1. Scope of application, exclusivity
1.1. The terms and conditions of business below govern the “advertising activities” undertaken by Vogel Business Media GmbH & Co. KG (“Vogel”) on behalf of customers.
1.2. Any conflicting customer terms and conditions shall not be applicable; Vogel is not required to specifically object to them in each case.
2. Advertising activities; identification of advertisement
2.1. “Advertising activities” for the purposes of these General Terms and Conditions shall mean all “advertising media” that can be booked with Vogel as well as any other Vogel services as are bookable in connection with advertising (such as support in the creation of advertising media, translations, advertising campaigns).
2.2. “Advertising media” shall mean elements composed of image and/or text and/or sound sequences and/or moving images and/or of a sensitive surface which, when clicked, connects to a web address specified by customer (e.g., links). Besides classical banner advertising, this may include, in particular but without limitation, product and company entries, sponsoring or e-mailing campaigns. Advertising media shall further include download offers of customer such as webcasts, web video, whitepapers or other download or streaming offers hosted by Vogel. “Whitepapers” contain special expertise on particular topics compiled by customer and may also include product and company information.
2.3. Advertising media that are not clearly recognisable as such by their design will be clearly separated from other contents by Vogel in Vogel’s sole discretion, for example by identifying them as “advertisement”.
2.4. Vogel is not required to identify, as specified in sec. 2.3. above, advertising media that are offered for download. Customer is responsible for identifying any such advertising media, as required. Further, customer agrees to label the download offer with customer’s company name and to keep the details up to date. In all other respects, sec. 5.6. shall apply.
3. Advertising contracts
3.1. An advertisement contract shall become effective upon Vogel’s written confirmation or by performance of the advertising activity. An order shall be deemed refused unless it is confirmed or performed within two weeks. Statements that are rendered orally or by telephone shall have no legal effect and must be confirmed in writing in order to become effective.
3.2. Vogel’s customer shall be the immediate contract partner, which is either an agency or an advertising party that enters into advertising contracts with Vogel directly (direct customer). Agencies place advertising contracts in their own name and for their own account. The agency is responsible for the contractual relationship with the advertising party, especially with regard to pricing, billing, and other terms and conditions. There will be no contractual relationship between the advertising party and Vogel, unless the party is a direct customer or in the exceptional case where the agency acts as representative for the advertising party, which the agency must indicate in text form by reference to its advertising customer.
4. Delivery of advertising media by customer
4.1. Advertising media that shall be placed by Vogel must be supplied to Vogel by customer at least five business days prior to the agreed initial launch date. The data will be delivered in compliance with Vogel’s “Technical Requirements” as applicable from time to time. If Vogel is unable to publish the advertising medium in due form and time since it was delivered late or not in compliance with Vogel’s “Technical Requirements”, customer’s payment obligation will remain unaffected.
4.2. The risk of timely delivery of advertising media shall be on customer.
4.3. Customer will be issued a password by Vogel in cases where customer is authorised to place the advertising media. Customer agrees to treat the password confidential. Vogel may impose technical specifications on customer for the advertising media to be placed. Further, Vogel may restrict the use of specific technologies, especially technologies that would unreasonably burden the Vogel servers or otherwise impair the operation and functionality of the Vogel websites.
4.4. Customer may use deep links to refer to customer’s website, provided the link opens in a new browser window. The use of any other technical means, diverting the user from the site or collecting data on the user, shall not be permitted; in particular, any use of pop-ups, requesting of user data and setting of cookies shall be subject to Vogel’s prior written consent.
5. Customer’s responsibilities; indemnification
5.1. Customer will use suitable, state of the art security software to ensure the advertising means delivered or placed by customer are free of any harmful code, such as viruses or Trojan horses.
5.5. Customer warrants that he has obtained the necessary rights from all authors of advertising media that allow customer to grant rights to Vogel under sec. 9.1. and 9.2. hereof. This includes any necessary agreements with collecting societies (especially GEMA). Customer will cover the fees raised by these collecting societies.
5.6. Vogel is under no obligation to review customer’s advertising activities.
5.7. If recourse is taken against Vogel by a third party, court or authority for culpable conduct on customer’s part, especially any culpable violation of the undertakings above, customer will indemnify Vogel against any claims and cover the costs of the legal defence, as far as permitted by law. Vogel will notify customer without delay of any such claims. Customer will use best efforts to support Vogel in the defence against any such claims. If customer fails to meet this obligation within a reasonable period of time to be fixed by Vogel, Vogel will have the right to settle the third party claim in its reasonable discretion, considering the factual and legal situation as known to Vogel. Customer will bear the costs of any such settlement, including in the event that the settlement later proves to be unfavourable for reason of customer’s failure to render necessary information.
