General Terms and Conditions for advertisements and third-party supplements in newspapers and magazines
Note: This is a complementary, legally non-binding translation of our General Terms and Conditions. In case of doubt or discrepancies, only the German version of our General Terms and Conditions is valid and shall always prevail.
1. An "Advertisement Order" within the meaning of the following General Terms and Conditions is the contract regarding the publication of one or more advertisements of an advertiser or any other placers in a printed publication, an e-paper, an e-magazine and other media, in Germany and abroad for the purpose of distribution.
2. In case of doubt, advertisements shall be called for publication within one year after conclusion of contract. If the conclusion grants the right to call individual advertisements, the order shall be completed within one year of publication of the first advertisement, provided the first advertisement is called for publication and published within the deadline mentioned in sentence 1.
3. In case of contractual conclusions, the customer shall be entitled to call for publication of further advertisements even beyond the advertisement quantity stated in the order within the period of time agreed upon or respectively stated under number 2.
4. If an order is not fulfilled due to circumstances the publisher is not responsible for, the customer is obliged, notwithstanding any further legal obligations, to reimburse the publisher for the difference between the discount granted and the discount corresponding to the actual order. Reimbursement shall not apply if the non-fulfillment is due to force majeure within the risk area of the publisher.
5. For the purpose of calculating the acceptance quantities, text millimeter lines shall be converted into advertisement millimeters based upon price.
6. Orders for advertisements and third-party supplements which are to be published solely in designated issues, editions or in designated locations of the printed material must be received by the publisher in good time, so as to allow the publisher to advise the client before the closing deadline should it prove impossible to execute the order in this way. The formats indicated in the current price list are generally applicable for the publication of advertisements. Classified advertisements shall be placed in the respective section without requiring any special agreement.
7. Text section advertisements are advertisements which border text at least at three sides and not on other advertisements. Advertisements that are not identifiable as advertisements due to their editorial design shall be clearly identified by the publisher using the term "advertisement".
8. The publisher reserves the right to reject advertisement orders - also including individual calls for publication in accordance with a contractual conclusion - and supplement orders due to content, origin or technical form according to standard, objectively justifiable principles of the publisher when their contents violate laws or official regulations or their publication is unacceptable for the publisher. This shall also apply for orders which have been submitted to branch offices or authorized representatives.
Supplement orders are binding for the publisher only after the submission of a draft of the supplement and its approval. Supplements which, through their format or layout, give the reader the impression that they are an element of the newspaper or magazine or contain third-party advertising shall therefore clearly be marked as advertisements.
The customer shall be notified about the rejection of an order immediately.
9. The customer shall be responsible for the timely submission of the advertising text and flawless print documents or the supplements. In case of obviously unsuitable or damaged print documents the publisher shall demand replacements immediately. The publisher shall guarantee the usual standard print quality for the relevant publication within the scope of the printing documents submitted.
10. The customer shall have a claim to payment reduction or a flawless replacement advertisement if the print of the advertisement is, either in whole or in part, illegible, incorrect or incomplete, but only to the extent that the purpose of the advertisement has been compromised. If the publisher lets a reasonable deadline set for this purpose pass or if it fails to present a flawless replacement advertisement, the customer shall have a right to payment reduction or to withdrawal from the order. Claims shall - except in case of not obvious deficiencies - be made within two weeks after receipt of invoice and receipt.
The following exclusions of liability and limitation shall also apply to tort claims insofar as these compete with contractual claims.
- The liability of the publisher for any and all damages is excluded. This exclusion, however, shall not apply to damages whichwere caused willfully or grossly negligently by the publisher;
- are based on an injury of life, body or health;
- subject to the following regulations for damages which are based on breach of essential contractual obligations by the publisher.
Essential contractual obligations all obligations whose fulfillment allows a proper execution of the contract and on whose compliance the customer may rely on consistently.
In cases of slightly negligent violation of essential contractual obligations the publisher's liability shall be limited to damages typical to contracts and for the publisher foreseeable damages at the time of conclusion of contract or breach of duty - with the exception of damages to life, body or health. To this extent the publisher's liability shall be excluded for damages that are only within the risk area of the customer.
