General Conditions of Business

Standard Business Terms

Applicable to transactions on and after September 1, 2008

The following Standard Business Terms (hereinafter: “the Standard Business Terms”) govern the relationship be-tween  G+J Electronic Media Sales GmbH (hereinafter: “G+J EMS”) and the Client in placing and processing adver-tising orders for the advertising media marketed by G+J EMS and with respect to information and communication services. These Standard Business Terms apply exclusively in this regard, unless otherwise expressly agreed. The Client’s Standard Contract or Business Terms are hereby excluded.  This shall apply even if the Client’s terms are not expressly objected to, or G+J EMS provides services without objection.

1. Definitions

“Agency” means an agency that engages in the placement of advertising in its own or another’s name.  This does not include mere consulting or planning agencies.

“Agency client” is an advertiser whose advertising is booked by an agency engaged by the advertiser in the agen-cy’s own name and for its own account as a Client of G+J EMS. In this case, the agency client is not itself a contract partner of G+J EMS. Rather, there is a two-tiered contractual relationship: G+J EMS/agency and agency/advertiser in which the agency is responsible for determining prices and terms with respect to the advertiser. 

“Client” is a contract partner of G+J EMS. This can be an agency client’s agency or a direct client.

“Operator” is an operator of an information and communication service with which the advertising order is placed.

“Direct client” is an advertiser, which is itself a contract partner of G+J EMS (Client). This is also the case if the advertiser has engaged an agency as a representative to place the advertising order in the advertiser’s own name, § 164 of the German Civil Code [BGB].

“Adverting order” or “transaction” is a contract for the placement of a piece of advertising or several pieces of advertising with an information and communication service for the purpose of dissemination, particularly on the Internet. Information and communication services can be provided on the Internet and on mobile platforms. Internet and mobile platforms are to be treated equally, unless agreements are made to the contrary. 
An advertising order is placed when the Client books an advertisement (offer), and G+J EMS confirms the booking in text form (acceptance). Publication of the advertisement also constitutes acceptance. In this case, there is no need for G+J EMS to make a declaration of acceptance, § 151 of the BGB.
Every advertising order relates to an advertiser specifically designated by surname or company name by the Client.  Any substitution of advertisers by the Client after booking shall requires the consent of G+J EMS in text form. This applies, in particular, to the agency client model.
If a direct client is represented by an agency, it must be expressly indicated in text form (no later than when the ad-vertisement is booked) that the advertisement is to be booked in the name and for the account of the direct client. If no such notice is given, the contract shall be deemed to have been entered into with effect for and against the agen-cy, § 164 (2) of the BGB. G+J EMS shall be entitled to demand proof of authorization.

An “advertising medium” can consist of one or more of the following elements:
• a picture and/or text,
• tone sequences (loops) and/or moving images (including banners),
• a sensitive space that provides a connection to additional data from the advertiser when the user clicks on an Internet address provided in the advertisement (e.g. a link).

“Advertisement” encompasses all the advertising media offered by G+J EMS.

“Advertiser” is the natural person or legal entity that is being advertised or whose products or services are being advertised.  The advertiser is either an agency client or a direct client.

2. Labeling as advertising media
Advertising media that are not identifiable as such, due to their structure, shall be clearly labeled as advertising.

3. Cooperative advertising
Advertisements that advertise the products or services of more than one advertiser within a single advertising me-dium (“cooperative advertising”) require special permission from G+J EMS. Cooperative advertising entitles G+J EMS to make a surcharge.

4. Deadline for execution
If a transaction grants the Client the right to demand individual advertising media, the order must be executed within one year after the contract was entered into. 

5. Expansion of the order
When transactions are made, the Client shall be entitled to demand additional advertising media beyond the quantity referred to in the order within the agreed-upon period or the period referred to in No. 4, subject to available capacity.

6. Refund of discount
Notwithstanding any additional legal obligations, if an order is not filled for reasons for which G+J EMS and the operator are not responsible, the Client shall refund to G+J EMS the difference between the guaranteed discount and the discount based on the services actually accepted.
Unless otherwise agreed, the Client shall have a retroactive right to a discount based on its actual acceptance of ad-vertising media during the year, if the Client entered into a contract at the start of the period, which entitled it to a discount based on the price list.  The right to a discount shall lapse if it is not claimed within three months after the expiration of the one-year period.

