General Terms and Conditions of Interactive Media GmbH for use in relation to business enterprises
§ 1 Validity
(1) All services and offers of B2B Interactive GmbH (hereinafter referred to as "Interactive") are provided exclusively on the basis of these General Terms and Conditions (hereinafter referred to as "GTC"). These are an integral part of all contracts that Interactive concludes with its contractual partners (hereinafter also referred to as "Customer") regarding the services it offers. They shall also apply to all future services or offers to the Customer, even if they are not separately agreed upon again.
(2) Terms and conditions of the customer or third parties shall not apply, even if Interactive does not separately object to their validity in individual cases. Even if Interactive refers to a letter that contains or refers to the Customer's or a third party's terms and conditions, this does not constitute agreement with the validity of those terms and conditions.
§ 2 Definition of Campaign, Placement
(1) "Campaign" means all services of the Client that can be booked within the scope of the implementation of online marketing, in particular company and product entries (in special company directories), sponsoring, banner advertising, email campaigns, white papers, webcasts, web video, as well as other download or streaming offers (if currently being offered).
(2) In the placement of the contractual campaign, Interactive shall take into account the Customer's wishes as far as possible. The Customer shall not be entitled to a specific placement of the Campaign or to the exclusion of campaigns or advertising for goods or services of a competitor of the Customer, unless expressly agreed otherwise.
§ 3 Offer and Conclusion of Contract
(1) All offers made by Interactive are subject to change without notice and are non-binding, unless they are expressly marked as binding or contain a specific acceptance deadline.
(2) By placing a written order for services (by email), the customer makes a binding offer to Interactive to commission the corresponding service. The offer is only considered accepted by Interactive as soon as Interactive declares acceptance to the client in writing (by email) or begins with the commissioned service, whereby the contract comes into effect.
(3) The written contract, including these General Terms and Conditions, is solely authoritative for the legal relationship between Interactive and the customer. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises made by Interactive prior to the conclusion of this contract are not legally binding and verbal agreements between the contracting parties shall be replaced by the written contract unless it is expressly stated in each case that they shall continue to be binding.
(4) Supplements and amendments to the agreements made, including these General Terms and Conditions, must be in writing in order to be effective. With the exception of managing directors or authorized signatories, Interactive's employees are not entitled to make verbal agreements that deviate from the written agreement. Telecommunication by email is sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
(5) Information provided by Interactive regarding the subject matter of the service (e.g. sketches, illustrations, samples or other performance data provided by Interactive) shall only constitute descriptions and shall only be binding if expressly agreed in writing. They do not contain any assurances of properties or guarantees.
(6) Interactive's customer and thus contractual partner is either an agency commissioned by the Advertiser or the Advertiser itself (hereinafter "Direct Customer").
(7) If the customer is an agency, the contract shall be concluded between Interactive and the agency. The contractual relationship between the Agency and the Advertiser, in particular its content with regard to pricing, billing and other conditions, shall be the sole responsibility of the Agency.
(8) A direct contractual relationship between the Advertiser as a direct customer and Interactive shall only come about in the event of direct commissioning by the Advertiser or, in exceptional cases, through proof of a written power of attorney granted to the Agency, which contains the authorization to act in this matter for and against the Advertiser. The agency must clearly indicate this in writing (email) upon commissioning, stating the exact name of the advertising client (company/name, address, email, telephone, contact person) and presenting the power of attorney. The power of attorney must indicate the time of the assignment, its validity and the scope of the authorization.
(9) Interactive retains ownership or copyright of all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogs and other documents made available to the customer. The customer may not make these documents available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties, or reproduce them without Interactive's express consent. Upon Interactive's request, the Customer shall return these items to Interactive in their entirety and destroy any copies made if they are no longer needed by the Customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. An exception to this is the storage of electronically provided data for the purpose of normal data backup. If negotiations have not led to the conclusion of a contract, the Customer shall return the documents to Interactive without being asked to do so.