The customer's claims for damages due to slight negligence of the publisher according to the paragraphs above are excluded in any case if they are not claimed within three months after the claims have been rejected by the publisher or its representative with a corresponding note.
The foregoing exclusions of liability and limitation shall also apply to the publisher's liability for its organs, employees and vicarious agents as well as to the personal liability of the publisher's organs, employees and vicarious agents.
The publisher shall be liable per damaging event which is caused by gross negligence of vicarious agents who are neither legal agents or senior employees, however, limited to the amount payable. Not included in these limitations of liability are damages that are based on an injury of life, body or health.The foregoing exclusions of liability and limitation shall not apply if the publisher is able to have a business liability insurance customary in the industry and reasonable for its business operations. They shall also not apply to claims based on the product liability law if liability is legally mandated accordingly. They shall finally not apply if and when the publisher has provided any assurance regarding specific properties.
11. Proofs shall be supplied only upon express request. The customer shall bear responsibility for the accuracy of the returned proofs. The publisher will consider any error corrections made by the customer if and when they are made within the period as stated on the proof.
12. If no special size specifications have been provided, the price of the advertisement will be calculated based on the actual printing height and the kind of advertisement.
13. If the customer does not provide prepayment, the invoice shall be issued immediately after the publication of the advertisement.
The invoice must be paid within the time frame specified on the price list and beginning with the receipt of invoice, unless a different payment period or prepayment has been agreed upon in an individual case. Any possible discounts for early payment shall be granted based upon the price list.
The publisher reserves the right to demand prepayment for justified reasons, e. g. the initiation of a new business relation.
14. In the event of delayed payment or deferred payment, interest shall be charged in the amount of the usual bank interest for overdraft facilities as well as collection costs. The customer shall bear the costs of reminders and collection arising from delayed payment. In the event of delayed payment, the publisher may suspend the further execution of the current order until payment is received and may demand prepayment for the remaining advertisements. In case of reasonable doubt of the customer's solvency, the publisher is entitled to make the publishing of additional advertisements dependent on payment of outstanding invoices and on prepayment for further advertisements regardless of the initially agreed payment deadline within the duration of the contract.
15. The publisher shall provide an advertisement voucher with the invoice upon request. Depending on type and scope of the advertisement order, advertisement samples, sample vouchers or complete voucher numbers shall be delivered. If a voucher can no longer be procured, a legally binding certification from the publisher regarding the publication and distribution of the advertisement shall replace it.
16. The customer shall bear the costs for printing blocks, printing documents and drawings as well as for the changes as requested by the customer or considerable changes of previously agreed upon order.
17. With respect to a standing order for multiple advertisements a reduction in the number of copies circulated may lead to a claim for a price reduction if the overall circulation average throughout the insertion year beginning with the first advertisement or stipulated otherwise - if the circulation has not been specified - is smaller than the average circulation sold during the previous calendar year (in case of trade magazines this might refer to the distributed circulation, if applicable). A reduction in circulation shall only then be a deficiency that justifies a price reduction if it amounts to
- up to 20 percent in a circulation of 50,000 copies,
- up to 15 percent in a circulation of 100,000 copies,
- up to 10 percent in a circulation of up to 500,000 copies,
- up to 5 percent in a circulation of more than 500,00 copies.
The possible reduction in circulation is calculated as the balance of circulation overruns and circulation underruns of the documented editions within the insertion year. A claim for reimbursement must be made within six months after the end of the insertion year. The refund shall be made after the end of the insertion year on the basis of the net customer value, taking into account the agency remuneration already granted as a credit in kind or - if this is no longer possible - as remuneration. A claim for reimbursement can only be made if the refund sum amounts to at least 2500 Euro. Furthermore, upon contractual conclusion any price reduction claims based on reduction of circulation shall be excluded if the publisher has notified the customer of the reduction in circulation in such a timely manner that the customer could withdraw from the contract before the advertisement is published.
18. In case of keyed advertisements, the publisher shall exercise the care of a prudent businessman with regards to safekeeping and timely forwarding of offers. Registered and express letters addressed to keyed advertisements shall be forwarded using only regular mail.
The receipts of keyed advertisements shall be retained for four weeks. Correspondence which has not been picked up during this time frame will be destroyed. The publisher will send back valuable documents without being obliged to do so.
