Section 1 – Subject of the General Terms and Conditions
The subject of the General Terms and Conditions are contracts with blowUP media GmbH and subsidiaries affiliated with it in accordance with §§ 15 ff. AktG for the implementation of large-format advertising in classic and digital form (e.g. giant posters, traffic towers or LED boards).
Section 2 – placing and accepting orders
(1) The contract is only concluded upon written acceptance by the contractor of the order placed by the client (“client”). Offers by the contractor are non-binding.
(2) Orders from agencies / intermediaries are only accepted for named advertisers, stating the product group. At the request of the contractor, the client must prove that an advertiser has placed a corresponding order. Unless expressly stipulated otherwise when an order is placed by the agencies / intermediaries, the contract between the agency / intermediary and the contractor is concluded. In the case of orders placed by agencies / intermediaries that are to be carried out in the name and on behalf of an advertising company (“advertiser”), this must be expressly stated when placing the order. In both cases, upon conclusion of the contract, the agency / intermediary assigns its claims against the advertiser from the advertising contract concluded between the agency / intermediary and the advertiser to the contractor, insofar as they are the subject of the contractor’s assignment. The contractor hereby accepts this assignment (assignment by way of security). He is entitled to disclose this to the agency / intermediary’s customers if the claim is not paid within one month of the due date.
(3) The contractor reserves the right to refuse the acceptance of orders – in whole or in part – due to the content, the origin or the technical form in accordance with uniform, objectively justified principles of the contractor if the content of the advertising is unreasonable (e.g. political, ideological or advertising that is religiously extreme, xenophobic, against good taste or morality), violates laws or official regulations or runs counter to the interests of the persons / companies on whose property the advertising medium is located. In the case of contracts that have already been concluded, the contractor has the right to withdraw from the contract in the aforementioned cases, unless the client submits a legal alternative motive no later than 15 working days (weekdays from Monday to Friday) before the start of the notice. If the agreed start of the service is delayed as a result of the rejection, this does not release the client from the obligation to pay. If, in the course of a notice, due to the content, origin or form of the advertisement, justified legal or moral concerns arise against this advertisement or if the advertisement proves to be incompatible with the above provision of this paragraph, the contractor is entitled to terminate the notice immediately and / or to terminate the contract without notice. In this case, the client has to compensate the contractor for the damage resulting from the premature termination.
(4) A transfer of rights and obligations from this contract or the contract itself to third parties requires the prior consent of the other contracting party. However, the contractor is entitled, without the consent of the client, to transfer rights and obligations from the contract as well as the contract itself to an affiliated company in accordance with §§ 15 ff. AktG.
(5) The application of the client’s general terms and conditions is excluded.
Section 3 – Withdrawal
(1) The client can withdraw from the contract by means of a written declaration up to 90 days before the start of the posting without compensation. After this point in time, the contractor is entitled to demand lump-sum compensation in the event of a withdrawal. In the event of withdrawal up to 4 weeks before the start of the posting, this compensation amounts to 50% and thereafter 100% of the agreed remuneration. The client reserves the right to provide evidence of minor damage. The compensation amount is then reduced accordingly. For the timeliness of the declaration, the receipt by the contractor applies. This right of withdrawal does not apply to contracts in which the parties have only agreed the duration of the notice, but the selection of the notice date and / or the specific location is at the discretion of the contractor.
(2) In the case of withdrawal or partial withdrawal from a contract consisting of several notice periods, the agreed start of the first notice period is decisive for the calculation of the compensation, regardless of whether a complete or only partial withdrawal from one of the notice periods takes place. Possibly. Volume discounts granted do not apply to full or partial withdrawals and are not taken into account when calculating the compensation. The same applies accordingly to contracts that are also concluded over several notice periods, but these are not fixed but are made at the discretion of the contractor within a certain period of time. The beginning of this period is decisive for the calculation of the compensation.
Clause 4 – contract period, start of notice
(1) . The contractual posting period begins with the date agreed in the order (“start date”) or, if no exact date has been agreed, on the calendar day on which the posting / advertising begins, but at the latest on the calendar day on which the advertising is without delay by the client could have started with the documents / information / advertising material to be supplied by him and ends at the end of the agreed period.
(2) If the required official permits are not issued, permits that have already been granted are revoked or the advertising medium has to be dismantled for urban planning or other reasons for which the contractor is not responsible, or if advertising is prohibited in whole or in part by the property owner or the responsible supervisory authorities during the contract period if the contract with the property owner (“advertising right contract”) ends prematurely, the contractor is entitled to terminate the contract without observing a notice period. In these cases, the client will be reimbursed pro rata for the remuneration already paid for the canceled posting period. The client is not entitled to any further claims.
