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General Terms and Conditions for Publisher 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 relationship between plista GmbH, Torstraße 33-35, 10119 Berlin (hereinafter“plista” or “we”) and its publishers, unless otherwise agreed in writing. They apply to all business relations between plista and its publishers concerningthe use of services and products offered by plista (hereinafter “plista products”) and the internet platform found at www.plista.com (hereinafter “plistaplatform”). Deviating agreements apply only to this contract and not to future contracts


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


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


 


2 Definitions


2.1 “Website operators” are plista contractual partners who provide us with their own advertising space(s) on the internet. Advertising spaces may be allareas suited to marketing, in particular websites in their own right or apps (computer programs for use on mobile end devices).


2.2 “Marketing agents” are contractual partners of plista who represent website operators.


2.3 “Publishers” (hereinafter “you”) are our contractual partners and may be website operators or marketing agents.


2.4 “Advertising spaces” are spaces on the internet provided to us by our publishers. These may be websites in their own right, but may also be apps or otherspaces suited to marketing.


2.5 “Advertisements” are advertising spaces with website operators filled by plista with advertisers’ content.


2.6 “Advertising environments” are any website, app or other space where advertising spaces are presented.


2.7 “Widgets” are a graphical window in the advertising environment and part of the advertising space. It may contain advertisements and/or other informationwhich the website operator would like to have displayed, such as their own texts or images. All information displayed in a widget is optimised byplista products in order to receive greater attention from the visitor to the advertising environment. 


 


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


3.3 plista appears to the publisher as an independent contractor who acts in its own name and at its own expense. plista shall broker no contractual relationshipsbetween the publisher and third parties, in particular not between the publisher and advertisers.


3.4 The publisher shall receive a payment for the provision of their advertising space.


 


4 Conclusion of contract


4.1 You may individually arrange a contract for the provision of advertising spaces with us which results from your offer and our acceptance.


4.2 You may, however, also use our self-booking portal at plista.com. On the self-booking portal, you shall conclude a contract for the use of the plista platform(licence agreement) and, if applicable, for the provision of your advertising space (advertising space agreement). When and how these agreementscome into force is described below:


(1) Licence agreement


Make your way to the site for website operators by clicking on the “Website operator” menu item at www.plista.com. Click the “Start now” button toaccess the self-booking portal. In order to make your advertising space available, answer the questions asked there and click “Next”. In the “Master data– your plista account” menu item, please state the name and address of your company and answer the questions asked there. If you already have a registeredaccount, this is not required. When you click on the “Register account” button, you make us an offer to conclude a licence agreement. We acceptthis offer if you send us an activation e-mail within two days


(2) Advertising space agreement


Following point 4.2 para. (1), you shall arrive at the next menu item “Master data – user data”. Please enter your payment details so we can transfer yourpayment. When you click on the “Save account” button, you make us an offer to conclude an advertising space agreement. You will then receive thecode to implement the advertising environment and a confirmation of receipt by e-mail. Your domain is initially still inactive. We accept this offer if wesend you an e-mail within seven days after inspection of the advertising environment, in which we confirm the order and communicate to you that thedomain has now been activated


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


 


5 Term and termination


5.1 Contracts are concluded for an unlimited duration and you may terminate them at any time. You may terminate in writing or by no longer making thebooked advertising spaces available to us and by deleting all of our content on the advertising space. In the case of the latter, you are obligated to informus of this two weeks in advance.


5.2 plista may ordinarily terminate with a period of six weeks to the end of the quarter.


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


 


6 Granting of rights and self-advertising


6.1 The parties shall grant each other a non-transferable, royalty-free, non-exclusive licence, unrestricted in terms of time and place, to use their brand andcompany logos during the term of this contract. Their use is restricted to the use of the plista platform and plista products and to the execution of the provisionsof these T&Cs.


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


6.3 plista is permitted to advertise its own products without payment on the registered advertising spaces. Self promotion may constitute up to 5% of the traffic.


 


7 Exemption from liability


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


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


7.3 The aforementioned obligations of the publisher do not apply if the publisher is not responsible for the infringement.


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


 


8 Publisher responsibility and sanctions


8.1 The publisher shall be entitled to freely dispose of and market the advertising space


8.2 The content and layouts submitted to the publisher (for example, for advertisements and widgets) or programming codes may not be amended or forwardedto third parties and may only be used in the advertising environments specified.


8.3 The publisher must always keep data about themselves that has been submitted to plista – such as name, address and bank account details – up to date


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


8.5 The publisher shall refrain from anything that is likely to negatively affect the reputation, brand or goodwill of plista.


8.6 Advertising environments and unacceptable practices


(1) The advertising environments specified must be edited continuously in an editorial manner, contain a legal notice and navigation, be properly displayedon the major browsers, display the respective destination URL when clicking on the advertising space in the address bar and be accessible in accordancewith point 12.1.


(2) The advertising environments specified may not in particular glorify violence, war propaganda, have erotic, pornographic, seditious, or degradingcontent or content which is objected to by the German Advertising Council, contain other illegal content or trademarks of unconstitutional organisationsor refer to sites with such content via a hyperlink. Furthermore, they may not contain paid mailers, banner farms, IP traffic, dialers, adware or spyware,software file sharing, web hosts or similar, nor display advertising space or advertising content of any of the aforementioned kind which may infer affiliationto plista or be interpreted as plista’s editorial content.


