General Terms and Conditions Publisher
Status: October 2019
§ Section 1 Scope of application
1.1 These General Terms and Conditions («GTC») apply to agreements between Traffective GmbH, Dachauer Straße 90, 80335 Munich, Germany, including its affiliated companies (hereinafter referred to as «Traffective») and the respective website operator or such companies that place advertising material on their websites and/or media (hereinafter together referred to as «Publisher»).
1.2 Individual agreements made between the parties shall take precedence over these GTCs. The Publisher’s General Terms and Conditions of Business are hereby rejected to the extent that they deviate from the following terms and conditions.
§ 2 Object of Cooperation
2.1 Traffective has developed a monetization platform and offers publishers a service to optimise digital advertising revenues.
2.2 Traffective concludes agreements in its own name and without the participation of the publisher with advertising networks or directly with advertisers (agencies/companies) for the delivery of advertising on the publisher websites.
2.3 The list of advertising networks and advertisers in Traffective’s portfolio can be viewed by the publisher at any time. It is dynamic and can be extended or restricted by Traffective. The Publisher may 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.
§ 3 Conclusion of contract
3.1 Unless expressly agreed otherwise, all offers made by Traffective to the publishers are subject to change. A valid contract is only concluded
(i) upon conclusion of a cooperation agreement in text form
(ii) with the placement of the created or provided advertisement codes by Traffective within the websites and/or media offered by the Publishers (hereinafter «Website(s)»).
3.2 The agreement is limited to the website(s) offered by the Publishers
(i) which is/are expressly mentioned in the cooperation agreement
(ii) within which Traffective’s ad codes are placed
§ 4 Duties and tasks of Traffective
4.1 Traffective provides the Publisher with ready-made Ad Codes for independent integration by the Publisher.
4.2 Traffective manages the provided advertising spaces and the inventory made available on them via an account manager. The Account Manager(s) will be responsible for the day-to-day operational management and the settings 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 that Traffective cannot guarantee the achievement of certain revenue targets. Traffective does not owe any particular success.
4.3 Traffective offers the publisher support. The scope, response times and costs are regulated in an individual agreement adapted to the individual requirements of the Publisher. If the agreed monthly support quota within the framework of the services is fulfilled, Traffective is entitled, after prior written notification to the Publisher, to charge for further support expenses. Unused support hours are not credited to subsequent months and are not offset.
4.4 Ad Operations Support is owed by Traffective only in the case of an additional agreement expressly made with the publisher. The Ad Operation Support includes all activities concerning management, coordination, control, configuration of the advertising media to be delivered via the ad server, e.g. in the local sales department.
4.5 Traffective provides the Publisher with a reporting dashboard, which is available at cockpit.traffective.com, to provide information about the performance of the AdSpace on the Publisher Websites. The reports provided there are preliminary performance reports that do not form the binding basis for billing. The counting of actions that are relevant to billing (e.g. ad impressions (measurable ad media contact), clicks and/or successes) is carried out by the respective advertising network/the respective advertiser, to whom the Publisher’s advertising inventory is offered in full or in part (cf. § 8) .
§ 5 Duties and tasks of the Publisher
5.1 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 his bank details. The publisher shall inform Traffective at least 40 days before a change in the responsible operator of a website takes place. Unless the parties agree otherwise, the affected website will no longer be subject to the contract once the change comes into effect.
5.2 The publisher shall integrate all ad codes transmitted by Traffective on the basis of the cooperation agreement into its websites and place and label them in such a way that they are recognisable as advertisements for a third party.
5.3 The ad codes provided by Traffective for the display of an advertisement may only be used by the publisher to integrate the respective advertising medium as contractually agreed. Furthermore, the advertisement codes may not be changed, copied, transferred, sold, given to a third party for use by a third party or published without prior written consent of Traffective. The ad code may not be placed in e-mails 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.
5.4 Upon termination of the contract, the Publisher undertakes to immediately remove all ad codes containing Traffective components from the respective website. Otherwise, the Publisher shall be invoiced for any accrued costs for advertising codes not removed.
5.5 The Publisher undertakes not to manipulate the number of page impressions, clicks, leads or similar performance indicators (e.g. by clicking on its own advertisements, using automatic click tools or robots), not to distribute unsolicited bulk mailings to e-mail addresses or to make entries in forums, blogs or the like to advertise its goods or services, or to click on its own websites.
