Order partner, advertising order
1.1 OnVista Media GmbH (in the following named “OnVista”) conducts consulting and marketing concerning advertising on its own Internet pages, e.g. on the financial portal OnVista on www.onvista.de , as well as on websites of its marketing customers.
An “advertising order” in terms of the following general terms and conditions (in the following named “T & C”) is the order by a client to OnVista to insert one or more advertising spaces for the purpose of distribution in the World Wide Web on one or divers Internet pages marketed by OnVista.
1.2 An “advertising space” in terms of the following T & C may consist of one or more of the following elements: a text or an image
(e.g. button, banner, popup, interstitial, superstitial, logo), each with reference (link) to the Internet pages of the client.
2. Order completion, prices and discounts
2.1 Offers from OnVista are subject to confirmation in either case. The advertising order can only be concluded through written confirmation by OnVista, through insertion into the Internet pages marketed by OnVista or through other provision of the advertising service. Verbal confirmation or confirmation by phone cannot replace a written confirmation. OnVista is, in either case and exclusively, contracting party to the client.
2.2 These T & C, as well as the price lists of the particular Internet pages which are part of an order, apply exclusively for each order. The validity of the General Terms and Conditions of Business of the client or other advertisers will be expressly excluded as far as they do not coincide with these T & C of OnVista. These T & C shall also apply to future orders of the client without the need for their renewed inclusion.
2.3 The current prices and discounts will be taken from the respective valid price lists of the particular Internet pages marketed by OnVista. These are subject to the valid statutory value added tax.
2.4 In case of modifications concerning the price lists, the new terms will also apply to ongoing orders, namely immediately with regard to price reductions and one month later for price increases. The currently valid rates are indicated in the OnVista media documentation under the categories “Portale”/”Vermarktungsportfolio” under http://www.onvista-group.de.
2.5 It is possible to cancel orders. The cancellation request has to be submitted to OnVista in written form. In case of a cancellation at least 2 weeks prior to the start of insertion of the campaign, the client will bear no costs
Subsequent cancellations of insertion which are based on TKP- accounting (price per thousand contacts) will be brought into account at a flat rate with a processing fee of 30% of the net order value. In this terms and conditions net order value means the original order value less all granted discounts.
Should the client cancel such an order during the course of the ongoing campaign, then OnVista will charge a cancellation fee of 50% of the value of the uncompleted part of the order. Additionally the charge of effectively inserted online-advertising will be charged. In doing so, the costs for the effectively inserted and effectively delivered volume will be charged, unless otherwise agreed.
Should the client cancel an order which is based on a fixed price or on TAP- accounting (price per thousand print run) less than 2 weeks prior to the start of insertion, then OnVista is entitled to charge 100% of the net order value, unless the client provides evidence that the advertising space can be sold otherwise on the stipulated date. In the event of ulterior booking OnVista is entitled to charge the client the difference between the recent and the old net order value plus an administrative charge of 30 % of the old net order value.
3. Terms of payment
3.1 Payment shall be made in accordance with the order confirmation. Should the order confirmation contain no defined payment, then the prices according to the price list of the particular Internet page valid at the date of conclusion of the order will apply. An accurate invoice will be issued at the beginning of the agreed insertion period. Payment by instalment may be agreed upon if the posting total surpasses an amount of € 50.000 net.
3.2 In case of “cost per click”-bookings, OnVista will count all clicks which have been generated for the particular advertisement space on a monthly basis. A specific number of clicks is not guaranteed. The clicks, which have been generated for the particular advertisement space will be billed on a monthly basis at the beginning of the following month. The billing is solely based on the data, which are found out by OnVista with their counting. OnVista is entitled to stop the campaign at any time, if the click-rate of the advertisement space is uneconomic for OnVista.
3.3 The payment will be considered punctual if the respective payable amount is credited to the account quoted in the invoice by the 10th day after the issuing of the invoice by OnVista.
4. Default of payment
4.1 In case of a default of payment or extension of time for payment, OnVista shall have the right to charge the statutory default interest of 8 and 5 percentage points above the respective base lending rate of the European Central Bank. If OnVista proves a higher charge or the client verifies a lower one, then the default interest rate will be adjusted.
