General Terms and Conditions Publisher
Status: May 2023
§ 1 Scope of application
1.1 These General Terms and Conditions (“GTC”) apply to agreements between Traffective GmbH, Dachauer Straße 90, 80335 Munich, including its affiliated companies (hereinafter “Traffective”) and the respective Publisher.
1.2 Agreements made individually between the parties shall 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.
§ 2 Definitions
- Ad Operations: Work processes needed to sell, place, deliver, customise, support, optimise, target, report and analyse online advertising.
- CMP: Consent Management Platform used by the publisher to request, receive, forward and store user consent.
- freechoice subscription: paid subscription that enables the user to use the website without advertising tracking.
- freechoice model: Model in which the user can optionally use the website free of advertising tracking for a fee as part of the freechoice subscription or free of charge with advertising tracking. If the user takes out the paid subscription, he is excluded from the advertising tracking functionality that is normally available on the website. If he uses the free model, a technique is applied to display relevant, personalised advertising.
- JCA: Joint Controller Agreement according to Art. 26 DSGVO.
- Publisher: website operators or companies that place advertising material on their websites and/or media, prepare content, distribute it via online media and provide inventory on which advertisements can be placed.
- Traffective-CMP: CMP offered by Traffective.
- Traffective Vendor List: List of vendors (e.g. SSPs, advertisers, ad networks) that Traffective holds in its portfolio for the monetisation of the publisher website.
- Sold ad impressions: Number of ad impressions sold by Traffective to advertisers and delivered on the publisher’s websites and recorded in Traffective’s system. An ad impression is counted as soon as an advertisement is loaded on a page of the publisher and displayed to the user.
- Website: websites and/or media (including apps) offered by the Publisher.
- Advertising networks: Networks of advertisers and/or agencies that place advertisements and buy inventory.
- Advertising tracking-free use: no cookies, device identifiers and similar third-party tracking technologies are used to serve advertisements to users based on their usage behaviour and their presumed interests and needs. However, non-personalised advertising remains possible
- Advertisers: Agencies and/or companies that place advertisements and buy inventory.
- Numbers with data: Processing of personal data, incl. tracking technologies, to ensure the playout of personalised advertising.
§ 3 Object of cooperation
3.1 Traffective has developed a monetisation platform and offers Publishers a service to optimise digital advertising revenues.
3.2 Traffective provides the Traffective CMP, which is based on the IAB Transparency & Consent Framework. The Publisher has the option to implement this or an adequate solution that supports the IAB Transparency and Consent Framework and is certified (https://iabeurope.eu/cmp-list/ ).
3.3 Traffective offers the freechoice model (§ 8). The module required for this is integrated into the CMP and offers the respective user the possibility to use the Publisher Website free of charge and without advertising tracking.
3.4 Traffective concludes agreements in its own name and without the participation of the Publisher with advertising networks or directly with advertisers for the delivery of advertising on the websites. In doing so, Traffective acts for the account of the Publisher.
3.5 The list of advertising networks and advertisers in the Traffective portfolio can be viewed by the Publisher at any time. It is dynamic and can be extended or restricted by Traffective. The Publisher can have individual advertising networks and advertisers removed from the list and thus object to the conclusion of contracts with these advertising networks/advertisers with effect for the future.
§ 4 Conclusion of contract
4.1 Unless expressly agreed otherwise, all offers made by Traffective to Publishers are subject to change. A valid contract is only concluded
(1) with the conclusion of a cooperation agreement at least in text form (§ 126b BGB)
(2) with the successful placement of the created or provided ad codes by Traffective within the websites offered by the Publishers.
4.2 The contract is limited to the website(s) offered by the Publishers.
(1) which is/are explicitly listed in the cooperation agreement
(2) within which Traffective’s ad codes are placed.
§ 5 Duties and tasks of Traffective
5.1 Traffective provides the Publisher with ready-made ad codes for independent integration by the Publisher.
5.2 Traffective manages the provided advertising spaces and the inventory provided on them via an Account Manager(s). The account manager takes over the daily operative management and the adjustment options of the publishing products. The aim is to optimise advertising revenue for the publisher. Traffective will use its know-how and experience for the Publisher to the best of its knowledge. The Publisher is aware that the success of the marketing of online advertising spaces depends on many factors and Traffective cannot guarantee the achievement of certain revenue targets. No specific success is owed by Traffective. The final decision about the marketing and the means used is made by the publisher on his own responsibility.
