General Terms and Conditions (status 24 May 2018)
1. Scope of application; future applicability
1.1 These General Terms and Conditions apply to contractual relationships between esome advertising technologies GmbH (hereinafter “esome”) and its customers.
1.2 Any general terms and conditions of the customer to the contrary do not apply even if esome does not object to such an individual case.
2. Offer, conclusion of contract; agency orders
2.1 Unless expressly specified otherwise, offers by esome are nonbinding.
2.2 A contract is concluded only upon order confirmation by esome or start of services by esome with the service content of the respective media plan created or confirmed by esome.
2.3 Orders from agencies are concluded directly between esome and the agency, unless the agency expressly and with disclosure of a domestic serviceable address acts on behalf of an agency cus-tomer.
2.4 In the event that the agency itself becomes contractual partner of esome, the agency, to secure esome’s claims against the agency, upon conclusion of contract, assigns all existing and future re-ceivables in the amount of 130% of the order value from open agreements with esome to esome as security (assignment for security). esome is authorized to disclose this assignment to the agency customer.
3. Provision of advertising material, esome’s right of modification
3.1 The customer is obligated, at the latest 5 business days prior to the start of the advertisement, to provide all information and data material necessary for proper fulfillment of contract, whether im-age, text, video, or audio (advertising material) pursuant to the technical specifications.
3.2 The advertising material must be suitable for the negotiated media service and must in particular fulfill the negotiated technical requirements and formats. esome reserves the right to process the material supplied by the customer insofar as this is necessary and reasonable for optimum advertis-ing use. esome is not obligated to do so.
3.3 Insofar as owed media services cannot be provided or cannot be provided in a proper manner be-cause the customer did not provide advertising material or did not do so in a timely manner or pur-suant to technical requirements, full compensation is still owed.
3.4 Advertising material not discernible as such due to their design may be marked as advertisement by esome or the operator of the advertising space, in particular in order to satisfying competition and media law requirements.
3.5 Additional expenses arising based on the customer’s culpable infringement of participation obliga-tions must be compensated by the customer. Media services are charged pursuant to the media plan, other activity shall be invoiced by esome at a rate of EUR 80 per hour.
3.6 esome does not accept any responsibility or retention obligations for supplied advertising material. An obligation to return advertising material does not exist.
4. Prohibited advertising content; temporary suspension
4.1 Advertising material shall not violate applicable law within the distribution range of the media ser-vices or third-party rights. In case of advertising material linking to customer or third-party content, the content to which the advertising material links (advertising target) must also meet the require-ments of Clause 1.
4.2 esome is authorized to temporarily suspend performance of owed media services insofar as a rea-sonable suspicion of illegal content of the advertising material or advertising target exists. The cus-tomer may avert suspension by providing unobjectionable advertising material or advertising tar-gets. esome shall inform the customer within 48 hours of the suspension of services.
5. Granting of rights; customer’s guarantee of harmlessness; indemnification
5.1 The customer grants to esome, to the necessary extend (in terms of time, place, and content) all necessary usage, performance, and other property rights. esome within the scope of performance of the media services is authorized to transfer the granted utilization rights to third parties.
5.2 The customer, upon placing the order, guarantees that the contractual provision of the media ser-vice does not violate statutory provisions or third-party rights. The customer is responsible for the content of the advertisement, in particular in terms of competition law, trademark law, personal rights, and copyright law.
5.3 The customer guarantees that it holds all utilization rights necessary for advertisement, in particular arising from copyright or trademark law, personal rights, to the advertising material transmitted by it as well as to other data material transmitted by it serving for the creation of the advertising mate-rial by esome.
5.4 The customer indemnifies and holds esome harmless from all damages, losses, and expenditures (including costs of a legal defense), which esome or its managing directors and employees incur based on a violation of these guarantees.