4.2 In case of a default of payment, OnVista may defer the further performance of the current order until due payment is made and may demand advance payment regarding the remaining advertising deliveries. As far as there are reasonable doubts about the solvency of the client, OnVista is entitled to demand advance payment and the settlement of unpaid invoices before performing further advertising, even during the insertion period. The above stated applies regardless of an originally agreed term of payment.
4.3 The client may only counterbalance outstanding debits of OnVista with undisputed or legally binding claims.
5. Orders from agencies
5.1 Orders by advertising agencies will only be accepted on behalf of advertisers/product providers who are named precisely. The advertising for products or services of clients other than the one stated in the order, requires the prior written approval of OnVista in either case.
5.2 For all orders which are placed via an advertising agency, an agency fee of 15% of the net invoice value, i.e. based on the invoice sum excluding value added tax, will be deducted.
6. Insertion of advertising spaces
6.1 OnVista provides a technical platform for the insertion of advertising spaces. The insertion of advertising spaces is only possible within the scope of this technical standard. Success of the advertising space is not guaranteed.
6.2 The positioning of the advertising is possible exclusively in the spaces listed in the price list of the particular Internet page, and according to the conditions described there, or according to the individual agreement.
6.3 If the advertisement cannot be identified as advertising, OnVista is entitled to label it as “advertising”.
7. Insertion of the advertising
7.1 A proper and suitable electronic master copy must be delivered to OnVista by the client at least five days prior to the start of the insertion of the advertising. The electronic copies must be clearly, distinctively labelled and correspond with the current available technical specifications of OnVista when delivered. The specifications for the particular portals can be seen under the category “Werbemöglichkeiten”. The particular portals can be found under the navigation point “Vermarktungsportfolio” on http://www.onvista-group.de.
7.2 The following data formats of advertising banners will be accepted: GIF, animated GIF, HTML, DHTML, Flash and Javascript redirect tags. Any deviations have to be agreed upon with OnVista in written form or by eMail. OnVista’s obligation to store the supplied material, expires 3 months after the final publication of the advertising material.
7.3 The client has to check immediately whether the advertising has been published correctly. Complaints about potential deficiencies have to be filed within the first week after the start of the insertion of the advertising. In case of subsequent complaints, the client has to bear the costs of the changes requested by him.
7.4 OnVista will accept no liability for the distribution of the advertising as contracted, if the transfer of the advertising material to OnVista is not performed correctly, in particular if its delivery is delayed or if it is not supplied in the data format agreed upon or if the advertising material is not distinctly labelled. If advertising orders cannot be carried out correctly or at all because of one of the aforementioned reasons, the contracted advertising will nevertheless be invoiced. The client will not be entitled to claim any compensation. The client bears the risk of the transmission of advertising material.
7.5 If the advertising material of orders which are based on a fixed price or an TAP-accounting is delivered late or in an electronical template which is not proper appropriate by the client, and is therefore the publication of the advertising material possible only at a later date than agreed on, OnVista charges an additional service fee of 30% of the net order value if the client wishes a subsequent publication of the advertisement and if OnVista agrees to a subsequent publication for goodwill.
8. Orders regarding the generation of user addresses
8.1 In case of an advertising order concerning the generation of user-addresses (in the following named “leads”) OnVista might record the personal data of users which are generated via the advertisement for the client, if this is technical possible and explicitly instructed by the client in the advertising order. OnVista will then transfer the data records in continuous intervals to the client. No kind of address validation and address systematization will be executed. If the accounting of the advertising order is based on the number of the generated leads, every delivered lead will be invoiced. A reclamation or rejection of the leads delivered by OnVista is excluded.
8.2 The generation of addresses via the advertising material of the client is conducted up to the number of leads per month that was agreed upon in the order and expires at the end date which is named in the order, at the latest. A minimum number of leads is not guaranteed.
8.3 The client affirms to observe valid data privacy law and to oblige all persons consigned with the fulfilment of the order to observe the data privacy notice and to secure its compliance with due diligence. The client is responsible for the compliance with valid law , especially for the collection and storage of personal data, which are generated through his advertising material. Particularly the client guarantees, that the generated user data are used for the utilisation specified in the data privacy notice only.