5.3 Traffective offers support to the Publisher. The scope, response times and costs are regulated in an individual agreement adapted to the requirements of the respective Publisher. If the agreed monthly support quota is fulfilled within the scope of the services, Traffective is entitled, after prior written notice to the Publisher, to charge for further support expenses. Unused support hours will not be credited to subsequent months and will not be offset.
5.4 Ad Operations Support is only owed by Traffective in the case of an additional agreement expressly made with the Publisher. The Ad Operation Support includes all activities concerning the management, coordination, control, configuration of the advertising media to be delivered via the ad server, e.g. in local sales.
5.5 Traffective provides the Publisher with the Traffective Publisher Reporting Dashboard to provide information on the performance of the advertising spaces on the Publisher Websites. The reports provided there are preliminary performance reports. The counting of the billing-relevant actions (e.g. ad impressions, clicks and/or successes) is carried out by the respective advertising network/advertiser to whom the Publisher’s advertising inventory is offered in full or in part (cf. § 10).
§ 6 Duties and Responsibilities of the Publisher
6.1 During the term of the contract, the Publisher is obliged to inform Traffective completely and correctly about its current personal and other data required for the execution of the contract and to keep this data up to date. This includes in particular the identity, the legal form and the complete address of the Publisher, as well as its bank details and all other billing-relevant data.
6.2 The Publisher shall inform Traffective at least 40 days before a change of the responsible operator of a Website takes place. If the parties do not agree otherwise, the website concerned will no longer be the subject of the contract when the change takes effect.
6.3 The Publisher shall include all Ad Codes transmitted by Traffective on the basis of the Cooperation Agreement in its websites and shall place and mark them in such a way that they are recognisable as Ads to a third party.
6.4 The ad codes provided by Traffective for the display of an advertisement may only be used by the Publisher as contractually agreed for the integration of the respective advertising medium. Furthermore, the Ad Codes may not be modified, copied, transferred, sold, given to a third party for its use or published without the prior written consent of Traffective. The Ad Code may not be placed in emails or used on websites that are not yet completed, that do not display their domain, or that contain chat rooms, file sharing content, forums or similar content that allows third party publications without content control.
6.5 Upon termination of the contract, the Publisher undertakes to immediately remove all ad codes that contain components of Traffective from the respective website. Accrued costs for non-removed ad codes will otherwise be charged to the Publisher.
6.6 The Publisher undertakes not to manipulate the number of page impressions, ad impressions, clicks, leads or similar performance indicators (e.g. by clicking on its own advertisements, the use of automatic click tools or robots), not to distribute unsolicited mass mailings to e-mail addresses or to make entries in forums, blogs or similar in order to promote its goods or services, or to click on its own websites.
6.7 The Publisher guarantees that it holds all the necessary rights of use of the holders of copyrights, ancillary copyrights, trademark rights and other rights to the websites it makes available and the content displayed therein. Furthermore, the Publisher warrants that it holds the copyrights and ancillary copyrights in order to integrate and display the advertisement codes on the Publisher’s websites.
6.8 The Publisher grants Traffective the right to indicate that it is a customer of Traffective as a Publisher in press releases, in marketing, advertising and PR measures by displaying the brands and business designations of the Publisher. The Publisher may revoke this consent in writing vis-à-vis Traffective.
6.9 Publisher will, at Traffective’s request, participate in surveys on the Advertising Networks used by Publisher and on satisfaction with Traffective or otherwise provide feedback on these topics. The Publisher agrees that it may also be contacted directly by the relevant Advertising Network on these topics and participate in relevant surveys or other mechanisms.
6.10. 6.10. As far as the tools provided by Traffective are used by the Publisher for own purposes, e.g. own entries of external providers in the Traffective ads.txt management tool, this is done on the Publisher’s own responsibility. Traffective does not owe the provision of the tools for these purposes. The use for own purposes can be prohibited by Traffective to the Publisher at any time.
