GENERAL TERMS AND CONDITIONS
(Last updated: 28 July 2025)
1. Scope; Future Applicability
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1.1 These Terms and Conditions apply to all contractual relationships between esome advertising technologies GmbH (hereinafter “esome”) and its customers.
1.2 Any conflicting terms and conditions of the customer shall not apply, even if esome does not object to them in an individual case.
2. Offers, Conclusion of Contract; Agency Bookings
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2.1 Unless expressly agreed otherwise, offers made by esome are non-binding.
2.2 A contract is concluded only upon confirmation of the order by esome or upon esome commencing the provision of services, with the scope of services being defined by the respective media plan prepared or confirmed by esome.
Use of the services at https://www.adsent.io requires a contractual relationship pursuant to the first paragraph of Clause 2.2. Unless otherwise contractually agreed, all provisions of these Terms and Conditions, in particular Clauses 3 et seq., and the current Privacy Policy available at https://www.esome.com/de/datenschutz/ also apply in this case.
2.3 Orders placed by agencies result in a contract directly between esome and the agency, unless the agency expressly acts on behalf of an agency client and provides an address in Germany at which that client can be served with legal documents.
2.4 If the agency itself becomes esome’s contractual partner, the agency, upon conclusion of the contract, assigns to esome by way of security all existing and future claims against its agency client up to an amount equal to 130% of the order value of outstanding contracts with esome, to secure esome’s claims against the agency (assignment by way of security). esome is entitled to disclose this assignment to the agency client.
2.5 To safeguard legitimate interests and minimise business risks, esome reserves the right, at its own discretion, to commission an external specialist service provider to conduct a credit check. Such checks are carried out in strict compliance with applicable data protection laws.
3. Provision of Advertising Materials; esome’s Right to Modify
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3.1 The customer must provide all information and data materials required for the proper performance of the order, whether images, text, video or audio (advertising materials), in accordance with the technical specifications no later than five working days before the advertising is scheduled to start.
3.2 The advertising materials must be suitable for the agreed media services and, in particular, comply with the agreed technical requirements and formats. esome reserves the right to modify the materials supplied by the customer insofar as this is necessary and reasonable for their optimal use in advertising. esome is under no obligation to do so.
3.3 If the media services owed cannot be provided, or cannot be provided properly, because the customer has failed to supply advertising materials on time or in accordance with the technical requirements, the full remuneration shall nevertheless remain payable.
3.4 Advertising materials that are not recognisable as advertising due to their design may be labelled as advertising by esome or the operator of the advertising space, in particular to comply with competition and media law requirements.
3.5 The customer must pay for any additional work resulting from a culpable breach of its obligations to cooperate. Media services will be billed on the basis of the media plan; for other activities, esome will charge EUR 80 per hour.
3.6 esome assumes no responsibility for advertising materials supplied and has no obligation to retain them. There is no obligation to return advertising materials.
4. Prohibited Advertising Content; Temporary Suspension
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4.1 Advertising materials must not violate the laws applicable in the territory in which the media services are delivered or infringe third-party rights. Where advertising materials contain links to content belonging to the customer or third parties, the content to which the advertising materials link (advertising destination) must also meet the requirements of the first sentence.
4.2 esome is entitled to temporarily suspend the provision of media services owed where there are sufficient grounds to suspect that the advertising materials or advertising destination contain unlawful content. The customer may avert the suspension by providing advertising materials or advertising destinations that raise no legal concerns. esome will inform the customer of the suspension of services within 48 hours.
5. Grant of Rights; Customer’s Guarantee of Legal Compliance; Indemnification
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5.1 The customer grants esome all rights of use, neighbouring rights and other intellectual property rights necessary to provide the media services owed, to the extent required in terms of duration, scope and territory. esome may transfer the rights of use granted to third parties in the course of providing the media services.
5.2 By placing an order, the customer guarantees that the provision of the media services in accordance with the contract will neither violate statutory provisions nor infringe third-party rights. The customer is responsible for the content of the advertising, in particular with regard to competition law, trademark law, personality rights and copyright law.
5.3 The customer guarantees that it holds all rights of use necessary to run the advertising, in particular rights arising under copyright law, trademark law and personality rights, in relation to the advertising materials it supplies and any other data materials it supplies for use by esome in creating advertising materials.
5.4 The customer shall indemnify esome against all damages, losses and expenses, including legal defence costs, incurred by esome or its managing directors and employees as a result of a breach of these guarantees.
5.5 For campaign optimisation purposes, tracking codes provided by advertising sales partners and advertising partners are used where available. These enable the respective advertising sales partner or advertising partner to optimise delivery within its network for defined conversion goals. In addition, the customer authorises esome to accept, on its behalf, the terms of use of the booked advertising sales partners and advertising partners (date, signature, company stamp). Some of these terms are available online, for example at https://www.esome.com/privacy. esome will be happy to provide further information at the customer’s request.
6. Right to Reschedule; Warranty; Duty to Notify Defects
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6.1 Where delivery periods have been agreed for the media services owed, esome has the right to reschedule if the media service provider (publisher) cannot provide the media services during the agreed period. The permitted rescheduling period is equal to the booked advertising period. For example, where an advertising period of 14 days has been booked, esome may, in such cases, also provide the services during the 14 days following that advertising period.