5.6 The Publisher warrants that it holds all necessary rights of use from the owners of copyrights, ancillary copyrights, trademark rights and other rights to the websites it makes available and the content presented therein. Furthermore, the Publisher warrants that it holds the copyrighted rights of use and ancillary copyrights to integrate and display the Advertiser Codes on the Publisher’s websites.
5.7 The Publisher grants Traffective the right to point out in press releases, marketing, advertising and PR measures that it is a Traffective customer as a publisher, by presenting the trademarks and business names of the Publisher. The publisher may revoke this consent to Traffective in writing.
5.8 At the request of Traffective, the publisher shall participate in surveys on the advertising networks used by the publisher and on satisfaction with Traffective or provide feedback on these topics in any other way. The Publisher agrees that it may also be contacted directly by the relevant advertising network on these topics and may participate in corresponding surveys or other mechanisms.
5.9 Insofar as the tools provided by Traffective are used by the publisher for its own purposes, e.g. own entries of external providers in the Traffective ads.txt management tool, this shall be at the sole responsibility of the publisher. Traffective does not owe the provision of the tools for these purposes. The use for own purposes can be prohibited by Traffective at any time.
§ 6 Requirements imposed by advertising networks/advertisers on Traffective and the publisher
6.1 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) over which neither the Publisher nor Traffective can exert any influence. Such rules may include in particular
a. The Advertiser Network/Advertiser reserves the right to make a final decision as to when a lead, page impression, click or similar is deemed valid.
b. The calculation of the remuneration distributed by the Advertiser Network/Advertiser is based exclusively on the figures determined by the Advertiser Network/Advertisers.
c. The Advertising Network/Advertiser reserves the right to reclaim paid out remuneration within certain time limits and to offset the reclaimed amount against future remuneration to be paid;
d. The Advertiser Network/Advertiser declines all responsibility for delivered advertising material or content linked to the delivered advertising.
e. The Advertiser Network/Advertiser reserves the right to cancel or amend existing regulations and to introduce new regulations.
f. In the event of violations of the rules set up by the Advertiser Network/Advertiser, which the Advertiser Network/Advertiser accepts or determines to have occurred, the Advertiser Network/Advertiser shall block the Publisher’s account or sub-account, suspend further services and withhold payments until the matter is resolved to the satisfaction of the Publisher.
6.2 The Publisher warrants that it will adhere to and comply with the rules set up by the advertising networks/advertisers, unless Traffective alone is able to adhere to and comply with a regulation due to the linking of the Accounts. Traffective warrants that it will comply with and adhere to all regulations of the advertising networks/advertisers, which due to the linking of the accounts can only be complied with and adhered to by Traffective.
6.3 Both parties accept the rules of the advertising networks/advertisers as a binding set of rules that has a significant 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 Advertiser Network/Advertisers regarding a possible violation of the Advertiser Network/Advertiser’s rules as final and binding, even if the decision of an Advertiser Network/Advertiser is directed against the other party. The parties mutually waive the objection that a regulation or decision of the operators is inadmissible, with the exception of regulations and decisions which, if they were an arbitration award, would result in the setting aside of the arbitration award pursuant to Section 1059 (2) no. 2 b) of the German Code of Civil Procedure (ZPO).
6.4 Should an Advertiser Network/Advertiser accept or determine a breach of rules by a party or withhold a payment or reclaim a payment already made or, in the course of reclaiming, offset a Provider’s claim against a payment and notify a party thereof, the party shall notify the other party thereof without delay. The Parties shall endeavour to ensure that the Party in whose area of responsibility the infringement assumed or ascertained by an Advertiser Network / Advertiser falls is given the opportunity to comment and can contact the Provider directly.
6.5 The Parties shall fully indemnify each other against all claims by third parties and against all necessary costs, expenses (including those for attorney and court) and liabilities to which one Party is exposed as a result of a breach by the other Party of the Representation under §6(2).
6.6 Should the infringement assumed or ascertained by an advertising network/advertiser fall 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 operator. Traffective shall continue to be exempt from providing the services owed during the suspension of the publisher’s account.
