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Terms and conditions

Our General Terms and Conditions

1 Parties to the agreement

Depending on the order, the parties to the agreement are InteractiveMedia CCSP GmbH, T-Online-Allee 1, 64295 Darmstadt (hereinafter referred to as InteractiveMedia) or Deutsche Telekom AG, Friedrich-Ebert-Allee 140, 53113 Bonn (hereinafter referred to as Deutsche Telekom; both referred to jointly as the Contractor).

InteractiveMedia acts as the commercial agent of Deutsche Telekom.

Customers are individuals or legal entities who do business as a commercial enterprise or an independent contractor. This also includes advertising agencies.

2 Subject matter of the agreement

2.1 Agreements concluded with Deutsche Telekom
InteractiveMedia shall provide advertising space for placing ads on the websites (mobile and/or Internet) and the shopping portal of Deutsche Telekom as well as for integrating the shopping services into the product search engine of Deutsche Telekom's shopping portal.

2.2 Agreements concluded with InteractiveMedia

2.2.1 The subject matter of the agreement is the procurement of advertising space for the purpose of placing, posting and broadcasting advertising media on the advertising vehicles provided for this purpose, according to the order form. These vehicles are, for example, websites, teletext pages (teletext advertising space), mobile Internet, electronic or stationary advertising space (out-of-home media services) of third-party companies.

2.2.2 InteractiveMedia shall also offer to carry out permission-based marketing activities (hereinafter referred to as "permission-based marketing"), such as mobile direct marketing.

2.3 Furthermore, InteractiveMedia shall create sales documents such as media data, market reports, case study booklets, mailing campaigns, presentation documents or showcases for its business activities, services or products (such as online/mobile advertising and/or out-of-home media services) for marketing and advertising purposes. Sample advertising materials and animations (such as banners, pop-up ads and video ads) shall be used for this purpose and can be integrated on the Internet (e.g. at www.interactivemedia.net). The documents can also be distributed as print brochures at road shows, trade shows and sales events, on digital data carriers, in promotional films as well as in the InteractiveMedia newsletter or as part of lectures, presentations or other mailing campaigns. The documents can be similarly used for public relations work (such as press releases, background articles and interviews (all activities referred to hereinafter collectively as "self promotion"). The Customer shall grant InteractiveMedia the necessary rights for this pursuant to Item 7.2.

2.4 These General Terms and Conditions as well as the prices agreed with the respective Contractor for the advertising space booked in each case shall apply exclusively to all agreements. Any special agreements shall be reached on the basis of the individual orders. The Customer's General Terms and Conditions shall not form part of the agreement. This also applies in the event that requests for offers, purchase orders, acceptance declarations, etc. are included with the Customer's General Terms and Conditions and the respective Contractor does not object thereto.

2.5 Assurances of characteristics, special performance conditions, verbal agreements by which these General Terms and Conditions are modified or ancillary or subsequent contractual arrangements shall become effective only if they are confirmed in writing by the Contractor.

3 Conclusion of a Contract

Orders shall be placed in writing. The agreement shall be concluded upon confirmation by InteractiveMedia of the advertising order signed by the Customer. InteractiveMedia reserves the right to reject the conclusion of an agreement without stating any grounds.
If advertising space is booked on an advertising vehicle of Deutsche Telekom, the agreement shall be concluded between the Customer and Deutsche Telekom.

4 Orders placed by agencies

4.1 Orders placed by agencies shall be accepted only for advertisers who have been named. Advertising for products or services of a Customer other than the one specified shall require the prior consent of the Contractor in each case.

4.2 On request, the agency must provide the Contractor with proof of its commission.

5 Rights and obligations of the Customer

5.1 The Customer agrees to submit the agreed advertising media in the agreed format within the period of time agreed on in the advertising order, no later that three working days before placement of the advertising media begins. The advertising media shall be supplied free of viruses or other sources of damage. The Customer shall bear the shipping costs.

