As of: August 2016
These General Terms and Conditions (“GTCs”) are valid for agreements between Traffective GmbH, Kastenbauerstrasse 2 | Eingang 2D, 81677 Munich, (including their affiliated companies, hereinafter referred to as “Traffective”) as well as the respective website operator or any such company which places adverts on their websites and/or media (jointly referred to as the “Publisher”) on the provision of contractually ordered services which are described in more detail below. Any individual written agreements between the Parties take precedence over these GTCs. The General Terms and Conditions of the Publisher are hereby invalidated if they deviate from the following conditions.
2.1 Unless expressly agreed otherwise, all offers made by Traffective to the Publishers are non-binding. A contract is only valid (i) upon written order confirmation by Traffective (e-mail and fax count as being in writing), or (ii) Traffective successfully placing the created or prepared ad code within the websites and/or media offered by the Publishers, or (iii) by the conclusion of a written contract. Spoken or telephone confirmations must be in writing to be effective.
2.2 The contract is limited to any root URL(s) and/or media (e.g. mobile apps, hereinafter referred to as “Website(s)”) for which the Publisher has received a written confirmation and for which a contract has been concluded.
3.1 The respective contract between Traffective and the Publisher (“Agreement”) determines the scope of services which Traffective will provide for the Publisher. Traffective is entitled to draft in third party service providers to provide the service. Traffective is also entitled to provide and bill for partial services (e.g. setup).
3.2 Traffective will, depending on the Agreement and in compliance with these GTCs, provide the following services, among others, for the Publisher:
a) Advising the Publisher on issues of marketing websites as well as placing and marketing advertising materials within the websites offered by the Publisher;
b) Maintaining the Publisher’s accounts for the Google Publishing Products included in the contract, such as Google AdSense or Google DoubleClick Ad Exchange (“Google Publishing Products”);
c) Reporting to the Publisher based on the data delivered by a company affiliated with the American company Google Inc. (“Google”) or by another advertising network where the Publisher’s advertising inventory is offered in whole or in part;
d) Billing the Publisher based on the data delivered by Google or by another advertising network where the Publisher’s advertising inventory is offered in whole or in part and paying out the advertising revenues achieved by the Publisher on the platform Google DoubleClick Ad Exchange or on another advertising network where the Publisher’s advertising inventory is offered in whole or in part.
3.3 The right to send or place advertising from specific advertising customers or specific advertising media does not exist. Traffective has no influence on the content of the advertising media prepared by the advertising customer and does not check this.
3.4 The payment of the promotions agreed as being subject to billing (e.g. Ad Impressions (measurable advertising contact), clicks and/or successes) for the Publisher is carried out by Google or another advertising network where the Publisher’s advertising inventory is offered in whole or in part.
3.5 If Traffective generates information or materials (in particular advertising media, leads, files, images, drawings, plans, designs etc.) when providing the services, these shall remain in the ownership of Traffective. Traffective is in no way limited in the comprehensive use of this information.
4.1 During the contract, the Publisher is obliged to fully and correctly inform Traffective of its current personal and other data, e.g. IBAN and to keep these up to date. This includes the identity, legal form and complete address of the Publisher. If the Publisher is a natural person, they guarantee that they are at least 18 years old and fully legally competent upon conclusion of the contract. The Publisher will inform Traffective at least 40 days in advance of a change in the responsible operator of a website. The affected website is no longer the object of the contract when the change takes place, unless an alternate agreement is made between the Parties.
4.2 The Publisher has to include all ad codes transferred by Traffective as part of the Agreement in their website and to place and identify them in such a way that a third party would recognise them as adverts. Content and ad codes which have not been retrieved by the measuring tools named by Traffective are not included in the statistics and/or billing.
