“App” advertisements: general terms and conditions
of Heise Medien GmbH & Co.KG (publishers), Karl-Wiechert-Allee 10, 30625 Hannover, Germany
Clause 1: Object of the agreement
1. These general terms and conditions (“the GT&C”) apply to all contractual arrangements (hereinafter “the advertising agreement”) concluded with Heise Medien GmbH & Co. KG (“the publisher") concerning the publication of one or more advertisements or other related advertising material (“advertisements”) within a mobile and/or tablet-computer application (“app”) offered by the publisher.
2. These GT&C apply in addition to the advertising-agreement GT&C of the corresponding periodical on which the use of the app concerned is based. The GT&C set out here shall take precedence if there is any conflict between them and any provision of the GT&C corresponding to the periodical concerned.
3. The advertising agreement shall be subject only to the above-mentioned GT&C and the media data of the corresponding periodical of the publisher. The validity of all and any other GT&C that the customer and/or other advertisers might attempt to apply is hereby expressly excluded. Failure on the part of the publisher to reject such alternative GT&C shall in particular and not in any way imply their acceptance by the publisher. The publisher concludes agreements with the customer, subject to all and any further express written accords that might apply, on the sole basis of the publisher’s GT&C.
4. The publisher shall be entitled to amend these GT&C at any time. The publisher shall inform the customer in a timely manner (i.e. with at least one month’s advance notice) of such amendments. This will normally be done by adding an appropriate note to order confirmations. The current version of the GT&C can be viewed at/downloaded here.
Clause 2: Placement of advertising
1. The placement of advertising shall be exclusively subject to the formats shown in the correspondingly applicable media data. The placement of advertising in special formats and configurations shall at all times require consultation with, and the agreement of, the publisher.
2. The publisher will expressly tag as paid publicity all and any advertising whose design and content does not immediately make it identifiable as such.
Clause 3: Preparation of advertisements
1. The customer shall ensure that all advertisements submitted are complete, punctually delivered, error-free and in a suitable format. The publisher’s technical specifications must be fulfilled. The publisher shall have no obligation to distribute advertisements that are delivered in an incorrect, incomplete, defective and/or unsuitable state and/or if delivery is delayed. The publisher shall request the substitution of clearly unsuitable or damaged material that has been delivered in a timely manner. The publisher shall accept no liability for contractually-agreed distribution if material is delivered late or subsequently amended. Punctual delivery shall be defined at the publisher’s discretion.
2. The subsequent amendment or substitution of advertisements shall only be possible if done so within the originally-agreed copy deadline, and provided the scope of the requested amendments is not unreasonable or disproportionate with respect to normal practice within the sector. The publisher may invoice the customer, upon presentation of the corresponding evidence, for all and any additional costs that might arise.
3. If the advertisement order cannot be completed due to delayed delivery of, or failure to deliver, the suitably-formatted advertisements, and the publisher is unable, despite reasonable efforts on its part, to obtain an alternative third-party booking, the customer undertakes to pay compensation of an amount corresponding to the originally-agreed remuneration.
4. The publisher shall be entitled, but not obliged, to edit the material supplied by the customer, insofar as this is necessary or advisable for the placement of the advertisement in the app concerned.
5. The customer shall meet all and any costs that might be incurred by the publisher as a result of amendments made or requested by the customer, after delivery of the data concerned, to their contents or scheduling.
6. The publisher’s obligation to hold the advertisement on file shall terminate three months after it is distributed for the last time.
Clause 4: Right of refusal
1. The publisher reserves the right to reject advertisements, including individual advertisements forming part of a series, if their contents violate legislation or official regulations, if their contents have been rejected by the German Advertising Standards Council (Deutsche Werberat) in the course of a complaints procedure, if the advertisement concerned infringes the provisions of these GT&C and/or if its distribution is unacceptable to the publisher for reasons of content, origin or technical format. The above provisions shall also apply if any URL accessed via a hyperlink in the advertisement concerned constitutes an infringement on any or all of the above-mentioned grounds.
2. The customer shall be notified in writing (email is sufficient) of any such rejection. The customer shall be entitled in such cases to supply the publisher with a modified version of the advertisement concerned and/or of the URL accessed via the link in question. Substitution of the advertisement and/or target URL concerned shall only be possible if the originally-agreed copy deadline is adhered to. The publisher may invoice the customer, upon presentation of the corresponding evidence, for all and any additional costs that might arise. If the advertisement and/or target URL concerned cannot be replaced within the previously-agreed copy deadline, the publisher reserves the right to claim its agreed remuneration, even if placement of the advertisement concerned is no longer possible.
3. The publisher shall be entitled to suspend temporarily the placement of the advertisement if there is reasonable suspicion that a website, to which a hyperlink in the advertisement provides access, is offering illegal content. The publisher shall notify the customer of such blocking procedures. The customer shall then immediately remove the allegedly unlawful content, or explain or prove, as might be required, its legal nature. The publisher may offer the customer the opportunity to replace the advertisement with an alternative advertisement and/or provide an alternative website hyperlink. The publisher may invoice the customer, upon presentation of the corresponding evidence, for all and any additional costs that might arise. The blockage shall be lifted as soon as there are no longer grounds for such suspicion.