7. Delivery of data
The Client shall deliver advertising media in proper form – corresponding, in particular, to G+J EMS’ and the opera-tor’s format and technical requirements – in due time before the start of the placement. Advertising media shall be delivered “in due time” if they are delivered
• three business days before the start of the placement (for standard advertising media), and
• five business days before the start of the placement (for special forms of advertising).
Advertising media shall be returned only upon special request of the Client. G+J EMS’ duty to store the advertising media shall end three months after its last placement. 
The Client shall bear the G+J EMS’ or the operator’s costs for any changes to the advertising media requested by the Client or for which the Client is responsible.
If the advertising media are delivered late, the Client must pay the full value of the order. This shall also apply in the case of a short shipment.

8. Box number advertising [Chiffrewerbung]
If box number advertisement can be placed, the incoming responses shall be stored for four weeks. Replies not picked up or retrieved within this period of time will be deleted or destroyed.
Letters that exceed the permissible format, DIN A4 (weight: 50 g), and consignments of goods, books, catalogs, and packages will not be accepted. Incoming e-mails up to a data volume of 300 kilobytes per e-mail will be forwarded.

9. Right to reject
Advertising orders can be terminated by G+J EMS until the sample advertising media have been presented by the Client and approved by G+J EMS. G+J EMS reserves the right to reject or bar advertising orders – including indi-vidual orders within the framework of a transaction if –
• their content violates laws or official provisions or
• their content was objected to by the German Advertising Council in a complaint procedure, or
• their publication by G+J EMS or the operator is unreasonable due to their content, origin, or technical form, or
• the advertisement contains products or services other than those of the advertiser or those of third parties.
In particular, G+J EMS or the operator can bar advertising media that have already been published if the Client sub-sequently changes the contents of the advertising media or if the data referenced through a link is subsequently changed and the conditions of Paragraph 1 are met.
G+J EMS shall promptly inform the Client of the termination, rejection, or barring of the advertisement. In such case, the Client shall be entitled to deliver modified or different advertising media to which the reasons for rejection do not apply. If such advertising media are delivered late and miss an agreed-upon deadline or are not delivered at all, G+J EMS shall have a right to payment nevertheless. The same shall apply if the advertising media are placed despite an initial termination, rejection, or barring. 

10. Transfer and guarantee of rights
The Client transfers to G+J EMS and the operator all rights of use, ancillary copyrights, and other rights under copy-right law that are necessary to use the advertising in online media of all kinds, including the Internet, particularly the right to copy, disseminate, transfer, publicize, and transmit, and to retrieve and remove from databases, to the extent necessary to execute the order in terms of time and content.  The aforementioned rights shall be transferred with no geographical restrictions in all cases and shall entitle G+J EMS and the operator to make placements using all known technical processes and all known forms of online media.
The Client shall permit G+J EMS and the operator to make its advertising publicly accessible online  – on the Inter-net websites and mobile platforms of G+J EMS (e.g. www.ems.guj.de) or the operator  – and to copy and dissemi-nate its advertising offline (e.g. as a CD-ROM, DVD, print or other advertising medium) for the purpose of self-advertising.
The Client warrants that it possesses the rights necessary to place advertising media and that it alone bears the re-sponsibility for the advertising media being legally unobjectionable. The Client shall indemnify G+J EMS and the operator against all third-party claims that may arise due to the violation of third-party rights or statutory provisions relating to the advertising order. In addition, the Client shall indemnify G+J EMS and the operator against the costs of any necessary legal defense. The Client shall support G+J EMS and the operator in good faith with information and documentation in any legal defense against third parties.
G+J EMS and the operator are not obligated to the Client to review advertising media to determine if they may vio-late the rights of third parties or statutory provisions, particularly press and media law,  competition law, telemedia law, data protection law, and/or criminal law. This shall not affect any statutory duty to make a review.  Unless oth-erwise agreed and notwithstanding other rights, G+J EMS shall have the right to immediately replace advertising media containing the Client’s content with other advertising media, to bar the advertising media without replacing it, and/or to terminate the contract, effective immediately with no notice period, if placement of the advertising media or linking to related pages is prohibited by a court or by government authorities or if claims are filed against it by third parties for placing the advertising media or with respect to the pages linked to such advertising media.
If the Client demands that an advertisement it has ordered not be broadcast because it violates the rights of third parties or for other reasons without complying with the prerequisites set forth in Section 16, the Client shall be re-quired to pay full compensation. The Client reserves the right to prove that G+J EMS suffered a lesser loss.
Advertising media (promotions) designed by G+J EMS for the Client may be used only for advertisements booked through G+J EMS. No further rights have been granted.

