§1 Scope

(1) These General Terms and Conditions (“GTC”) apply to agreements between Traffective GmbH, St.-Martin-Strasse 72, 81541 Munich, including its affiliated companies (hereinafter “Traffective”) and the respective publisher.

(2) Agreements made individually between the parties take precedence over these GTC. The publisher’s general terms and conditions are hereby rejected insofar as they deviate from the following terms and conditions.

(3) These GTC contain:

• General provisions for the use of all Traffective services, including individual contractual agreements,
• Additional provisions for display marketing (§ 3)
• Additional provisions for video marketing (§ 4).

Which areas affect and apply to the respective publisher depends on which services are used. This is agreed by the parties in the cooperation agreement.

(4) These General Terms and Conditions, together with the cooperation agreement and its annexes, form the contract. In the event of contradictions between the cooperation agreement or its annexes on the one hand and these General Terms and Conditions on the other, the provisions of the cooperation agreement or its annexes shall take precedence over these General Terms and Conditions.

§ 2 General provisions

The following general provisions apply to every type of service within the meaning of § 1 (3).

2.1 Definitions

Ad impression: An ad impression is defined as the successful delivery of a digital ad to an end user’s device and the generation and confirmation of a corresponding delivery signal (server- or client-side), regardless of whether the ad actually appears in the visible area of the screen. Invalid traffic (IVT) is filtered out after the ad impressions have been measured and does not count towards the ad impressions that are billed (“billable ad impressions”).

Ad space: refers to the digital advertising space available for placing an ad (format subject to individual agreement between the parties) on the publisher’s digital offering and offered for marketing.

CMP: Consent Management Platform used by the publisher to request, obtain, forward and store user consent and other signals (in particular TC strings).

Traffective CMP: CMP offered by Traffective.

Content Creator: natural or legal person who provides video content for use by themselves and/or other platform users on the video marketplace.

Digital offering: all types of digital media, whether websites, apps, or similar, which the publisher monetises with the help of Traffective and which have editorial or informational value (e.g. no made-for-arbitrage inventory), regardless of form (e.g. text, video).

Freechoice subscription: Paid subscription to Traffective that allows the user to use the digital offerings without advertising tracking.

Freechoice model: Pay-or-consent model in which the user can either use the digital offering free of charge with advertising tracking (Freechoice subscription) or free of charge with advertising tracking. If the user takes out the Freechoice subscription, no personal data is processed for the display of personalised advertising. If they use the free, consent-based model, a technology for displaying relevant, personalised advertising is applied by processing personal data.

Content: all content available on the digital offering, regardless of its form. This includes, for example: articles, video content within the meaning of the General Terms and Conditions, advertising, images, etc.

Invalid traffic (IVT): refers to all accesses, ad impressions, clicks or other interactions with digital advertising media that, according to generally accepted market standards (e.g. MRC, IAB) are not based on actual usage by a human user or otherwise violate the relevant provisions of the individual vendors; this includes, for example, adware, malware, crawlers, bots, cookie stuffing, incentivised traffic, misrepresented signals, etc.

Inventory: All ad impressions mediated by the publisher’s digital offering.

JCA: Joint Controller Agreement pursuant to Art. 26 GDPR between the parties.

Publisher: Owner of a digital offering that includes inventory marketed by Traffective.

Traffective vendor list: List of vendors that Traffective has in its portfolio for monetising publishers’ digital offerings.

Vendors: Agencies and/or companies (such as SSPs) and/or networks of agencies or companies that place advertisements and/or purchase inventory for this purpose.

Marketing: Marketing of the publisher’s inventory via Traffective’s monetisation platform using header bidding or other methods agreed between the parties, in particular in the form of display marketing and/or video marketing.

Video content: Content that the publisher displays on its digital offering in a video that is played via Traffective’s video player.

Publisher content: Video content that the publisher has created itself or has legally licensed for use by itself and/or third parties.

Third-party content: Video content that is available on the video marketplace for use by the publisher without being publisher content.

Video marketplace: Platform through which video content is made available to the publisher for use on its digital offering in the video player.

Video player: Video player through which video content is played.