6. Refusal of advertising activities; suspension of advertising activities
6.1. Vogel may refuse individual advertising activities that contravene applicable laws or case law, regulatory or judicial orders or cease and desist undertakings delivered by Vogel, or infringe upon the rights of third parties, or whose publication would be unacceptable for Vogel on grounds of their content or origin or for technical reasons.
6.2. Vogel has the right to (temporarily) suspend advertising activities if there is reasonable suspicion that the criteria of sec. 6.1. are fulfilled, especially where a third party claims infringement of rights and such claim is not obviously unjustified, if a cease and desist letter has been received previously for a similar case, or where government authorities have commenced an inquiry. This right also applies in the event that customer subsequently changes the content of any advertising media, resulting in a breach of sec. 6.1. hereof Vogel will notify customer without delay of any such suspension and allow customer to demonstrate and, if applicable, prove the lawfulness of the particular advertising activity.
6.3. Customer may require Vogel to suspend or take down an advertising activity if a third party has raised claims of infringement against customer. Where customer is able to himself remove or take down the advertising activity, customer must do so in any such case.
6.4. Customer remains obliged to pay the agreed fee for any advertising activities that are refused or suspended in accordance with the clauses above, unless Vogel was able to otherwise assign the designated advertising space. Customer will not be obliged to pay the fee in the event of a suspension under sec. 6.1. or 6.2., provided customer is able to furnish proof of the lawfulness of the advertising content and Vogel, therefore, had no legitimate reason to refuse or suspend the advertising activity.
7. Reporting of defects
7.1. Customer will inspect the advertising activities promptly upon their initial launch date and report any defects (duty to report defects). Any hidden defects must be reported promptly upon their discovery.
7.2. Obvious defects must be reported within five business days after the first launch date, and hidden defects within five business days after their discovery, in each case in writing.
8. Placement of advertising; leads; term; availability
8.1. Vogel will place the advertising media in connection with the booked advertising activity by giving the broadest possible consideration to customer’s requests and preferences. Unless agreed otherwise, customer is not entitled to claim any particular placement or the exclusion of advertisement for goods or services offered by a competitor of customer.
8.2. Vogel will enter the download offers as well as the company and product entries, together with the data of other customers, in a database and keep them available for retrieval by users via the channels booked by customer. As it is in both parties’ interest to market the download offers as extensively as possible, Vogel has the right but is under no obligation to carry out content syndication according to sec. 9.2. with regard to the download offers. The content syndication will not incur any extra cost on customer, except as agreed otherwise.
8.3. Where the contract provides for placement of several advertising media (master contract), the individual advertising media must be called off within one year after signing of the contract. The price list as applicable at the time of placement applies. If customer fails to comply with the one-year period, customer must refund to Vogel the difference between the discount agreed by contract in consideration of the agreed overall order volume and the discount applicable to the actually used placements (discount return charge).
8.4. Where customer has booked a specific number of page impressions/leads for an advertising activity, Vogel advises the customer that this information necessarily is based on past experience. Should the page impressions/leads not be achieved in the exceptional case, the placement period of the advertising activity will be extended until the booked page impressions/leads are achieved. If the space booked by customer has been previously assigned to another customer for the extension period, Vogel may move to a comparable space in reasonable consideration of customer’s interests.
8.5. Any leads provided to customer will be provided only within the limits of what is permissible under data protection law. In particular, customer is aware that users may revoke their consent to any advertising activities. Customer must respect any such revocation or correct the data. Customer will notify Vogel without delay of any user complaints.
8.6. Advertising activities based on leads are conducted at customer’s own risk.
8.7. The term of an advertising medium is governed, first of all, by the specific conditions of the booked advertising medium, for example the conditions stated in the media data. If in doubt, the advertising medium shall have the following term:
8.8. Vogel guarantees 95% availability of internet sites and, thus, of advertising media, relative to the month. This period shall not include any reasonable interruptions as may be necessary to service and maintain the system and interruptions caused by force majeure or unavoidable causes. Availability means the relationship between ACTUAL time (AT) and TARGET time (TT). The formula for calculating the availability (in %) thus is: AT/TT * 100.
9. Rights granted by customer
9.1. Customer agrees to grant Vogel, for all advertising media and with no limit as to territory, all rights of use and exploitation as are necessary to fill the order. In particular but without limitation, this includes the rights of reproduction, dissemination, broadcasting, storage, input into databases, providing for download, and making available to the public, of the advertising media.
9.2. With regard to the download offers customer, in the interest of extensively marketing customer’s contents, further grants Vogel the right to license the contents to third parties for providing them on the internet, or to use the contents for other offer formats (such as e-books) (so-called content syndication).
