General Terms and Conditions concerning Contracts for the Paid Publication of Online Advertising and for the Provision of Ad Server Technology by adverserve digital advertising services GmbH, Wimbergergasse 28/Top 5, 1070 Vienna, Austria (hereinafter referred to as: „adverserve“)
1. Scope of application
1.1. These General Terms and Conditions (GTC) shall apply to all contracts for the creation, placement, publication and dissemination of online advertising by adverserve, as well as for the provision of ad server technology, other technology and/or the (partial) management of advertising campaigns, which are concluded between adverserve and a contractual partner (hereinafter also referred to as: client). Furthermore, these General Terms and Conditions shall apply to workshops and consulting services offered by adverserve.
1.2. The General Terms and Conditions of the contractual partners are hereby expressly contradicted. Other General Terms and Conditions shall not apply even if documents or declarations of the respective contractual partner refer to them. Individual contractual provisions shall take precedence over these General Terms and Conditions. No contract shall be concluded on terms other than those set out in these General Terms and Conditions and any deviations from these General Terms and Conditions individually agreed between the parties.
1.3. These Terms and Conditions shall in any case be deemed to have been accepted in full if a contract is concluded with adverserve (cf. item 3. of these General Terms and Conditions) and nothing to the contrary is expressly agreed in this contract. By accepting an offer, the business partner expressly waives the application of his own terms and conditions.
2. Definitions (online advertising, advertising media, advertising vehicle, campaign, ad server technology, other technology, training and workshops)
2.1. Online advertising is the placement of one or more advertising media in information or communication services – in particular the Internet – for the purpose of disseminating the advertising media.
2.2. For example, an advertising medium may consist of one or more of the elements listed below:
– of an image and/or text, sound sequences and/or moving images[Textflussumbruch]- a sensitive area which, when clicked on, establishes a connection to further data within the client’s sphere (so-called links) by means of an online address specified by the client.
2.3. The advertising vehicle is the medium in which the advertising is placed, e.g. a website, media portals or any other information or communication service.
2.4. An order placed with adverserve may consist of a single posting of an online advertisement, or multiple postings within an agreed period of time (campaign). The management of an advertising campaign includes – depending on the specific order – the planning, content design and execution (distribution / publication / placement) of the online advertising.
2.5. Furthermore, an order placed with adverserve may consist of adverserve being entrusted with the marketing of advertising spaces.
2.6. adverserve provides third-party ad server technology – specified in the individual case – against payment and manages this for the client according to the client’s specifications.
2.7. Ad server technology is the software that enables the placement of online advertising and the buying and selling of advertising vehicles.
2.8. Other technology is the software used to evaluate and obtain data on advertising campaigns, advertising vehicles and the corresponding user behaviour of the target group.
2.9. Workshops are trainings offered by adverserve which can include the application possibilities of digital marketing, the corresponding technology, the concrete benefit for the respective client, and future trends in this area.
2.10. Consulting: Consulting services provided by adverserve in the area of online marketing.
3. Offer and conclusion of contract
3.1. A contract is concluded by written agreement or by written or verbal acceptance of an offer by adverserve.
3.2. A verbal acceptance of the contract shall only be possible with regard to the entire content of adverserve’s written offer. Verbal collateral agreements are excluded and shall not be deemed to have been agreed.
3.3. In the event of a verbal acceptance of the contract, adverserve shall send a confirmation by e-mail to the contractual partner.
3.5 Consulting services are only included if this has been expressly agreed in the offer.
adverserve and its contractual partners agree to communication by e-mail throughout the contractual relationship. If a special contact person or a special e-mail address is named in an individual case, communication by the contractual partner shall be directed exclusively to this person or e-mail address.
5.1. The individually agreed fee for the creation / placement of the online advertising or the technology provided shall be deemed to have been agreed. If the contractual partner is provided with price lists for the placements, these shall apply. adverserve reserves the right to change price lists on a monthly basis – also unilaterally.
5.2 With regard to workshops offered by adverserve, the agreed fee shall be paid by the client even if the workshop does not take place for reasons for which the client is responsible.
5.3. The respective prices are exclusive of value-added tax and exclusive of incidental costs (such as cash expenses for translations or express charges), which will be invoiced additionally by adverserve.
5.4 In the case of a campaign that includes several publications, the justified rejection of a partial order (or of the placement of individual advertising media) shall not reduce adverserve’s claim to payment for the entire campaign (cf. item 3.4. of these General Terms and Conditions).