5.2 If a separate agreement is reached in the advertising order, the respective Contractor shall enable the Customer to integrate a so-called external AdServer in supplying the advertising media. In this case, the Customer agrees to submit the redirect tags (link URLs, advertising medium call) in the agreed format within the period of time agreed in the advertising order, but no more than 3 working days before the advertising medium is placed. The Customer shall guarantee the functionality of the redirects from the time they are submitted to the respective Contractor.

5.3 If an external AdServer is used, the Customer shall guarantee its full and proper functionality, thus ensuring that advertising orders are carried out properly.

5.4 The Customer provides assurance that no targeting and/or capping is used. The targeting settings shall be controlled exclusively by the Contractor via the AdServer.

5.5 The Customer is expressly prohibited from setting cookies that do not belong exclusively to the technically essential delivery mechanism of the AdServer used in order to ensure delivery of the advertising media via the AdServer. This means that only cookies without targeting, capping and user information shall be used.

5.6 To the extent that the Customer obtains or collects data from the placement of advertising media on the Contractor's online services (mobile and/or Internet) through the use of cookies or tracking pixels, the Customer promises to comply with the applicable data privacy regulations in the collection, processing and use of personal data.

5.7 Information about the user of the websites that is automatically obtained from a targeting ad placement should under no circumstances continue to be used by the Customer beyond the period of the campaign.

5.8 For each culpable violation of the obligations under Items 5.4 through 5.7, the Customer shall pay a stipulated penalty amounting to the value of the order from which the impermissible data collection arose. Any further claims for damages shall remain unaffected thereby.

5.9 If the Customer fails to meet its obligation to deliver the advertising media on time, or if the Customer fails to deliver the agreed advertising media in the agreed format, this shall not release the Customer from his obligation to effect payment. The Customer shall bear any additional costs that arise as a result of the late delivery or on the basis of the non-agreed format.

5.10 Upon the first placement of the advertising medium on websites, teletext pages (teletext advertising space) or on mobile websites, the Customer shall immediately check whether the advertising medium has been published free of defects. Any recognizable defects shall be reported in writing within three (3) working days after the advertising medium has been placed; this may also be done by e-mail. At the end of this period, the advertising medium shall be deemed approved.

5.11 If the reproduction quality of the advertising medium on websites, teletext pages or on mobile websites is insufficient, and if the Customer reports this in time, the Customer shall be entitled to demand subsequent improvement or placement of a fault-free replacement advertising medium, provided that he provides the Contractor with such replacement without undue delay.

5.12 If an advertisement medium of the Customer is posted to Deutsche Telekom's shopping portal, the Customer must ensure that the shopping service described in the advertising medium is continuously available to the users. If this is not the case, Deutsche Telekom can remove the link for the Customer's advertising medium for the duration of the non-availability.

5.13 The Customer shall design his shopping services in such a way that users of Deutsche Telekom's shopping portal can order the products described in the shopping service online, and the Customer must ensure that the offered products are available in sufficient quantity.

5.14 Subject to technical feasibility, the respective Contractor shall enable the Customer to access the campaign data while the advertising order is being carried out.

5.15 The Customer shall be responsible for the legality of the content of the advertising media provided by him as well as for the legality of linked content. The legality shall be determined according to German law. However, if there is reason to believe that the content is also subject to the provisions or one or more other legal systems (in particular, due to its language or if the content is destined for other countries), the legality shall also be determined according to these other legal systems. The content may not violate laws, official provisions or moral practices.

5.15.1 In particular, the Customer shall not supply, offer or provide access to content or advertise content that violates the provisions of the German Penal Code (StGB) or the laws for the protection of minors, or content that
- as defined in Sections 130, 130a and 131 of the German Penal Code (StGB) incites hatred and violence against segments of the population, leads to criminal offenses or glorifies or minimizes violence;
- depicts children or youth in unnaturally sexually explicit poses (including in virtual media);
- is pornographic and constitutes acts of violence, the sexual abuse of children or youth or sexual acts involving humans and animals (including in virtual media);
- is listed in Parts B and D of the list pursuant to Section 18 of the Juvenile Protection Act (JuSchG) or is entirely or essentially identical to a medium listed in the list (absolute prohibition as defined by Section 4 (1) of the Agreement of the German Federal States regarding the Protection of Human Dignity and Juveniles in Radio and Televised Media (Jugendmedienschutzstaatsvertrag - JMStV).