§ 4 Copyrights, Rights of Use
(1) Interactive reserves all rights, in particular all copyrights, to the services created by it or through it.
(2) The client receives all rights necessary for the performance of the contractual service.
(3) The client is prohibited from passing on the presentation documents or other services of Interactive to third parties, copying them, publishing them, making them accessible to third parties or distributing them in any other way without prior written permission from Interactive.
§ 5 Customer's Obligation to Cooperate
(1) The customer must provide Interactive with all materials (e.g. whitepapers) or other information and data required for the fulfillment of the contractual services, taking into account the current technical requirements of Interactive, no later than two working days before the contractually agreed start of the campaign. Interactive shall not be liable for any delay in its contractual services caused by a failure to provide the necessary materials on time or in accordance with Interactive's technical requirements. The Customer's payment obligations shall remain unaffected unless the Customer can prove that it is not at fault for the breach of its obligations to cooperate.
(2) The Customer shall ensure that the contents transmitted or otherwise provided by him are free of harmful code, such as viruses or Trojans, by using suitable and state-of-the-art protection programs.
§ 6 Confidentiality
All confidential information and confidential documents mutually exchanged during the conclusion of the contract and in the run-up to the conclusion of the contract may only be used for the purposes of the contractual performance of services and shall be protected against disclosure to third parties by appropriate measures. The contracting parties shall oblige their employees and vicarious agents accordingly. Each contracting party shall be obliged at any time after a corresponding request by the other party to return or to destroy or to delete transmitted documents and any copies made thereof or own elaborations based thereon.
§ 7 General obligations of the Customer /Liability
(1) The Customer shall be responsible for ensuring that the material supplied by him neither infringes the rights of third parties nor violates applicable law. In particular, he shall ensure that no third-party trademark or name rights or copyrights are infringed and/or that the law on unfair competition is violated. Furthermore, the client shall ensure that any necessary agreements with collecting societies (e.g. GEMA) are in place and that the delivered material does not contain any content that glorifies violence, is sexist, pornographic, Nazi or harmful to young people. This also applies to materials provided by third parties, the customer's website, the website of a third party to which the materials provided by the customer refer or to which they refer, e.g. by hyperlink. Interactive shall not review the materials provided by Customer for their legal admissibility or correctness.
(2) If the Customer acquires contact data of potential customers within the scope of the contractual service, in particular a campaign, the Customer may only use these within the agreed or legally permissible scope and may not pass them on to third parties or use them for the purposes of third parties. In the event of a culpable breach of the above mentioned obligation, the customer shall pay Interactive a reasonable contractual penalty of up to EUR 2,500.00 for each individual case, the appropriateness of which may be reviewed by a qualified court. Interactive reserves the right to claim higher damages..
(3) Interactive shall inform the customer immediately if third parties assert claims. The customer must immediately notify Interactive by email of any legal violations reported to Interactive. The customer shall support Interactive in the defense of asserted claims to the best of its ability.
(4) The customer shall indemnify Interactive against all claims of third parties asserted against Interactive on the basis of the materials provided by the customer, in particular against all damages and expenses incurred by Interactive in this context, as well as costs for a defense against the asserted claims (e.g. court and attorney fees).
(5) If the customer violates its obligation to support Interactive in defending itself against asserted claims, Interactive is entitled, at its own discretion, to defend itself against attacks by third parties and to settle such attacks. The customer shall bear the costs incurred thereby, even in the event that the settlement subsequently proves to be disadvantageous due to information not provided by the customer.
(6) Interactive is entitled to immediately discontinue the contractual service in the event of claims asserted by third parties, unless the claims are obviously unfounded.
(7) In all other respects, the customer must comply with the applicable terms and conditions for advertising of the respective platform on which he places advertising via B2B Interactive.