6. Right to postpone; warranty; obligation to reprimand
6.1 If advertisement periods are negotiated for the owed media services, esome has a right to post-pone such if the media service cannot be provided at the negotiated period by the media service provider (publisher). The duration of the postponement right is equal to the ordered advertise-ment period, i.e. for example in the event of an advertising period of 14 days, esome in these cases may provide the service even in the 14 days following the advertisement period.
6.2 Insofar as the customer has ordered a specific number of page impressions / clicks for a certain period, esome notes that this information is based on empirical values. If the page impres-sions/clicks should, on an exceptional basis, not be reached within the negotiated period, the ad-vertisement period of the advertisement measure is extended until the ordered page impres-sions/clicks have been reached. If the placement ordered by the customer for the extended adver-tisement period is already assigned to another customer, esome is authorized, subject to reasona-ble consideration of the customer’s interests, to a comparable, alternative placement.
6.3 In case of a not merely minor impairment of the owed media service, esome at its own discretion or as negotiated can initially effect faultless supplementary performance or assign its own applica-ble warranty claims against the publisher to the customer. A claim to reduction of the compensa-tion or withdrawal exists only if supplementary performance fails or is unreasonable for esome or the assigned claims are ultimately not enforceable.
6.4 The customer is obligated to review proper and contractual provision of the negotiated media ser-vices within 48 hours after publication and shall inform esome of possible complaints immediately in text form. In the event that the customer omits timely and proper complaint, the provided media services are deemed to be contractually provided.
6.5 Invoices are issued exclusively based on esome’s reporting. The accuracy of the reporting is as-sumed as long as the customer does not verify inaccuracy. Deviations in measurements of up to 15% are minor and do not constitute a defect or overfulfillment (fluctuations).
7. Extraordinary termination
7.1 In case of serious violations of applicable law or obligations under these GTC by the customer or its vicarious agents, esome is authorized to extraordinary termination regardless of statutory provi-sions and possibly existing additional claims.
7.2 esome is in particular authorized to extraordinary termination if -the customer does not meet its payment obligation despite repeated request; -the customer continuously violates the provisions of these GTC despite prior warnings.
8.1 The negotiated compensation is due and payable upon conclusion of contract and must be paid by the customer within 5 business days, in any case however prior to negotiated start of provision of services.
8.2 In the event that the customer defaults in payment or a request for opening of insolvency pro-ceedings is filed against it, esome is authorized to withhold performance of the contractual media services unless the customer provides a security in the amount of the compensation in a timely manner.
8.3 The customer is authorized to offset only undisputed or legally ascertained receivables against esome’s claims. The customer can assert a retention right only if the respective claims are based on the same contractual relationship.
9. Limitation of liability
9.1 esome is liable for the customer’s damages caused by esome, its legal representatives, executive employees, or vicarious agents based on intent or gross negligence.
9.2 Regardless of the degree of culpability, esome is liable for damages caused by a violation of a duty by those listed in Section 9.1 that is of essential significance for the fulfillment of the contractual purpose (cardinal obligation) as well as in case of a fraudulent misrepresentation. In the same man-ner, regardless of the degree of culpability, esome is liable if a damage is based on a violation of a guarantee accepted by esome or based on slightly negligent organizational fault.
9.3 The user’s claims for damages arising from an injury to life and limb based on a breach of duty by esome or the group of persons listed in Section 9.1 also remains unaffected.
9.4 In cases other than those listed in Sections 9.1 through 9.3, esome’s liability is excluded regardless of the legal ground.
9.5 Claims for damages that are not excluded, aside from the cases listed in Sections 9.1 and 9.3, are limited to the foreseeable damage typical for the contract. In case of default, they amount to a maximum of 5% of the order value.
9.6 Claims for damages against esome lapse after the expiration of 12 months as of their creation, un-less they are based on an unlawful or willful act.