Advertising tracking-free use (within the scope of Freechoice subscription): Marketing without setting or using cookies, device identifiers and similar tracking technologies from third-party providers in order to display ads to the user that are tailored to their usage behaviour and presumed interests and needs. However, non-personalised advertising (contextual advertising) remains possible.

2.2 Conclusion of contract

(1) Unless expressly agreed otherwise, all offers made by Traffective to publishers are subject to change.

(2) The contract between the publisher and Traffective is concluded upon mutual signature of the cooperation agreement. To comply with the written form requirement, an electronic signature using a recognised electronic signature service is sufficient.

(3) By signing, the publisher warrants that they

• a. is an entrepreneur within the meaning of § 14 BGB (German Civil Code) or acts on behalf of such an entrepreneur with power of representation,
• b. is at least 18 years of age or is acting as the legal representative of a minor, and
• c. has all the necessary rights to effectively conclude this contract.

2.3 General service description Marketing (display and video)

(1) Traffective operates a self-developed monetisation platform and auctions the publisher’s inventory via the monetisation platform using header bidding. The aim of this service is to optimise digital advertising revenue on the publisher’s digital offering.

(2) In the header bidding process, Traffective offers the publisher’s inventory to vendors in real time and auctions it to the highest bidder.

(3) Traffective provides the publisher with ready-made ad codes for independent integration by the publisher (Section 2.5 (3)).

(4) Traffective manages the inventory provided via a publisher manager. The publisher manager is responsible for the day-to-day operational management and configuration options of the publishing products with the aim of optimising advertising revenue for the publisher. Traffective is not obligated to achieve a specific level of success. The final decision on whether and how to market and the means used (in particular the selection of specific vendors) is made by the publisher on its own responsibility.

(5) Traffective concludes agreements with vendors on its own behalf and without the involvement of the publisher for the delivery of advertising on digital offerings. In doing so, Traffective acts on behalf of the publisher.

(6) The Traffective vendor list in Traffective’s portfolio can be viewed by the publisher at any time. It is dynamic and can be expanded or restricted by Traffective.

(7) The publisher may have individual vendors removed from the list and thus object to the conclusion of contracts with these vendors with effect for the future. The publisher may reinstate the excluded vendors at any time.

(8) The contract is limited to the publisher’s digital offerings

• a. which are expressly listed in the cooperation agreement or
• b. within which Traffective ad codes are placed after approval by Traffective (at least in text form).

(9) Traffective provides the Publisher with the Traffective Publisher Reporting Dashboard, which can be used to access information on the performance of the advertising space on the Publisher’s digital offerings.

(10) Traffective offers the publisher support and consulting in accordance with the Monetisation Platform Services. If the agreed monthly support quota is used up, Traffective is entitled to invoice the publisher for all further support services at the conditions specified in the Monetisation Platform Services. Unused support hours are not carried over to subsequent months and are not offset. Consulting is billed in accordance with the Monetisation Platform Services.

(11) The publisher may only use other marketers or similar service providers in addition to Traffective to market its contractual inventory if Traffective has given its prior consent in writing. The publisher may continue to carry out its own marketing activities without involving third parties.

(12) The publisher agrees that its data may be processed for the purpose of evaluating marketing and, in the case of video marketing, for evaluating the use of the video marketplace, and may be passed on to vendors in order to analyse the success of marketing and the use of the video marketplace.

2.4 CMP and Freechoice

2.4.1 Service description CMP and Freechoice

(1) The publisher is obliged to implement a CMP that is certified according to the IAB Transparency and Consent Framework and at least meets the requirements of the latest IAB TCF version.

(2) Traffective provides the Traffective CMP for this purpose, which is based on the IAB Transparency & Consent Framework. The publisher has the choice of using this or another CMP within the meaning of Section 2.4.1 (1).

(3) When using the Traffective CMP, Traffective offers the Freechoice model (Section 2.4.2). The module required for this is integrated into the Traffective CMP by Traffective.

2.4.2 Freechoice model

(1) The Freechoice model offers publishers the option of making their digital offerings available in a way that allows users to opt out of consenting to data processing for the purpose of personalised advertising.