5.15.2 The Customer shall also supply, offer, provide access to or advertise content that
- is pornographic in any other respect;
- is listed in Parts A and C of the list pursuant to Section 18 JuSchG or is entirely or essentially identical to a medium listed in this list; or
- is clearly apt to seriously endanger the development of children and youths or their ability to develop into independent and socially well adjusted people, taking into account the particular impact of the distribution medium (relative prohibition as defined in Section 4 (2) JMStV) only if the Customer ensures that such content will be made accessible only to adults (closed user group). This prerequisite is deemed to have been met only for such content that is offered within a closed user group or to which a link is established from the closed user group. The provision of access to such content in other areas shall require a separate written agreement between the Parties, for the conclusion of which the Customer shall approach the Contractor without being asked to do so.

5.15.3 The Customer shall offer content that is apt to endanger the development of children or youth as independent and socially well adjusted people, in particular content that is not approved pursuant to JuSchG for children or youth in a particular age group or which is essentially identical to content that is not provided pursuant to JuSchG for children or youth in a particular age group (relative prohibition as defined in Section 5 (1) (2) JMStV), only if the Customer employs technical means to make it impossible or extremely difficult for children or youth in the particular age group to access the content. If the Customer offers such content, he shall report this to the Contractor in writing in advance and the content may be offered only if the Contractor fails to object within 10 working days.

5.15.4 The Customer shall identify his content and his linked content as defined in Section 12 JMStV and to comply with the ad design requirements specified in Section 6 JMStV.

5.15.5 The Customer shall program his content and his linked content pursuant to Section 11 (1) JMStV for a youth protection program recognized to be suitable.

5.15.6 Furthermore,
- the national and international copyrights, trademark, patent, and name rights, as well as other industrial property and personal rights of third parties and
- the legal systems in effect in Germany and the other target countries and/or accepted codes of conduct of professional associations (in particular, the code of conduct of the German Advertising Standards Council) must also be observed.

6 Rights and obligations of the respective Contractor

6.1 The respective Contractor shall place or broadcast the advertising media during the agreed period of time and/or until the booked number of ad impressions or clicks (hereinafter referred to as "media services") has been reached. With regard to the media services, the measurement results ascertained by the Contractor shall be authoritative.

6.2 The respective Contractor shall be entitled to extend the agreed deadline for placing the advertisements by a reasonable period of time, provided that technical or operational reasons make such extension necessary. In this case, the Contractor shall immediately notify the Customer of the delay and specify the anticipated date of placement. In extending the deadline, the Contractor shall take into account the Customer's interests of which it is aware, provided that it is possible and reasonable for the Contractor to do so.

6.3 The respective Contractor's obligation to retain the advertising medium shall end three (3) months after its final distribution. The respective Contractor shall return the advertising medium to the Customer at the Customer's expense and risk, provided that the Customer has asked the respective Contractor to return the advertising medium in writing within the aforementioned period of time. Otherwise, the respective Contactor shall be entitled to destroy the advertising medium.

6.4 The respective Contractor reserves the right to reject advertising orders - including individual advertising media during an advertising campaign - due to the content, origin or for technical reasons, in particular if the advertising media do not meet the requirements of these General Terms and Conditions or do not correspond to the confirmed advertising order form or satisfy any special agreements and/or if the Contractor cannot be reasonably expected to publish the advertising media; this shall also apply if the German Advertising Standards Council objects to the content of the advertising order/advertising medium by filing a complaint. The Customer shall be notified that the order has been rejected. If the Customer provides the respective Contractor with verifiably lawful replacement advertising media without undue delay, these replacement advertising media shall be placed. Any additional costs that accrue shall be borne by the Customer.