§ 7 Responsibility for websites and their contents, exemption
7.1 The Publisher warrants that the websites in which the Advertiser Materials are placed – as well as their content – do not violate any contractual agreements, applicable German law, legal or official prohibitions or morality. The Publisher further warrants that the rights of third parties are not affected by content and advertising on the Websites. The Publisher is solely responsible for all content, maintenance and operation of its Web Site.
7.2 Content and advertising on the Publisher’s websites must not be pornographic, obscene, potentially hateful or otherwise objectionable, or contain content of extreme political, religious or ideological groups. In addition, the Publisher’s websites must not contain any viruses, Trojan horses, worms or other destructive or manipulative computer programs that may affect data, computer systems or software.
7.3 Traffective does not accept any Adwares for traffic generation, where the end user cannot determine the installation of the software himself and cannot uninstall it himself. Furthermore, the actual website to which an end user wishes to navigate may not be changed by the adware for the user. If an end user calls up a website, this call may only be redirected by adware with the end user’s consent.
7.4 The Publisher is solely responsible for the content of its website on which the Advertiser Materials are placed. Traffective is neither at the beginning of the contract nor at a later point in time obliged to check whether the websites of the publisher and their contents may be used for the agreed service, whether they are lawful or whether they protect the rights of third parties. Traffective is nevertheless entitled to carry out a content check of the publisher’s websites. A review carried out by Traffective does not indicate 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 complaints or not. Traffective reserves the right not to integrate advertising material and ad codes in websites with obviously illegal content and to reject websites because of their content, origin or technical form, if there are factual reasons for this. A factual reason shall be deemed to exist in particular if the contents of the website are likely to damage the reputation of Traffective or of the advertising customers. This also includes websites that are still incomplete or do not allow a professional editorial review of their content. The rejection of a website shall be notified to the publisher by Traffective immediately after the corresponding decision has been made.
§ 8 Remuneration & Accounting
8.1 The Publisher will receive an itemised report on the performance figures and the advertising revenue generated via access to the Traffective Publisher Reporting Interface.
8.2 Traffective will provide the publisher with a monthly statement of account based on the reporting in accordance with paragraph 8.1. The publisher will receive a credit note for the advertising revenues generated after deduction of the agreed commission. It is clarified that the Publisher is only entitled to a distribution if and to the extent that the Advertiser Network/Advertiser actually makes a payment.
8.3 The amount shown in the credit note is due for payment within 14 days after Traffective has received the money from the respective advertising network/advertiser. The Publisher is aware that the distributions by the advertising network/advertiser will not take place, as is customary in the industry, until up to 90 days after the end of the month in which the advertising revenues were generated.
8.4 The advertising networks/advertisers regularly reserve the right to subsequently correct billing-relevant data and/or to reclaim payments made. In this case, the Publisher is obliged to repay the amount that may have been overpaid. Traffective may also offset the resulting claim against future services.
8.5 If the reclaim of the Advertiser Network/Advertiser results from a breach of the Publisher’s contractual obligations agreed here for which the Publisher is responsible or from a breach of the rules set up by the Advertiser 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.
§ 9 Data protection
9.1 The Publisher is responsible for ensuring that the data protection requirements are met when operating the Website(s) covered by this Agreement. In particular, the Publisher is responsible for obtaining any necessary consents from website visitors to the processing of personal data.
9.2 When using the Traffective Consent Management Platform, the publisher is obliged to adapt the collection of personal data outside the area of responsibility of Traffective by the publisher himself or at his instigation by third parties to the settings of the Consent Management Tool.
9.3 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 accordance with data protection regulations. This data will only be passed on to the extent that this is necessary for the purposes of the contract. The publisher agrees to the transfer of this data to third parties to the extent that this is necessary and required for the fulfilment of the contractual relationship between Traffective and the publisher.
§ 10 Liability of Traffective
10.1 A certain success of the advertising service is not owed by Traffective. Traffective shall not be liable either for the uninterrupted availability of the tools used for measurement or for the advertising client websites linked to the advertising media or their contents. Furthermore, Traffective shall not be liable in the event of force majeure and/or 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 (especially network services) are always available without interruption, error-free and secure.
