Within the scope of the marketing of adverts in or via online media, Ad Up Technoloy AG (hereinafter called „Ad Up“) assumes the presentation or placement of adverts in its online media as well as the insertion of adverts and other advertising materials in digital media, in particular on the internet.
A contract for the insertion of advertising campaigns is concluded (booking order) between Ad UP and the Advertiser or their commissioned agent (hereinafter called the „Client“), which is an integral part of the following General Terms and Conditions. They also apply to future business relationships with the Client, without having to be included again. The validity of deviating general terms and conditions of the Client is hereby rejected, provided they do not agree with these General Terms and Conditions. All offers and services of Ad Up are made exclusively on the basis of these General Terms and Conditions.
A „Booking order“ as per these General Terms and Conditions refers to a contract for the insertion of one or more advertising campaigns using the advertising materials of an advertiser, a commissioned agency or another interested party on the internet for the purposes of dissemination.
A booking order is exclusively concluded by a written confirmation of order by Ad Up. This confirmation can also be made by e-mail, fax or by the online placement of the advert.
The placement of the advert is done on the basis of the specified booking order in the Ad Up network as well as the associated cooperation partner. In case of multiple insertions (range insertions) for a wide range of websites not specified in advance, Ad Up is permitted to select the providers from the Ad UP portfolio.
The Client is responsible for the on-time delivery and receipt of the advertising material by Ad Up, including links. All associated materials, which are in the formats GIF, anim. GIF, JPG as well as Flash and HTML, are to be received three working days before the agreed placement deadline of the respective insertions at Ad Up, other formats are to be supplied after consultation. If the Client’s own AdServer system is used, its functioning is to be guaranteed by the Client. Hereby the Client bears the risk for transmission and functionality.
The permitted sizes and settings can be found in our advertising material specifications.
The Client is obliged to check the advertising campaign immediately after the start of delivery by the AdServer system and to notify of any errors. If the Client fails to notify these defects, the placement is deemed to be approved.
The Client guarantees the acquisition and free availability of all necessary rights of use, copyrights, anciliary copyrights and other rights on the advertising documents and texts it supplies. The Client guarantees that the advert to be inserted does not violate the applicable law and releases Ad Up from all claims of third parties, which may arise due to a violation of copyright, competition law, press law, criminal law or any other legal provisions.
The Advertiser guarantees that the contents of the adverts do not violate the applicable law, legal and official bans or good morals. Ad Up is permitted, although not obliged, to perform a check of the content of the advert. Ad Up is permitted to remove adverts which violate the aforementioned provisions and links which lead to content that violates the applicable law, legal and offical bans or good morals, from the offer. This does not require a prior warning. Ad Up will notify the Advertister immediately of the implemented measure. The Advertiser remains obliged to pay the contractually-agreed remuneration, unless it can prove that Ad Up removed the advert from the offer without justification. Further claims for reimbursement or compensation of the Advertiser are excluded.
Ad Up is permitted to reject certain advertising themes for reasons which do not have to be described in more detail. In this case the Client is obliged to provide replacement advertising material for the corresponding campaign.
Ad Up guarantees the best possible reproduction of the advertisting material in accordance with the respective technical standard and is only liable for the proper sending of the advert; it is not, however, responsible for the receipt or retrieval by the recipient or whether notice is taken of it.
Ad Up is not to be held responsible if errors exist in the reproduction of the advertising material or the further links, or if the necessary AdServer specifications of Ad Up are not met, in particular in case of the use of an intermediate AdServer system of the Client.
If booking orders are not performed or not performed in full, Ad Up is permitted and obliged to make up the planned placing measures, if they are not explicitly rejected. If two remedies fail, the Advertiser is permitted to a rescission or price reduction. Further rights, in particular rights to compensation are excluded.
Ad Up shall send the Client, on request, a detailed automatic report by e-mail to check the respective advertising campaign, which corresponds to the market standards.
