Terms and conditions
General terms and conditions for the placement of advertising orders with Adwebster AG
1. BASIC PRINCIPLES
1.1. Area of application
Unless otherwise agreed in writing, all advertising orders placed with and associated services provided by Adwebster are subject to these terms and conditions exclusively. Any other provisions or agreements, particularly terms and conditions of publishers, apply only if they are referenced explicitly in writing. Moreover, the terms and conditions of contractual partners are expressly excluded, even if these attempt to claim exclusive validity.
According to these terms and conditions, an advertising order is considered to be any contract between Adwebster and an advertising customer concerning the delivery, transmission or placement (hereinafter referred to as "distribution") of advertising communication, sponsorship communication or other forms of commercial communication (hereinafter referred to as "advertising forms") on websites and website networks.
The term advertising customer refers to an advertiser or an advertising or media agency (hereinafter referred to as "agency"), provided that the latter is acting in its own name and for its own account.
1.3. Agency provisions
Advertising orders from agencies will be accepted by Adwebster for specifically named advertisers only. Adwebster is entitled to demand that agencies be authorised. An advertising customer represented by an agency can be legally released from any payment obligations to Adwebster only by making payment to Adwebster.
1.4. Legal status of Adwebster
Adwebster trades in its own name and for its own account. To this effect, Adwebster enters into contracts with publishers in its own name and for its own account.
1.5. Involvement of third parties
Adwebster is entitled to bring in third parties to fulfil its contractual obligations at any time.
2. CONCLUSION OF AN ADVERTISING CONTRACT
Offers by Adwebster remain non-binding. An advertising order comes into effect when Adwebster receives the order confirmation from the advertising customer or the agency, signed with a legally valid signature.
The advertising order shall in any case come into effect upon distribution of the advertising forms reserved or agreed on by the advertising customer with Adwebster. In this case, the distribution replaces the signed confirmation of the advertising order from the advertising customer.
The provisions regarding price changes in section 4.2 shall remain reserved.
2.3. Supply of the advertising material
The advertising customer is obliged, at its own cost, to provide Adwebster with the material (in particular, advertising media and advertising motifs) required for the distribution form (placement, transmission, etc.) of the advertising. This material must be in the format requested by Adwebster, and it must be provided at the latest by the deadline in advance of the confirmed distribution time, as specified below:
3 working days for GIF, JPEG, redirect codes or tags
3 working days for rich media (HTML, Flash, Shockwave)
5 working days for PR texts and special advertising material
7 working days for Sitebar ad
In individual cases, the lead times may deviate from these deadlines due to special provisions. In this event, Adwebster will inform the advertising customer as early as possible.
2.4. Responsibility for quality of the advertising material
The advertising customer and/or the agency is solely responsible for the technical quality and the content of the supplied advertising material.
2.5. Right of refusal
Adwebster is not obliged to check the advertising material supplied by the advertising customer and/or the agency. Adwebster and the publishers reserve the right, even in the case of legally binding advertising orders, to refuse advertising material supplied by the advertising customer on legal, ethical, discriminatory or similar grounds. Adwebster is entitled in particular to refuse advertising material due to its origin, content, form or technical quality. Adwebster will inform the advertising customer of such a refusal promptly. In this event, the advertising customer is obliged to immediately provide new or modified advertising material. If the replacement advertising material is provided too late to adhere to the agreed distribution time, Adwebster is entitled to claim the full remuneration that would have been due if the advertising had been distributed at the agreed time.
2.6. Rights arising from production of advertising material by Adwebster
If the advertising customer commissions Adwebster to produce advertising material, all rights arising from this work, in particular copyrights, remain with Adwebster. The advertising customer shall be granted a non-transferable right, not restricted by time or place, to use the advertising material for the purposes of advertising, compensation for which is included in the price of the advertising material.
3.1. Basic principles
A legally effective finalised advertising order placed with Adwebster obliges Adwebster to distribute the advertising according to the agreement, whereupon the order essentially also allows for specification with regard to the distribution time and place (placement within specific website content, price bracket and date), the latter being subject to the provisions below.
3.2. Placement in website content
Advertising forms that have been booked are placed by Adwebster according to the specifically agreed criteria.
