligibly contrary to contract, particularly in case of negligible defects, the client is not entitle to cancel the contract.
3.) The period of limitation is one year.
§ 8 Default
1.) TDU is exempted from contractual obligations if their performances are in full or in part made impossible by circumstances for which TDU is not responsible or which it cannot avoid. These include cases of force majeure (e.g. strike, business interruptions/restraints), loss through events concerning the entire medium and thus all providers (e.g. breakdowns/operational faults of the online or mobile phone network traffic caused by internal or external factors), programme failures as a result of technical defects, agency or legal measures, etc. The obligations on part of the client shall thereby not apply. A thus caused temporary interruption does not entitle the client to cancel the contract. In such case, the distribution of the advertising material will be made up for in adequate and for the client reasonable time.
2.) If an order is not executed as a result of circumstances, for which TDU is not responsible, then the client, without prejudice to further obligations, has to reimburse the difference between the granted discount and the discount for the actual purchase. Compensation is not applicable, if non-performance due to force majeure is within the area of risk born by TDU.
§ 9 Limitation of Liability
1.) In case of minor negligent breach of duty, a liability is limited to cover the foreseeable, direct and average damage under a typical contract. This also applies to minor negligent breach of duty by our legal representatives or persons employed in performing an obligation. We are not liable to any entrepreneurs for minor negligent breach of trivial duties.
2.) Otherwise we are only liable for damages caused through intent or gross negligence. Any damages exceeding the material value are excluded.
3.) The previous liability limitations do not apply to claims the client might make with regard to product liability. Furthermore, the liability limitations do not apply to personal injuries or death of client for which we can be held responsible.
§ 10 Data Protection
1.) Subject to § 28 of the Federal Data Protection Act, we point out that any data required for the completion of proceedings may be used and stored using a computing facilities subject to § 33 Federal Data Protection Act. Personal data shall be kept confidential and will not be passed.
2.) The client expressly agrees to the collection, processing and use of personal data. He has the right to revoke the consent at any time, with effect in the future.
§ 11 Term of Contract, Termination and Consequences of Termination of Contract
1.) Agreements entered into are on principle valid for an indefinite period of time, unless a term of contract has been expressly stated in the order.
2.) If any party does not perform its obligations and fails to perform its obligations after receipt of a written request and penalty of immediate termination of contract within reasonable notice, then the other party has the right to terminate the contract with immediate effect. TDU is entitled to this right, in particular, when the client becomes insolvent or fails to pay his debt within 3 months. The right of termination for good cause remains unaffected.
3.) After termination of contract, drafts and advertising material will only be returned upon request and as far as they are still usable.
§ 12 12 Special Conditions for Online Advertisements and Marketing
1.) An advertising material for online advertisements can consist of one or more of the following elements
- a picture and/or text, sound sequences and/or static or animated pictures (e.g. banner)
- a sensitive surface which, if clicked on establishes a connection to further data on external computers (AdLink)
- Pages on computers of the TDU GMBH, including advertising information and/or interactive applications (AdPages)
2.) Unless agreed otherwise, TDU will within ten business days after execution of an order, provide call-up information about the number of AdImpressions for the client.
3.) Within the context of AdLinks, the provisions of § 6 clause 2 apply accordingly also to online addresses (URLs and Redirects/Tags) mentioned by the client.
4.) The client is responsible that the content of the advertising material and the respective links, included in the advertising material comply with the legal requirements and the state of the art (correct implementation of the respective technical specifications, and in particular that software is virus free). This applies within the context of AdLinks in particular to the content and technical standard of the online addresses mentioned by the client.
5.) Errors/Defects in the presentation of advertising material subject to the meaning of § 7 are not deemed relevant if the rejected presentation is caused
- by using an unsuitable software and/or hardware (e.g. browser)
- through breakdowns of communication networks of other operators.
- through computer crashes of Internet providers or online service providers,
- through incomplete or not updated offers on so-called proxy servers of commercial or non-commercial providers or online services or
- through the breakdown of the AdServer, which does not last longer than 24 hours (continuously or on aggregate) within 30 days after the commencement of the contractually agreed placement.
6.) The client is in case of performance-related campaigns (so-called CPX campaigns), whose success rates have been previously determined and if requested by TDU, obliged to deliver new advertising material. If the advertiser fails to do so after receipt of such request without delay, then TDU is entitled to stop the campaign with immediate effect, to cancel it in writing and to invoice the order to the extent to which it has been fulfilled.
7.) All online orders apply subject to the permission of the respective operator of the online offer.
§ 13 Final Provisions
1.) The law of the Federal Republic of Germany applies exclusively.
2.) The exclusive place of jurisdiction for all disputes under this contract is, to the extent permitted by Law, Hamburg or Düsseldorf. This applies in particular when the client has no place of jurisdiction in Germany or if his place of residence or habitual residence is unknown at the time of commencement of proceedings.
3.) If any term or provision of the agreement with the client, including these general terms and conditions are in full or in part declared invalid, the remaining terms and provisions shall be unimpaired. The invalid term or provision shall be replaced by such valid term or provision as comes closest to the economic success underlying the invalid term or provision.
As of: 2009