(2) The fundamental possibility for the publisher to display advertising itself and/or to analyse usage in order to tailor its digital offering to user needs is not prevented by the use of the Freechoice model. If the publisher uses cookies, device identifiers or tracking technologies in this context, this is done under the sole responsibility of the publisher and must be coordinated with Traffective with regard to technical implementation.

(3) An additional list of providers and technologies to be approved for users of the Freechoice model will be agreed upon by the parties during the integration process and updated on an ongoing basis as necessary.

(4) Traffective shall conclude a usage agreement with users who opt for the Freechoice subscription in its own name and on its own account. Under this usage agreement, the user undertakes to pay a monthly usage fee, the amount of which may be determined by Traffective at its own discretion. Under the usage agreement to be concluded, the user may be granted the option of also using digital offerings from other publishers without advertising tracking.

(5) The publisher is obliged to immediately examine and, if necessary, satisfy all claims asserted against the publisher by third parties on the basis of the content of the digital offerings or the technology used by the publisher, in particular in accordance with Sections 327c, 327 e

2.5 General obligations of the publisher

(1) During the term of the contract, the Publisher is obliged to provide Traffective with complete and accurate information about the data required for the execution of the contract and to keep this information up to date. This includes, in particular, the identity, legal form and full address of the Publisher, as well as its bank details, tax data and all other data relevant to billing.

(2) The Publisher shall inform Traffective at least 40 days in advance before a change of operator of a digital offering takes place. Unless the parties agree otherwise, the digital offering concerned shall no longer be subject to the contract upon the change taking effect.

(3) The publisher shall integrate all ad codes transmitted by Traffective into its contractual digital offerings and place and label them in such a way that they are recognisable to third parties as ads/advertisements.

(4) The publisher must integrate the Traffective user setup into the code of its digital offering. The publisher must (a) integrate the ads.txt in accordance with Traffective’s specifications and ensure that it remains integrated and live at all times; (b) integrate a CMP that meets the requirements of these GTC with the vendors required for marketing by Traffective; (c) have completed the Google MCM Connection with Traffective.

(5) The ad codes provided by Traffective for displaying an advertisement may only be used by the publisher to integrate the respective advertising material. Furthermore, the ad codes may not be modified, copied, transferred, sold, made available to a third party for their use or published without the prior written consent of Traffective. The ad code may not be placed in emails or used on digital offerings that are not yet complete, that do not display their domain, or that contain chat rooms, file-sharing content, forums or similar content that allow third-party publications without content control.

(6) Upon termination of the contract, the publisher undertakes to immediately remove all ad codes that contain components of Traffective from all digital offerings. Any costs incurred for ad codes that are not removed will be charged to the publisher.

(7) The publisher undertakes to prevent invalid traffic as far as possible, in particular

• a. not to manipulate the number of page impressions, ad impressions, clicks, leads or similar performance indicators (e.g. by clicking on their own advertisements/websites, using automatic click tools or robots),
• b. not to distribute unsolicited mass mailings to email addresses,
• c. not to make entries in forums, blogs or similar in order to advertise its goods or services if the entries are not related to the editorial topic of the forums or blogs in question.

(8) If the publisher causes invalid traffic intentionally or through gross negligence, they shall be obliged to pay a contractual penalty amounting to 200% of the gross advertising revenue that Traffective would have generated if the traffic had not been invalid. Further claims by Traffective remain unaffected; this applies in particular to claims for damages (e.g. in accordance with section 2.5 (13) below), whereby contractual penalty claims shall be offset against the claim for damages.

(9) The publisher guarantees that it holds all necessary rights of use from the owners of copyrights, ancillary copyrights, trademarks and other rights to the digital offerings it provides and the content presented therein. Furthermore, the publisher guarantees that it holds all rights to integrate and display the ad codes on the publisher’s digital offerings.

(10) Insofar as the tools provided by Traffective are used by the Publisher for its own purposes, e.g. permissible own entries of external providers in the Traffective ads.txt management tool, this is done at the Publisher’s own responsibility. Traffective is not obliged to provide the tools for these purposes. Traffective may prohibit the Publisher from using the tools for its own purposes at any time.