8.4 After having transferred the generated user data, OnVista no longer has any influence on their utilisation by the client. Therefore, the transmission is carried out explicitly under the condition of the legitimate use of the data through the client and with exclusion of all liability on behalf of OnVista. Insofar OnVista is reckoned as a commissioned data processor in the meaning of the German data privacy law.
9. Authority to reject
9.1 OnVista reserves the right to reject or to inhibit entire advertising orders or specific advertising materials as well as the right to inhibit published advertising banners partly or as a whole because of their content, their origin or their technical form, according to objectively justified criteria. The fulfilment of these criteria will be assumed in particular, if the advertising indicates that its content infringes the law, e.g. the German “Heilmittelwerbegesetz”, competition regulations, official regulations or rights of third parties, or if its publication is unacceptable for OnVista and/or its client. In particular, advertising content which could damage the reputation of OnVista and/or its client is unacceptable. This includes, for example, information and illustrations which incite racial hatred, the depiction of cruel or otherwise inhuman acts of violence against people, or ones which are likely to represent a moral threat to children and young people or to have an adverse effect on their well-being. Unacceptable for OnVista are in particular advertisements which include forecasts regarding particular stocks, give buying recommendations to acquire stocks or graphical advertising material which highlight prominent persons through mention their names or showing pictures of them if the person works for the advertising company at this term.
9.2 In case of direct competition between the advertised product of the client (or his customer) and a product, which is advertised by OnVista or an affiliated company of OnVista at the same time, each party can demand to pre- or postpone the dispatching date for the campaign or to withdraw from the contract. Rendered Payments will be refunded by OnVista, as far as the value is not exhausted. Already granted Rebates or any other vantages persist.
9.3 In particular, OnVista is entitled to retract released advertising banners if the client subsequently makes modifications regarding the content of the advertisement banner or the content to be found on linked websites which, as a result, leads to a breach of the requirements listed in no. 9.1.
9.4 The client will be notified of the rejection or inhibition of an advertising order.
10. Liability of the client and grant of rights
10.1 By configurating and designing the advertising contents, the contents found at the address of the link as well as the usage of user data transferred by OnVista, solely the client is liable for the observation of competition law, data privacy law, national and international intellectual property law and other protective rights, as well as other legal regulations concerning credit, banking business or securities trading or advertisement regulations for pharmaceuticals The client guarantees that he is granted a permission to broker the products advertised by OnVista and will maintain the permission during the period of validity of the order.
10.2 The client assigns all rights required for the realization of the advertisement order to OnVista. This specifically includes all rights necessary for the usage and distribution of the advertising by OnVista in online media of all kinds, inclusive of all rights being necessary for internet-advertising, in particular all usage rights, ancillary copyrights and other rights, particularly all rights of storage, duplication, distribution, transmission, broadcasting, processing as well as. The client guarantees to possess all rights required for the insertion and distribution of the advertising contents and that she/he is authorised to assign the aforementioned rights.
10.3 If the client picks up personal data through placing his advertising on the Internet pages market by OnVista by using specialized technologies such as cookies or counting-pixels, the client is responsible for observing the applicable German data privacy laws when he collects, processes and uses the data.
10.4 The client releases OnVista and its marketing customers from all claims made by third parties arising from infringements of the aforementioned rights and statutory regulations as result of the insertion of advertising spaces and/or from contents to be found on a linked website and/or on a microsite in terms of no. 8 and/or the usage of user data transferred by OnVista and/or the lack of a required brokering permission. The client will reimburse OnVista and/or its marketing customers for all charges incurred by taking legal advice or defence in this context as far as they are reasonable. This will not apply if it is undoubted that OnVista and/or its marketing costumers bear contributory negligence. In addition OnVista is entitled to claim damages. OnVista is entitled to counterclaim with the aforementioned claims. In the case of claims, OnVista will immediately inform the client.
