General Terms and Conditions of adindex GmbH, hereinafter referred to as adindex, for the Placement of Advertising Space via Websites, Mobile, Newsletter and Email Lists
Within the scope of marketing advertising, adindex undertakes the placement of advertising on websites as well as other advertising measures (e.g. email marketing). In doing so, adindex acts in its own name and for its own account on behalf of an advertising customer, agent and agency (hereinafter referred to as the Customer).
For this purpose, adindex orders advertising space on websites, newsletter and email lists directly or via network, cooperation and affiliate partners (hereinafter generally referred to as Affiliate) which in turn have access to the aforementioned advertising space against payment of a remuneration agreed upon in detail. The use of advertising space is either for individual campaigns or as a package for several campaigns.
1. Scope of application
1.1 Deliveries, services, offers and contracts between adindex and the affiliates are exclusively based on the following terms and conditions. Conflicting terms and conditions of the Affiliate are invalid, unless their validity is expressly agreed upon between adindex and the Affiliate. The confirmation of the Affiliate with reference to his terms and conditions is hereby already objected to.
1.2 Subject matter of the contract:
The subject of the contract between adindex and Affiliate is the production and/or provision of a functioning, available advertising space within the scope of the agreed conditions. The Affiliate owes as success that the advertising space is provided and maintained at the agreed conditions.
2. Conclusion of contract
2.1 A contract between adindex and the affiliate is only concluded by a written order confirmation from adindex.
2.2 Changes to orders already confirmed by the Affiliate shall only become effective if they have been expressly confirmed in writing by adindex.
3. Booking types
The use of media/advertising space is carried out by adindex in the following ways:
3.1 Utilization of the Affiliate for single campaign.
adindex contacts the affiliate with the aim of placing a campaign. The associated booking order specifies, among other things, the type of campaign, booking or order volume, time periods, remuneration or billing modalities, placement and advertising media or formats.
3.2 Provision of advertising space for several campaigns according to general preliminary specifications of the Affiliate
As an alternative to concluding a contract for a campaign, the Affiliate has the option of specifying general preliminary details of campaigns for which advertising space is to be made available by the Affiliate.
For this purpose, the Affiliate independently selects existing campaigns in the extranet platform which can/should be placed on the advertising media/advertising spaces provided by the Affiliate.
With the selection of the campaign(s) and the use of the advertising media provided in detail, such as links, redirects, scripts, etc., the Affiliate makes all the conditions of the individual campaigns specified in the affiliate platform, in particular their billing form, the specified remuneration and the specified term or termination option, the subject of its offer.
This does not constitute a conclusion of a contract. With his information, the Affiliate submits an offer to adindex to enter into a contractual relationship with him for one/several advertising campaign(s).
By indicating the campaigns he is interested in or the conditions he wishes for the use of any advertising media, the Affiliate has no claim to the conclusion of a contract related to the placement of a specific campaign on the advertising space/media provided by him.
The booking/use of advertising media by adindex in the "Affiliate Area" for campaigns specified by the Affiliate replaces the booking order required under 3.1 and is considered acceptance of the Affiliate's offer. adindex reserves the right to confirm additional booking orders as under 3.1.
In any case, adindex has the option to reject or not consider the booking of a campaign of the Affiliate, especially in the case of corresponding customer requests, technical specifications or competition exclusions. This applies accordingly in the event that individual advertising spaces are not considered by adindex's placement. The affiliate has no claim to a minimum duration or minimum delivery per campaign.
The conditions apply to all types of media use in the campaigns. If deviating regulations are defined for individual points in booking orders, these take precedence over the provisions made here. In the event of partially deviating provisions in booking orders, only the directly affected part shall be amended in each case. All other provisions shall remain valid irrespective thereof.
4. Remuneration of the campaigns
The following types of payment are used and differentiated with regard to the billing of the use of advertising media.
CPM = Payment according to ad impressions delivered: Ad impressions are booked and paid for. CPM campaigns are booked and delivered according to ad impressions using defined advertising media formats (e.g. banners, pop-ups and/or buttons, skyscapers, etc.). The campaigns are invoiced and paid after the end of the specified campaign period, in accordance with the customer order and according to the agreed thousand-contact price (CPM or CPM) - per 1000 delivered ad impressions.