(11) The publisher grants Traffective the right to indicate in press releases, marketing, advertising and PR measures, displaying the publisher’s brands and business names, that it is a customer of Traffective as a publisher. The publisher may revoke this consent to Traffective in writing.

(12) At Traffective’s request, the publisher shall participate in surveys on the vendors used by the publisher and on satisfaction with Traffective, or provide feedback on these topics in other ways. The publisher agrees that they may also be contacted directly by the respective vendor on these topics and participate in corresponding surveys or other mechanisms.

(13) The publisher shall treat the access data provided to them for Traffective’s systems (e.g. for the video marketplace and dashboards) as confidential and shall ensure that their employees and agents also comply with these obligations. They are obliged to notify Traffective immediately of any unauthorised use of their login data. The publisher is liable for all actions taken by third parties using its access data and/or passwords, regardless of whether these are authorised or not, with the exception of actions taken by Traffective itself. Traffective has the right to block or delete the publisher’s account in the event of misuse or improper handling of the login data.

(14) If the publisher violates its obligations, in particular the obligations under this Section 2.5 or the following Section 2.8, it shall be obliged to compensate Traffective for the damage caused thereby (e.g. commission claims lost by Traffective). The obligation to pay damages also includes damages incurred directly by third parties (e.g. if the breach of duty results in loss of income for the content creators).

2.6 Remuneration & billing

2.6.1 General remuneration and billing regulations Marketing

(1) The publisher’s share of the remuneration is settled monthly by means of a provisional credit note. This is calculated on the basis of the ad impressions measured by Traffective. The publisher receives a detailed report on the performance indicators and an estimate of the provisional advertising revenue via access to the Traffective Cockpit. The provisional advertising revenue is calculated from the billable ad impressions. This amount is increased or decreased (i) by any corrections in accordance with Section 2.6.1 (6), (ii) other external fees/costs directly related to the marketing services (e.g. SSP costs that cannot be individually allocated to individual publishers and are distributed according to appropriate distribution keys to all publishers who generated advertising revenue via the relevant SSP during the corresponding performance period) and (iii) currency corrections; The amount thus determined is the “gross advertising revenue”. The following are deducted from the gross advertising revenue: (i) the agreed Traffective share and (ii) the flat rate specified in the Monetisation Platform Services for the provision of the video infrastructure, including streaming and hosting costs (for deduction items (i) and (ii), the basis of assessment is the gross advertising revenue). The remaining amount corresponds to the preliminary distribution amount; in the case of video marketing, the preliminary distribution amount may be divided between the publisher and the content creator.

(2) Remuneration paid by Traffective to vendors (in particular discounts, commissions, etc.) reduces the (provisional) advertising revenue in accordance with Section 2.6.1 (1).

(3) The publisher will regularly receive the figures for the respective month by the 23rd of the following month. If the 23rd falls on a weekend or public holiday, the next working day will take its place.

(4) The provisional credit shall be paid by the 20th of the second month following the month in which the advertisement was displayed.

(5) The publisher shall only be entitled to payment of the amount specified in Section 2.6.1 (1) and (4) if and to the extent that the vendor actually makes a payment to Traffective.

(6) The amounts shown in the credits are advance payments on the distribution amount owed. Traffective is therefore entitled to subsequently correct the amount shown in the statement/credit if and to the extent that

• a. a vendor subsequently adjusts data relevant to the settlement and/or subsequently reclaims remuneration already paid out by Traffective; and/or
• b. claims against a vendor for ad impressions that Traffective has already paid out to the publisher later prove to be wholly or partially uncollectible. A claim against a vendor is considered uncollectible if Traffective has asserted the claim out of court and yet no payments have been made to Traffective within six (6) months of the last advertisement display on which the outstanding claim is based. Traffective is not obliged to enforce claims against vendors in court.

(7) In the event of a correction in accordance with this Section 2.6.1 (6), the publisher is obliged to immediately repay the excess amount paid. Traffective may also offset the resulting claim against future claims of the Publisher. If, in the cases of Section 2.6.1 (6) lit. b, Traffective is still able to enforce its claims against the Vendor after a subsequent correction has been made to the Publisher, Traffective shall credit the amount due to the Publisher again with the next available settlement.