10.5 If the client, no matter in what form, obtains anonymous or personal data because of placing his advertising on the Internet pages market by OnVista, the client is only allowed to analyze these data within the framework of the particular campaign and in case that the client is an agency exclusively for the concrete advertiser who ordered the particular campaign. The analysis is only allowed to contain anonymous or personal data which are obtained by the advertising on the Internet pages market by OnVista. Beyond this the client is not allowed to process, use and/or pass on any data which are obtained by the advertising on the Internet pages market by OnVista. In particular the client is not allowed to save, analyze or to use the data for another purpose or to pass on to a third party. This prohibition also includes in particular the creation and usage of profiles. If the client uses systems of a third party to deliver advertising material for the pages market by OnVista, she/he has to ensure that these persons observe the conditions of no. 10.5 as well.
10.6 If the client violates the condition of no. 10.5, OnVista is entitled to claim for every violation a contract penalty ten times higher than the compensation according the advertising order in which the illegitimate use of data occurred. Any entitlement of OnVista to higher damages on which the contract penalty is taken into account as far as the entitlement of OnVista to instant dismissal because of an important reason, remain unaffected.
11. Guarantee by OnVista
11.1 OnVista assures the insertion of advertising spaces on the mutually agreed Internet pages and/or areas of the particular Internet pages as well as the optimal reproduction of the advertising spaces in accordance with the respective common technical standard.
11.2 The realization of an advertising order which is not completed for editorial reasons, force majeure, strike, due to statutory regulations or other unpredictable events, may either be implemented at a previous or subsequent date. In this case the client will be notified in advance. This also applies if the advertising insertion is embedded into another setting than the one originally agreed upon. Should the client not file a written objection with regard to the designated modification within a period of 5 working days after notification by OnVista, this will be regarded as an agreement of the client.
In case that the advertising insertion can neither be performed at a previous or subsequent date nor the client objects to its embedding into a different setting, the client will be entitled to claim reimbursement for payments made up to this date, as far as the order volume has not already been exhausted. The production costs for the advertising spaces will not be reimbursed.
11.3 OnVista has an unlimited right to postpone insertions if agreements with other advertising partners are concluded, which, as premium partners of OnVista, are provided with advertising services on an above-average scale. The client will be informed about intended postponements without delay. Should the client not agree with the supposed postponement of the advertisement, she/he will be entitled to claim reimbursement of payments made up to this date, as far as the order volume has not already been exhausted. The production costs for the advertising spaces will not be reimbursed.
11.4 Unless otherwise agreed in the order, OnVista guarantees the client delivery of the fixed volume of ad-impressions stated in the order for the respectively fixed period of time. OnVista employs a technical service provider for the performance of advertising orders. Reporting will be based on the information supplied by this technical service provider and represents the foundation between OnVista and the client for the calculation of the delivered order volume. In case of underdelivery a settlement will be made taking into account the respective thousand contact price. Should the number of ad-impressions guaranteed by OnVista not be fulfilled after this settlement, the client will receive a substitute supply or, if so decided by OnVista, a credit note for not transmitted volume.
12. Liability of OnVista
12.1 OnVista is not liable for contents of the Internet pages of third parties which it markets. The respective operator is liable for contents of Internet pages under the terms of the German “Rundfunkstaatsvertrag” and the “Telemediengesetz”.
12.2 OnVista is liable for damages only in case of intent or gross negligence on part of its organs or assistants and servants. OnVista is however liable for damages in the case of a given guarantee as well as for any infringement of the essential obligations of the contract or the infringement of life, body or health.
The liability for gross negligence is limited to the customary predictable damage in such cases. As far as the liability is excluded or limited, this also applies to the personal liability of the employees, organs, representatives and assistants and servants of OnVista.
12.3 Except for the provision in no. 11.2, the liability of OnVista concerning force majeure and unpredictable events is excluded.
13. Miscellaneous
13.1 OnVista is entitled to assign all rights and obligations arising from orders to other affiliated companies.
13.2 Modifications of these T &C will come into effect when OnVista has given written notice to the client and the client has not disagreed with these modifications within a period of 2 weeks from receipt of the notice. Beyond this, modifications or amendments have to be issued in written form.
13.3 The place of fulfilment and jurisdiction is Cologne. However, the client may also be sued before any other court which is responsible for him. Exclusively German law applies.
13.4 Should specific parts of the aforementioned provisions be or become invalid, the validity of the remaining provisions shall remain unaffected.
Revised: January 2009