1. Exclusivity; Definitions
1.1 MMG enables Advertisers to run advertising on its internet pages and other online media, including service and newsletter emails ("Online Media"), such advertising hereinafter being referred to as "Online Advertising". The contractual relationships between MMG and the advertising contractual partner ("Advertiser") on running Ads in Online Media is exclusively governed by these general Terms and Conditions ("Terms"). MMG may choose to have its services rendered by appropriate third parties ("Service Providers").
1.2 "Insertion Order" within the meaning of these Terms is the agreement on running Ads in the Online Media pursuant to below Clause 2.
1.3 "Ads" shall include all materials designed for the online advertising, which may specifically include picture and text elements and moving images (e.g. Banners, Flashs) and sensitive areas, linking to URLs provided by the Advertiser.
1.4 Terms valid at time at formation of contract shall apply respectively.
1.5 In the event that Advertiser uses own standard terms and conditions which deviate from these Terms, these Terms of MMG shall solely apply, also in the event that MMG has not disputed application of any provision or such terms as such.
2. Conclusion of Insertion Order
2.1 The Advertiser may place an order verbally or in writing, including by email. A binding Insertion Order is only concluded upon written conformation of the order by MMG or its Service Providers. An order shall be deemed refused if not duly confirmed within two weeks from placement of the order by the customer.
2.2 Where orders are placed by advertising agencies, the Insertion Order is concluded with the advertising agency. If the client is to become Advertiser, the advertising agency has to provide complete details and provide proof of power of attorney upon request.
2.3 Advertiser warrants and represents to not be consumer within the meaning of applicable laws, including Sec. 13 German Civil Code, consumers are excluded from concluding this agreement.
2.4 The Advertiser shall only provide true and accurate information.
3. Scope of Services, Amendments
3.1 With regards to the Online Advertising ordered, the Advertiser not expect any success or economic result, such is in no case represented or warranted by MMG or agreed upon.
3.2 MMG renders its services within the technical, legal and commercial framework of online advertising which is subject to constant change.
3.3. If the before mentioned framework changes and as result thereof MMGs performance of services to be rendered hereunder is substantially impeded or becomes impossible, MMG may without prejudice to further remedies rescind any Insertion Orders.
3.4 MMG is entitled to change the structure and design of its website, the pages contained therein, as well as any other Online Media at any time or cease to provide such services completely. MMG shall inform Advertisers on any substantial changes in this respect and relevant to an Insertion Order without undue delay. Placement of Ads which is obviously prejudicial to its perceptibility or substantial changes in size of an Ad constitute a substantial change.
3.5 In such far as the Insertion Order relates to email campaigns, the parties agree that certain distribution dates, frequencies, coverage or validity of addresses are not decisive. Accordingly, MMG may in its sole discretion and without obligation thereto provide further deliveries, e.g. where singular deliveries have been cancelled. If selection of addresses is part of the order MMG shall inform the Advertiser if the chosen criteria do not provide the intended number of addresses. Any necessary reduction shall be performed by random selection.
4. Duty to review, Right to reject
4.1 The Advertiser shall at own costs review any Ads and other content made available to MMG, including linked targets (jointly referred to as "Content"), in relation to its accuracy, lawfulness and permissibility for their respective use. This includes any rights of third parties, including intellectual property rights (e.g. trademark), copyright and personality rights as well as applicable laws (eg. prohibitions on advertising in tele media, competition law). MMG shall not be subject to an own duty to review.
4.2 MMG shall be entitled to refuse performance of an Insertion Order wholly or with regards to specific Ads or runs only or suspend or terminate runs, if it can reasonably be suspected that the content is not permitted or unlawful in before mentioned sense, Content has been rejected by respective authorities or the Content is else against the interests of MMG in relation to a professional appearance and image of the Online Media, including where, within MMG sole discretion, the necessary level of professionality is not achieved or the content is else inappropriate or indecent.
4.3 Upon such rejection, Advertiser shall remain liable to pay the agreed remuneration, unless MMG has been able to reutilize the available space for other parties.
5. Cancellation
The Advertiser may cancel an Insertion Order with the following fees becoming due:
- between four and two weeks before date of insertion: 50% of the respective order value
- between two weeks and two days before the date of insertion: 80% of the respective order value
- thereafter: 100% of the respective order value.
6. Cooperation, data delivery and placement
6.1 The Advertiser shall provide MMG with appropriate Ads, specifically compling with MMG´s technical specifications, in due time before the insertion date. Timeliness is depended on the agreed, respectively publicly announced, delivery dates for the respective Online Media and shall else be deemed five business days prior to the agreed insertion date. The Advertiser shall remain liable to pay the agreed remuneration, if delivery is not timely and insertion impossible as result thereof.
6.2 MMG is entitled to make necessary amendments to the Ads, but in no event obliged thereto. Specifically, an Add which is not recognizable as advertising may be designated by MMG with the word "Anzeige".
6.3 Placement is made in MMG’s reasonable discretion and with regards to the interests of Advertiser to the greatest extent possible and with reference to the respective category booked.