§ 8 General Rights of Interactive
(1) If Interactive is of the justified opinion that a campaign violates the rights of third parties, violates applicable law or applicable case law, official or court orders or a cease-and-desist declaration issued by Interactive, or is unreasonable for Interactive in terms of content or for other reasons, Interactive may refuse to carry out the campaign or may discontinue it. This also applies in the event that a warning has already been issued in a comparable case. Interactive will immediately inform the client about such an interruption and give the client the opportunity to demonstrate the legality of the campaign and, if necessary, provide sufficient evidence.
(2) In the event of a rejection or discontinuation of a Campaign, the Customer's obligation to pay shall remain in effect unless:
a) no monetary disadvantages have arisen for Interactive, in particular Interactive was able to allocate the advertising space booked for the campaigns elsewhere. Additional costs incurred by Interactive in this context shall be covered by the customer, unless the customer is not at fault for the discontinuation or rejection of the campaign.
b) the Advertiser is able to prove the legality of the campaign.
(3) Insofar as it is necessary for the delivery of the material and is reasonable for the Customer, we are entitled to edit the material with regard to size, format and technical properties.
(4) If the material is not obviously recognizable as advertising, we are entitled to identify the material as such (advertising). This is done, for example, by adding the words "advertisement" and for the purpose of distinguishing the material from any existing editorial content.
(5) In the event that, by way of exception, the booked service cannot be performed at the agreed time or can only be performed in part, we shall be entitled to extend, postpone or cancel the performance period accordingly or to switch to a comparable placement, taking into account the interests of the client.
§ 9 Campaign services
(1) A specific success of a campaign is not guaranteed. Information provided by Interactive in connection with a certain number of booked page impressions (number of times a single web page is called up with a web browser) is based on empirical values from many other campaigns and does not guarantee any goals and successes specified in connection with the service agreed upon in the contract.
(2) The leads handed over to the client must comply with the legal requirements, in particular the data protection and competition law regulations. We point out to the client that the consent given in this context can be revoked by the persons concerned at any time. The client declares to respect such a revocation and to carry out a correction or deletion of the data. The client will inform Interactive immediately about any complaints in this context.
(3) The client assures to observe all legal, data protection and competition law and contractual requirements when using the leads. The client bears sole responsibility for the leads received and the subsequent actions.
§ 10 Contract term, termination
The contract term is based on the written order confirmation for the respective campaign.
(2) The right to ordinary termination is excluded. The right to extraordinary termination remains unaffected. An extraordinary reason for termination shall be given in particular if
a) insolvency proceedings are opened against the Client's assets or the opening of insolvency proceedings is rejected for lack of assets, or
b) the Customer continues to be in default with due payment claims despite a previous reminder and the setting of a reasonable deadline, or
c) the Customer violates one of its obligations under §§5 (2), 7 (1) and 7 (2) as well as § 11 (4).
(3) In the event of extraordinary termination, the services already rendered by Interactive shall be paid on a pro rata basis up to the time of termination, but at least 10% of the net order value. With the aforementioned payment, the customer merely acquires the rights to the services rendered to date. Concepts, drafts and the like that have not been executed are to be handed over to Interactive immediately and free of charge. Interactive expressly reserves the right to assert further claims.
§11 Granting of rights
(1) The customer assigns to Interactive the rights of use and exploitation necessary in terms of space, time and content for the performance of the contractual service. This includes, in particular, the right to reproduce and distribute, broadcast, store, place in databases, make available for retrieval and the right to make the content publicly accessible by Interactive itself and by third parties commissioned by Interactive.
(2) The client also grants Interactive the right to license the content of download offers (e.g. webcasts, web video, white papers) to third parties for provision on the Internet against payment or free of charge or to use the content for other forms of offer (e.g. eBooks).
