General Terms and Conditions of Business of ADITION technologies AG for the use of ADITION adserving
The following General Terms and Conditions of Business (GTCs) together with the relevant Licence Agreement shall govern the legal relationship between ADITION technologies AG, Oststraße 55, 40211 Dusseldorf, Germany (hereinafter called “Provider” or “ADITION”) and its Clients (hereinafter called “Clients”). In cases of doubt, however, the provisions of the Licence Agreement shall prevail.
Clause 1: Formation of the contract
I. A contract for the use of ADITION adserving shall not generally be formed until Provider issues a written acknowledgement of an offer made by Client.
II. Price information provided by Provider shall particularly not represent a binding offer to form a licence agreement within the meaning of section 145 of the German Civil Code (BGB). Provider reserves the right to accept or reject offers made by a Client at its own discretion. However, if an offer is not accepted, Provider shall notify Client of the reasons upon request.
Clause 2: Subject matter of the contract
I. Provider grants Client the non-exclusive right to use ADITION adserving (hereinafter called “Licence”). For this purpose Provider shall provide Client with a user account for the duration of the contract which Client can access on the internet with the aid of one of the usual internet browsers. For this purpose Provider shall send Client access data enabling Client to access the system. Every action carried out with this access data shall be deemed to have been initiated by Client unless Client has kept the access data secret and properly protected it from becoming known to third parties.
II. The system enables Client to deliver advertising material over the internet. In the sense of a minimum functionality Client may particularly
- determine advertising space on web pages and advertising material for this advertising space,
- determine the criteria for the delivery of the advertising material (campaigns),
- statistically evaluate the delivery of the advertising material (reporting).
Furthermore, ADITION adserving contains many additional functions that supplement and enhance this minimum functionality. Provider shall therefore be entitled to make modifications at its own discretion in order to enhance and develop the system and to adapt it to the current state of the art. However, the minimum functionality of the system shall remain guaranteed.
III. Client has the right to allocate sub-accounts to its own Clients or to other third parties. ADITION adserving shall enable Client to open such subaccounts that can be accessed with separate access data. Every action carried out with this access data shall be deemed to have been initiated by Client unless Client and the user of the sub-account have kept the access data secret and properly protected it from becoming known to third parties. In a suitable form Client shall impose an obligation on the users of sub-accounts to observe this duty of secrecy and protection
Clause 3: Remuneration
I. In cases of doubt all of Provider’s prices are to be understood as net prices, i.e. exclusive of value added tax.
II. Provider shall send monthly invoices for the remuneration to be paid. Client shall pay the relevant invoice within 20 bank working days without any deductions by transferring the amount in question to Provider’s account. The date when the amount is credited to Provider’s account shall be authoritative. In the event of late payment Client shall be in default without a reminder being required. Any objections to the invoice must be made in written form within a cut-off period of six weeks (section 126b of the German Civil Code (BGB)). The invoice shall otherwise be deemed approved. Provider shall specifically draw Client’s attention to this legal consequence in the invoice.
Clause 4: Client’s obligations
I. Client undertakes to use ADITION adserving in accordance with the law. Client shall particularly
- Observe the legal requirements regarding the protection of youth
- Not disseminate any contents that offend good morals or violate the rights of third parties, especially trademark rights, rights to the use of names or copyrights
- Not spread any viruses, Trojan horses, junk emails or spam,
- Not run any applications that may cause an interference with or a change to the physical or logical structure of the system.
Client is aware that Provider will not monitor Client’s use of the system, particularly the contents of advertising material. Against this background Client shall indemnify Provider against all claims that third parties make against Provider due to Client’s use of the system; the duty to indemnify particularly includes indemnification against the costs incurred both nationally and internationally in bringing legal action and the cost of legal defence. In the case of an obvious or proven infringement Provider shall have the right to stop the dissemination of illegal contents. If the infringement is not obvious or proven, Provider will demand an immediate statement from Client. If no such statement is made or if it cannot rebut the presumption of an alleged infringement, Provider shall also have the right to stop the dissemination of the supposedly infringing contents.