6. Terms of payment
6.1. The invoicing of the commissioned services is carried out as a matter of principle on a monthly basis.
6.2. All invoices are due for payment within 30 days from date of invoice without discount.
6.3. Incoming payments are first credited to costs then to interest and finally to the pure invoice amounts.
6.4. The contract partner shall only be entitled to set off claims against claims of adverserve, to withhold payment or to reduce the purchase price, if these claims are undisputed by adverserve or have been established by a court of law.
6.5. If a contract partner is in default with the payment of the fee despite a corresponding reminder from adverserve or if there are objectively justified doubts as to the ability to pay, adverserve shall be entitled to demand the immediate settlement of all payments of this contract partner which may have been deferred or such payments for which payment by instalments has been agreed. If the client wishes adverserve to continue its work in this case, an advance payment for the forecast expenditure shall be made in addition to the services due. In addition, in the event of a qualified default in payment, adverserve shall be entitled to cease further work on all orders still in progress and to terminate this and all other contracts with the respective client with immediate effect without the need for a further reminder or setting of a deadline.
6.6. In the event of a default in payment by a contracting party of adverserve’s, 8% default interest per annum shall be deemed to have been agreed.
7. Production material, documents and archiving
7.1. Subject to individual agreements to the contrary, the material sent to adverserve by the client (data, data carrier, images and other documents) shall not be returned to the client.
7.2. Published online advertising will only be archived after publication if possible and on the express order of the contractual partner – against payment.
7.3 Digitally retrievable campaign evaluations can only be provided as long as adverserve maintains an account for the client with a technology provider.
8. Placement of online advertising
8.1. The placement of the advertising media takes place according to the specifications of the client.
8.2. In the event that the client wishes to place advertising media on third-party advertising vehicles (such as a website that is operated neither by the client nor by adverserve), the client must reach an agreement with the owner of the advertising vehicle regarding the placement and have the corresponding rights granted to him.
8.3. If the placement is carried out by the client itself by using ad server technology provided by adverserve, the client shall ensure that the online advertising vehicle or the advertising spaces are suitable for the use of this technology.
8.4. If a placement is not made at the desired place (or in the desired online advertising medium), the client must inform adverserve of this immediately.
9. Availability of online advertising vehicles and advertising space
9.1. If an online advertising vehicle on which advertising media are to be placed is discontinued during the term of the contract – for whatever reason – adverserve shall be released from the performance of the order without adverserve being obliged to provide a replacement.
9.2. This shall not release the client from payment for the online advertising already published and for those services already provided by adverserve for the intended placement on the discontinued online advertising vehicle.
9.3 Unless expressly agreed otherwise in individual cases, adverserve shall not be responsible for ensuring that advertising space is available for the placement of online advertising. Rather, it is up to the client to conclude corresponding agreements with the operators of the online advertising vehicles.
10. Obligations of the client / content requirements for the advertising media and liability of the client towards adverserve and media owners for the content of the online advertising.
10.1. The client guarantees and assures that he owns all rights necessary for the placement of the advertising material (in particular rights of use or exploitation rights according to the Copyright Act). In addition, the client warrants and represents that he is aware of and complies with the relevant statutory provisions, guidelines, and industry rules. The client shall indemnify and hold free and harmless adverserve and/or the owners of those media in which online advertising is published as well as service providers entrusted with the placement of the advertising media in the event that the advertising media provided violate statutory provisions and/or the rights of third parties.
10.2. The client guarantees and assures that advertising materials provided by him do not contain any content that is contrary to the public interest, in particular pornographic, national socialist, racist or other discriminatory content, and, insofar as they are directed at minors and other particularly vulnerable target groups, that they are suitable for this purpose and comply with all relevant regulations.
In the event of a claim by courts, authorities, or third parties against adverserve and/or those owners of media in which the online advertising is published – on the basis of a violation specified in item 10.1 or item 10.2 –, the client shall pay compensation for the claim to adverserve and/or those owners of media in which the online advertising was published within 14 days.
10.3. The client shall grant adverserve all copyrighted rights of use and ancillary copyrights and other rights required for the placement of the advertising in online media of all types, in particular the right to reproduce, distribute, transmit, broadcast, process, extract from a database and retrieve, in terms of time, place, and content, to the extent necessary for the execution of the order. The aforementioned rights are in all cases unlimited in terms of location and authorize the placement/publication by means of all known technological processes as well as all known forms of online media.