4.3 The ad codes provided by Traffective for displaying an advert can only be used by the Publisher as contractually agreed for integrating the respective advertising media. In addition, the ad codes may not be changed, copied, transferred, sold, given to a third party for their use or published without prior written consent from Traffective. The ad code may not be placed in e-mails or used in websites which are not yet completed, which do not display their domain or which include chat rooms, file sharing content, forums or similar content which enable publishing by third parties without content checks.
4.4 At the end of the contract, the Publisher is obliged to remove from the respective website all ad codes which include Traffective components.
4.5 The Publisher is obliged to: not manipulate the number of page impressions, clicks, leads or similar key performance indicators (e.g. by clicking their own adverts, using automatic click tools or robots), not send unsolicited mass messages to e-mail addresses, not make entries in forums, blogs or similar places to advertise their goods or services and to not click on their own websites.
4.6 The Publisher guarantees that they own all the necessary usage rights of the owner of copyrights, ancillary copyrights, trademark rights and other rights to the websites made available and the contents contained within them. In addition, the Publisher guarantees that they have the copyrighted usage and ancillary rights to include and display the ad codes on the Publisher’s websites.
4.7 The Publisher grants Traffective the right to indicate that they are, as Publisher, a customer of Traffective. This may be indicated in press releases, marketing, advertising and PR measures by representing the brands and business designations of the Publisher. The Publisher can revoke this consent by informing Traffective in writing.
4.8 The Publisher will, if requested by Traffective, take part in surveys about the Google platforms used by the Publisher and regarding satisfaction with Traffective or give feedback on these topics in another manner. The Publisher agrees that they will be contacted directly by Google and will take part in corresponding questionnaires or other mechanisms.
5.1 The Publisher is aware that the Google Publishing Products are operated by a company affiliated with the American company Google Inc. (“Google”) and Google determines and implements the rules for this platform. Such rules are, in particular:
a) Billing and remuneration:
• Google retains the right to ultimately decide when a lead, a page impression, a click or similar is considered valid;
• The numbers provided by Google are the sole basis for billing for remuneration;
• Google retains the right to recall paid remuneration within 60 days; for this, Google deducts the recalled amount from remuneration which is actually payable to Traffective;
b) Google’s responsibility:
• Google refuses any responsibility for delivered advertising media or content which the advertising delivered links to;
c) Requirements of participating websites:
• False information about a website and its contents is not allowed in the platforms;
• In particular, participating websites may not contain pornographic content or content otherwise harmful to young persons or illegal notices, glamorise violence, discriminate according to gender, parentage, race, language, home country and origin, belief, religious or political views, fuel hatred, sell imitations of branded products or tobacco products or arms or ammunition, infringe the rights of third parties and contain hacking/cracking content;
d) Data protection:
• Interest-based advertising (incl. so-called re-marketing), cannot target users under the age of 13 or groups which were constituted based on particular types of personal information (§ 3 para. 9 German Federal Data Protection Act);
• Location data can only be passed onto Google with express permission of the user and the handling of location data must be described in the data protection statement;
• Personal data or data which allows persons to be identified as well as data which makes a device identifiable for a long time may not be passed on to Google;
e) Other auction platforms:
• As soon as an advertising space is offered via Google DoubleClick Ad Exchange, it is forbidden to offer this advertising space again on another auction platform.
Further rules defined and implemented by Google for their platforms are available here (this list is not necessarily comprehensive):
Google reserves the right to abrogate or change existing regulations or introduce new ones. Google also reserves the right to change and alter the platforms from time to time.
In the event of breaches of these rules either determined or assumed by Google, Google reserves the right to block the Publisher’s account or sub-account, to stop further services and hold back payments until the matter is resolved to Google’s satisfaction. In addition, Google reserves the right to recall payments which have already been made or to offset a payment with a claim from Google
5.2 The Publisher guarantees that they will comply with and follow all of Google’s regulations unless only Traffective can comply with and follow a regulation due to the accounts being linked. Traffective guarantees that they will comply with and follow all of Google’s regulations that only Traffective can comply with and follow due to the accounts being linked.