6.5 The Contractor shall be entitled to delete or block deficient and, in particular, illegal content even after the advertisement has been placed. Subject to necessary and reasonable technical feasibility, the Customer shall undertake to block access to content that the respective Contractor rejects as being deficient and, in particular, as illegal. This shall apply, in particular, if the respective Contractor is unable to block such content itself. If the Customer supplies verifiably lawful or non-deficient replacement content, or if a link was established to the objectionable content from the pages of the particular advertising vehicle and the Customer proves that the like to the deficient or unlawful content has been removed, the respective Contractor shall place the replacement content on the advertising vehicle or remove the block.

6.6 If the Customer does not provide any replacement content in the event that the conditions pursuant to Item 6.4 or 6.5 apply, the respective Contractor shall be entitled to withdraw from the agreement.

7 Rights of use

7.1 The Customer shall grant the respective Contractor a single, non-exclusive, non-transferable, worldwide right, which allows for unlimited retrieval quantities and is limited in time to the duration of the advertising order and to the content for the purpose of the agreement, to use the provided advertising media. The right granted as stated above shall include the necessary copyrights, rights of use, ancillary copyrights and other rights, in particular the right to publish, reproduce and/or distribute, publicly disclose, transmit and demonstrate, archive, make accessible to the public as well as process the advertising medium, to the extent necessary to carry out the advertising order.

7.2 The Customer shall also grant InteractiveMedia the exclusive right to use the advertising media and the established advertising activities for its own advertising purposes (for example, as part of a reference archive or for presentations). InteractiveMedia shall be entitled to name the Customer as a reference customer. The Customer shall grant InteractiveMedia, in particular, a non-exclusive, worldwide, irrevocable right, which is unlimited in time and in retrieval quantity, to use the advertising media comprehensively for its own advertising purposes pursuant to Item 2.3. InteractiveMedia is free to determine at any time whether and how the advertising media is integrated into its own advertising, technical processing or format changes thereto without changing the content being permitted. The Customer shall also grant InteractiveMedia the right to reproduce and/or distribute the advertising medium, or make it accessible to the public (alone or in combination with other products) in unlimited quantity on digital data carriers, in print media, online media, promotional films, newsletters or other mailing campaigns and presentations. If the Customer does not hold the corresponding rights in full or only for a limited period of time, he shall undertake to notify InteractiveMedia thereof upon conclusion of the agreement.

7.3 The Customer shall permit the Contractor to disclose advertising information (such as the type of advertising media, length of publication) to a reasonable extent to recognized market research institutes for market research purposes.

8 Guarantees

The Customer guarantees upon placing the order that he holds all rights necessary for carrying out the order to the content provided by him, and that he is in possession of the content and is permitted to transfer it in the manner associated with the order. In particular, the Customer shall ensure that he is entitled to acquire images, videos, photographs, films, logos, symbols and other illustrations, designs and information for placement on the advertising vehicles provided for this purpose and to use parts thereof and/or to grant these powers to the respective Contractor for the performance of the agreement.

In particular, the Customer assures the respective Contractor that he holds the rights of use necessary for providing the services under this agreement, in particular, in relation to authors, practicing artists and other holders of ancillary copyrights, audio recording companies, producers, rental companies, publishers, copyright collectives and other holders of a right of use.

With regard to the musical works included in the content, the Customer assures the Contractor that the Customer or his licensors have obtained any further permissions/approvals of the music authors or their music publishers that may be needed for contractual utilization thereof (e.g. with regard to filming the musical works and/or processing the music works during the course of filming). To the extent that the respective Contractor must register the content with a copyright collective or if the respective Contractor must obtain a license from a copyright collective, because the rights are being held exclusively by the copyright collective, the Customer shall specifically notify the respective Contractor thereof and provide it with the necessary information and perform any other requested cooperation activities without undue delay (such as filling out registration forms). If the particular responsible copyright collective (such as GEMA, GVL) charges any fees, these shall be paid by the Customer. To avoid any misunderstanding, the indemnification and its prerequisites pursuant to Item 10.5 of the General Terms and Conditions shall apply.