§ 7 Requirements imposed on Traffective and the Publisher by advertising networks/advertisers
7.1 The Parties are aware that the various advertising networks/advertisers establish and enforce rules (e.g. the Webmaster – Guidelines available at https://support.google.com/webmasters/answer/35769?hl=de) which neither the Publisher nor Traffective can influence. Such rules can be in particular:
a. The advertising network/advertiser reserves the right to decide conclusively when a lead, a page impression, a click or similar is considered valid.
b. The basis for the calculation of the remuneration distributed by the advertising network/advertiser are exclusively the figures determined by the advertising networks/advertisers.
c. The advertising network/advertiser reserves the right to reclaim paid out remuneration within certain deadlines and to offset the reclaimed amount against remuneration to be paid in the future;
d. The advertising network/advertiser disclaims any responsibility for delivered advertising material or content to which delivered advertising links.
e. The advertising network/advertiser reserves the right to cancel or amend existing regulations and to introduce new regulations.
f. The advertising network/advertiser reserves the right to suspend the publisher’s account or sub-account, to suspend further services and to withhold payments until the matter is resolved to the satisfaction of the advertising network/advertiser in the event of violations of the rules established by the advertising network/advertiser.
7.2 The Publisher warrants that it will comply with and follow the rules established by the Advertising Networks/Advertisers, unless Traffective alone can comply with and follow a rule due to the linking of the Accounts.
7.3 Traffective warrants to comply with and abide by all regulations of the advertising networks/advertisers that only Traffective can comply with and abide by due to the linking of the accounts.
7.4 Both parties accept the rules of the advertising networks/advertisers as a binding set of rules that have a decisive influence on the mutual rights and obligations under the cooperation agreement concluded between the parties. Each party individually and both parties together accept the decisions of the advertising networks/advertisers on a possible breach of rules of the advertising networks/advertisers as final and binding, even if the decision of one advertising network/advertiser is directed against the other party. The parties mutually waive the defence that a regulation or decision of the operators is inadmissible, with the exception of regulations and decisions which, if they were an arbitral award, would result in a setting aside of the arbitral award pursuant to section 1059 para. 2 no. 2 b) ZPO.
7.5 In the event that an Advertising Network/Advertiser accepts or identifies a breach by a Party or withholds a payment or reclaims a payment already made or, in the course of reclaiming, offsets a Provider’s claim against a payment and notifies a Party thereof, the Party shall immediately notify the other Party thereof. The parties will endeavour to ensure that the party in whose area of responsibility the breach accepted or identified by an advertising network / advertiser falls is given the opportunity to comment and to contact the provider directly.
7.6 The parties shall fully indemnify each other against all third party claims and all necessary costs, expenses (including those of counsel and court) and liabilities to which either party may be exposed as a result of the other party’s breach of the covenant under clause 7.2.
7.7 In the event that the violation assumed or determined by an advertising network/advertiser falls within the scope of responsibility of the Publisher, Traffective is entitled to withhold payments to the Publisher until the matter has been finally decided by the operator. Traffective is further exempted from providing the services owed during the suspension of the Publisher’s account.
§ 8 freechoice model
8.1 Traffective integrates the freechoice model variant into the CMP used for the Publisher Websites, which enables the user to use the Websites without advertising tracking.
8.3 An additional list of providers and technologies to be approved for users of the freechoice model will be mutually agreed by the parties during the integration process and updated as necessary.
8.4 Technical and contractual implementation of the freechoice model
(1) The technical integration of the freechoice model into Traffective’s own CMP is carried out by Traffective.
(2) Traffective concludes a user agreement in its own name and for its own account with the users who opt for the freechoice subscription. Within the scope of this usage agreement, the user undertakes to pay a monthly usage fee, the amount of which is to be determined by Traffective at its own discretion. Within the scope of the user agreement to be concluded, the user may optionally be granted the possibility to also use websites of other publishers without advertising tracking.
(3) The Publisher is obliged to fulfil all claims for defects pursuant to §§ 327c, 327 e-p BGB (German Civil Code) of the user arising from the content of its website or the technology used on its website.