5.3 Both parties accept Google’s regulations as a binding set of rules which co-determine their rights and duties under this contract. Each Party in itself and the Parties jointly accept Google’s decisions on any possible violation of Google’s rules as final and binding, even if Google’s decision goes against the other Party. The Parties waive the objection that a regulation or decision from Google is not permissible. The exception to this is regulations and decisions which, if they were an arbitral verdict, would result in the abolition of an arbitral verdict according to § 1059 para. 2 no 2. b) German Code of Civil Procedure.
5.4 If Google assumes or determines a violation by one Party, or withholds a payment or recalls a payment which has already been made or as part of the recall offsets a payment with a claim from Google and informs a Party of this, the Party will immediately make the other Party aware of this. The Parties will make every effort to ensure that the Party in whose area of responsibility the assumed or determined violation falls, has the opportunity to make a statement and can get in contact with Google directly.
5.5 The Parties completely exempt each other from all third party claims as well as all costs, expenses (including lawyer and court costs) and all obligations a Party is subject to due to a violation of the other Party against the assurance under para. 2.
5.6 Should the violation assumed or determined by Google fall in the area of responsibility of the Publisher, Traffective is entitled to withhold payments from the Publisher until the matter is finally decided by Google. In addition, Traffective is not obliged to perform services owed while the Publisher’s account is blocked.
6.1 The Publisher guarantees that the websites – and the website contents – they have provided in which the advertising media are placed do not violate contractual agreements, valid German law, statutory and official prohibitions or good morals. The Publisher is also responsible for ensuring that content and advertising on the websites will not infringe the rights of third parties. The Publisher is solely responsible for all content on their website, as well as the maintenance and operation of their website.
6.2 Content and adverts on the Publisher’s website may not be pornographic, obscene, potentially hateful or offensive in any other way or contain content from extreme political, religious or ideological groups. The Publisher’s websites may also not contain viruses, Trojan horses, worms or other destructive or manipulative computer programmes which can damage data, computer systems or software.
6.3 Traffective accepts no adware for traffic generation where end users cannot determine the installation of the software themselves and cannot uninstall the software themselves. In addition, the actual website the end user would like to navigate to cannot be changed for the user by the adware. If a user calls up a website, this may only be re-routed by an adware with the express permission of the end user.
6.4 The Publisher is solely responsible for the content of the website where the advertising media is placed. Neither at the start of the contract, nor at a later point, is Traffective obliged to check whether the Publisher’s website and its content may be used for the agreed service, whether it is legal or whether it protects the rights of third parties. Traffective is nonetheless entitled to check the content of the Publisher’s websites. A check carried out by Traffective does not declare whether the Publisher’s websites are legally permissible and are compliant with Google’s regulations, regardless of whether or not Traffective has taken complaints in hand. Traffective reserves the right to not integrate advertising media and ad codes into websites with obviously illegal content and to deny websites due to their content, origin or their technical form, as long as there are factual reasons to do so. A factual reason is where the content of a website has the potential to damage the reputation of Traffective or advertising customers. This also includes websites which are not complete or which do not allow professional editorial revision of their content. Once a decision has been made to reject a website, Traffective will inform the Publisher of this immediately.
6.5 Traffective is entitled to reject the Publisher’s website at any time due to the above-named reasons. In the event of contradictions between the requirements in these GTCs for the Publisher’s websites and Google’s regulations (see the main contract for this), Google’s regulations apply.
6.6 The Publisher indemnifies Traffective from all third-party claims, costs and damages which arise from the fact that ad codes are used on websites which are not permissible, against the law or are encumbered with third parties’ rights or for which the necessary rights have not been cleared. This also applies for the content and links connected to the content of the websites. The indemnification also includes the legal costs which arise as a result. The indemnification correspondingly applies to the benefit of Traffective’s institutions, representatives, vicarious agents and contractors who are actively involved in the provision of the agreed services as well as to the benefit of the advertising customer.