9 Exclusion of warranty

9.1 Unless agreed in writing, the respective Contractor accepts no responsibility for ensuring that a specific result or success is achieved through the provision of the service and the placement of advertisements.

9.2 The respective Contractor accepts no responsibility for ensuring that (mobile and/or online) websites remain unchanged for the duration of the ad campaign or that the content or quality thereof remains the same or is continuously accessible.

9.3 The respective Contractor assumes no warranty for defects to the extent that the Customer changes the work himself or has it changed by third parties without the respective Contractor's consent, unless the Customer provides that the defects were not caused by such changes and the changes do not make in unreasonably difficult to remedy the defects.

9.4 No guarantees in the legal sense shall be accepted.

10 Liability and indemnification

10.1 The Contractor shall be fully liable for any damage it causes intentionally or by gross negligence or if the damage is attributable to the lack of a guaranteed feature.

10.2 The respective Contractor shall be liable in the event of slight negligence. The respective Contractor shall be fully liable in the event of injury to life, limb or health.

If, as a result of slight negligence, the respective Contractor fails to perform its service on time, if it has become impossible to perform the service, or if the respective Contractor has failed to comply with an essential obligation, liability for any damage to property or pecuniary damage caused thereby shall be limited to foreseeable damage that is typical for the agreement. This shall also apply to lost profit and unachieved savings. An essential obligation shall be an obligation whose fulfillment is a prerequisite for the proper performance of the agreement, the violation of which jeopardizes the achievement of the purpose of the agreement, and upon whose compliance the Customer can normally rely.

Liability for any less direct consequential damage due to defects shall be precluded. This shall also apply in the event of slight negligence on the part of agents.

10.3 In the event of a loss of data, the Contractor shall be liable only for the necessary cost of recovering the data in cases where the Customer has properly backed up the data. In the event of slight negligence on the part of the respective Contractor, this liability shall apply only if the Customer properly backed up the data on a daily basis.

10.4 Liability for any other damage shall be excluded, in particular for data loss or hardware faults caused by incompatibility between the components already present in the Customer's PC system and the new or modified hardware and software, or for system malfunctions that may result from existing configuration errors.

10.5 If any claims arising from the violation of third-party rights or any other violations of rights on the basis of the contractual use of the advertising media are asserted against Deutsche Telekom or InteractiveMedia by third parties, including government institutions, under this agreement, the Customer shall indemnify Deutsche Telekom and InteractiveMedia against these claims and offer Deutsche Telekom and InteractiveMedia necessary support in the legal defense to which Deutsche Telekom and InteractiveMedia are entitled, but not obligated, as well as assume the necessary costs of the legal defense for Deutsche Telekom and InteractiveMedia. The precondition for this is that Deutsche Telekom and InteractiveMedia inform the Customer immediately of any and all claims asserted as well as violations of rights; that they do not make any concessions or acknowledgements or any statements of a comparable nature; and that they enable the Customer to conduct all judicial and extra-judicial negotiations on the claims at its own expense. The right to assert any further claims is reserved.

11 Prices and terms of payment

11.1 Subject to an individual contractual agreement, the Customer shall pay prices listed in the price list in effect at the time the contract is concluded for each advertising order. The price lists are subject to change.

11.2 Discounts shall be determined according to the price lists, as amended. Ad agencies and other advertising brokers shall be obligated to base their offers, agreements and bills with their customers on the respective Contractor's price lists. Any special agreements shall be reached on the basis of the confirmed advertising order.

11.3 If the price list or a special agreement entitles the Customer to a special discount upon achieving a certain media service, this discount shall be granted retroactively for the entire year.

11.4 If an advertising order fails to be filled due to circumstances for which the Contractor is not responsible, the Customer shall reimburse the Contractor, without prejudice to any other legal obligations, for the amount of the difference between the discount already granted and the discount corresponding to the actual purchase.