11. G+J EMS’ guarantees
G+J EMS guarantees the best possible reproduction of the advertising media in conformity with the usual technical standards within the framework of foreseeable demands. However, the Client is aware that, under the current state of technology, it is not possible to create a program that is completely error-free.  The guarantee does not apply to in-substantial errors. An error in the presentation of advertising media shall be considered “insubstantial,” in particular, if it is caused by
• the use of unsuitable software and/or hardware (e.g. a browser) or
• a malfunction in the communication networks of other operators, or
• a computer crash due to system failure, or
• file conversions to adapt the advertising media to technical specifications, or
• incomplete and/or un-updated  offers on so-called proxy servers (caches), or
• a failure of the ad server, which does not last more than 24 hours (continuously or cumulatively) within 30 days, commencing with the start of the contractually agreed-upon placement.
If the ad server is down for a significant period of time (more than 10 percent of the time booked) during a time-sensitive test booking, the Client shall have no obligation to pay for the period of down time.  Additional claims are excluded. 
If the quality of the reproduction of the advertising media is unsatisfactory, the Client shall have the right to a reduc-tion in payment or an acceptable replacement advertisement, but only to the extent that the purpose of the advertis-ing media was impaired.  If the replacement advertisement is unsatisfactory or unacceptable, the Client shall have the right to a reduction in payment or cancellation of the order.
If defects in the advertising documents are not obvious, the Client shall have no claim if the publication is unsatis-factory. The same shall apply to errors in repeated placements of advertisements if the Client does not point out the errors before the next placement of the advertisement.

12. Deficiencies in performance
If an order is not executed on software-related or other technical grounds for which G+J EMS and the operator are not responsible, particularly due to a computer crash, force majeure, strike, the provisions of law, disruptions that are the responsibility of third parties (e.g. other providers, network operators, or service providers), or for compara-ble reasons, the order shall be executed at a later time, if possible. If the order is executed within a reasonable period of time after the elimination of the malfunction, and this is acceptable to the Client, G+J EMS shall still have a right to compensation.
If the ad impressions figures promised by G+J EMS have not been reached by the end of the placement period, the Client shall have the option of a compensatory booking (if available) or a credit to set off against the next booking. If the ad impressions figures promised by G+J EMS are not reached within a reasonable period of time even with the compensatory booking, the Client can demand that a credit be issued. Other warranty claims are excluded. When the original placement period expires, the work shall be deemed to have been completed within the meaning of § 646 of the BGB.
G+J EMS’s count shall be controlling in determining the ad impressions figures. The Client shall be free to prove that these figures are inaccurate and that other values should be used. The Client shall inform G+J EMS of this in text form within 10 days. If the campaign is transmitted on the servers provided by G+J EMS, notice must be given within a period of three months. The time period commences with the dispatch of the ad impressions figures to the Client.
If there are divergences of more than 10% with respect to total performance after the completion of a campaign, which are attributable to a technical malfunction or human error by G+J EMS or the operator, the Client’s figures shall apply, to the extent they prove there was a technical malfunction or human error.
Any overdelivery shall not result in any change in the order volume booked.
If, during the campaign period, the Client foresees that is will underdeliver the booked service by more than 10%, it shall inform G+J EMS as soon as it is aware of this. In this case, the Parties shall work together to rectify this situa-tion.

13. Liability
G+J EMS shall be liable for losses, on whatever legal grounds, only to the extent the Client seeks damages based on intentional acts or omissions or gross negligence on the part of G+J EMS or its agents or representatives. This shall not apply to liability for warranted qualities and the breach of important contractual obligations (cardinal obliga-tions). In the case of violation of cardinal obligations, G+J EMS’s liability for damages shall be limited to typical, foreseeable losses if it has not been accused of intentional or grossly negligent breach of contract. This shall also apply if the Client demands reimbursement of expenditures made in vain, instead of damages in lieu of performance. G+J EMS shall not be liable for indirect damages, consequential harm caused by defects, or lost profits, unless G+J EMS acted intentionally. All the foregoing limitations on liability do not apply to bodily injury or mandatory liabil-ity under the Product Liability Act.