10.4. adverserve shall accept online advertising only on the assumption that the content of the advertisement does not violate applicable Austrian law or the law of any other country in which the online advertisement is retrievable and also that no rights of third parties are infringed. The client guarantees that the content of the online advertising or the advertising media does not violate the applicable law of a country in which it is retrievable and also that no rights of third parties are infringed. Content of a pornographic, extremist, or immoral nature are expressly prohibited, and adverserve is entitled to block or delete such content immediately.
10.5. adverserve shall have the right to refuse the publication of online advertising if the content thereof violates the provisions of these General Terms and Conditions without this reducing adverserve’s claim to remuneration.
10.6. The client’s responsibility in this respect extends not only to the actual advertising content, but also to the content (links) linked to its online advertising.
10.7. If the online advertising is rejected for the reasons mentioned in item 10. or if it is subsequently blocked or deleted, the client shall still be fully liable to pay the costs.
10.8. If the owner of the online advertising vehicle or adverserve is sued by a third party for infringement of rights of any kind whatsoever due to the content and/or type of online advertising, and if judicial or extrajudicial costs are incurred in this connection, the client shall be obliged to bear these and to indemnify and hold the online advertising vehicle and adverserve completely free and harmless.
11. Obligations of the client in connection with the use of technology provided
11.1 The client warrants and represents that he will use the technology provided to him by adverserve in accordance with the specifications of adverserve or the respective technology provider and only in compliance with all legal requirements – in particular those relating to data and consumer protection as well as the relevant provisions of competition law – and industry-specific requirements.
11.2 In particular, the client warrants and represents that it will not use the technology provided to collect any personal data or otherwise process any personal data unless it has the express consent of the data subjects or another legal basis to do so.
11.3 The client further warrants and represents that it will only process personal data of third parties with the provided technology if this is permitted according to the specifications of the technology provider and this processing is furthermore legally permissible.
11.4 The client shall indemnify and hold adverserve free and harmless in the event that claims are asserted against adverserve on the basis of a breach by the client of this provision of the technology provider or other third parties.
11.5 When using ad server technology, the client has the possibility to make settings in his client account himself (such as campaign booking, changes to the number of playouts, changes to the campaign budget, etc.). The client is solely responsible for adjustments made by himself or by third parties attributable to him. Should adverserve incur any damage as a result of such settings, the client undertakes to indemnify and hold it free and harmless.
12. Product description and warranty by adverserve
12.1. adverserve ensures, within the framework of the foreseeable requirements, the best possible placement / display / publication of the advertising material / usage of the technology within the scope of the generally current technological standard.
12.2. The client is aware that, based on the standard of technology, it is not possible to create a product which is completely free of errors (deviations of the advertising material from the original) and to place/display/publish such a product.
12.3. In particular, an error/defect in the presentation of the advertising material does not exist and therefore does not entitle to the assertion of warranty claims, if the deviation is caused by
– using an unsuitable display software and/or hardware (e.g. browser) or
– interference with the communication networks of other operators or
– computer failure or other malfunctions at third parties (e.g. other providers, etc.) or
– incomplete and/or non-updated offers on so-called proxies (caches) or
– a failure of the ad server that does not last longer than 24 hours (continuous or added) within 30 days after the start of the contractually agreed placement. In the event of a failure of the ad server over a considerable period of time within the scope of a time-bound fixed booking, the obligation of the client to pay for the period of the failure shall cease. Further claims are excluded.
12.4. If a defect is attributable to adverserve, the client shall – in the event of insufficient display quality of the advertising material – be entitled to a reduction in payment or a flawless replacement advertisement, but only to the extent that the purpose of the advertising material was impaired. Should any defects in the advertising placements not be obvious, the client shall not be entitled to any claims upon publication of the same.
12.5. Complaints due to incorrect appearance or non-appearance must be made to adverserve within a period of ten days after the actual or planned appearance of the online ad. Later complaints shall be irrelevant. If an online advertisement cannot appear for technological or administrative reasons, the placement costs will be waived or refunded.
12.6 With respect to the workshops offered by adverserve, it is expressly stated that adverserve assumes no warranty and/or liability whatsoever for forecasts, business cases and other statements and/or case studies presented and/or developed within the scope of workshops.
13. Responsibility and liability of adverserve
13.1. adverserve accepts online advertising on the condition that the content complies with the requirements set out in item 10. of these General Terms and Conditions.
13.2. The client is solely responsible for the content of the online advertising. adverserve is not responsible to the client or the owners of the booked online advertising vehicles for the content of the online advertising. In this respect, adverserve shall have no duty to warn the client and/or the owners of the media on which the online advertising is placed.