CPC = Payment according to generated clicks: Clicks are booked and paid for. This type of payment is used with the respective defined advertising media formats such as popup/under window, banner, button, skyscaper etc. By clicking on the individual advertising media, the user activates redirects to preset target URLs (e.g., websites of the advertising customers) and thus generates a click in each case. The advertising material is billed according to the agreed time period at the agreed price. Any ad impressions delivered are not relevant for billing. Exclusions with regard to the respective advertising medium, in particular in accordance with Sections 8.4 and 8.5, are to be taken into special consideration.
CPL = remuneration according to generated leads: Valid data records (leads) are ordered and remunerated, which are valid and eligible for remuneration when users enter requested data completely into a form such as input fields, registration forms, etc. for the respective advertising medium and the user agrees to the transmission of the data. adindex ensures that the advertising material can be used by the Affiliate in such a way that the User can enter the data into the respective advertising material form by himself. Invoicing takes place after expiry of the agreed period or when the target limit of the data set volume specified by the customer is reached, on the basis of the agreed remuneration per data set (cost per lead, CPL).
A data record is only valid and to be remunerated if the User voluntarily and consciously allows a complete and remunerable data record to be transmitted to the Customer for contractual use via adindex on the corresponding advertising medium. Incomplete data sets or data duplicates will not be considered. Partial completion of the forms with user data by the Affiliate is only permissible upon express agreement with adindex. The use of advertising material in the context of SpyWare, AdWare etc. is generally not permitted. Data records/leads delivered through this are not eligible for remuneration.
CPO = Payment after order/sale: In so-called cost per order campaigns (CPO), users are requested to place an order/purchase via advertising material. Only fully executed orders are remunerated. This is only the case if the purchase contract is confirmed in full and without revocation by the registered user on the part of the advertiser. If the conclusion intended by the campaign does not come about, no remuneration will be paid. If ad impressions/clicks are provided independently of this, these are not eligible for payment.
Invoicing of the use of advertising material shall be carried out either in relation to a specific campaign (3.1) or according to the Affiliate's preliminary specifications for several campaigns (3.2) in accordance with the booking order issued in this respect. In the case of a volume-related use of advertising media, the remuneration shall be based on uniformly agreed billing modalities that are independent of the campaign.
If billing is agreed without reference to a specific campaign, adindex has the option to place different campaigns according to a uniformly agreed price. The decision on the type, scope and form of placement lies with adindex. If a campaign is terminated before the end of the specified contract period because the advertising goals have been reached, adindex is obligated to inform the Affiliate about the termination.
In return, the Affiliate undertakes to ensure that the activation or deactivation of the campaigns is carried out immediately, at the latest, however, in accordance with the response times specified in the booking order. The booking order itself can basically be made according to any form of billing (CPM, CPL, CPC, CPO).
If payment is agreed on a CPM basis, adindex is free to also place lead, click or order campaigns. In this case, the agreed form of payment according to delivered ad impressions or clicks remains unaffected.
If necessary, the booking order specifies further booking conditions individually (e.g. response time and provision of advertising material).
6. End of the contractual relationship / use of advertising media
6.1 Contract Duration / Achievement of the Campaign Goal
The campaign duration is determined by a specific booking order or the maximum campaign duration specified in the extranet of the "Affiliate Area" of adindex. If, in addition to the time limit, adindex is given an upper limit with regard to the number of ad impressions, clicks, leads or orders to be delivered, the contractual relationship will also be terminated when this target is reached. In the event of a combination of different targets (ad impressions/leads and clicks/leads/orders), the contractual relationship shall be terminated when this target is reached.
6.2 Extraordinary Termination / Contractual Penalty
adindex has the right at any time, in the event of an extraordinary termination of the campaign by the Customer, for whatever reason, but in particular for optimization purposes or in the event of premature fulfillment of the target specified by the Customer, to demand from the Affiliate an immediate and premature deactivation of the advertising media placed on his advertising space and to terminate the contract.
The Affiliate will be informed immediately by adindex by sending a corresponding notification e-mail.
In this case, the Affiliate is obligated to immediately remove the advertising material placed on his advertising space after notification by adindex. There shall be no claim to remuneration for any data records delivered as a target of the advertising campaign after the sending of a corresponding notification e-mail.
If the Affiliate violates the aforementioned obligation, it shall forfeit a contractual penalty pursuant to paragraph 10.1 for each violation. adindex reserves the right to assert further claims for damages.