7.1 The Publisher ensures that the websites as well as the use of the Google Publishing Products, including the functions offered there, comply with the respectively applicable data protection provisions. The Publisher is also responsible for obtaining the necessary consent declarations from the website visitors.
7.2 The Publisher guarantees that no personal data of website visitors is transferred to Traffective. The Publisher is obliged to immediately inform Traffective if transferring personal data to Traffective may occur. The Parties will quickly agree on possible solutions.
8.1 Traffective does not guarantee the success of the advertising services. Traffective is not liable for either the uninterrupted availability of the measuring tools, or for the advertising customer websites linked with the advertising media as well as their content. Traffective is also not liable in the event of force majeure and/or for services provided by third parties which are not vicarious agents. In particular, Traffective is not responsible for these third party services (in particular network services) always being available safely and without interruption or error.
8.2 In addition, Traffective is only liable in the event of intent or gross negligence as well as for the violation of Important Contractual Obligations whose fulfilment enables the proper implementation of the contract and whose compliance with the Publisher can rely on (“Important Contractual Obligations”). If it is not a case of intent or gross negligence, Traffective’s liability in the event of the violation of an Important Contractual Obligation is limited to the amount of loss which could have been anticipated at the time of concluding the contract, in accordance with the circumstances known at that time (expected contract-typical damages). Loss of profit does not count as expected contract-typical damages.
8.3 The liability limitations in accordance with para 6.2 do not apply for claims for damages arising due to injury to life, body or health provided that they pertain to guarantees and also do not apply to liability under the Product Liability Law as well as additional mandatory statutory provisions.
8.4 The above liability exceptions and limitations also apply for liability for Traffective’s employee institutions, representatives, vicarious agents and sub-contractors.
Traffective reserves the right to change these GTCs at any time. Traffective will inform the Publisher of this in writing and the changes will become a part of the contract if (i) the Parties agree in writing to the changes in the GTCs, or (ii) if the Publisher does not object to the GTCs in writing within a period of two weeks after having been given the GTCs. If the Publisher files an objection, both Parties have the right to cancel the contract in writing with immediate effect.
The Publisher is hereby informed that Traffective stores personal data of the Publisher in machine-readable form and under compliance with data protection regulations. This data is used, stored and processed for the purposes of the contract. This data is only passed on if this is necessary for fulfilling the contract. The Publisher agrees to their data being passed on to third parties if this is necessary and required for fulfilling the contractual relationship between Traffective and the Publisher.
11.1 Without prior written consent from Traffective, the Publisher is not entitled to transfer and assign rights and obligations from this contractual relationship with Traffective to third parties.
11.2 Traffective is entitled to transfer and assign rights and obligations from this contractual relationship with the Publisher to companies affiliated with Traffective. This does not require the Publisher’s consent. However, the Publisher is entitled to cancel the contract with immediate effect after being made aware of the transfer of the contract or of assignment. The cancelation right lapses if it is not exercised within two weeks after the Publisher is made aware of the transfer of the contract or of assignment.
11.3 The right of the Parties to have contractual obligations carried out by vicarious agents remains unaffected.
12.1 If individual provisions of these GTCs and individual contractual agreements are or become ineffective, the validity of the other provisions remains unaffected. The Parties will replace an ineffective provision of the individual contract with a legally effective provision which comes as close as possible to the economic purpose of the ineffective provision.
12.2 Changes and additions to these GTCs must be in writing to be legally effective. This also applies to the waiver of the written form requirement. Supplementary agreements are not made and are otherwise ineffective.
12.3 For all legal relationships between the Parties, the law of the Federal Republic of German applies excluding the regulations on private international law and the UN sales law (Convention on the International Sale of Goods – CISG). If the Publisher is a businessman, legal person under public law or a special fund under public law or has no general place of jurisdiction on land, Traffective’s headquarters will be the exclusive place of jurisdiction for all disputes arising from this contractual relationship.