3.3. Alteration by the advertising customer
The advertising customer is entitled to alter legally valid advertising orders provided that they inform Adwebster of the required change in writing or electronically 3 working days at the latest before the agreed distribution time, provided that the agreed monetary booking volume is unaffected, provided that the distribution of the altered volume is not significantly delayed and provided that Adwebster has at its disposal sufficient free capacity with respect to the required new distribution times and places.
3.4. Measurement of performance
For the measurement of the services provided by Adwebster, the program used by Adwebster alone is decisive, unless something else has been expressly agreed in writing.
3.5. Distribution time and place/deficiencies in distribution
If the schedule for distribution of the advertising that was agreed cannot be adhered to because of the design of one or more websites, due to acts of God (including technical malfunctions) or other circumstances beyond the control of Adwebster, where practicable Adwebster will transfer the distribution to another equivalent location within the offering of the intended publisher.
If there is a minor shift in time or place for the distribution (within the offering of the publisher) due to the website design or for technical reasons, the agreed rate/price remains in effect.
Adwebster will inform the advertising customer promptly of any significant shifts. Significant shifts would be distribution outside of the agreed date or time period or distribution within the offering of another publisher. If the advertising customer does not promptly object in writing to the advertising being shifted or embedded in another environment (particularly in other websites or in other parts of a website), this is taken as their consent. If the advertising cannot be either brought forward or made up for subsequently, or in the case that the advertising customer objects to this or to a proposal to embed it in another environment, the customer has a right to reimbursement of the basic charge in accordance with section 4.1 of these terms and conditions.
If the agreed distribution is not completed or is completed incorrectly for reasons that are the responsibility of Adwebster, at its discretion Adwebster can immediately repeat the execution of the advertising order as agreed upon by carrying out an equivalent replacement distribution (rework). Further claims, in particular a right to cancellation, reduction or damage compensation, are expressly excluded as far as is legally permissible. If the rework fails for reasons attributable to the publishers or to Adwebster, the advertising customer can rescind the order. The applicable provisions regarding liability are specified in section 7.
During the distribution or immediately afterwards, the advertising customer must check the advertising forms that were specified in the order and must notify Adwebster in writing within 4 days after distribution at the latest of any deficiencies, as otherwise the execution of the order is considered to have been approved.
3.6. Cookies, lifetime & provisions
For banner inserts or visits to websites and/or landing pages, cookies are used that contain completely anonymous data regarding lifetime, click behaviour and the number of banner inserts of a particular banner per unique user. This information is used, for example, for frequency capping and/or behavioural targeting/re-targeting in order to increase campaign efficiency.
The maximum cookie lifetime equals 90 days. Adwebster only stores anonymized user-related data such as surfing and click behavior. No direct conclusions can be drawn with regard to e-mail addresses or personal data. Such identification data is stored anonymously in a cloud computing system decentrally on the users’ own computers (in the form of cookies), and can therefore be deleted by the users themselves and only be read out anonymously by Adwebster Adtags.
Adwebster pledges not to use campaign-related or customer-related cookies other than for follow-on campaigns for the same customer (or, in the case of agency networks, the same agency), but explicitly reserves the right to use its own cookies each time a cookie is set (cookie drop), which increases the quality of the Adwebster network. These "parent cookies" do not contain any details on campaigns or customers/agencies, but only on higher themes (e.g. beauty & health) for the purpose of flagging or refining user profiles.
4.1. Basic price
All of the prices published or offered by Adwebster are basic prices. The basic price is the remuneration for the distribution of the advertising forms on the websites. The basic price does not contain any additional charges, in particular production charges. Any additional charges will be invoiced separately by Adwebster and must be paid by the advertising customer. All prices are understood to exclude VAT and any other taxes due at the applicable statutory rates.
4.2. Price changes
Changes to the prices published or offered on www.adwebster.com can be made at any time. For advertising orders that have legally come into effect, price changes are valid only if Adwebster gives notice at least 10 calendar days before the beginning of distribution. In the case of a price increase, the advertising customer is entitled to the right of withdrawal. The right of withdrawal must be exercised in writing within 5 working days after receipt of the notice. Unless there is a notice to the contrary from the advertising customer, Adwebster is entitled to carry out the distribution at the new prices.
