General Terms and Conditions of AdDefend GmbH
1. Object and scope of application
1.1 The General Terms and Conditions (GTCs) below apply for all contracts and performance relationships between AdDefend GmbH, Borselstraße 3, 22765 Hamburg (“AdDefend”) and its customers (“Customer” and “Advertiser”, hereinafter referred to together as “Customers”). These GTCs only apply to companies within the meaning of Section 14 BGB [German Civil Code] as well as legal persons and are a part of each contract concluded, unless otherwise agreed in writing.
1.2 These GTCs also apply to all future business relations with the Customer, without having to be expressly included once again.
1.3 Terms and conditions of the customer that deviate from these GTCs, and any amendments or additions to these GTCs will not be recognised. This also applies if the Customer’s terms and conditions and/or terms and conditions of delivery have not been expressly objected to.
1.4 AdDefend reserves the right to change these GTCs with effect for the future. In this case, AdDefend shall notify the Customer of the changes. The changes are considered to be accepted if the Customer does not object to them within six weeks after the notification of the change. AdDefend shall inform the Customer of its right to object and the legal consequences of missing the deadline within the framework of the notification of the change. If the Customer objects to a change, AdDefend has the right to terminate the contractual relationship.
2. Contract offer and conclusion of contract
2.1 The offers from AdDefend are not binding. The object of the contract shall be the services and products from AdDefend as they are offered in the respective offer (“individual order”) or the product description at the time of the conclusion of the contract. AdDefend reserves the right to make technical changes to the services and products offered, provided these are reasonable.
2.2 The contract between AdDefend and the Customer shall only come into force after an offer is signed by AdDefend and the Customer. The Customer is also to return the offer form countersigned by it to AdDefend by fax or e-mail (“acceptance”). These GTCs apply in addition to the particular provisions agreed in the individual order.
2.3 The Customer ensures that the information provided by it within the framework of the conclusion of the project regarding its person, its company and other circumstances relevant to the contract are complete and correct. The Customer undertakes to inform AdDefend immediately about any changes to this data.
2.4 The Customer knows that legally binding declarations (e.g. confirmation e-mails, changes to the GTCs or other notifications) can be sent to it via e-mail. These are considered to have been received if they are accessible under normal circumstances in the e-mail inbox that the Customer had used within the framework of the previous communications.
3. Promises and services by the Customer
3.1 The Customer ensures that, if it is a publisher, the contents of its websites comply with the applicable law and no third party rights are violated. In particular, the use of AdDefend technology is prohibited on websites with content that is erotic, pornographic, glorifies war, demagogic, incites violence or race hate or is politically extreme, directs persons to commit offences, illegal exchange platforms, torrent websites and file hosts.
3.2 The Customer ensures that it is entitled to conclude the contract.
3.3 The Customer warrants and ensures that it uses the software provided to it by AdDefend pursuant to the requirements from AdDefend and only subject to all statutory (in particular provisions which protect data and consumers as well as provisions relevant to competition law) and industry-specific requirements.
3.4 The Customer may not manipulate the operating principle of the AdDefend technology. In particular, it may not interfere in the communications between its server and the AdDe-fend server. Moreover, the Customer may neither directly nor indirectly manipulate the performance of the campaigns through third parties or technical means. In particular, the Customer, if it is a publisher, may not generate clicks or site access to advertising campaigns through tools which are automatic, misleading or intended to deceive, such as through repeated manual clicks, use of robots, automatic loading of sites and other automatic tools.
3.5 The Customer is to take precautions to protect its data and in particular to produce backup copies.
4. Services by AdDefend
4.1 AdDefend shall perform the services that are the object of the contract pursuant to the order or service description current at the time of the conclusion of the contract.
4.2 AdDefend is entitled to interrupt the services offered because of servicing and update measures or to remove faults. AdDefend shall, if reasonable, inform the Customer in good time about such interruptions if these could affect the performance of the services that are the object of the contract.
4.3 AdDefend is entitled to fulfill the contractual duties with third party services.
5. Granting of rights
5.1 AdDefend grants the Customer a non-exclusive right of use in the AdDefend software free of charge, limited to the term of the contract and in terms of content to the fulfillment of the object of the contract, but unlimited in terms of area.
5.2 AdDefend may name the Customer within the framework of a reference list together with other customers on its own website and in other (offline and online) advertising channels of its own. Any other use, such as in the press, is to be co-ordinated with the Customer. To do so, the Customer grants AdDefend the right to use, duplicate and distribute its logo and name for the purposes mentioned free of charge.
5.3 The advertising delivered by the AdDefend technology shall be subject to the rights of third parties, where applicable.
6. Terms of payment
6.1 AdDefend shall make a count of the ad impressions, conversions or other parameters on the Customer’s websites as well as other values that are relevant for invoicing and internal purposes using a technical system to record site access.
6.2 The invoice shall be sent on the basis of the values relevant to invoicing determined by AdDefend. Counts carried out by the Partner and differing, where applicable, are invalid so long as the partner cannot prove beyond doubt that the values determined by AdDe-fend are false within a suitable period. Differences in measurements of up to 10 % are minor and are not considered as defects or over-fulfillment (fluctuation tolerance). If the differences in measurement are more than 10 %, the parties shall determine the cause of the difference and strive to reduce the statistical discrepancy. A possible revenue share agreed shall be measured according to the net advertising revenues. These are the gross advertising revenues achieved by AdDefend through displaying advertising on the Customer’s websites, less VAT, all rebates and commissions such as customer rebates, agency rebates, agency commissions, agency refunds, discounts and the like.