6.4 It can not be secured that within Online Media no advertising for products or services of a competitor of Advertiser is placed, including also in proximity in space and time to Ads of the Advertiser.
6.5 The Advertiser may request return of materials or Ads within ten days from the last insertion, however any duty to record or file shall not exist.
7. Duty to notify
The Advertiser shall review online advertising run on MMG´s websites without undue delay after the first insertion and notify any apparent defects within the first week of insertion. Thereafter any such defect shall be deemed accepted. Hidden defects must be notified within one week from becoming known, at latest within twelve months after begin of the limitation in time pursuant to applicable laws.
8. Licenses, Representations and Warranties, Indemnity
8.1 The Advertiser licenses to MMG all rights necessary for the performance of this contract.
8.2 Advertiser warrants and represents that the use of Content, including Ads, by MMG pursuant to this agreement does not infringe any rights of third parties or violates applicable laws and regulations including such referred to in above Clause 4.1.
8.3 The Advertiser shall indemnify MMG from all claims, reasonable legal fees and damages, resulting from violation of a guarantee by the Advertiser or made in connection with use of the Ads in accordance with this agreement against MMG.
8.4 The Advertiser shall not engage in any non-intended use of the functionalities of the Online Media of MMG.
8.5 The Advertiser shall deliver data free of any computer viruses, worms or other sources of damage. MMG shall not be obliged to apply own safety measures.
8.6 Specifically where advertising agencies are used and as far as the advertising company itself is Advertiser within the meaning hereof, above provisions shall apply irrespective of actual knowledge of the Advertiser of Content delivered to MMG.
9. Warranty of MMG
9.1 If by default of MMG the online advertising does not have the agreed properties, MMG ensures due performance of the advertising by replacement runs in a comparable area or environment ("Replacement Advertising"). MMG shall have the right to refuse Replacement Advertising if
- this requires efforts grossly disproportionate to the bona fide interest of Advertiser in performance, and having regard to the content of this agreement, or
- this would incur disproportionate costs for MMG
9.3 Claims for warranties are limited in time to 12 months after the begin of limitation in time provided for by applicable laws.
10. Liability
10.1 MMG shall be liable without limitation for intent and gross negligence.
10.2 For ordinary negligence, MMG shall only be liable in so far as an essential obligation of this agreement is breached. Such essential obligation shall be construed as containing such which this agreement has to confer upon the user by its nature and purpose or which only enables the due performance of this contract and the due performance of which the user may regularly and reasonably rely upon.
10.3 MMG’s liability for slight negligence is limited to typical and foreseeable damages.
10.4 Liability for indirect damages as well as lost profit is excluded for simple negligence except for situations where liability is not restricted pursuant to above clause 10.2.
10.5 Limitations of liability from above clauses 10.2 to 10.4 shall not apply to any strict statutory liability of MMG or liability from any contractual guarantee as well as harm to body, life or health.
10.6 In such far as MMG´s liability is excluded or limited this shall also apply to the personal liability of is it statutory representatives or agents. The limitations of liability do furthermore apply to all kinds of claims, including tort.
10.7 Liability from above Clause 10.2 shall further be limited to a maximum amount of three times the contractually agreed remuneration payable to MMG.
10.8 MMG shall not be liable, where links to websites of third parties are provided, which are outside of MMG’s responsibility. The provider of such web sites shall solely be responsible and liable for such content and damages from use of such information.
11. Remuneration
11.1 The Advertiser shall pay a remuneration in accordance with the price list valid at time of formation of contract. Applicable VAT is charged separately.
11.2 The remuneration payable to MMG is due without deductions upon invoice and payable by bank transfer.
11.3 MMG may amend the price list at any time. For orders confirmed by MMG, changes in price shall only become binding, if one month notice before publication of the Ads is given. In case of price increase the Advertiser may terminate the contract. If such right for termination is not exercised within one month from notice of the price increase, the price increase shall be deemed accepted for Insertion Orders.
11.4 Where calculation of the remuneration is based on page impressions or similar data, only data from MMG´s or its service provider´s reporting systems shall be used.
12. Data protection
12.1 Personal information from the sphere of Advertiser is collected, recorded, processed and used only in accordance with the statutory provisions.
12.2 The Insertion Order is carried out in consideration of applicable data protection laws.
13. Miscellaneous
13.1 This agreement is subject exclusively to German law. Place of performance is Munich.
13.2 Exclusive revenue of competent jurisdiction for all claims between Advertiser and MMG from or in connection with this agreement shall be Munich. MMG may choose to bring action against Advertiser also at a court competent at Advertiser´s domicile.
13.3 Shall one or more stipulations herein be or become void, the remaining provisions shall remain valid. Any void provision shall be replaced by the parties by a provision closest to the intended purpose with regards to the economic and legal interest of both parties.
13.4 Additional oral agreements do not exist. Any modification or amendment of provisions contained herein, including this provision, may only be made in writing.
(December 2008)
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