The publisher can be granted the right in a separate contract to open incoming offers as a representative on behalf of and in declared interests of the customer. Letters that exceed the acceptable DIN A4 format (weight 1,000 g) as well as shipments, book or catalog shipments and packages shall be excluded from being forwarded and shall not be accepted. It is possible to agree upon accepting and forwarding as an exception for the case that the customer will bear fees/costs emerging from doing so.
19. Print documents will only be sent back upon specific request of the customer. The obligation to retain documents shall end three months after expiration of the order.
20. Place of fulfillment is the publisher's registered place of business. In commercial dealings with business people, legal entities under public law or public-law trusts, the place of jurisdiction for actions is the publisher's registered place of business. If the publisher's claims cannot be satisfied by issuing payment reminders, the place of jurisdiction for disputes with non-commercial customers is determined by the place of residence of the latter.
If the customer's domicile or usual place of residence, also in the case of non-traders, is unknown at the time an action is filed or if the customer has moved its domicile or usual place of residence away from the domain of validity of the law after conclusion of contract, the place of jurisdiction shall be at the publisher's registered address of business.
Additional Terms and Conditions of the Publisher
By issuing an order for an advertisement, the customer recognizes the General Terms & Conditions of Business as well as the price list of the publisher. The aforementioned General Terms and Conditions shall only apply insofar as they do not oppose the following additional Terms and Conditions of the publisher.
Conclusion of the contract
he advertisement order is realized by the customer's booking of an advertisement (offer) and the publisher's written confirmation of the booking (acceptance). Both, bookings and acceptances, can also be completed using the OBS Online Booking System (www.obs-portal.de). If a direct customer is represented by an agency, it must be expressly pointed out in writing that the booking is to be made in the name and for the account of the direct customer. If no such timely notification is made, the contract shall be deemed concluded with effect for and against the Agency, Sec. 164 para. 2 of the German Civil Code (BGB). The publisher is entitled to require the agency to provide proof of credentials.
Change of agency
If an agency customer changes the agency during the settlement period of a contract, the publisher assumes that the former agency transfers the contractual relationship with all rights and obligations arising from the contract to the new agency.
Placement of advertisements
a) Placement regulations shall only be valid if they have been confirmed by the publisher in writing.
b) The advertisement section of this newspaper shall be set and assembled according to typographic aspects. This leads to certain regulations for the design of classified advertisements whose compliance is reserved by the publisher.
Additional technical costs
In case of complex typographic works and production of fine-drawings, films and other print documents that go beyond the standard scope, the publisher reserves the right to invoice these works separately.
Advertorials are sections produced by a third party and that differ significantly from the newspaper's editorial sections regarding form and design, contain both texts and advertising from third parties and are distinguished by an own imprint. The publisher reserves the right to publish only after being presented with a binding draft as well as to determine special prices for special publications.
In case of advertisement collectives, special publications and publisher's supplements, the publisher reserves the right to determine additional prices and additional conditions.
Advertisements that contain advertisements from third parties or for third parties require the prior written declaration of acceptance by the publisher in each individual case. This entitles the publisher to levy a network surcharge. The customer will be notified of the rejection immediately.
The publisher gives no warranty for loss of supplements on the chain of distribution. Section requests, e. g. supplements in specific newspaper products cannot be taken into consideration. A reference to the supplement can be published in the editorial section, however, this reference shall not contain any advertising apart from the company name. Supplements shall only serve one customer. Distribution of product samples, also in connection with supplements, is not possible. Including supplement orders in advertisement orders is not possible.
a) Cancellations must be made in writing. The publisher may charge the setting costs in the case of cancellation.
b) For premium and special advertising forms/placements, the deadline for advertisements and printing documents is 6 working days prior to the dates stated in the price list.
c) Cancellations, changes of sizes, formats and colours are no longer possible after the advertisement deadline.
Binding of price list
a) The advertising agencies and agents are obliged to comply with the publisher's price list in regards to their offers, contracts and invoicing with the advertiser. The commission granted by the publisher shall not be passed on to the customer, neither in full nor in part.
b) The agency commission is 15 percent.
c) In the event of a change in advertising rates, the new terms and conditions shall become effective immediately, even in the case of current contracts, unless otherwise expressly agreed.
a) Advertisements liable to discount can only be concluded to the benefit of the same natural person or corporate entity. Companies, who the customer has concluded an executive contract with, can also be included into advertisements liable to discount. This shall not apply to the merger of different independent governmental organizations or to mergers where corporations under public law are included.
