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General Terms and Conditions for Advertising Clients

 

Preamble


plista is a data driven platform for target-orientated digital advertising in the sectors of content, branding and performance marketing. For this purpose, plista operates specially developed, innovative recommendation widgets and advertising formats on exclusive inventory areas as well as standard IAB areas. Embedding plista products in the natural reading flow of users achieves the best possible results for website owners and advertisers alike.


 


General Terms and Conditions of plista GmbH


 


1. General considerations and scope


1.1 These terms and conditions (hereinafter “T&Cs”) govern the contractual relationships between plista GmbH, Torstraße 33-35, 10119 Berlin (hereinafter “plista” or “we”) and its advertisers, unless otherwise agreed in writing. They apply to all business relations between plista and its advertisers concerning the use of services and products offered by plista (hereinafter “plista products”) and the internet platform found at www.plista.com (hereinafter “plista platform”). Deviating agreements apply only to this contract and not to future contracts.


1.2 By sending the offer to conclude a contract, the advertising client accepts the priority of these Terms and Conditions over its conditions which deviate from our terms.


1.3 The use of the plista platform and plista products is only permitted for contractors and their authorised employee representatives. Contractors are natural or legal persons or partnerships with legal personality that in concluding a legal transaction act in the execution of its commercial or independent business activity.


 


2. Definitions


2.1 “Advertisers” are contractual partners of plista who provide plista with their advertising content to enable plista to deliver it via the internet.


2.2 “Agencies” are contractual partners of plista who represent advertisers.


2.3 “Advertising clients” (hereinafter “you”) are our contractual partners and may be advertisers or agencies.


2.4 “Advertising content” is content submitted from advertising clients to plista for the purpose of publication/distribution, subject to a charge, in particular texts, graphics, images, sounds, and films/videos. This may be either classic advertising content or other content.


2.5 “Publishers” provide us with their advertising spaces on the internet.


2.6 “Advertising spaces” are spaces on the internet provided to us by our publishers.


2.7 “Advertisements” are advertising spaces with advertising content provided by plista.


2.8 “Advertising environment” is any website where advertising spaces are presented. These may be websites in their own right, but may also be apps or other spaces suited to marketing.


2.9 “Campaigns” are orders given to plista from the advertising customer to deliver their advertising content on the internet.


2.10 “CPC” stands for “Cost per Click” and refers to a pricing model in online marketing. Subsequently, a payment obligation arises for advertising clients when the internet user clicks on the advertisement.


2.11 “CPO” stands for “Cost per Order” and refers to a pricing model in online marketing. Subsequently, a payment obligation arises for advertising clients when the internet user places an order with the applicant company based on an advertisement.


2.12 “CPM” stands for “Cost per Mille” and refers to a pricing model in online marketing. Subsequently, a payment obligation arises for advertising clients as soon as the advertisement can be noticed by the internet user. The level of payment is determined according to each thousand possible times an advertisement could be noticed, usually by website visits.


2.13 “CPL” stands for “Cost per Lead” and refers to a pricing model in online marketing. Subsequently, a payment obligation arises for the advertising client when they receive a customer enquiry or contact address based on the advertisement.


2.14 “CPE” stands for “Cost per Engagement” and refers to a pricing model in online marketing. Subsequently, a determined duration for the display of the advertising content, in particular videos, is agreed with the internet user. Should this display of the advertising content exceed the duration agreed upon with the user, a payment obligation arises for the advertising client.


2.15 “CPV” stands for “Cost per View” and refers to a pricing model in online marketing. Subsequently, a payment obligation arises for the advertising client when an advertisement, in particular a video, is shown in full to the internet user or the internet user has fully loaded the sought-after target site.


2.16 “CPI” stands for “Cost per Install” and refers to a pricing model in online marketing. Subsequently, a payment obligation arises for the advertising client when the internet user clicks on the advertisement and installs an application.


 


3. Subject matter of the contract


3.1 plista shall impart the advertising content of its advertising clients to publishers in exchange for payment. Thanks to plista products, advertising content will be displayed as advertisements that are placed and designed in such a way that they are much more noticeable to internet users. Plista products used for this purpose are described in detail on our website www.plista.com under the “Advertisers” menu item and are a service component of these Terms and Conditions.