14. Price lists, changes, and discounts
The price list that is published on the Internet at www.ems.guj.de at the time the order is placed shall apply.
The prices do not include any compensation to be remitted to copyright associations under applicable law. This must be borne by the Client separately.
G+J EMS shall be entitled to change its Standard Business Terms and prices at any time, effective for the future.  Changes to Standard Business Terms and to the prices of advertising orders that have been placed shall be effective, if they were announced by G+J EMS at least one month before publication of the advertisement. In this case, the Client shall have a right of rescission. The right of rescission must be exercised in text form within 14 days of re-ceipt of notice of the price increase. With respect to special discounts (e.g. in reciprocal business deals, etc.), addi-tional costs incurred (e.g. for external streaming or mobile services) are shown separately, and there is no discount or commission on them.
With the exception of the provisions below, discounts are not granted for advertisers who place advertising orders for other advertisers in order to claim joint discounts.
G+J EMS reserves the right to grant discounts to an agency that places orders, which are not dependent on the indi-vidual advertising order or advertiser.
If affiliated companies claim a joint discount (“group discount”) as advertisers, written proof of the advertiser’s membership in the group is necessary. Affiliated companies within the meaning of this provision are companies in which there is an equity holding of at least 50%. Corporations shall prove membership in the group through confir-mation by an independent auditor or by submitting the most recent annual report.  Partnerships shall prove member-ship in the group by submitting an excerpt from the Commercial Register. The proof must be provided no later than the end of the contract (duration: one year). Proof submitted later than this cannot be acknowledged retroactively. In any case, group discounts must be expressly confirmed by the publisher in text form. Group discounts shall last only as long as the company is a member of the corporate group. Prompt notice must be given if membership in the group is ended. When membership in the group ends, so does the group discount.

15. Payments, assignment as security, prohibition on offsetting
The invoice shall be paid within the period indicated on the price list, unless some other payment period – or pay-ment in advance – is agreed upon in text form in an individual case. Any discounts for early payment are included on the price list. G+J EMS retains the right to demand advance payment for good cause, e.g. the start of a new busi-ness relationship. 
The Client shall promptly review G+J EMS’s invoices and make any objections to G+J EMS in writing within two weeks after receipt. At the end of two weeks, the invoice shall be deemed to have been accepted.
Non-cash payments are considered only to be conditional payments and are not considered to be fulfillment of the duty to pay until an irrevocable credit has been entered. All costs and fees associated with the payment transaction shall be borne by the Client. It is understood that statutory VAT must be added to all prices and invoices.
When the advertising order comes into being, the ordering agency assigns its claim to payment against the agency client to G+J EMS as security. G+J EMS accepts this assignment. G+J EMS shall be entitled to disclose this as-signment as security to the agency client if the ordering agency is at least 30 days in default in paying the publisher’s invoice. 
The Client may only set off counterclaims that have been finally adjudicated or acknowledged by G+J EMS in writ-ing. The Client shall have the right to withhold payment only to the extent the claim is based on the same contractual relationship.
Unless otherwise agreed in an individual case, the Client shall be in default with a payment if the amount to be paid by the Client is not received in the account designated by G+J EMS within two weeks of the due date. The calcula-tion of default damages and default interest shall be governed by the provisions of law. In case of default in pay-ment, G+J EMS can halt further execution of the current order until payment is made and demand payment in ad-vance for the remaining placement. This shall also apply if the Client is in default with respect to other companies in the Gruner + Jahr- or Bertelsmann Group.
Objectively justified doubts about the solvency of the  Client shall entitle G+J EMS to condition the appearance of additional  advertising media on prepayment of the amount and satisfaction of outstanding invoice amounts during the term of the contract without consideration of the payment terms originally agreement upon.