If a joint discount is claimed for affiliated companies, a written proof of the group status of the advertiser is required. Affiliated companies within the meaning of this provision are companies in which at least 50 percent of the capital is held. The group status of corporations must be evidenced by the confirmation of an auditor or by presentation of the last annual report, of partnerships by presentation of an extract from the commercial register. The proof must be provided no later than the end of the insertion year. A later verification cannot be recognized retrospectively. Group discounts require the publisher's express written confirmation in any case. Group discounts are only granted for the duration of affiliation. The termination of group affiliation must be reported immediately; the group discount shall also end upon termination of group affiliation
b) The claim to a discount in retrospect expires if it is not asserted within one month after expiry of the one-year period.
c) Including advertisements on a number and quantity basis into an order, for which the tariff does not allow for a discount, is not possible. It is also not permissible to conclude an order liable to discount to the full basic price for advertisements to the reduced basic price, for which the tariff does not allow for a discount, or to add such advertisements to an existing order liable to discount to the full basic price.
d) A trade discount amounting to 10 percent is only granted for directly ordered occasional advertisements/orders.
Only agents with ID have the right to debt collection.
In case of force majeure, any and all obligations to fulfill orders and to provide compensation for damages lapses.
Responsibility of customer
a) The customer alone bears responsibility for the content and the legal permissibility of the text and image documents provided for insertion. It rests on the customer's responsibility to indemnify the publisher against third-party claims, which grow against the publisher out of the execution of the order, even if it was not suspended on time. The publisher applies due diligence when accepting and checking advertisement texts, however, it shall not be liable if it is misled or deceived by the customers. The publisher cannot be held liable to check orders and advertisements for infringing third-party rights. The customer shall indemnify the publisher against any and all claims arising from infringements of statutory regulations by the advertisement, especially of the law against unfair commercial practices and copyright law. Has the customer been admonished for unfair content of an advertisement or has it made a contractual penalty understanding to a third party or has it clearly been judicially forbidden to distribute this advertisement, the advertisement department must be informed about this immediately. Its wish to not publish the corresponding advertisement can only be considered by the publisher if the head of advertisement receives a letter regarding this particular advertisement one day before the closing deadline.
b) In order to avoid confusion with a private advertisement, commercial advertisements shall be clearly identifiable as such, e. g. by labeling them with "Real Estate" for real estate companies or with "Vehicle Company" or respectively "Company" for other commercial suppliers. Using labels is at the risk of the customer. It is its responsibility to indemnify the publisher against third-party claims, which may grow against the publisher out of improper labeling.
c) By placing the advertisement order, the advertiser undertakes to bear the costs of publication of a reply, based on the individually valid advertisement price.
Disclaimer of publisher's liability
a) Deficiencies of the print documents that are not immediately apparent shall not give the customer grounds to claim payment reduction or replacement. If the same mistake occurs in repeated advertisements without the customer having made a complaint about it after the first occurrence, the publisher shall only accept claim for compensation for one advertisement.
b) In the case of telephonically placing orders, changing dates or editions, correcting texts and canceling orders, the publisher shall not be held liable for transfer errors and faulty notes.
c) If the print documents are sent digitally, the publisher shall not be held liable for alterations of the digital file due to transfer errors. The same shall apply to cases, where the data sent by the customer cannot be further processed systemically (not compatible) at the publisher. The assurance of specific properties shall only be effective if it is made by the advertisement department in writing.
d) In case that the publication of advertisements in the online advertisement market should fail due to programming or technical reasons, especially due to computer malfunction, force majeure, strikes, statutory regulations, disruptions which fall into the responsibility of providers, network operators or service providers or due to similar reasons, there is no claim to later publication.
e) The publisher assumes no warranty for adding advertisements or third-party supplements to specific editions and to specific sections.
If one or more of the above conditions or additional conditions is in whole or in part invalid, the contract as a whole remains unaffected by this.