3.2 In addition, plista creates websites (microsites) tailored to the needs of its advertising clients. For more information, please also refer to the description in the aforementioned menu item at www.plista.com, which is a service component of these Terms and Conditions. 


3.3 Furthermore, plista offers its advertising clients a booking and control system with the plista platform.


3.4 plista appears to the advertisers as an independent contractor who acts in its own name and at its own expense. plista brokers no contractual relationships between advertising clients and third parties, in particular not between itself and publishers.


3.5 The emergence and the amount of payment depends on the pricing models named under points 2.10 – 2.16 and are agreed upon the creation of a campaign.


 


4. Conclusion of contract


4.1 You may individually arrange a contract for the delivery of your campaign(s) with us which results from your offer and our acceptance.


4.2 You may, however, also use our self-booking portal at www.plista.com for the conclusion of a contract. As a result, we shall conclude a contract for the use of the plista platform (licence agreement) and, if applicable, for the delivery of your campaign(s) (campaign contract). When and how these agreements come into force is described below:


(1) Licence agreement


At www.plista.com, click on the “Advertisers” menu item and then on the “Start now” button to access the campaign overview. Select your desired campaign by clicking the “Book campaign now” button. Answer the questions asked in the subsequent menu items. Click the “Next” button to access each subsequent menu item. When you click on the “Register account” button, you make us an offer to conclude a licence agreement. We accept this offer if you send us an activation e-mail within two days.


(2) Campaign contract


Following point 4.2 para. (1), the menu item “Payment date” now appears. Please specify your desired type of payment and click on the “Next” button.


You will then receive a summary of the data you have entered. Should you wish to make a binding offer for the conclusion of a campaign contract, click on the “send order” button. We accept this offer if you send us a confirmation of contract e-mail within seven days. An email acknowledging receipt does not constitute acceptance. 


(3) Should you wish to correct your information before the conclusion of the respective contract, go to the corresponding entry field or click the “Back” button on your browser.


 


5. Term and termination


5.1 The licence agreement is concluded for an indefinite period and may be terminated at any time by either party with a notice period of two weeks at the end of the month. 


5.2 The campaign contract runs up to its timely or budgetary limit or until it is terminated. You may terminate at any time and thus adjust the delivery of the campaign. An ordinary termination is possible for us with a period of two weeks to the month’s end.


5.3 Terminations require the written form.


5.4 The right to terminate without notice for good cause remains unaffected.


5.5 If you are in credit upon completion of the contract, the amount will be paid to you should you so request. The amount will otherwise be used for other possible current and upcoming campaigns that you commission.


 


6. Granting of rights and self-advertising


6.1 For the duration of the campaign, the advertising client shall issue plista with all the rights for submitted advertising content necessary to carry out the contract. This shall be done free of charge and without limitation in terms of time or place. This includes, in particular, the right to make the content of advertising in online media, such as the internet, publicly available.


6.2 plista is allowed to use the brand and company logos of advertising clients as well as advertising content for their own marketing purposes. For this purpose, the advertiser shall grant plista a non- transferable, royalty-free, non-exclusive licence which is unlimited in terms of time and place to use its brand and company logos and advertising content. In particular, the licence includes the right to make these publically available in online media such as the internet and to reproduce and distribute these offline (e.g. with the help of media, printed materials, or other advertising material).


7. Exemption from liability


7.1 The advertiser shall release plista and the publisher from all third-party claims lodged against them upon first request, unless these result from an infringement of third party rights, statutory provisions or obligations under these Terms and Conditions. The exemption also includes a proper legal defence, including court costs and legal fees.


7.2 The advertising client is obligated to provide plista and the publishers with information in the event of a claim by a third party in the examination of claims and legal defence as best as they are able.


7.3 The aforementioned obligations of advertising clients do not apply if the client is not responsible for the infringement.


7.4 Further claims made by plista and the publisher against the advertising client remain unaffected.


 


8. Advertising client responsibility and sanctions


8.1 Advertising content


(1) The advertising client is responsible, both technically and as far as content is concerned, for the advertising content provided to us.


(2) The advertising content must be compliant with the plista design requirements: www.plista.com/advertiser/info/werbemittelguide. plista is entitled to adapt the design of the advertising content accordingly.