16. Cancellation of advertising orders
An advertising booking that is not yet running can be canceled without charge up to three weeks before the start of the placement. If this deadline is not met, 30% of the value of the order shall be charged. A booking of cooperative measures that have not yet been implemented (such as content integration, lotteries, specials, e-booklets, etc.) can be canceled without charge up to six weeks before the start of the placement.  If this deadline is not met, the volume originally booked will be charged pro rata for the running time in the six weeks after receipt of the cancellation. Technical costs incurred for the booking up to the time of cancellation (e.g. streaming or mobile services) shall be billed to the Client in full. Advertising media already in production, especially advertisements for mobile platforms, cannot be canceled. If placements that have already started running are canceled, the full invoice amount must be paid.
Cancellations must be in text form to be effective.

17. G+J EMS’ duty to provide information
Unless otherwise agreed, G+J EMS shall provide the following information for retrieval by the Client within 10 business days of execution of the order:
• the number of times the advertising media were accessed,
• the downtime for the ad server if it exceeds one continuous hour.

18. Data protection/cookies
In processing the advertising order, the applicable data protection provisions shall be taken into account.
In particular, if the Client obtains or gathers data from the placement of advertising media through the use of special techniques, such as the use of cookies or counting pixels, the Client warrants it will abide by the provisions of law in collecting, processing, and using any personal data. 
If the Client receives anonymous or pseudonymous data from the access to the advertising media, the Client may exploit this data within the context of the campaign for the specific advertiser. This exploitation may only include the anonymous or pseudonymous data that was generated by placing the particular advertising media.
Beyond this, the Client is prohibited from further processing, use, and dissemination of any data (personal or ano-nymous) derived from accessing the advertising media. In particular, the Client may not store, exploit, or otherwise use data from the advertising placements for its own purposes and/or disseminate it to third parties. This prohibition also includes creating profiles based on users’ behavior in response to the operator’s offer and further use. For each culpable breach of the obligations set forth in the two preceding paragraphs the Client shall pay G+J EMS liquidated damages in the amount of ten times the price of the order from which the impermissible use of data originates. This shall not affect G+J EMS’ right to seek further damages.

19. Confidentiality, secrecy
Unless otherwise expressly agreed, the Contracting Parties shall treat the content of the advertising order, particu-larly the prices and conditions, as strictly confidential. This shall not apply if disclosure has been ordered by a court or government authority or is necessary for one Contracting Party to enforce its rights against the other Contracting Party. In addition, G+J EMS shall be entitled to disclose the content of the  advertising order – in accordance with Section 21 – to third parties that have been engaged and to affiliated companies within the meaning of § 15 et seq. of the German Stock Corporation Act [Aktiengesetz].
If the Client receives an individualized password from G+J EMS, e.g. to access a personal website, it shall not dis-close this password to third parties and shall store it carefully to prevent misuse by third parties. If the password is lost or the Client becomes aware that third parties may know the password, it shall promptly inform G+J EMS in text form. The Client shall be liable for all losses caused by the misuse of the password, unless the Client proves that it was not at fault. G+J EMS shall have no liability in this case.