(4) This also applies to all obligations related to the assertion of defect rights according to §§ 327c, 327e-p BGB by the user, even if the user asserts his rights against Traffective.
(5) In the case of (4), Traffective is obliged to notify the Publisher immediately of the assertion of rights. The Publisher is obliged to comply with its obligations without delay.
§9 Responsibility for websites and their contents, exemption
9.1 The Publisher guarantees that the websites made available by it in which the advertising media are placed – as well as their content – do not violate contractual agreements, applicable German law, statutory and official prohibitions or morality. The Publisher is also responsible for ensuring that the rights of third parties are not impaired by content and advertising on the Websites. The Publisher is solely responsible for all content, maintenance and operation of its website.
9.2 The content and advertising of the Publisher’s websites may not be pornographic, obscene or potentially hateful or otherwise offensive or contain content of extreme political, religious and ideological groups. Furthermore, the Publisher’s websites may not contain any viruses, Trojan horses, worms or other destructive or manipulative computer programs that could impair data, computer systems or software.
9.3 Traffective does not accept adwares for traffic generation where the end user cannot determine the installation of the software himself and also cannot uninstall it again himself. Furthermore, the actual website to which an End User wishes to navigate must not be altered by the Adware for the User. When an end user calls up a website, this call may only be redirected by an adware after the end user’s consent.
9.4 The Publisher is solely responsible for the content of its website on which the advertising media are placed. Traffective is not obliged, neither at the beginning of the contract nor at a later point in time, to check whether the Publisher’s websites and their contents may be used for the agreed service, whether they are lawful or protect the rights of third parties. Traffective is nevertheless entitled to carry out a content check of the Publisher’s websites. An examination carried out by Traffective does not say anything about whether the Publisher’s websites are legally permissible and in accordance with the regulations of the advertising networks/advertisers, regardless of whether Traffective has made objections or not. Traffective reserves the right not to integrate advertising media and ad codes in websites with obviously illegal contents and to reject websites due to their contents, their origin or their technical form, as far as there are factual reasons for this. An objective reason is given in particular if the contents of the website are likely to damage the reputation of Traffective or the advertising clients. This also includes websites that are still incomplete or do not allow for a professional editorial review of their content. The rejection of a website will be communicated to the publisher by Traffective immediately after the corresponding decision.
9.5 The Publisher is exclusively liable for the contents on the website. Should third parties, in particular users of the Site, assert claims against Traffective, the Publisher shall indemnify Traffective against all claims.
§10 Remuneration & Billing
10.1 The Publisher will receive an itemised report of performance metrics and preliminary advertising revenues via access to the Traffective Publisher Reporting Interface.
10.2 Traffective prepares a monthly statement for the Publisher, which shows the provisional credit to the Publisher. This credit is calculated on the basis of the provisional advertising revenues on the basis of the report in accordance with clause 10.1 less the agreed commission and any corrections in accordance with clause 10.5. 10.5. Advertising revenues that are taken into account in the settlement are all those that are determined on the basis of the ad impressions sold up to the working day preceding the settlement and relate to periods before the settlement date.
10.3. 10.3 The amount shown in the statement is due for payment no later than 30 days after Traffective has issued the credit note.
10.4. 10.4 A claim of the Publisher to distribution of the amount according to Clauses 10.2 and 10.3 shall only exist if and to the extent that the Advertising Network/Advertiser actually makes a payment to Traffective.
10.5 The amounts shown in the credit notes issued in accordance with clause 10.2 are payments on account of the distribution amount owed. Traffective is therefore entitled to subsequently correct the amount shown in the settlement/credit note if and to the extent that
(1) the advertising networks/the advertisers subsequently adjust billing-relevant data and/or subsequently reclaim remuneration already paid out by Traffective; and/or
(2) claims against advertising networks/advertisers for advertising insertions, which Traffective has already paid out to the Publisher in accordance with clause 10.2, later prove to be wholly or partially irrecoverable. A claim against an Advertising Network/Advertiser is deemed irrecoverable if Traffective has asserted the claim out of court and yet no payments have been made to Traffective within 6 months since the last Advertising Insertion on which the outstanding claim is based. Traffective is not obliged to enforce claims against advertising networks/advertisers in court.