10.2 Otherwise, Traffective shall only be liable in the event of intent or gross negligence as well as in the event of breach of essential contractual obligations, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the publisher may rely («essential contractual obligations»). Provided that there is no intent or gross negligence, the liability of Traffective in the event of a breach of an essential contractual obligation is limited to the extent of damage that was to be expected at the time of conclusion of the contract according to the circumstances known at that time (foreseeable damage typical for the contract). Loss of profit does not fall under the foreseeable contract-typical damage.
10.3 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 and other mandatory legal provisions.
10.4 The above exclusions and limitations of liability also apply to the liability of the employees, organs, representatives, vicarious agents and subcontractors of Traffective.
§ 11 Assignment
11.1 The publisher is not entitled to transfer and assign rights or obligations from the contractual relationship with Traffective to third parties without the prior written consent of Traffective.
11.2 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 agreement with immediate effect after receipt of the notification of the transfer and/or assignment. The right to terminate the agreement expires if it is not exercised within two weeks of receipt of the notification of the transfer and/or assignment of the agreement.
11.3 The right of the parties to perform contractual obligations through their vicarious agents remains unaffected.
§ 12 Term & notice periods
12.1 The Cooperation Agreement shall enter into force upon signature and shall run for an indefinite period of time. The agreement can be terminated by either party at any time with a period of notice of 4 weeks in writing, unless a different period of notice has been agreed in the individual contract.
12.2 The right of termination for extraordinary reasons remains unaffected. Such cause shall be deemed to exist in particular if a Party breaches material obligations which it is obliged to perform under this Agreement (including the General Terms and Conditions for Publishers) and does not restore the contractual condition within five (5) working days of receipt of a written request to that effect from the other Party. Such reason shall also be deemed to exist in particular if an advertising network terminates one or more contracts with a Party or deactivates or shuts down a corresponding account of a Party.
12.4 The termination must be in writing.
§ Article 13 Confidentiality
13.1 For the duration of the Agreement and for a further period of three years after termination of this Agreement, the Parties undertake to treat all economic and technical information passed on between the Parties 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 performance of the Agreement or a legal obligation to do so exists. Confidential Information includes, in particular, details of the Publisher’s reach, the advertising revenues generated by the Publisher, all tools, software, technologies and documentation developed and/or provided by Traffective and the provisions of this Agreement.
13.2 The obligation of confidentiality does not include such information which at the time of disclosure was demonstrably and lawfully already known to the respective party or the general public without breach of a confidentiality agreement, or which is to be published by the disclosing party in accordance with statutory provisions or official orders. In the latter case, the parties shall inform each other without delay and, as far as possible, prior to disclosure of the confidential information and coordinate the further procedure.
13.3 Agents involved shall not be considered third parties if both parties agree to this and declare this agreement in writing. Both parties accept that providers where 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 for the provision of the service.
13.4 The transfer of click rates, ad impressions and other relevant key figures of campaigns and websites to advertisers for the purpose of evaluating their campaigns is permitted.
§ 14 Limitation period
14.1 Mutual claims of the parties arising from the cooperation agreement shall become statute-barred one year after the due date.
14.2 Excluded from this are claims for damages due to injury to life, body or health and/or claims for damages due to damage caused by one party through gross negligence or intent. In this respect the statutory limitation periods shall apply.
§ 15 Amendments to the General Terms and Conditions
15.1 Traffective reserves the right to change these terms and conditions at any time. Traffective shall notify the publisher of such amendments in writing and they shall become an integral part of the contract, provided that
(i) the parties agree in writing to incorporate the amended T&Cs; or
(ii) unless the Publisher objects in writing to the terms and conditions notified to him/her within a period of two weeks of notification.
15.2 If the Publisher objects, either party has the right to terminate the Agreement in writing with immediate effect.
§ Section 16 Final Provisions
16.1 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 by a legally effective provision which comes as close as possible to the economic purpose of the invalid provision.
16.2 Amendments and supplements to these GTC require text form to be legally effective. This also applies to the waiver of the formal requirement. Subsidiary agreements have not been made and are otherwise invalid.
16.3 All legal relations 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 the International Sale of Goods (CISG). If the Publisher is a merchant, legal entity under public law or special fund under public law, or has no general place of jurisdiction in Germany, the registered office of Traffective shall be the exclusive place of jurisdiction for all disputes arising from the contractual relationship.