10. Applicable law; place of jurisdiction; severability clause; written form
10.1 German law applies to the exclusion of the UN Sales Convention.
10.2 Place of fulfillment and exclusive place of jurisdiction is Hamburg, Germany, insofar as legally per-missible.
10.3 No oral or written collateral agreements exist. Modifications of the contractual terms require the text form. This also applies to the cancellation or modification of this clause governing the use of written form.
10.4 In the event that individual provisions of this agreement should be or become invalid in full or in part, the remainder of the agreement shall remain valid. In the event of such an invalidity, the con-tractual partners shall agree on a substitute provision that comes as close as possible to the eco-nomic intent of the invalid regulation. The same applies in the event of a gap.
10.5 Insofar as these GTC refer to the written form, this means text form in terms of Section 126 b BGB
11. Data protection
11.1. The customer is obligated to fulfill necessary legal prerequisites for the provision of esome’s ser-vices. In particular, the customer is obligated to ensure that esome, pursuant to applicable statuto-ry requirements, is authorized to advertise through the customer website in social networks or in the display area pursuant to the following prerequisites. The customer is obligated to provide on its website in particular an easily accessible and comprehensible privacy notice and in this privacy no-tice must inform of the various services provided by esome shown below to the contractually nego-tiated extent.
11.2. If the integration of pixels on customer websites (e.g. website custom audiences of Facebook, Twitter, Snapchat, LinkedIn, possibly Google/YouTube) is the subject matter of the respective campaign, then the customer is obligated to fulfill the following requirements:
aa) that third parties (namely the relevant platform of the utilized pixel) may possibly use cook-ies, web beacons, and other memory technologies to capture or receive information from the respective websites and other locations on the Internet and to use this information to provide measurements and ad targeting.
bb) that the user is authorized to object to the capture and use of information for ad targeting, and
cc) where users can access a mechanism to make such selection (e.g. through corresponding linking).
b) The customer must furthermore verifiably ensure that the respective user grants consent insofar as such is required to allow the respective platforms to store and access cookies or other infor-mation on the user’s terminal device.
11.3. If the use of CRM custom audiences is the subject matter of the campaign, the customer assures the following:
a) The customer guarantees that it has all necessary rights and authorizations as well as a legal basis to disclose and use the data with hash value in compliance of all applicable laws, regulations, and in-dustry guidelines. If hashed data are provided on behalf of an advertising customer, the ordering agency assures and guarantees that the agency has been authorized by the respective customer to disclose and use such data on its behalf.
b) The customer furthermore assures and guarantees that the hashed data do not relate to data of a data subject that has utilized the option provided by the customer to object to disclosure and use of the data for targeted advertisement, insofar as the customer is already directly or indirectly obli-gated to respect such. Insofar as the data subject uses such a right to object after the customer has used the data pertaining to that data subject to create a custom audience, the customer is obligat-ed to remove the data subject from the respective custom audience.
c) The customer is obligated to not sell or transfer the created custom audiences to third parties and to also not authorize a third party to sell or transfer custom audiences.
d) Insofar as the hashed data contain personal data referring to a data subject residing in the Europe-an Union or Switzerland, the parties recognize and agree that the customer for the purpose of cre-ating the custom audiences as described above is the controller with regard to such personal data, and that the customer to this extent orders esome as contract data processor to implement the corresponding campaign. In light of this, the parties conclude a separate data processing agreement in terms of Art. 28 GDPR.
11.4 If the use of the es-tag / Adition spot on the respective customer website is the subject matter of the campaign, the customer shall ensure that the respective user prior to using this technology on its website obtains the consent required prior to the use of the es-tag / Adition spot.
This consent shall also ensure that the customer will be authorized, for the purpose of performance assessment of the respective campaign, to install so-called click/view tags in the display area that allow the targeting partner of esome commissioned pursuant to Art. 28 GDPR to read clicks and views based on cookie IDs for the purpose of a performance assessment, and to transmit the re-sults to esome and the customer. The customer is obligated to ensure that no personal data is transmitted to esome for the creation of target group information through the provided tags.
Status: 24 May 2018