(8) If the vendor’s claim for repayment/non-payment pursuant to Section 2.6.1 (6) lit. a results from a breach of its contractual obligations for which the publisher is responsible or from a breach of the rules established by the vendor for which the publisher is responsible, the correction of the invoice shall not result in a reduction of Traffective’s original commission claim.

(9) The publisher shall only be entitled to payment once a total amount of EUR 100.00 has been reached. In this case, (a) the revenue shares generated for the publisher’s individual digital offerings, (b) all services used (display marketing, video marketing, free choice model) and (c) all periods are added together. In the event of termination of the contract, amounts below EUR 100.00 will also be paid out.

(10) The right to payment of the distribution amount for periods in which the publisher intentionally or grossly negligently causes IVT or in which it intentionally or grossly negligently violates Section 2.8 is excluded.

(11) In addition, Traffective shall invoice the publisher monthly for the fees listed in the Monetisation Platform Services, unless these have already been deducted as part of the credit calculation in accordance with Section 2.6.1 (1).

2.6.2 Additional provisions for remuneration and billing in the Freechoice model

(1) The costs for the provision and operation of the Freechoice module (“provision fee”) shall be borne by Traffective as long as a contract between Traffective and the Publisher regarding the monetisation of the digital offering exists.

(2) The Freechoice model is billed on a transaction basis. A fixed transaction fee is charged for each subscription payment in accordance with the Monetisation Platform Services.

(3) Traffective pays the publisher the subscription price minus the commission agreed between the parties and the transaction fee in accordance with Section 2.6.2 (2). Since subscribers are given the option of using offers from other publishers without advertising tracking, the amount to be paid out is calculated as a percentage based on the user behaviour of the respective subscriber. The revenue share determined in this way is calculated on a monthly basis.

(4) The provision fee, if applicable, is billed monthly and is due for payment at the end of the calendar month following the billing period, plus any applicable statutory taxes.

2.7 Responsibility for digital offerings and their content, indemnification

(1) The publisher guarantees that its digital offerings and their content do not violate contractual agreements, applicable law, statutory and official prohibitions or common decency, in particular that they are not pornographic, obscene, potentially hateful or offensive or contain content of extreme political, religious or ideological groups, and that they comply with the requirements of this contract. The publisher further guarantees that content on the digital offerings does not infringe or otherwise impair the rights of third parties. The publisher is solely responsible for all content on its digital offerings as well as for the maintenance and operation of these offerings and shall indemnify Traffective against all claims by third parties in this regard.

(2) The publisher’s websites must not contain viruses, Trojan horses, worms or other destructive or manipulative computer programs that may impair data, computer systems or software.

(3) The publisher guarantees the editorial, informative character of its digital offerings.

(4) If the publisher becomes aware of a violation of paragraphs (1) to (3), it is obliged to inform Traffective immediately.

(5) The provisions of paragraphs (1) to (4) shall apply accordingly if the publisher provides third-party content for use by other publishers.

(6) Traffective reserves the right not to integrate advertising material and ad codes into digital offerings with unlawful content or content that does not meet the requirements of this contract.

2.8 Special requirements of vendors

(1) Within the framework of Section 2.7, the publisher is free to choose the topics presented on its digital offering. For example, vendors reserve the right not to accept inventory for the following topic categories, meaning monetisation may not be possible:

• Illegal content such as illegal drugs, terrorism, hate speech and aggressive acts, online piracy including copyright infringement and counterfeiting, weapons and ammunition, crime and harmful acts against individuals and society, and human rights violations
• Adult sexual content and explicit sexual content
• Obscenities and vulgar expressions
• Spam or harmful content such as malware and phishing
• Terrorism
• Misinformation, defined as demonstrably false or intentionally misleading content associated with harm to users or society
• Death, injury or military conflict
• Tobacco, e-cigarettes, alcohol, vaping
• Sensitive social issues

(2) Various vendors establish and enforce internal rules and guidelines for advertising measures. The publisher acknowledges that Traffective has no influence over these rules. It is the publisher’s responsibility to comply with these rules to ensure the best possible monetisation of its digital offerings.