(3) In the event of a correction in accordance with this clause 10.5, the Publisher is obliged to immediately repay the amount paid out in excess. Traffective may also offset the resulting claim against future claims of the Publisher. If, in the cases of clause 10.5 (2), Traffective can still enforce its claims against the Advertising Network/Advertiser after a subsequent correction has been made to the Publisher, Traffective will credit the amount due to the Publisher again with the next achievable settlement.
10.6 If the reclaim/non-payment by the Advertising Network/Advertiser pursuant to Clause 10.4 results from a breach of the Publisher’s contractual obligations agreed herein for which the Publisher is responsible or from a breach of the rules established by the Advertising Network/Advertiser for which the Publisher is responsible, the correction of the settlement shall not lead to a reduction of Traffective’s original commission claim.
10.7 Remuneration in the freechoice model
(1) Provision fee: The costs for provision and operation of the freechoice Module are borne by Traffective as long as the contract between Traffective and the Publisher, which has as its object the monetisation of the Publisher Websites, is in force.
(2) Transaction fee: The freechoice model is charged on a transaction basis. A fixed transaction fee of EUR 0.35 is charged for each subscription payment.
(3) Revenue sharing: Traffective will pay the Publisher the Subscription Price less the commission agreed in the Main Agreement and the transaction fee pursuant to Clause 10.7 (2). 10.7 (2). Since subscribers are granted the opportunity to also use websites of 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 and paid out net plus VAT.
(4) Due date: The provision fee, if any, and the revenue share shall be invoiced monthly and shall be due for payment at the end of the calendar month following the invoicing period.
§11 Data protection
11.1 The Publisher is responsible for ensuring that the requirements of data protection law are met when operating the contractual website. In particular, it is responsible for obtaining any necessary consent from the website visitors to the processing of personal data.
11.2 When using the Traffective CMP, the Publisher is obliged to adapt the collection of personal data outside Traffective’s area of responsibility by the Publisher himself or at his instigation by third parties to the settings of the CMP.
11.3 The Publisher is hereby informed that Traffective stores, processes and uses personal data of the Publisher in machine-readable form and for contractual purposes in application of the data protection regulations. This data will only be passed on insofar as this is necessary for the purpose of contract execution. In accordance with Art. 6 Para. 1 lit. b DSGVO, this data is only passed on to third parties insofar as this is necessary for the fulfilment of the contractual relationship existing between Traffective and the Publisher.
11.4 The Parties undertake to conclude a data protection agreement which must at least comply with the requirements of the relevant laws, in particular the GDPR, and regulate the mutual rights and obligations, in particular with regard to rights of data subjects.
§12 Liability of Traffective
12.1 A certain success of the advertising service is not owed by Traffective. Traffective is neither liable for the uninterrupted accessibility of the tools used for measurement nor for the advertising client websites linked to the advertising media as well as their contents. Furthermore, Traffective is not liable in case of force majeure and/or for services provided by third parties who are not vicarious agents, in particular advertising network services. Furthermore, Traffective is not responsible for ensuring that these third party services (in particular network services) are always available without interruption, error-free and secure.
12.2 Apart from that, Traffective is only liable in case of intent or gross negligence as well as in case of breach of essential contractual obligations, the fulfilment of which enables the proper execution of the contract in the first place and on the compliance with which the Publisher may rely (“essential contractual obligations”). In case of breach of essential contractual obligations, Traffective’s liability is limited to damages typical for the contract and foreseeable at the time of contract conclusion. This does not apply in case of intent or gross negligence. Lost profit is not included in the foreseeable damage typical for the contract.
12.3 The limitations of liability according to clause 10.2 do not apply to claims for damages due to injury to life, body or health, insofar as they concern guarantees, and to liability according to the Product Liability Act as well as other mandatory statutory provisions.
12.4 The above exclusions and limitations of liability also apply to the liability of Traffective’s employees, representatives, vicarious agents and subcontractors.