13.3. The client’s responsibility in this respect extends not only to the actual advertising content, but also to the content (links) linked to its online advertising.
13.4. Furthermore, the client acknowledges that the publication takes place exclusively at his own risk. Should the publication give rise to claims for compensation from third parties (such as the owners of those media in which the online advertising is published), the client alone shall be responsible to them. Should adverserve nevertheless be held liable by third parties, the client shall indemnify and hold adverserve free and harmless.
13.5. Claims for damages by the client against adverserve for financial loss and/or loss of profit shall be excluded. Likewise, adverserve shall not be liable if the damage is due to slight negligence.
14. Disclaimer and possibility of termination of the contract in case of force majeure
14.1 adverserve shall not be liable for the non-performance of its contractual obligations, even if it uses vicarious agents, and penalties and performance periods shall not apply if the non-performance is due to an impediment outside its sphere of influence and it could not have expected or been expected to foresee the impediment at the time the contract was concluded or to avoid or overcome the impediment or its consequences; the impediment shall be deemed to have occurred if the impediment directly, in particular through plant closure (nationwide or regional), quarantine measures, etc., or indirectly, in particular, frustrates or renders impossible the performance of the contract by a contracting party.
In particular shall be deemed to be impediments that exempt adverserve from liability: industrial disputes/strikes, riots/insurrections, wars, terrorist attacks, boycotts, natural disasters, including those caused by global warming (such as storms, floods, earthquakes, etc.), pandemics, epidemics, official measures, seizures of material goods, shortages of resources, materials, supplies, and other unforeseeable, unavoidable, and serious impediments that release adverserve from its (main and/or ancillary) performance obligations for the duration of the disruption and to the extent of its effect.
14.2 adverserve shall, within the scope of what is reasonable, immediately notify the client in writing (e-mail is sufficient) of the occurrence of the impediment.
14.3 In the event of an impediment, the contract may be terminated extraordinarily by either party (in the case of a continuing obligation) or the contract may be rescinded (in the case of a target obligation), if in particular
• the continuation of the contract due to an impediment (as described above) is unreasonable for one of the parties to the contract, i.e. the impediment results in the cessation of essential business fundamentals, or
• no agreement can be reached between the contracting parties on the continuation of the contract within a reasonable period of time, not exceeding 21 days, or
• the duration of the impediment is not foreseeable for one of the contracting parties.
14.4 The contract shall be terminated or dissolved ex nunc upon receipt of the unilateral declaration (withdrawal or extraordinary termination).”
15. Intellectual property in online advertising
The client acknowledges adverserve’s intellectual property rights, in particular the copyright, to all advertising of an individual character created by adverserve. Insofar as the client fulfills his contractual obligations towards adverserve, he shall be granted the use and exploitation of the intellectual property within the scope of the original purpose of use for an unlimited period of time.
16. Improper exploitation of online advertising by third parties
The use or exploitation of online advertising by third parties in any way whatsoever is not permitted. The client declares he agrees that adverserve may proceed against this after consultation with the owner of the online advertising medium.
17. Data protection information
17.1 adverserve points out that personal data of users (e.g. visitors to websites) may be processed when online advertising is played out.
17.2 The client shall always be responsible for the processing of personal data connected with an order placed with adverserve or in the course of the performance of the contract by adverserve (“controller” within the meaning of Art. 4 no. 7 GDPR). It is therefore necessary that adverserve and the client conclude a processing contract within the meaning of Art. 28 GDPR.
17.3 The processing of personal data is only permitted if there is a legal authorization. This is, for example, the consent of the data subject. The client must therefore ensure that it can rely on a legal basis for consent.
18. Place of jurisdiction, place of performance, choice of law of adverserve digital services GmbH
18.1. To the extent permissible, the Commercial Court of Vienna shall have exclusive jurisdiction over all contractual relationships of adverserve digital advertising services GmbH, in particular those in connection with the placement of advertising media and/or the provision of ad server technology and any disputes arising in this regard, including contractual pre- and post-effects.
In the event of the invalidity of a provision of the contract – concluded on the basis of these General Terms and Conditions – or a gap, the validity of the remaining provisions shall remain unaffected. The invalid or missing contractual provision shall be replaced or supplemented by a contractual provision which economically comes closest to what the parties would have agreed if they had considered the invalidity or the gap.
Last updated: 12 November 2020