9.3. Customer agrees to grant the above rights for the duration of the placement of the advertising medium. The rights in view of content syndication under sec. 9.2. are not subject to any time limit but may be terminated at any time by two weeks’ notice.
10. Fee, payment terms, delay in payment
10.1. The fee agreed between Vogel and customer is set out in the order confirmation. In the absence of any written order confirmation or indication of the fee in the order confirmation, the price list applicable at the time the order was placed applies.
10.2. The price list is subject to change at any time. For orders that have been confirmed by Vogel, however, price changes are subject to at least one month’s prior notice in order to become effective. In all other cases customer is entitled to a right of termination, to be exercised in writing within five business days after the publication of the price increase. Any further claims of customer are excluded. If no notice of termination is given, the price increase will be deemed approved for existing orders as well.
10.3. Unless agreed otherwise, the invoiced amount payable by customer falls due for payment within 30 days. A 2% discount on the invoiced amount will be granted for payments received within 14 days. The calculation of the payment term shall be based on the date of first publication of the advertising medium.
10.4. If customer is in default with payment or unjustifiably protests bills of exchange or checks or if a petition for insolvency proceedings against customer’s assets is filed, Vogel may suspend the further fulfilment of pending orders until payment has been made, remove previously published advertising media, and demand advance payment for remaining placements of advertising media.
11. Assignment, setoff
11.1. Any assignment by customer of claims under the advertisement contract shall be subject to Vogel’s prior written consent.
11.2. Any setoff by customer against claims of Vogel is excluded unless customer’s claim is uncontested or has been established by final enforceable judgment.
12. Vogel warranty
12.1. Vogel warrants that the quality and publication of the advertising medium are customary in accordance with the order confirmation and the “Technical Requirements”, taking account of the data submitted by customer.
12.2. If the publication of an advertising medium is not consistent with the owed quality for reasons within Vogel’s control, customer will be entitled to an extension of the publication period or immediate replacement placing in a comparable setting. However, Vogel shall be under no obligation to extend the period or provide a replacement placing.
12.3. If the extension of the publication period is not reasonably acceptable for customer or fails, or if Vogel seriously and definitely refuses to place a replacement, customer may reverse the relevant (partial) booking or reduce payment to the extent the purpose of the advertising medium was impaired.
12.4. Warranty claims become time-barred after 12 months.
13.1. Vogel accepts liability only for damage and losses caused by intent or gross negligence, and for breaches of essential contractual duties (major obligations). In the event of a violation by ordinary negligence of a major obligation, Vogel’s liability is limited to damage foreseeable at the time of conclusion of the contract and typical of the contract. Vogel accepts no liability for breaches by ordinary negligence of accessory obligations that are not major obligations. Vogel accepts liability for initial impossibility of performance only if Vogel was aware of the hindrance or ought to have been aware of it but for gross negligence, except where a major obligation is concerned.
13.2. The above disclaimers of liability shall not apply to claims based on fraudulent concealment of defects, a warranty as to quality, the Product Liability Act and personal injury (life, limb, health).
13.3. Where the liability of Vogel is excluded or limited, this also includes the personal liability of Vogel’s employees, staff members, representatives and vicarious agents engaged in the performance of Vogel’s obligations.
13.4. To the exception of claims based on tort, customer’s claims for damages for which liability is limited under this clause, will become time-barred one year after the beginning of the statutory limitation period.
14. Data protection
14.1 Customer is not permitted to store, transfer or otherwise exploit or use personal, anonymous or pseudonymous data from the advertising means supplied by Vogel. This shall not extend to the use of anonymous or pseudonymous data in connection with the campaigns booked by customer for the particular advertising party.
14.2 Where customer obtains or collects any data from the placement of advertising means by Vogel, customer will be responsible for complying with the applicable data protection legislation, especially the German Teleservices Data Protection Act (TDDSG), Telemedia Act (TMG), and Federal Data Protection Act (BDSG).
15. Information about the ODR (Online Dispute Resolution)
15.1. The European Commission provides a platform for extrajudicial settlement of online disputes (OS-Platform) under http:///ec.europa.eu/consumers/odr/. We are not willing and are not committed to take part in a dispute settlement procedure in a consumer arbitration board.
16. Place of performance, governing law, written form
16.1. Würzburg shall be the exclusive place of jurisdiction.
16.2. This contract shall be governed exclusively by the laws of Germany to the exclusion of the UN Sales Convention.
16.3. Any changes or amendments to these terms and conditions must be set forth in writing to become effective, including any waiver or change of this written form clause. Any reference to the written form in these T&C means text form within the meaning of Sec. 126 b German Civil Code (BGB).