13.1 The Publisher is not entitled to transfer and assign rights or obligations arising from the contractual relationship with Traffective to third parties without the prior written consent of Traffective.
13.2 Traffective is entitled to transfer and assign rights and obligations from the contractual relationship with the Publisher to companies affiliated with Traffective. The consent of the Publisher is not required for this. However, the Publisher is entitled to terminate the respective contract with immediate effect after receipt of the notification of the transfer of contract and/or the assignment. The right of termination shall expire if it is not exercised within two weeks after receipt of the notification of the transfer of the contract and/or the assignment.
13.3 The right of the parties to perform contractual obligations through their vicarious agents shall remain unaffected.
§14 Term & notice periods
14.1 This Agreement shall run for an indefinite period. It may be terminated by either party by giving four (4) weeks’ notice to the end of a month, unless a different notice period has been agreed in the individual contract and compliance with contractual obligations towards third parties is not affected.
14.2 The freechoice Model may be terminated separately. If one of the Parties terminates the freechoice Model, the Contract shall continue without the use of the freechoice Model and the Subject Matter shall be transformed into the Subject Matter described in Clauses 3.1 and 3.2. The freechoice Model shall be automatically terminated upon termination of the Main Contract in accordance with Clause 13.1 or Clause 13.3.
14.3 The right to terminate for extraordinary cause shall remain unaffected. Such a reason exists in particular if a Party breaches material obligations which it is obliged to perform under these General Terms and Conditions, the Cooperation Agreement or other contractual agreements between the Parties and does not restore the contractual condition within five (5) working days after receipt of a corresponding written request by the other Party. Such a reason also exists in particular if an advertising network or an advertiser terminates one or more contracts with a party or deactivates or shuts down a corresponding account of a party.
14.4 Notice of termination must be given in writing.
15.1 The parties undertake to treat all economic and technical information 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 for the duration of the agreement and for a further period of three years after the termination of this agreement, unless disclosure is necessary for the fulfilment of the agreement or there is a legal obligation to do so. Confidential Information includes, but is not limited to, information regarding 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.
15.2 The obligation of confidentiality does not include such information which, at the time of disclosure, was already demonstrably and lawfully known to the respective party or to the general public without breach of a confidentiality agreement, or which must be published by the disclosing party in accordance with statutory 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 the further course of action.
15.3 Associated agents are not considered third parties if both parties agree to this and declare this agreement in writing. Both parties accept that suppliers where the Publisher’s advertising inventory is offered in whole or in part are not considered third parties and may have access to the information and may assist Traffective in an advisory capacity to provide the service.
15.4 The disclosure of click rates, ad impressions and other relevant key figures of campaigns and websites to advertising customers for the evaluation of their campaigns is permitted.
16.1 Mutual claims of the parties arising from the cooperation agreement shall become time-barred one year after the due date.
16.2 Excluded from this are claims for damages due to injury to life, body or health and/or claims for damages due to grossly negligent or intentional damage caused by a party. In this respect, the statutory limitation periods shall apply.
§17 Changes to the General Terms and Conditions
17.1 Traffective reserves the right to change these General Terms and Conditions at any time. These will be announced by Traffective to the Publisher in text form and become part of the contract, provided that
the parties agree in writing on the inclusion of the amended GTC, or
unless the Publisher objects in writing to the GTC notified to it within a period of two weeks from notification.
17.2 In the event of an objection by the Publisher, either party has the right to terminate the contract in writing with immediate effect.
§18 Final provisions
18.1 If individual provisions of these GTC and individual contractual agreements are or become invalid, the validity of the remaining provisions shall remain unaffected. The parties shall replace an invalid provision of the individual contract with a legally valid provision which comes as close as possible to the economic purpose of the invalid provision.
18.2 The law of the Federal Republic of Germany applies to all legal relationships of the parties, excluding the regulations on international private law and the UN Convention on 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 has no general place of jurisdiction in Germany, the registered office of Traffective is the exclusive place of jurisdiction for all disputes arising from the contractual relationship.
18.3 These GTC are available in several languages. In the event of any doubt, question of interpretation or dispute, the German language version shall be the binding version.