4. The publisher shall be entitled to withdraw an advertisement which has already been published, if the customer subsequently changes the URL associated with the hyperlink, or significantly amends the content of the site to which the link offer access, to such an extent that the changes concerned entitle the publisher to reject the advertisement. The customer shall have no entitlement to charge-free substitution in such cases, and the publisher shall retain the right to claim its agreed remuneration.
Clause 5: Unlawful advertising material
1. Advertisements containing the items listed below, in addition to the cases cited in clause 4 of these GT&C, are specifically not permitted:
- Illegal content
- Content harmful to children or young persons
- Tobacco advertising
- Promotion of gambling/gaming
- Unfair advertising
- Misleading advertising
- Comparative advertising
- Racist content
- Political or extremist religious content
- Pornographic content
- Sexist content
- Content glorifying violence
- Content revealing private or confidential information
- Distribution of spam
- Exploitation of flaws in security
- Distribution of harmful software (malware, riskware, Trojans, viruses, etc.)
2. Published advertisements must not include links to any of the above-mentioned content. Published advertisements must furthermore not lead to any widespread hindrance or prevention affecting the display of editorial content to an extent that might result in a negative user experience.
3. The advertising of health remedies, medicinal drugs and alcoholic beverages isn’t normally prohibited, and shall in any case require previous individual evaluation and specific written approval.
4. The advertising of speculative financial products associated with items for human consumption (e.g. drinking water) or raw materials (e.g. palm oil) is only desirable if an independent testing organisation has found the advertised product(s) to be harmless.
Clause 6: Usage/third-party rights
1. The customer assures and guarantees that it holds all the rights required to place the advertisement concerned. The customer shall be liable for, and release Heise from, all and any third-party claims which might arise from infringement of legislative provisions in this respect. The customer shall likewise be liable, on behalf of Heise, for all and any costs arising from or in connection with the required legal defence. The customer undertakes to support Heise in good faith with information and written notifications regarding legal defence with respect to third parties.
2. The customer shall transfer to Heise, for the period of time and to the extent required to implement this contractual arrangement, all copyright, usage and performance rights and all and any other rights, including but not limited to the right to reproduce material and/or distribute, transmit, broadcast, make such material public and/or retrieve it from a database. The aforementioned rights shall in any case be transferred on a spatially-unrestricted basis. The publisher shall be entitled, insofar as it is necessary for the agreed placement of the advertisement concerned, to grant sublicenses to the rights previously granted and to transfer such granted rights to third parties.
3. The customer shall ensure that the contents of the advertisement are unencumbered by GEMA rights restrictions and/or all and any other restrictions affecting the exploitation of performing rights, and that the publisher is supplied with all the necessary approvals and permits required for the publication of the app concerned.
4. The customer guarantees that the design of the advertising material shall conform to all applicable statutory provisions and restrictions.
Clause 7: Cancellation or delay affecting the placement of the advertisement
1. The placement of the advertisement shall be brought forward or put back, insofar as this is possible, in the event of force majeure, labour disputes, legal intervention or other action. The customer shall be notified accordingly of any not inconsiderable delay in this respect. The information shall be provided before the event concerned, provided it is reasonably possible to do so within the time available. The customer shall likewise be notified, subject to the same conditions, if the advertisement is to be placed in a setting other than that originally envisaged. If the customer fails to express an objection, in writing and within five working days of being notified accordingly, to the delayed placement of the advertisement and/or its placement in a setting other than that originally envisaged, it shall be assumed that the customer has issued the corresponding consent to the same.
2. If placement of the advertisement concerned can neither be brought forward nor put back, or if the customer objects to such a proposal to bring forward or put back the placement, or to place the advertisement in an alternative setting, the customer shall be entitled to claim the refund of all payments, made up to that date, which have not yet been consumed. All and any other claims by the customer are hereby excluded.
Clause 8: Liability
1. The publisher guarantees, subject to the applicable requirements, that the advertisement shall be placed in a way that conforms as far as possible to the corresponding technical standards. The customer is nevertheless aware that it is not possible, given the technology currently available, to create completely error-free software.
2. The customer shall be entitled, in the event of the reproduction-quality of the advertisement concerned being insufficient, to request the placement of an error-free additional advertisement, but only insofar as the advertisement has failed to fulfil its purpose. If the publisher fails to meet a reasonable deadline in this respect, or if it is impossible to publish a substitute advertisement, the customer shall be entitled to demand a reduction in payment or the cancellation of the placement.
3. The publisher shall be under no obligation to examine the advertising material supplied, or its contents, for accuracy, conformity with the law, completeness, quality and/or that it is free of errors. All and any liability on the part of the publisher in these respects is hereby excluded.
Clause 9: Data protection
Clause 10: Other considerations
The possible invalidity of any part of this agreement shall have no effect on the validity of any other contractual provision. Invalid provisions shall be reworded in such a manner that fulfils, as far as possible, the intended purpose of the original. The same shall apply to any eventuality found not to be covered by the agreement.