11.5 If installment payments made by a Customer cannot be clearly assigned to a particular bill, the service shall be applied in case of doubt to the most recent unpaid bill submitted to the Customer.

11.6 The advertising orders shall be billed at the beginning of the campaign and are due and payable immediately upon receipt. If the entire amount due is paid in advance and received by the Contractor at the beginning of the advertising campaign, the Contractor shall grant a 2% discount, provided that no older bills are past due.

11.7 The Customer shall lodge any objections to the amount due with the Contractor in writing within six (6) weeks after receiving the bill. If the Customer fails to lodge an objection in time, the bill shall be deemed accepted.

12 Delay in payment and offset

12.1 In principle, interest on late payments shall be charged at a rate of 8% percentage points above the base interest rate of Deutsche Bundesbank. The right to charge a higher interest rate is reserved.

12.2 In the event of late payment, the respective Contractor shall be entitled to delay further performance of the current agreement until payment is made.

12.3 The Contractor can refuse to provide the owed services if it is determined upon conclusion of the agreement that its right to payment is jeopardized by the Customer's inability to perform, unless the payment is made or security is furnished therefor.

12.4 The Customer shall be entitled to an offset only if the Contractor has recognized his counterclaim or the counterclaim has been legally enforced.

13 Termination/notice periods

13.1 Agreements that are limited in time shall end automatically upon expiry of the agreed term without requiring further termination.

13.2 Agreements that are unlimited in time can be terminated by either Party by giving 6 weeks notice effective to the end of a quarter. The termination must be effected in writing.

13.3 This shall be without prejudice to the right to terminate the agreement without notice and for good cause. Good cause for termination without notice shall apply if the terminating Party cannot be reasonably expected to continue the business relationship. The justified concerns of the other Party must be taken into account. Good cause for the respective Contractor shall exist, in particular, if the Customer's financial position substantially deteriorates or is seriously threatened, or if the Customer stops making payments to the Contractor or states his intention to stop making such payments. Good cause shall also exist if an execution has been levied against the Customer or if insolvency proceedings are about to be instituted against the Customer's assets.

14 Confidentiality

14.1 The respective Contractor and the Customer (referred to jointly as the Parties) agree to keep confidential all documents, information and data that are made accessible to them or come to their knowledge on the basis of their collaboration for the term of the agreement and three (3) years afterward. The Parties agree to protect the documents, information and data of the other Party to the same extent as their own confidential information, but at least with the due diligence of a responsible business person.

14.2 Documents, information and data that affect the companies affiliated with the Parties, other cooperation partners or suppliers as well as documents, information and data relating to customers and commercial agents of the Parties shall also be subject to the confidentiality obligation.

14.3 The confidentiality obligation shall not apply to documents, information and data that are or become common knowledge, unless this is based on a breach of contract on the part of one Party, nor shall it apply to information that was excluded from the confidentiality obligation by subsequent agreement made in writing, by fax or by e-mail.

15 Miscellaneous

15.1 The respective Contractor shall be entitled to perform advertising activities for the Customer's competitors.

15.2 The Customer shall have the right to transfer the rights and obligations under this agreement to a third party only with the prior written consent of the Contractor.

15.3 The respective Contractor shall be entitled to transfer or sublicense the rights and obligations arising from this agreement, individually or in toto, to each company affiliated with the respective Contractor as defined by Section 15 et. seq. of the German Stock Corporation Act (AktG). Effective immediately, the Customer consents to a corresponding statement by a company affiliated with the Contractor.

15.4 The sole place of jurisdiction for all disputes arising directly or indirectly from an order shall be the Contractor's principle place of business.

15.5 The agreement shall be subject to German law.

15.6 If a clause of these General Terms and Conditions or a provision of the individual agreements concluded is ineffective or unenforceable, this shall have no effect on the remaining provisions. Effective immediately, the Parties agree to replace the ineffective or unenforceable provision with an effective and enforceable provision that most closely approximates the economic purpose of the replaced provision.

 

Last revision: Oct. 7, 2009