6.3 Termination / Cancellation / Contractual Penalty
After conclusion of the contract, adindex may terminate and cancel a booking order for the provision of advertising space at any time. The cancellation must be made in writing. The Affiliate is obligated to terminate the placement of online advertising immediately upon receipt of the cancellation.
If the Affiliate violates the aforementioned obligation, it shall forfeit a contractual penalty pursuant to paragraph 10.1 for each violation. adindex reserves the right to assert further claims for damages.
Upon termination of the contract/cancellation of the advertising order, adindex is entitled to use the advertising space for other purposes, provided that the Affiliate has agreed to this in the extranet platform "Affiliate Area".
7. Advertising media/ prohibition of changes/ contractual penalty
7.1 The advertising material placed on the Affiliate's advertising space is exclusively provided by adindex and designed in accordance with the tasks for adindex's advertising material.
7.2 The Affiliate is prohibited from altering the advertising material and/or the linking without consultation with and written confirmation from adindex, from linking differently than specified or otherwise manipulating it in any way.
If the Affiliate violates the aforementioned obligation, he will forfeit a contractual penalty according to paragraph 10.1 for each case of violation. Further claims for damages are expressly reserved.
8. Presentation regulations / prohibited contents / contractual penalty
Unless explicitly permitted in the booking order with reference to the provisions listed under this clause, the Affiliate acknowledges the following mandatory requirements as binding:
8.1 Prohibition of certain content
8.1.1 The contractual partners mutually undertake to comply with statutory and official regulations, in particular data protection law, criminal law, copyright and/or trademark law and/or other regulations of industrial property protection and competition law, and not to infringe the rights of third parties in respect of the data contained in the advertising media and advertising spaces used and in respect of the entry or retrieval of the data used in this respect via the advertising space/advertising media. The Affiliate is therefore in particular prohibited from placing sexual content, depictions of violence, discriminatory statements or depictions regarding race, gender, religion, nationality, disability, sexual orientation or age, as well as radical political content in the environment of the advertising space/advertising material provided by him. Furthermore, he is also prohibited from providing or setting up hyperlinks to other sites with the aforementioned content.
8.1.2 If there is sufficient suspicion that a legal violation attributable to the Affiliate according to clause 8.1.1 exists, adindex is entitled to remove, block or demand the blocking of the advertising space until proof of the legality of the advertising space is provided. The right to terminate the contractual relationship for good cause remains unaffected.
8.1.3 Any changes to the Affiliate's advertising space must be notified to adindex in writing in advance. In the event of a legal violation by the Affiliate's advertising space and/or advertising material, the Affiliate agrees to indemnify adindex from any liability within the meaning of this paragraph towards third parties or authorities, to support adindex to the best of its ability in its legal defense and, upon adindex's request, to pay any damages plus the costs of reasonable legal defense, provided adindex is not guilty of contributory negligence.
The Affiliate as well as adindex shall inform each other immediately within the scope of what is legally permissible if third parties or authorities assert against them that the use of the advertising media/advertising space violates legal and/or official regulations or the rights of third parties.
8.1.4 If the Affiliate violates any of the aforementioned prohibitions under the provision of Section 8.1.1 and the obligation under 8.1.2, it shall forfeit a contractual penalty in the amount set forth in Section 10.1 for each case of violation.
adindex expressly reserves the right to claim further damages.
8.2 Exclusion of modification of tags and codes/ contractual penalty
The Affiliate is prohibited from changing the codes or tags provided to him in any way, regardless of the reason or purpose. The Affiliate is also not allowed to use the codes and tags in any other way than the intended one without consultation with adindex, even if this would be technically possible.
Should the Affiliate violate the obligations stated in this paragraph, he shall forfeit a contractual penalty in the amount stated in paragraph 10.1 for each violation. The assertion of further claims for damages remains unaffected.
8.3 Exclusion of sending e-malis to non-double opt-in users / contractual penalty
The Affiliate is prohibited from integrating URL codes of adindex or one of its principals into e-mails whose e-mail recipients have not expressly agreed to receive the e-mail in advance within the framework of the so-called double opt-in procedure.
Should the Affiliate violate the obligations stated in this paragraph, he shall forfeit a contractual penalty in the amount stated in paragraph 10.1 for each violation.