(3) The publisher shall not create, have created or request others to create invalid clicks on advertising space or insertions of advertising space, especiallynot with the aid of an automated program. Inadmissibility is particularly assumed if the clicks or insertions originate in a disproportionate amount fromIP addresses of the publisher or from computers under the control of the publisher, if there is a disproportionately high number of clicks on individualwidget positions, if there are unusually high click rates at times when experience has shown only a few clicks are made (in particular late night viewing),if there are unusually high conversion rates of comparatively conversion-weak campaigns or if the website visitor was motivated by payments ofmoney or given false pretences to make clicks or insertions, or was prompted to generate them


8.7 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 bekept secret. plista may send all communications and statements to the e-mail address listed in your client account.


8.8 Sanctions


(1) In instances of violations of the above named points, plista has the right to immediately block the respective advertising environment from its plistaplatform and plista products and to deliver no more content to it, to not pay the publisher for the respective advertising environment and, on suspicionof a violation, to retain the appropriate payment until the issue is resolved and to terminate the advertising space contract without notice. In the case ofviolations of point 8.6 (3) of these T&Cs, we are entitled to pre-designated rights if at least 25% of the total number of clicks are regarded as inadmissiblein a billing period (point 9.3 p. 1).


(2) This does not apply if the publisher is not responsible for the violation. The right to terminate without notice towards a marketing agent exists only ifthe agent itself committed the violation or if, in cases of violations on the part of providers of advertising environments, the agent does not put a stop tothe violation, despite warning from plista.


(3) The enforcement of further claims, in particular claims for damages, remains reserved.


8.9 Upon completion of the contract, the publisher shall immediately ensure that all the widgets and advertising content are deleted on the relevant advertisingspace and that all of our programming codes removed.


 


9 Right to postpone, availability of plista


9.1 The publisher shall receive a payment for the provision of their advertising space, provided revenue was generated from this advertising space.


9.2 The amount of payment is determined by the respective agreed share of the net sales generated and achieved on each advertising space after deduction ofcampaign-related marketing costs, plus any possible applicable VAT. Possible charges for handling, delivery and tech service, which plista charges directlyto the advertiser, are not part of net sales proceeds.


9.3 Invoicing is carried out each calendar month. The minimum amount for automatic settlement of the payment is €70. Based on this amount, the publisherwill be sent an invoice by the 15th of the following month. plista’s payment is transferred 21 days after the issue of the invoice at the latest.


9.4 Objections to the invoiced amount must be reported in writing to plista no later than 14 days after the invoicing date. Subsequently, the amount paid outshall be deemed approved. If no amicable agreement on the objections can be agreed, the parties have the right to terminate the contract without notice.


9.5 If the contract is terminated, plista shall pay outstanding payments within 30 days of the end of the calendar month in which the contract was terminated.


 


10 plista liability


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


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


10.3 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 obligationis an obligation whose fulfilment is essential for the proper execution of the contract, the breach of which jeopardises the achievement of the contractualpurpose and on whose compliance the publisher may rely. This includes, in particular, the obligation of plista to take action and the fulfilment ofcontractual services owed, which is described in point 3.1.


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


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


10.6 Damages claims pursuant to point 10.3 shall expire one year from the statutory limitation period.


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


10.8 plista is responsible for delivery logistics, but shall however assume no risk with regard to content or technology for the delivered advertising content.plista shall obligate advertisers to comply with legal regulations, but shall not examine this without concrete suspicion in individual cases. If the publishercommunicates irregularities to plista, plista will examine the facts and take appropriate action with respect to the advertising content.


 


11 Data protection and tracking


The publisher is forbidden from collecting, processing or using the data and information made known to it via the plista platform and plista products. Thisdoes not apply to the anonymous collection, processing and use to optimise and control its advertising space.


  


12 plista availability


12.1 plista offers the plista platform and products, regardless of day of the week or time of day, with a service availability of at least 95%.


12.2 In the event of planned downtime lasting more than three consecutive hours, plista will inform the publishers by e-mail.


13 Confidentiality


plista and the publisher are obligated to treat all information obtained from the other party and which is not publicly known as confidential. This does notapply 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 samematter.


The rights to which the publisher is entitled under the contract are not transferable without the prior written consent of plista.


14.2 The applicable T&Cs are provided on the plista platform so that the publisher can read, download, and store them locally. However, the T&Cs are notstored at plista after the conclusion of the contract with the publishers.


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 offerpublishers innovative forms of advertising. To meet the resulting new organisational and procedural requirements, to reflect any transformations of therights and obligations of the parties accordingly and to adapt to the current development of law and legal situation, plista may amend less weighty provisionsof these T&Cs in a framework reasonable for the publisher, provided that this amendment does not lead to a transformation of the contract structureas a whole.


15.2 The amended provisions shall be sent to the publisher via e-mail at least two weeks before they become effective. Should the publisher not object to thevalidity of the new T&Cs within two weeks, the T&Cs shall be deemed accepted. plista will separately notify the publisher of the importance of this twoweek 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 publisherobject to the amended conditions within the aforementioned period, the publisher 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 thirdparties engaged by plista with regard to these T&Cs and/or separately concluded contracts, require the written form. The requirement for the written formalso 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 publisher is a merchant, legalentity under public law or special fund under public law. However, plista is also entitled to exercise its rights to the general jurisdiction. Only the nonharmonisedlaw 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.