5. DISCOUNTS AND COMMISSIONS
5.1. Cash discounts
Adwebster may, with explicit reference to section 5.4 of these terms and conditions, grant reductions to the published charges in the form of cash discounts or other benefits.
5.2. Fixed and group discounts
Adwebster grants fixed annual discounts and group discounts exclusively in the case of an explicit written agreement at the time of the conclusion of the contract.
If affiliated companies request a collective discount, written confirmation of a group holding of at least 50% is required (1 January of the calendar year in question being the date that determines group affiliation).
5.3. Advisor commission/advertising agency remuneration, other agency compensation
Agencies, provided that they advise their customers or render relevant services and can prove this, receive advisor commission (advertising agency remuneration). The advertising customer agrees that Adwebster may compensate the agencies directly for services specially agreed between Adwebster and the agencies that result in a reduction in costs or minimisation of risk for Adwebster.
5.4. Guarantee by agencies
Agencies shall ensure to Adwebster the rightful use of the discounts granted to them. Agencies shall in particular ensure to Adwebster that the granting and payment of the discounts do not lead to a legal violation or breach of contract by the agency. Moreover, the agency shall ensure to Adwebster that it has informed its clients in advance, in full and transparently regarding the discounts and remunerations granted to it and that it shall reimburse its clients with all discounts insofar as the contractual client relationship so stipulates.
6. PAYMENT TERMS
Adwebster in principle invoices for its services after the distribution has taken place. Adwebster reserves the right to invoice monthly at the end of each month for distributions that last longer than one or more month ends.
6.2. Due dates
All amounts receivable by Adwebster fall due as of the invoicing date and must be paid without any deductions 20 days at the latest after invoicing.
6.3. Rights in the event of payment delays or payment difficulties
If payment is delayed, Adwebster is entitled to claim interest on arrears of 5% of the invoice amount. We reserve the right to claim for further damages. If the advertising customer delays payment or if they are known to be experiencing payment difficulties because of a significant deterioration in their economic circumstances, Adwebster is entitled to make the continued distribution conditional upon advance payments or the provision of a security on the part of the advertising customer or to cease distribution.
7. GUARANTEE AND LIABILITY OF ADWEBSTER
Adwebster guarantees to fulfil the advertising order to the best of its ability and in keeping with the specified technical prerequisites. The advertising customer acknowledges that, due to the technical circumstances (the state of the technology), completely error-free playback of advertising material cannot be guaranteed.
Only in the case of intent or gross negligence will Adwebster and the publisher be liable for damages related to the advertising order, on whatever legal grounds. For auxiliary persons, liability is limited to intent. Further liability, in particular liability for slight or ordinary negligence, is excluded.
Adwebster assumes no liability for indirect damages, including loss of sales or profit, or other consequential damages. In each case, the liability is limited to such damages as Adwebster would have had to reasonably anticipate at the time the contract was concluded.
In any cases of refusal, shifting, relocation, premature completion or non-distribution with reference to legally valid advertising orders, any possible claim by the advertising customer to reimbursement of the basic price is limited in accordance with section 4.1. Further claims are expressly excluded.
8. LIABILITY AND WARRANTY OF TITLE OF THE ADVERTISING CUSTOMER AND INDEMNIFICATION
The advertising customer or the agency, provided that the latter is trading in its own name and for its own account, will be liable to Adwebster for damages for which they are culpable due to deficiency, delay, non-fulfilment of their duty relating to the delivery and distribution of advertising material or non-fulfilment of other contractual duties.
If the distribution cannot be executed due to circumstances that are the responsibility of the advertising customer, in particular because Adwebster was provided with documentation or advertising material that did not arrive in time, was defective, wrongly labelled or in an incorrect format, Adwebster is entitled to invoice the advertising customer for the remuneration owed for the advertising service according to the advertising order, in keeping with the provisions regarding contract penalties (section 9.2). The advertising customer is not entitled to claim for compensation. The advertising customer bears the risks and costs for the transfer of the advertising material.