II. Client shall not make any modifications to the website tag without Provider’s express consent.
Clause 5: Provider’s obligations
I. Client is aware that it is not possible to write software that is entirely free of bugs. Provider shall therefore be obliged to exercise the care and diligence that is usual in the industry. Client is furthermore aware that disturbances to the operation of the system cannot be avoided entirely. Whether the nonavailability of the system or part of the system constitutes a defect shall therefore be determined in accordance with paras 2 and 3. However, in cases of doubt the provisions that the Parties have agreed in a Service Level Agreement (SLA) shall take precedence. Any claims that Client may have due to defects shall become statute-barred one year after they have arisen.
II. The Parties agree on three categories of error: 1. Faults impeding operation meaning that advertising space is no longer filled with advertising material; 2. Faults impeding operation meaning that Client does not have access to the system’s minimum functionality (clause 2 (2) nos. 1 – 3); 3. Other faults meaning that these are not errors of categories 1 or 2
III. Provider shall keep the system available regardless of the day and the time (24/7). Availability shall be judged by the output of the router connecting the computer centre used by ADITION with the internet (interconnection point). In the case of errors of category 1. ADITION guarantees an availability of 99 % as a monthly average; this shall be 97 % in the case of errors of category 2. No availability is guaranteed in the case of error category 3. However, ADITION shall rectify such errors within a reasonable time. The guarantee of availability does not extend to disturbances on the internet nor disturbances whose cause is beyond ADITION’s control (such as cases of force majeure). Provider has the right to access Client data if this is necessary in order to rectify faults. Client shall support Provider in rectifying faults, particularly in order to arrive at a detailed clarification of the facts.
IV. The statutory provisions shall apply in addition. Furthermore the disclaimer in clause 7 shall apply to liability for damages due to defects
Clause 6: Termination of the contract
I. The term of the contract shall depend on the Licence Agreement.
II. This shall not affect the Parties’ right to terminate the contract for an important reason. A particularly important reason is if insolvency proceedings are commenced in respect of a Party’s assets or if such proceedings are refused due to lack of assets.
III. When the contract has come to an end ADITION will delete Client’s data for reasons of capacity and data protection. ADITION shall confirm the deletion in writing on Client’s request. Client shall be responsible for carrying out a backup of its data in good time before the contract ends.
Clause 7: Liability
ADITION’s liability shall be unlimited in the case of intent and gross negligence, for injury to life, limb and health, under the provisions of the Product Liability Act (ProdHG), under section 44a of the Telecommunications Act (TKG) and to the extent that a warranty has been given. In the case of a slightly negligent breach of a fundamental contractual obligation ADITION’s liability in terms of the amount shall be limited to the damage that is foreseeable and typical for the type of transaction in question. Fundamental contractual obligations are obligations that have to be fulfilled in order for the performance of the contract to be possible at all and that Client may regularly rely on being fulfilled. All further liability on the part of ADITION shall be excluded. This also applies to the personal liability of ADITION’s legal representatives and vicarious agents
Clause 8: Data protection
I. The Parties shall soon form a separate agreement on data protection if they have not already done so.
II. Provider points out to Client that compliance with data protection law is of paramount importance for ADITION. Client undertakes to use the system in accordance with data protection law, particularly the Federal Data Protection Act (BDSG) and the Telemedia Act (TMG). Client assures ADITION that these rules will also be complied with when using cookie targetings or retargetings. Clause 4 (1) sentence 4 shall apply accordingly.
Clause 9: Final provisions
I. Any side agreements, amendments and additions to the contract must be made in writing in order to be effective. This also applies to the removal of this requirement for the written form.
II. If Client acts as a business, a legal entity or a separate public-sector fund, it is agreed that the sole place of jurisdiction for all claims under this contract shall be Dusseldorf. The same applies to persons who have no general place of jurisdiction in Germany or persons who have moved their place of residence or usual place of abode to a place outside Germany after forming the contract or whose place of residence or usual place of abode is not known at the time when legal action is taken. The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
III. The contract shall remain binding even if individual points should be legally ineffective. The ineffective points, if such points exist, shall be replaced by the statutory provisions. However, if this should constitute an unreasonable hardship for either of the Contracting Parties the entire contract shall become void.