(3) Vendors have the right, in the event of suspected or detected violations of the rules established by them within the meaning of Section 2.8 (2), to block the publisher’s account or sub-account, suspend further services and withhold payments until the matter has been resolved to the vendor’s satisfaction.

(4) Both parties accept the rules of the vendors within the meaning of Section 2.8 (2) as binding regulations that also significantly determine the mutual rights and obligations under this contract.

(5) Each party individually and both parties together accept the vendors’ decisions regarding a possible violation of their regulations within the meaning of Section 2.8 (2) as final and binding, even if the decision is directed against the other party. The parties therefore mutually waive the defence that a regulation or decision of the operator is inadmissible; excluded are regulations and decisions that, if they were an arbitral award, would result in the setting aside of the arbitral award pursuant to Section 1059 (2) No. 2 b) ZPO.

(6) Traffective is obliged to provide the publisher with the rules within the meaning of Section 2.8 (2) upon request.

(7) Traffective assumes no responsibility for advertising materials delivered by vendors or for content to which the delivered advertising links.

(8) If a vendor suspects or determines a violation by a party of its rules within the meaning of Section 2.8 (2), withholds payment or reclaims payment already made, or offsets the claim against a payment and informs a party thereof, that party shall immediately inform the other party. The parties shall endeavour to ensure that the party in whose area of responsibility the suspected or determined violation lies is given the opportunity to comment and to contact the vendor directly.

(9) The parties shall indemnify each other against all claims by third parties as well as all necessary costs, expenses (including legal and court costs) and liabilities to which a party is exposed due to a violation by the other party of regulations pursuant to Section 2.8 (2), comprehensively and upon first request.

(10) If the violation suspected or determined by a vendor falls within the publisher’s sphere of responsibility, Traffective is entitled to withhold payments to the publisher until the matter has been finally decided by the vendor. Traffective is also released from the obligation to provide the agreed services during the suspension of the publisher’s account.

2.9 General liability provisions

(1) Traffective does not owe any specific marketing success.

(2) Traffective is not liable for the uninterrupted availability of the tools used for measurement nor for the digital offerings linked to the advertising material and their content.

(3) Traffective is not liable for damages arising from the infringement of third-party rights by the content of ads, video content or the content of the digital offering. Traffective is not obliged to check ads, video content or the content of the digital offering for legal compliance; this also applies to third-party content provided by video content creators.

(4) Otherwise, Traffective is only liable in cases of intent or gross negligence and in cases of breach of essential contractual obligations. In the case of slightly negligent breach of essential contractual obligations, liability is limited to the foreseeable damage typical for the contract. Loss of profit does not fall under foreseeable damage typical for the contract. Traffective is not liable in cases of force majeure and/or for services provided by third parties who are not vicarious agents, in particular services of vendors or creators of third-party content. Furthermore, Traffective is not responsible for ensuring that such third-party services (in particular network services) are always available without interruption, error-free and secure. The above exclusions and limitations of liability also apply to the liability of Traffective’s employees, bodies, representatives, vicarious agents and subcontractors.

(5) In the event of injury to life, body or health and for liability under the Product Liability Act and other mandatory statutory provisions, Traffective shall be liable without limitation.

§ 3 Display marketing

Display marketing shall be carried out in accordance with the general provisions of Section 2.

§ 4 Video marketing

The following provisions apply to the marketing of video inventory.

4.1. Service description for video marketing

(1) The publisher may embed video content in its digital offering via the video marketplace (“embedded video”). For this purpose, Traffective shall provide the publisher with a code for integration into its digital offering for the duration of the agreement. This code embeds the video player in the publisher’s digital offering in such a way that video content can be played. The embedded videos appear on the digital offering as part of the offering, but technically remain on Traffective’s source and are played from there. The embedded videos contain ad spaces that are marketed in accordance with Section 2.3. Traffective makes video content available on the video marketplace for use by the publisher in accordance with these GTC (see definitions). The video content is licensed by the respective content creator. Marketing by Traffective is a prerequisite for the use of the video marketplace and the video player. The parties may agree on a different subject matter of performance (e.g. use of the video player without marketing) in an individual contract.