8.2. Warranty of title
The advertising customer is thereafter responsible and guarantees that they have at their disposal all of the rights necessary for distribution of the advertising forms to the relevant publishers, in particular copyright and trademark rights, and on conclusion of the advertising order, grants the usage and processing rights necessary to fulfil the advertising order to Adwebster.
The advertising customer and/or the agency, provided that the latter is trading in its own name and for its own account, are responsible for ensuring and guarantee that the advertising material, forms and content do not, directly or indirectly (that is, in particular by linking to other content and platforms), violate the rights of third parties, in particular copyrights, naming rights, personality rights or trademark rights, or other industrial property rights or competition law provisions and principles (Unfair Competition Act (UWG), Price Indication Ordinance (PBV)) or other provisions (e.g. lottery law, casino law, criminal law, therapeutic products law, alcohol law, food law, etc.) or principles (such as the principles of the Swiss Commission of Fair Trading (Lauterkeitskommission)).
Should a third party file a claim against Adwebster and/or a publisher due to the distribution of an advertising form, in particular due to its content, on grounds of copyright, competition law or other grounds, the advertising customer shall indemnify Adwebster and/or the publisher from and against all claims arising from this upon first demand. In this case, the advertising customer or the agency pledges to Adwebster and/or the publisher to reimburse all costs (including damages payments) incurred by Adwebster and/or the publisher from the conducting of the case. In this regard, Adwebster pledges to conclude any possible out-of-court settlement with a third party only with the prior agreement of the advertising customer or the agency.
9. OPTIONS FOR WITHDRAWAL
Adwebster may immediately withdraw from advertising orders that are accepted as legally binding if changes that are unforeseeable by Adwebster or the publisher and/or that are beyond their control are made to the content of the website or its setup, in particular because of measures taken by the supervisory authorities or in other cases where it is impossible or unreasonable to execute the orders in the future.
Adwebster may thereafter withdraw up to 10 days before the start of distribution if there is a competitive situation between the advertising customer and a partner of a publisher. In these cases, claims by the advertising customer are excluded.
9.2. Advertising customer, contract penalties
In individual justified cases, Adwebster may at its discretion grant the advertising customer an option for withdrawal up to 10 calendar days before the start of distribution of the advertising form. An application for withdrawal must be sent to Adwebster in writing or by e-mail in any event. The withdrawal is valid only if and when Adwebster has expressly consented to it in writing or by e-mail. Within the last 10 calendar days before the start of distribution, withdrawal of the advertising customer is possible only subject to compensation on a percentage basis (contract penalty), which is quantified based on the net value of the particular advertising contract, as follows:
between 10 and 4 calendar days: 50%
fewer than 4 calendar days: 100%
after the start: 100%
The amounts are understood to be plus VAT; the payment terms according to section 6 of the terms and conditions are applicable.
10. FINAL PROVISIONS
10.1. Applicable law
For the existing terms and conditions as well as for all advertising orders or other business dealings concluded with Adwebster, Swiss law shall apply exclusively without possibility of recourse to provisions regarding international private law.
10.2. Place of jurisdiction
For all disputes arising from these terms and conditions as well as from the advertising orders or other business dealings that are subject to them, the commercial court of the canton of Zurich has exclusive jurisdiction, with the reservation of the statutory right to appeal.
10.3. Written form requirement
All amendments, supplements and supplementary agreements, as well as the rescission of these terms and conditions, must be in written form.
10.4. Changes to terms and conditions
Adwebster is entitled to change its terms and conditions at any time. Changes to the terms and conditions are published on the website www.adwebster.com 10 working days before they come into effect. Advertising customers with current contracts are informed of such changes electronically in advance.
10.5. Severability clause
If individual or multiple provisions of these terms and conditions are or become ineffective, in case of doubt the effectiveness of all other provisions or agreements remains hereby unaffected. The ineffective provisions shall be replaced by an effective regulation that comes as close as possible to the economic purpose of the ineffective provision in a legally permissible way.
10.6. Settlement exclusion
The advertising customer waives the settlement of any possible claims in advance.
Zurich, 6 November 2015, Adwebster AG