6.2 Where the customer has booked a specific number of page impressions/clicks for a particular period, esome points out that these figures are based on past experience. If, exceptionally, the page impressions/clicks are not achieved within the agreed period, the advertising campaign’s delivery period will be extended until the booked number of page impressions/clicks has been reached. If the placement booked by the customer has already been allocated to another customer for the extended advertising period, esome is entitled to use a comparable placement, taking reasonable account of the customer’s interests.
6.3 In the event of an impairment of the media services owed that is more than insignificant, esome may initially, at its own discretion or by agreement, remedy the defective performance or assign to the customer its own existing warranty claims against the publisher. A right to a reduction in remuneration or withdrawal from the contract exists only if the remedy fails or cannot reasonably be expected of esome, or if the assigned claims are definitively unenforceable.
6.4 Buyback right for bookings of esome Media Solutions: If external factors* prevent delivery of a KPI volume booked on a guaranteed basis, esome reserves the right to pay the customer the equivalent monetary value of the undeliverable remaining KPI volume (payment in EUR = remaining KPI volume x fixed KPI price).
Example: If 100,000 completed video views at EUR 0.06 each could not be delivered, the corresponding monetary value is EUR 6,000, which esome may repay to the customer by agreement.
6.5 The customer must check that the agreed media services have been properly provided and comply with the contract within 48 hours of the advertising going live and must notify esome of any complaints in text form without undue delay. If the customer fails to submit a complaint within the required time and in the required form, the media services provided shall be deemed to comply with the contract in their entirety.
6.6 Billing is based exclusively on esome’s reports. The reports are presumed to be accurate unless the customer proves otherwise. Measurement discrepancies of up to 15% are considered minor and do not constitute a defect or overdelivery (fluctuation tolerance).
7. Termination for Cause
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7.1 In the event of serious violations of applicable law or obligations under these Terms and Conditions by the customer or persons engaged by it to perform its obligations, esome is entitled to terminate the contract for cause, without prejudice to statutory provisions and any further claims it may have.
7.2 In particular, esome is entitled to terminate the contract for cause if:
- The customer has failed to meet its payment obligations despite repeated requests;
- The customer continues to breach provisions of these Terms and Conditions despite a prior warning.
8. Remuneration
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8.1 The agreed remuneration becomes due upon conclusion of the contract and must be paid by the customer within five working days, but in all cases before the agreed commencement of services.
8.2 If the customer is in default of payment or an application to open insolvency proceedings against it has been filed, esome may withhold performance of the contractual media services unless the customer provides security in the amount of the remuneration in good time.
8.3 The customer may offset claims against esome’s claims only if the customer’s claims are undisputed or have been established by a final and binding court decision. The customer may exercise a right of retention only if the respective claims arise from the same contractual relationship.
8.4 In the event of cancellation or early termination of a campaign, esome reserves the right to charge for costs incurred internally. External costs charged by advertising sales partners or other partners, such as measurement providers, due to early campaign termination, cancellation or changes not made within the required deadlines will be passed on by esome to the customer.
9. Limitation of Liability
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9.1 esome is liable for damage suffered by the customer that is caused intentionally or through gross negligence by esome, its legal representatives, senior executives or persons engaged by it to perform its obligations.
9.2 Regardless of the degree of fault, esome is liable for damage arising from a breach by the persons specified in Clause 9.1 of an obligation that is essential to achieving the purpose of the contract (a material contractual obligation), and in cases of fraudulent misrepresentation. Likewise, esome is liable regardless of the degree of fault where the damage results from a breach of a guarantee given by esome or from slightly negligent organisational failings.
9.3 Claims by the user for damages arising from loss of life, bodily injury or damage to health resulting from a breach of duty by esome or the persons specified in Clause 9.1 also remain unaffected.
9.4 In cases other than those specified in Clauses 9.1 to 9.3, esome’s liability is excluded, irrespective of the legal basis.
9.5 Except in the cases specified in Clauses 9.1 and 9.3, claims for damages that are not excluded are limited to foreseeable damage typical of the contract. In the event of delay, such claims shall not exceed 5% of the order value.
9.6 Claims for damages against esome become time-barred 12 months after they arise, unless they are based on a tortious or intentional act.
10. Applicable Law; Jurisdiction; Severability; Written Form
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10.1 German law applies, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
10.2 To the extent legally permissible, Hamburg is the place of performance and the exclusive place of jurisdiction.
10.3 There are no oral or written ancillary agreements. Amendments to the contractual terms must be made in text form. This also applies to the waiver or amendment of this written-form clause.
10.4 If any provision of this agreement is or becomes wholly or partially invalid, the remainder of the contract shall remain valid. In the event of such invalidity, the contracting parties shall agree on a legally valid replacement provision that comes as close as possible to the economic purpose of the invalid provision. The same applies in the event of a gap in the agreement.
10.5 Wherever these Terms and Conditions refer to written form, this means text form within the meaning of Section 126b of the German Civil Code (BGB).
11. Data Protection
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Where the provision of the services involves the processing of personal data, esome processes such data exclusively as a processor.
As the controller, the customer is responsible for the lawfulness of the data processing. Against this background, the parties shall enter into a separate data processing agreement pursuant to Article 28 GDPR.
*External factors: Factors that are not caused internally by esome and were not known at the time the price was determined, such as restrictions or technical changes at inventory partners or measurement providers, insufficient inventory availability, limited delivery due to negative user feedback or a lack of user response, etc.
CONTACT
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esome advertising technologies GmbH
Caffamacherreihe 7
20355 Hamburg
Germany
Telephone: +49 40 600 288 100
Email: info@esome.com