8.4 Exclusion of Incentivization and Other Third-Party Assistance in CPL / CPO and Click Campaigns
The Affiliate is prohibited from using the advertising material booked on its advertising space in connection with additional benefits through which the User is offered an additional benefit independent of the use of the advertising material. This applies in particular to the integration of the codes/tags provided when generating clicks or leads, e.g. by sending an SMS message, by participating in a competition, using clicks in paid e-mail systems, as well as revenue sharing with users in the form of incentives/bonuses.
Furthermore, the Affiliate is prohibited from combining the advertising material booked with him with other additional offers, which pursue the goal of increasing the contact frequency or triggering a compulsory action, such as bonus clubs, automated entry services, for example for sample orders. The same applies to measures that serve and are suitable for circumventing an IP block.
In the event that the Affiliate violates any of the aforementioned obligations, the Affiliate shall forfeit a contractual penalty pursuant to paragraph 10.1 for each instance of violation. The assertion of further claims for damages shall remain unaffected.
8.5 Exclusions for click campaigns
Clicks generated or artificially initiated by technical devices automatically and by intentional or fraudulent deception are prohibited for the Affiliate. Likewise, repeated or in a short time successive clicks of the same user are not counted as valid. The use of click generators is expressly prohibited.
Any violation of any of the above obligations may be subject to criminal investigation. In addition, the Affiliate shall forfeit a contractual penalty in accordance with paragraph 10.1 for each case of violation of the above obligations. Further claims for damages remain unaffected.
8.6 adindex is permitted to use technical systems and log file controls to ensure compliance with the obligations regulated in the two preceding paragraphs 8.4 and 8.5.
8.7 Exclusion of Unlimited Delivery in CPM Billing
Insofar as the agreed and booked campaigns contain specifications regarding the frequency of the advertising to be delivered to a user in relation to a time unit and/or browser session (so-called frequency cap), the Affiliate shall be obliged to comply with and implement these in accordance with the contractual relationship.
8.8 Exclusion of AdWare
The use of advertising media in the form of software that displays additional advertising (AdWare) to the user over the advertising media booked with him by adindex is prohibited.
8.9 Exclusion of the passing on of advertising material
The use of advertising material is only permitted on the website of the Affiliate according to the order form/ according to the Affiliate platform. The Affiliate is prohibited from passing on Advertising Materials to third parties and/or using them on other websites.
In case of violation of the obligations mentioned in this paragraph, the Affiliate shall forfeit a contractual penalty according to paragraph 10.1 for each violation. Further claims for damages shall remain unaffected.
9.1 In the event of defects on the part of the advertising space(s) to be provided by the Affiliate, the Affiliate has the option to initially provide supplementary performance in the form of a replacement delivery or subsequent delivery. If the supplementary performance fails, adindex may demand a reduction of the remuneration, cancellation of the contract or compensation for damages.
9.2 Events of force majeure which make the fulfillment of a service or obligation significantly more difficult or impossible shall entitle the affected party to postpone the fulfillment of this service or obligation for the duration of the hindrance and a reasonable preparation time. Force majeure shall be deemed to include labor disputes in the companies of the parties or labor disputes in third-party companies. If, due to the nature of the hindrance, it cannot be expected that the service will be provided within a reasonable period of time, each party shall be entitled to withdraw from the contract in whole or in part due to the part of the service not yet performed.
9.3 adindex shall be liable in the event of culpable violation of major contractual obligations (cardinal obligations). Otherwise, adindex shall only be liable, regardless of the legal grounds, if adindex is guilty of intent or gross negligence. This shall be without prejudice to liability for claims based on injury to life, body or health.
9.4 Insofar as adindex is liable for slight negligence, liability shall be limited to typically foreseeable damages. This shall not affect liability insofar as this relates to damages resulting from injury to life, body or health.
The typically foreseeable damage is assumed to be a maximum amount of € 5,000.00 per case of damage.
9.5 Insofar as the liability of adindex is excluded or limited, this shall also apply in favor of the representatives, executive employees and vicarious agents.
10. Contractual penalty
The Affiliate shall forfeit a contractual penalty in an amount to be determined by a court, if applicable, for each case of violation of the aforementioned obligations of the aforementioned GTC. Any further claims for damages shall remain unaffected.