(2) Traffective is entitled to change the scope of services of the video player at any time, in particular to add new functions or to modify or remove existing elements.

4.2 Publisher’s obligations in video marketing

(1) The publisher is obliged to integrate the video player, including the script and the corresponding code, into its digital offering and to define in the code which video content is to run on its digital offering and with which configuration (e.g. click to play, autoplay).

(2) The publisher shall be granted access to the video marketplace for the duration of the agreement. Which third-party content is released for use shall be agreed individually between Traffective and the publisher, taking into account the specifications of the third-party content creator.

(3) In relation to Traffective, the publisher has sole responsibility for any video content provided and/or used by them. The publisher warrants that all video content and its planned use, including use as third-party content by other publishers, is legally permissible and, in particular, complies with applicable law (e.g. the German Youth Protection Act) and the requirements of these General Terms and Conditions and the contractual agreements with Traffective. The publisher expressly acknowledges that Traffective is not obliged to check and ensure that video content provided on the video marketplace is compatible with applicable law and does not infringe any third-party rights (in particular copyrights, trademark rights or personal rights). However, Traffective undertakes to obtain assurances in its agreements with content creators that

• a. the content creator possesses all rights necessary for the specific type of use, in particular in accordance with Sections 16-20, 31 of the German Copyright Act (UrhG), in order to be able to make the video content available on the video marketplace for the contractually intended purpose, and
• b. the video content does not infringe any third-party rights.

(4) The publisher is obliged to comply with all relevant legal requirements when embedding the video content, in particular the labelling as advertising or product placement. The publisher is not entitled to modify the video content.

(5) The publisher has no claim to the availability of certain video content (e.g. on specific topics) or to the availability of video content for a specific period of time.

(6) The publisher is aware that Traffective’s partners (vendors, technical service providers, content creators) may have special requirements for the use of video content. The publisher is responsible for finding out about the relevant requirements within the scope of its possibilities and for designing its video content and the type of design of the video content on its digital offering accordingly.

(7) If video content is only intended for use behind a paywall, the publisher must ensure this is technically possible.

4.3 Granting of rights to use third-party content

(1) The publisher may use the third-party content released to them to embed it as an embedded video on their digital offering and thus make it publicly available to users of their digital offering (Section 19a UrhG). The publisher is expressly prohibited from reproducing (§ 16 UrhG), distributing (§ 17 UrhG), exhibiting (§ 18 UrhG), reciting, performing or presenting (§ 19 UrhG) or otherwise using the third-party content.

(2) The right under Section 4.3 (1) is non-exclusive, non-sublicensable and non-transferable. The spatial and temporal restrictions are determined by the specifications of the respective content creator, which the latter may change at any time. However, the right under Section 4.3 (1) shall in any case end upon termination of this agreement. In addition, Traffective is also entitled (irrespective of the specifications of the respective content creator) to revoke or restrict the right of use granted above for objective reasons.

(3) The publisher may only use the third-party content in the manner provided for in these GTC. Furthermore, the publisher may not use the third-party content or parts thereof (including individual images or preview images). In particular, third-party content or parts thereof may not (a) be incorporated into an offer that is not expressly covered by the contract between the parties, (b) be used for types of use not explicitly granted by these GTC or the contractual agreement between the parties, (c) be sublicensed or otherwise made available to a third party, (d) be used outside the territory explicitly specified in the contract.

§ 5 Assignment

(1) The Publisher is not entitled to transfer or assign rights or obligations arising from the contractual relationship with Traffective to third parties without the prior written consent of Traffective.

(2) Traffective is entitled to transfer and assign rights and obligations arising from the contractual relationship with the publisher to companies affiliated with Traffective. The publisher’s consent is not required for this. The publisher is entitled to terminate the respective contract with immediate effect upon becoming aware of this information. The right of termination expires if it is not exercised within two weeks of becoming aware of the transfer of the contract and/or assignment.

(3) The right of the parties to fulfil contractual obligations through their vicarious agents remains unaffected.