(3) Interactive is entitled to publish the Customer and all services rendered as a reference on Interactive's website, even if the services rendered are based on a template provided by the Customer. In particular, Interactive may include the customer's website in a reference list for advertising purposes and set corresponding links. This authorization remains in effect even after termination of the contractual relationship. Upon request, the customer shall provide Interactive with a suitable logo free of charge. Interactive is entitled to refer to itself in the context of campaigns on all means of information and in all measures without any claims arising for the customer.
§ 12 Remuneration and Terms of Payment
(1) Cost estimates and offers by Interactive are non-binding.
(2) The remuneration for Interactive's contractual services is set in the respective contract.
(3) The date of the first publication of the advertising material is decisive for the calculation of the deadline.
(4) Invoice amounts are to be paid within 30 days without any deductions, unless otherwise agreed in writing. A discount of 2% of the net invoice amount shall be granted if payment is received within 10 days of the invoice date. The date of receipt by Interactive shall be decisive for the date of payment. If the Customer fails to make payment when due, interest of 5% p.a. shall be charged on the outstanding amounts from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(5) In the event of default on the part of the Customer or if insolvency proceedings are instituted against the Customer's assets, Interactive may defer further execution of current orders until payment is made in full, remove campaigns that have already been published and demand a reasonable advance payment for the remaining execution of the campaigns.
(6) Offsetting against counterclaims of the Customer or the retention of payments due to such claims shall only be permissible if the counterclaims are undisputed or have been legally established or arise from the same order under which the delivery in question was made. Any assignment of the Customer's claims shall require Interactive's prior written consent.
§ 13 Warranty
(1) Warranty claims shall become statute-barred within 12 months.
(2) Interactive warrants the quality and publication of the campaign customary for the contractual service in compliance with the data duly transmitted by the customer in accordance with the above provisions. Interactive's services handed over to the Customer for the live activation of the campaign shall be deemed accepted by the Customer if the Customer does not object in writing (e-mail is sufficient) within 48 hours after handover, stating reasons.
(3) If the publication of a campaign does not correspond to the owed quality due to a circumstance for which Interactive is responsible, the client is entitled to an extension of the publication period or an immediate replacement in a comparable environment. However, there is no obligation on the part of Interactive to extend the publication period or to provide a replacement.
(4) If the extension of the publication period is unreasonable for the client or if this fails, or if Interactive seriously and finally refuses the replacement placement, the client has the right to cancel the affected (partial) order or a reduction in payment to the extent that the purpose of the advertising medium was impaired.
§ 14 Liability
(1) Liability in the event of intent and gross negligence on the part of Interactive or a representative or vicarious agent, as well as in the event of culpably caused injury to life, limb or health, shall be governed by the statutory provisions.
(2) In the event of property damage and financial loss caused by simple negligence, Interactive and its vicarious agents shall only be liable in the event of a breach of a material contractual obligation, however, limited in amount to the damage foreseeable at the time of conclusion of the contract and typical for the contract; material contractual obligations are those whose fulfillment characterizes the contract and on which the Customer may rely. The limitation of Interactive's liability shall not apply to intent and gross negligence or gross fault, to guaranteed characteristics, to injury to life, body or health or to liability under the Product Liability Act.
(3) Claims for damages against Interactive become statute-barred 12 months after they arise, unless they are based on a tortious or intentional act. The limitation of Interactive's liability does not apply to intent and gross negligence or gross fault, for guaranteed characteristics, due to injury to life, body or health or liability under the Product Liability Act.
§ 15 Final terms
(1) No verbal ancillary agreements to these GTC have been made. Amendments or supplements to these GTC must be made in writing. This shall also apply to any amendment of this written form requirement. Insofar as written form is mandatory in these GTC, e-mail is also permissible.
(2) The exclusive place of jurisdiction is Würzburg. However, Interactive is entitled to sue the customer at his general place of jurisdiction or at any place of action.
(3) These General Terms and Conditions shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(4) If a term in these General Terms and Conditions or a term within the scope of other agreements is or becomes invalid, this shall not affect the validity of all other terms or agreements.