11. Data protection
The storage and/or use of the customer's data records for the Affiliate's own purposes is not permitted without the prior written consent of adindex. Insofar as the Affiliate uses user data generated by individual campaigns for his own use with the consent of adindex (e.g. in the case of co-registrations), he assures compliance with the applicable regulations of the Federal Data Protection Act and assumes comprehensive responsibility under data protection law for the data generated and used by him. This applies in particular to the obligation to inform the data subjects about the use of the data and to obtain their consent to the intended use. Upon adindex's request, the Affiliate shall provide information about compliance with data protection regulations. adindex's request for information does not require any justification. The Affiliate is obligated to fully provide appropriate evidence, also by submitting suitable documents (documents, log files, etc.).
12. Release from liability/cancellation of remuneration claim
In case of violations against the provisions of clauses 8 and 9 in general or against conditions of a booking order formulated for this purpose, the Affiliate indemnifies adindex from all claims on the part of the Principal and the User as well as other parties affected by these violations, insofar as the claim against adindex can be causally attributed to a violation against these provisions or against a provision formulated for a booking order.
Furthermore, the Affiliate is liable for all direct damages incurred by adindex in the event of rule-breaking behavior according to clauses 8, 9, such as e.g. lost sales due to an extraordinary termination on the part of the Principal. In case of disregard of the obligations according to clause 8, the Affiliate furthermore forfeits the general right to remuneration of the data records supplied by him for the corresponding campaigns due to the violation. Insofar as it is not possible to determine beyond doubt what proportion of data records such as ad impressions, leads or clicks have been delivered or generated due to a violation of these rules, adindex is entitled to refuse the entire remuneration. The Affiliate has the right to prove the amount of compensation that is justified for the portion that is free of violations.
13. Reporting, Basis of Accounting and Terms of Payment
On a monthly basis, the Affiliate will receive a report from adindex on the 15th of the following month, which serves as the basis for the settlement of the remuneration. This means, for example, that for the billing month January 2009, the report will be created on February 15, 2009. Objections to the report must be raised by the Affiliate within 7 days in writing to adindex. If this is not done or is done late, the report is accepted as the basis for billing. The use of links in an own AdServer is allowed if the counting of the insertions is done by adindex. In this case, the report to be created does not represent an acknowledgement on the part of adindex that the logged data records are valid data records. With regard to the delivered number of advertisements/ad impressions, the exclusive basis for billing is the tracking provided by the adindex ad server system. Invoicing is carried out on the basis of the generated report by way of a credit note. The credit note will be paid 30 days after the report relevant for the billing has been made available. The billing is based on the validation provided by the customer. Therefore, billing on the part of adindex is only possible after the Customer has provided the validation (determination procedure of the basis for billing).
14. Reservation of right to change
adindex has the option to change the regulations in the above General Terms and Conditions. If adindex makes use of this option, adindex will inform the Affiliate in advance. The Affiliate shall notify adindex of any objection without delay, however, no later than 14 days after receipt of the notification of change. The objection is only in due form and time if the objection is made in writing. If the objection is not made or not made in due time, the amended terms and conditions shall come into effect two weeks after receipt of the notification with the beginning of a new calendar week. adindex will inform the Affiliate of the possibility of objection, its form and deadline as well as the legal consequences of an objection not made in form or in time.
15. Confidentiality obligation/prohibition of assignment
The contracting parties mutually undertake to treat all information and data received from the contracting party in connection with the performance of the contract as confidential and not to make it available to third parties. This obligation extends beyond the termination of the contract. The Affiliate is only entitled to assign or transfer claims arising from the contractual relationship with the prior written consent of adindex. The Affiliate is only entitled to set-off or retention with claims of adindex with undisputed or legally established claims.
16. Applicable Law/ Place of Performance/ Place of Jurisdiction
All legal relationships between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the uniform UN Convention on Contracts for the International Sale of Goods. Place of performance is Paderborn, NRW, Germany. If the customer is a merchant, a legal entity under public law or a special fund under public law or if he has no general place of jurisdiction in Germany, the exclusive place of jurisdiction shall be Paderborn, NRW, Germany for all disputes arising from the contractual relationship, including actions on bills of exchange and checks.
17. Written form/ Severability clause
Unless otherwise agreed between adindex and the Affiliate, the written form is a prerequisite for the effectiveness of side agreements, changes or additions to the contract. Employees of adindex are not authorized to make verbal side agreements or to give verbal assurances. In this respect, too, only written agreements are effective. In case of invalidity of one of the above conditions, the validity of the remaining provisions shall remain unaffected. The invalid clause shall then be replaced by mutual agreement by another clause which comes closest to the invalid clause in terms of its economic purpose.