§ 6 Confidentiality

(1) The parties undertake to maintain confidentiality for the duration of the agreement and for a further period of three (3) years after termination of this agreement, to treat all economic and technical information, as well as all personal data or information that was passed on between the partners before and during this agreement (“confidential information”), as their own business secrets and to keep it secret from third parties, unless disclosure is necessary for the fulfilment of the contract or there is a legal obligation to do so. Confidential information includes, in particular, information on the publisher’s reach, the advertising revenue generated by the publisher, all tools, software, technologies and documentation developed and/or provided by Traffective, and all contractual agreements between the parties.

(2) The obligation of confidentiality does not include information that was already demonstrably and lawfully known to the public at the time of disclosure without breach of a confidentiality agreement by the respective party, or which must be published by the disclosing party in accordance with legal provisions or official orders. In the latter case, the parties shall inform each other immediately and, as far as possible, before disclosing the confidential information, and shall agree on how to proceed.

(3) Consultants engaged shall not be considered third parties if both parties agree to this and declare their agreement in writing. Both parties accept that vendors to whom the publisher’s advertising inventory is offered in whole or in part shall not be considered third parties and may have access to the information and may assist Traffective in an advisory capacity in the provision of the service.

§ 7 Limitation period

(1) Mutual claims of the parties arising from the agreement shall become time-barred one year after the due date.

(2) This does not apply to claims for damages due to injury to life, limb or health and/or claims for damages due to gross negligence or intentional damage caused by one party. In this respect, the statutory limitation periods apply.

§ 8 Term and notice periods

(1) The agreement is valid for an indefinite period. It may be terminated by either party with four (4) weeks’ notice to the end of the month, unless a different notice period has been agreed in individual contracts or in more specific provisions in these General Terms and Conditions.

(2) The Freechoice model can be terminated separately. If one of the parties terminates the Freechoice model, the agreement shall continue in all other respects (i.e. without the use of the Freechoice model). In the event of separate termination of the Freechoice model, the publisher is obliged to notify Traffective immediately, at least in text form, which CMP is to be used after the termination takes effect. If the publisher fails to notify Traffective or does so late, it shall be solely liable internally for any kind of damage (including fines for violation of data protection obligations), notwithstanding the provisions of the JCA.

(3) The right to terminate for good cause remains unaffected by this. Such a reason shall be deemed to exist in particular if one party violates essential contractual obligations and does not restore the contractual status within five (5) working days of receiving a corresponding request in writing from the other party.

(4) If the publisher intentionally or grossly negligently causes IVT or intentionally or grossly negligently violates the vendors’ guidelines within the meaning of Section 2.8, and this results in a reduction in the distribution amount for a content creator and/or Traffective, Traffective shall be entitled to terminate the contract without observing a notice period and without prior request in accordance with (3).

(5) Any termination must be made in writing.

§ 9 Amendments to the GTC

(1) Traffective reserves the right to amend these GTC at any time. The publisher shall be informed of the amendment to the GTC at least in text form (§ 126 BGB) with a notice period of at least ten (10) working days before the new GTC come into force.

(2) The publisher has the right to object to the change within 5 working days, at least in text form (§ 126 BGB). If the publisher does not object, the GTC shall come into force in their amended form.

(3) In the event of objection by the publisher, each party shall be entitled to terminate the contract in accordance with the notice periods for the respective service. The old terms and conditions shall remain in force until the termination takes effect.

§ 10 Severability clause, applicable law, place of jurisdiction, binding version

(1) If individual provisions of these General Terms and Conditions are or become invalid, the validity of the remaining provisions shall remain unaffected. The parties shall replace an invalid provision with a legally effective provision that comes as close as possible to the economic and intended purpose of the invalid provision. The same applies to unintended contractual gaps.

(2) All legal relationships between the parties shall be governed by the law of the Federal Republic of Germany, excluding the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG). If the publisher is a merchant, a legal entity under public law or a special fund under public law, or if they have no general place of jurisdiction in the United Kingdom, the registered office of Traffective shall be the exclusive place of jurisdiction for all disputes arising from the contractual relationship.

(3) These General Terms and Conditions are available in several languages. In case of doubt, questions of interpretation or disputes, the German version shall be the binding version.