6.3 The prices for the services claimed by the Customer result from the particular individual orders and from the particular current price from AdDefend. Unless otherwise stated or if no statutory VAT applies, the prices are plus the current rate of statutory VAT.
6.4 Invoices to the Customer shall be sent by post or in electronic form, provided that nothing else has been expressly agreed with the Customer.
6.5 If the Customer is an advertiser, invoice amounts are due upon invoicing and payable immediately. If the Customer defaults with payment in this case, AdDefend shall charge the statutory rate of interest on default. AdDefend reserves the right to prove and claim greater damages incurred as a result of the default. In addition, in case of default, AdDe-fend is entitled to suspend the services that are the object of the contract. The Customer remains obligated to pay the agreed fee for the duration of the blocking. Furthermore, if the Customer does not claim the contractual services, this does not release it from the obligation to pay with regard to ongoing fees. Further claims and rights of AdDefend remain unaffected.
6.6 Should the customer have any objections to an invoice from AdDefend, these are to be notified to AdDefend within six weeks after receipt of the invoice in writing or via e-mail. If possible objections are not made within four weeks after receipt of the invoice, the invoice is considered to have been accepted by the Customer.
6.7 If the Customer is a publisher, the payment to it shall be made within 60 days after receipt of the advertising revenues and successful invoicing.
7. Warranty and liability of AdDefend
7.1 AdDefend indemnifies the Customer, if it is a publisher, from all liabilities regarding the insertion of adverts delivered by AdDefend.
7.2 AdDefend is not liable for damages that result from the incorrect use of the AdDefend software.
7.3 AdDefend is liable neither for the sufficient utilisation of the Customer’s advertising spaces, if it is a publisher, nor for damages on the basis of force majeure or technical disruptions that are under the area of responsibility of third parties (e.g. transmission paths from telecommunications companies or disruptions with access providers).
7.4 Otherwise AdDefend is – pursuant to the statutory provisions – only liable for damages that were caused by intent or gross negligence of the legal representative or executives of AdDefend or through severe organisational fault or are based on the fact that a guaranteed quality of AdDefend software is missing. This limitation does not apply for damages that are based on injury to life, body or health; in this case, AdDefend is liable for every fault.
7.5 Irrespective of the legal basis, AdDefend is only liable for damages that were caused through culpable breach of a material contract duty by legal representatives or persons assisting in the performance of obligations of AdDefend. Liability is in this respect limited to foreseeable, typical damages that AdDefend must have accounted for when concluding the contract on the basis of the circumstances known to it at the time, the maximum amount is however EUR 25,000.00. AdDefend’s liability for lost profits is excluded.
7.6 The provisions on liability above also apply analogously in favour of the employees and representatives of AdDefend.
7.7 Claims for compensation for damages by the Customer that are based on a simple negligent breach of duty by AdDefend can no longer be claimed after the end of one year following the occurrence of the damage. This limitation does not apply for damages that are based on injury to life, body or health. Moreover, defect claims expire in accordance with the statutory provisions.
8. Customer’s liability
The Customer indemnifies AdDefend from claims by third parties that are made by them against AdDefend on the basis of a breach of applicable legal provisions or rights of third parties by the Customer, contents provided by the Customer or the Customer’s websites. The indemnification also includes the costs of legal defence.
9. Contract duration
9.1 The duration of the contract is based on the individual order.
9.2 The right to extraordinary termination remains unaffected.
9.3 Irrespective of the above provisions, AdDefend reserves the right to deactivate the AdDe-fend technology on the Customer’s website, if it is a publisher, in whole or in parts if there are indications that the websites contain illegal content and/or breach the rights of third parties.
10. Data protection
11.1 For the duration of the contract and for three (3) years after, the Parties undertake to maintain secrecy of all documents, information and data to which they were given access or of which they were given knowledge on the basis of the co-operation. The Parties likewise undertake to protect the documents, information and data of the other contract partner like their own confidential information, but at least with the diligence of an ordinary businessperson. These documents, information and data may only be used to perform the services that are the object of the contract.
11.2 The object of the confidentiality obligation includes such documents, information and data that concern companies affiliated with the parties, other co-operation partners or suppliers, as well as documents, information and data about customers and commercial agents of the contract partners.
11.3 The confidentiality obligation does not apply to documents, information and data which are or become part of the public domain, without this being based on a breach of contract by a Party, there is a statutory or official obligation to disclose them or for information which has been excluded from the confidentiality obligation through subsequent agreements made in writing, by fax or via e-mail.
12.1 Press releases or other publications regarding the existence or type of the co-operation governed by the contract are to be co-ordinated between the Parties before publication and require the express consent of the respective other Party.
12.2 Changes and additions to the contract require the written form. This also applies for a change to this requirement for the written form. E-mail is not sufficient for this. The Customer’s General Terms and Conditions are objected to.
12.3 Should a provision of the contract be or become ineffective or unenforceable, or should the contract have a loophole, the effectiveness of the remaining provisions shall not be affected by this. The Parties in this case undertake to agree an effective provision in place of the ineffective, unenforceable or missing provision which comes as close as possible to the economic purpose of the ineffective, unenforceable or missing provision.
12.4 The law of the Federal Republic of Germany applies exclusively, to the exclusion of the UN CISG.
12.5 The place of performance as well as the court of jurisdiction for all disputes between the contract parties is Hamburg, provided that the Customer is a business person, legal entity of public law or of special fund under public law. The court of jurisdiction also applies to persons other than those mentioned if the Customer has no general jurisdiction domestically, if the Customer relocates its place of residence and/or registered office outside of Germany after the conclusion of the contract or its place of residence and/or registered office or normal place of residence are unknown at the time proceedings are instituted.
Last updated: 05/10/2019