(3) You shall guarantee that the advertising content does not violate applicable law, that you have the necessary rights to the advertising content to fulfil this contract and that third party rights, in particular copyright or intellectual property rights, do not conflict with their use.


(4) You shall guarantee in particular that the advertising content that you submitted does not glorify violence, war propaganda, have erotic, pornographic, seditious, or degrading content or content which is objected to by the German Advertising Council, or contain trademarks of unconstitutional organisations.


(5) As an advertiser, you shall guarantee that no advertising content that you have submitted (e.g. links) refers to websites whose contents violate the above paragraphs.


(6) As an agency, you are required to carefully select the advertisers you represent, to obligate them to comply with the provisions of these T&Cs, to work towards their compliance in the event of a violation and to immediately report the violation.


(7) plista is entitled at any time, without giving reason, to require the halting of a delivery of a campaign or to induce this themselves if a publisher or plista was bound by official or court decision to remove the advertising client’s advertisement and/or the coding of an advertising client’s advertisements leads or has led to a failure in functionality on the part of the publisher.


8.2 Plista platform


You are not authorised to transfer the account to a third party. You shall ensure that no unauthorised persons use your account. The password must be kept secret. plista may send all communications and statements to the e-mail address listed in your client account.


8.3 The advertising client shall refrain from anything that is likely to affect the reputation, brand or goodwill of plista.


8.4 The advertising client must keep master data about themselves that has been submitted to plista – such as name and address – up to date.


8.5 The advertising client is obligated to comply with all the requirements for the use of the plista platform and plista products and to refrain from anything that might jeopardise fault-free operation. Should a fault occur that is caused by the advertising client, the client must rectify this and inform plista.


8.6 In cases of violations of the points named above, plista has the right to terminate the advertising client without notice and/or to delete the respective advertising content immediately and adjust the delivery of the respective campaigns. This does not apply if the advertising client is not responsible for the violation. The right to terminate without notice towards an agency exists only if the agency itself committed the violation or if, in cases of violations on the part of advertisers it represents, the agency does not immediately put a stop to the violation, despite warning from plista.


8.7 The enforcement of further claims, in particular claims for damages, remains reserved.


 


9. Right to postpone, availability of plista


9.1 Right to postpone


The delivery of the campaigns takes place according to revenue-optimising criteria. For this reason, plista cannot guarantee that their delivery will take place in full, by the time specified by the advertising client, or within its budgetary limit. In the case of fixed insertion periods of campaigns, plista therefore has the right to postpone should the service not have been rendered within the specified timeframe on the publisher’s booked advertising space. The duration of this right to postpone complies with the agreed insertion period, i.e. during an insertion period of 10 days, plista may also render its service during the following 10 days of the insertion period. The right to postpone does not apply if the advertising client has no interest in the subsequent performance of the service, for example in the case of the application of temporary special promotions, etc. 


9.2 Availability


(1) plista offers the service, regardless of day of the week or time of day, with a server availability of at least 95%.


(2) In the event of planned downtime lasting more than three consecutive hours, plista will inform the advertising client by e-mail.


 


10. Payment, methods of payments and defaults


10.1 The advertising client has to pay plista a fee for the delivery of their campaign. This is based on the pricing models calculated under points 2.10 – 2.16.


10.2 All payments shall be due after invoicing, which is carried out in electronic form. If pre-payment is agreed, the due date is the date of conclusion of the contract.


10.3 The client shall be considered in default seven days after invoicing.


10.4 In the case of payments in SEPA Direct Debit, we shall inform you of the direct debit three days prior to execution.


10.5 Except in the event of pre-payment, plista reserves the right to a credit check.


10.6 In the event of default of payment, plista reserves the right to suspend its services until all outstanding payments have been made. This does not apply if the amount of outstanding payments is disproportionate to that of the interruption to the service.


10.7 Objections to the invoiced amount must be reported to plista in writing no later than 14 days after the invoicing date Subsequently, the invoiced amount shall be deemed approved.


 


11. plista liability


11.1 Subject to the following exceptions and legal admissibility, plista’s liability is limited to intent or gross negligence for breaches of contractual obligations and tort.


11.2 plista is liable without restriction for ordinary negligence in the event of injury to life, limb and health.