The prices are based on the respectively valid price list of Ad Up as well as the individually-agreed prices as per the respective offers of Ad Up made for the Client.
Invoices are due for payment within 14 calendar days from the date of invoice, without deduction. The customer and invoice number are to be stated in the payment.
In case of a default in payment by the Client, Ad Up can reject the further execution of an insertion order until payment is made and demand advance payment for further advert insertions.
Furthermore, Ad Up is permitted to demand default interest of 8% above the base rate of interest of the European Central Bank p.a. and to charge the Advertiser any legal and debt collection fees for the collection. Subject to further legal claims.
The Client explicitly declares its agreement that the invoicing of the advertising campaign or the booking order is done exclusively on the basis of the reports issued by Ad Up, without Ad Up being obliged to disclose the issued reports. This also applies in case of a deviation of the reports issued by the Client from the reports submitted by Ad Up, unless the Client can provide evidence that the reports of Ad Up are inaccurate in the individual case.
The contractual parties are mutually obliged not to disclose to third parties any data, documents (excluding the campaign reports for customers by agencies or vice versa), information about plans as well as the corporate policy of the respective contractual party which are received within the scope of this contract and to maintain confidentiality. The obligation continues to have effect after the ending of the contract.
Confidentiality also covers the non-disclosure obligation for the employees who work for and have left the contractual parties.
The liability of Ad Up as well as its representatives or vicarious agents for compensation, in particular due to delay, non-performance, short delivery, misperformance or unauthorised actions only exists in case of the violation of material contractual obligations, of which the Client can rely on the fulfilment to a large degree. The exclusion of liability does not apply in case of intent and gross negligence or for liability due to assured characteristics.
Any liability of Ad Up is limited to the scope of the order of the respective booking. Claims for lost profits cannot be asserted.
The liability of Ad Up only applies to direct damage. In particular no liability is assumed for the non-achievement of the intended results of the respective campaign insertion.
Discounts are only granted on the actual insertion of the media. We grant agencies 15% AE commission on evidence of their work and the invoice.
Cancellations of advertising orders must be made in writing. A cancellation up to two weeks before the start of the insertion is possible without charge. In case of a cancellation less than two weeks before the start of the insertion, 30% of the net order value is charged as a cancellation fee. In case of cancellation after the start of the insertion, Ad Up is permitted to charge 50% of the net order value, which is still due at the moment when the insertion of the online advert ends. In addition the price for online adverts that have already been inserted is invoiced. Here the discount rate applicable for the lower volume is used as the basis.
Ad up is granted the standard industry right to prematurely end advertising campaigns at any time before and after their input into the AdServer management system in justified cases or even to completely reject them.
A justified case exists in particular in the following circumstances:
a) A violation of competition law, criminal law, copyright law and other legal provisions
b) The unreasonability of the delivery due to indecent, ethically and morally questionable content of the advertising material and the direct links
c) Subsequent changes of the advertising material as well as their links, if they do not comply with the contract
d) In case CPC campaigns are verifiably unprofitable
e) In case of non-payment despite the sending of a warning, fees and costs are due on the due payment date
f) In case of the non-fulfilment of the contractual obligations of the Client, despite a warning
g) If conditions are known which affect the creditworthiness of the Client
In case of rejection the Client cannot derive any rights against Ad Up and at the same time recognises this. The Client is to be notified of the rejection by Ad Up in writing, which can be sent by post, fax or e-mail.
Changes or supplements to the contract or changes to the General Terms and Conditions, including this clause, must be made in writing. This also applies to a waiving of the requirement for written form. The transfer of messages by e-mail also fulfils this requirement for written form.
The exclusive place of performance and jurisdiction is Leipzig. The law of the Federal Republic of Germany applies exclusively.
If individual provisions of these General Terms and Conditions or parts thereof are invalid, the validity of the rest of the provisions is not affected. The invalid provision must be replaced by a valid provision which comes as close as possible to the economic purpose of the contractual parties.
Leipzig, September 2012