20. Redirects
If the agency or the agency/direct client delivers advertising media to the information and communication services marketed by G+J EMS (“G+J EMS Advertising Network”)  via a server operated by itself or a third party, the fol-lowing provisions shall apply:
The Client guarantees that the system it is using meets the following technical requirements:
• use of the customary ad server in the market
• use of the load-balancing method customary in the market
• 24/7 support
• availability: 99.2 % reliability (on a monthly basis)
• use of cache-busting
• guarantee that data protection provisions will be followed with respect to cookies
G+J EMS shall have the right to halt the campaign during periods of low availability. When the campaign is re-sumed, the terms of the contract shall continue unchanged.
During periods of low availability, the key figures to be delivered by G+J EMS (e.g. number of ad impressions) shall be reduced accordingly. Nevertheless, G+J EMS shall be entitled to the full compensation agreed-upon by contract.
G+J EMS reserves the right to conduct endurability tests] to test the technical resilience of the advertising media provided by the Client under frequent use. To the extent necessary, the Client shall grant G+J EMS access to the ad server for this purpose.
If, during the term of the contract, there are or threaten to be disadvantageous changes to one or more ad servers that make it more difficult or impossible for the Client to place advertising media on the G+J EMS Advertising Network website, the Client shall promptly inform G+J EMS of this in writing as soon as the Client becomes aware of it.
The ad server(s) must be continuously monitored and maintained by the Client to prevent malfunctions of all kinds (to the extent possible) or to promptly eliminate them. The Client or a third party must guarantee support 24 hours a day, seven days a week. G+J EMS shall not be liable for malfunctions of the Client’s ad server. Any underdeliveries on these grounds during the placement period shall not result in a compensatory booking or a credit.
All the technical specifications adopted by the AdTechnology Working Committee of the Online Marketing Group [OVK] and in effect at the time shall apply. G+J EMS shall have the right to check compliance with these specifica-tions if an external ad server is used. Upon request, all advertising media for a campaign shall be submitted to G+J EMS for examination if the campaign will be transmitted via a redirect.
G+J EMS shall have the right to halt the campaign if there is noncompliance. After the campaign is halted, the G+J EMS Standard Business Terms shall apply with respect to delivery of the advertising media. In other respects, the key figures to be delivered by G+J EMS shall be reduced accordingly. Nevertheless, G+J EMS shall be entitled to the full compensation agreed-upon by contract.
All advertising media intended to be placed on the G+J EMS Advertising Network shall be sent in advance to an e-mail address provided by G+J EMS for this purpose (werbung@ems.guj.de). G+J EMS must receive them at least two business days before the start of the placement. All advertising media must be approved by G+J EMS in text form before placement on the network. If advertising media are modified, the above provisions shall apply accord-ingly. The functioning of the G+J EMS Advertising Network may not be impeded or restricted by the insertion of the advertising media.
G+J EMS shall be entitled to remove advertising media from the G+J EMS Advertising Network at any time after providing a reasonable notice period. The connection to the outside server can be interrupted at any time for this purpose. There shall be no need for a notice period
a) if a judicial or administrative decision requires G+J EMS to remove a “creative” or to refrain from placing it on the network,
b) if G+J EMS has sufficient evidence that a “creative” that has been placed on the network is impermissible under law,  or
c) the placement of one or more “creatives” causes or has caused serious malfunctions in the  G+J EMS Advertising Network or for the operator. If advertising media are not delivered on time, are incomplete, and/or do not meet tech-nical specifications, G+J EMS shall be entitled to fill the slot in some other way until the delivery is error-free. Then the advertising order will be run at the discretion of G+J EMS. Nevertheless, the Client must pay the full placement price. 
If the Client nevertheless places advertising media that do not conform to these provisions on the network,  it shall promptly – no later than four hours after notification by G+J EMS – ensure that the “creative” is no longer displayed by a browser when the  G+J Advertising Network websites are called up – notwithstanding  G+J EMS’s other rights.

21. Miscellaneous Provisions
The Client must have the prior written consent of G+J EMS to transfer its rights and obligations under the advertis-ing order, in whole or in part.  To the extent the Client has a third party perform its obligations, it shall require such third party in writing to comply with these Standard Business Terms. G+J EMS shall be entitled to make use of third parties to meet its obligations with respect to the advertising order.
To be effective, supplements to these Standard Business Terms must be in writing. This shall also apply to any re-peal of the requirement of written form. Amendments to these Standard Business Terms shall be provided to the Client in writing. They shall be deemed to have been approved if the Client makes no written objection to them within two weeks of notification. G+J EMS shall expressly inform the Client of its right to object. Timely dispatch of the objection shall be sufficient to meet the deadline.
If a provision of these Standard Business Terms is or becomes invalid, this shall not affect the validity of the remain-ing provisions. The invalid provision shall be replaced with a valid provision that comes closest to the invalid provi-sion in economic effect.
The place of performance shall be the registered office of G+J EMS. In business transactions with businessmen, legal entities under public law, and special funds under public law, the competent courts where the operator has its registered office shall have jurisdiction over complaints.   If the operator’s claims are not asserted in enforcement proceedings, the courts where non-businessmen have their permanent residences shall have jurisdiction. German law shall apply. If the Client’s permanent residence or habitual place of residence is unknown at the time the complaint is filed or if the Client moved his permanent residence or habitual place of residence outside the area of applicability of the law after entering into the contract, it is agreed that jurisdiction shall lie with the competent courts where G+J EMS has its registered office if the contract in writing. This shall also apply to non-businessmen.
German substantive law shall apply with the exception of referral rules.