11.3 If plista turns out to be in default due to slight negligence with the service, if the service becomes impossible or if plista violates a contractual obligation, the liability for the resulting property damage and financial loss is limited to foreseeable damages typical of this contract. An essential contractual obligation is an obligation whose fulfilment is essential for the proper execution of the contract, the breach of which jeopardises the achievement of the contractual purpose and on whose compliance the advertising client may rely. This includes, in particular, the obligation of plista to take action and the fulfilment of contractual services owed, which is described in point 3.1.


11.4 In the absence of a guaranteed characteristic, plista is liable for any damage arising therefrom.


11.5 The provisions of the Product Liability Act shall remain unaffected.


11.6 Damages claims pursuant to point 11.3 shall expire one year from the statutory limitation period.


11.7 The aforementioned restrictions also apply to the legal representatives and vicarious agents of plista if claims are directly asserted against them.


 


12. Data protection and tracking


12.1 Data protection


The advertising client is forbidden collecting, processing or using the data and information made known to it via the plista platform and plista products. This does not apply if the data or information is made known to the advertising client through the use of its microsite or by calls to the advertised target site. In this respect, the advertising client is responsible for lawful data processing.


12.2 Tracking


(1) plista is free to decide whether it shall use a tracking agent provided by the advertising client.


(2) If an advertising client’s tracking agent leads to technical problems (e.g. delayed or faulty loading of the advertising environment, advertising spaces or advertising content, in whole or in part) or impairments occur on the side of the internet user, plista is entitled to remove it immediately.


(3) The advertising client is responsible for the use of the tracking agent. Point 7 applies. Further claims, in particular claims for damages, remain reserved.


 


13. Confidentiality


plista and the advertiser are obligated to treat all information obtained from the other party and which is not publicly known as confidential. This does not apply when disclosure is ordered by the court or competent authority or is required for the judicial enforcement of personal rights against the other party.


 


14. Offset, retention rights, assignment, contract language, contract text storage


14.1 It is only possible to offset against counter claims if these are legally established or undisputed. A lien can be claimed only if it is based on the same matter. The rights to which the advertising clients are entitled under the contract are not transferable without the prior written consent of plista.


14.2 The applicable T&Cs are provided on the platform so that the advertising client can read, download, and store them locally. The T&Cs are not stored after the conclusion of the contract with the advertising client, however.


14.3 The contract languages are German and English.


 


15. Amendments to these General Terms and Conditions


15.1 plista strives to continuously develop and improve the services and products it offers and to adapt these to technical progress in order to be able to offer advertising clients innovative forms of advertising. To meet the resulting new organisational and procedural requirements, to reflect any transformations of the rights and obligations of the parties accordingly and to adapt to the current development of law and legal situation, plista may amend less weighty provisions of these T&Cs in a framework reasonable for the advertising client, provided that this amendment does not lead to a transformation of the contract structure as a whole. 


15.2 The amended provisions shall be sent to the advertising client via e-mail at least two weeks before they become effective. Should the advertising client not object to the validity of the new T&Cs within two weeks, the T&Cs shall be deemed accepted. plista will separately notify the advertising client of the importance of this two week period, of the right of appeal and of the legal consequences of their silence in the e-mail informing the client of the amendment.


Should the advertising client object to the amended conditions within the aforementioned period, the advertising client and plista are entitled to terminate the contract without notice.


 


16. Final provisions, court of jurisdiction and applicable law


16.1 All amendments, supplements, and side agreements, in particular information and assurances from employees participating in the contract and third parties engaged by plista with regard to these T&Cs and/or separately concluded contracts, require the written form. The requirement for the written form also applies to any amendment or waiver of this requirement for the written form.


16.2 If a requirement for the written form was agreed in these T&Cs, this shall also be maintained in statements by post, fax, and e-mail.


16.3 For all claims arising from the business relationship, the place of jurisdiction shall be plista’s place of business, unless the advertising client is a merchant, legal entity under public law or special fund under public law. However, plista is also entitled to exercise its rights to the general jurisdiction. Only the non-harmonised law of the Federal Republic of Germany applies.


16.4 In cases of ambiguities and/or contradictions between the German and English text of the T&Cs, the German text is considered decisive.