Section 5 – Exclusion of competition
The exclusion of competitors of the advertiser is not guaranteed. However, if possible, the contractor will not place advertising material from competitors of the advertiser directly next to one another.
Section 6 – advertising material and advertising motif
(1) Unless otherwise agreed in the contract, the contractual execution of the order includes the production, proper assembly and dismantling of the advertising material by the contractor.
(2) In the case of classic media services, the contractor procures the advertising material (networks, tarpaulins, large images, etc.) at the client’s expense. Minor deviations in the color, shape and construction of the advertising material as well as minor deviations in the printed image from the original material supplied by the customer are permitted and do not constitute a defect subject. In the context of the usual weather conditions (rain, sun, wind up to a maximum of strength 6), the advertising material has a material-related shelf life of approx. 12 months. Tarpaulins that are hung up and hung up more frequently as part of the hiking tarpaulin concept have a shelf life of approx. 6 months. The advertising material remains the property of the contractor until full payment has been made by the client. The client must provide the contractor with reproducible documents for the creation of the desired advertising material no later than 21 calendar days before the agreed start of posting. The client pays additional costs incurred due to the late delivery. More precise specifications regarding the materials to be supplied for the production of advertising material can be found in the respective product sheet or the customer will be informed separately. The contractor will inform the client immediately of any recognizable unsuitable and / or damaged materials. The monitoring of the timely delivery of the materials to be delivered is the responsibility of the client and is not monitored by the contractor.
(3) Third-party transparencies can only be attached with the prior written consent of the contractor. If approval is given, production and delivery must be carried out at the expense of the customer and in accordance with the specifications of the contractor with regard to dimensions, material and manufacture, which can be found in the respective product data sheet and / or which the contractor informs separately in writing for the individual case . The client must deliver the finished advertising material at his own expense – unless otherwise agreed – no later than 20 calendar days before the agreed start date to the address specified by the contractor.
(4) In the case of digital formats, the production of the reproduction documents is the responsibility of the client. The client must provide the contractor with suitable reproduction documents (materials / templates) at his own expense no later than 10 working days before the agreed start of the placement. The contractor will immediately inform the client of any obviously unsuitable or damaged reproduction documents. At the request of the customer, the contractor takes over the production of the advertising material at the customer’s expense or, at the request of the customer, makes the necessary adjustments to unsuitable reproduction documents at the customer’s expense. If the client does not make the reproduction documents available in good time and this delays or shortens the placement, this does not release the client from his payment obligation. The contractor has to allow saved expenses to be credited.
(5) Insofar as the contractor provides creative services for the client, the advertising idea developed by the contractor and computer graphic implementations (together “creative service”) are protected works under the Copyright Act. The client only receives the simple, non-transferable right to use these works to implement the contractually agreed campaign advertising for their duration. He is not entitled to any further right of use. If the client intends to use the creative service beyond that, a separate usage agreement must be concluded with the contractor. If the contractor uses the creative service without a corresponding usage agreement or beyond the agreed usage framework, the client is entitled to remuneration in accordance with its current remuneration list or, if the type of use is not regulated, remuneration in the usual amount.
(6) The client is responsible for the form and content of the motif as well as its legal, in particular copyright and competition law, harmlessness. In this respect, the client shall indemnify the contractor against any third-party claims as well as all costs incurred by the contractor and other disadvantages including the necessary
Legal defense costs free. The contractor is not obliged to test. This also applies if the advertising motif was created as a creative service by the contractor. In these cases, however, the contractor will point out risks that become known to him during the preparation of the creative service. The contractor is in no way liable for the factual statements contained in the advertising about the products and services of the client.
(7) The advertising material remains the property of the client after it has been attached. Unless otherwise agreed, the client must notify in writing no later than 5 days before the end of the posting period whether he is requesting the surrender of the advertising material or whether the contractor wants the advertising material to be stored. Storage by the contractor is free of charge for the first month. Thereafter, the storage costs are EUR 100.00 per commenced month of storage. Insofar as the notification of the client in accordance with sentence 2 is not given or is not given in due time, the advertising material becomes the property of the contractor without compensation at the end of the posting period and will be disposed of. Advertising material that has not yet been fully paid for will only be released to the client after full payment has been made. Until then, the aforementioned storage costs must be paid.
Section 7 – Reference consent, use of motif
The client grants the contractor the right to name the client or, in the case of contracts with agencies, their advertising customers using the company logo as reference customers and to include the name, logo, the advertising motif or, if applicable, photos and videos created by the advertising measure To use within the framework of marketing measures, for illustration, for advertising purposes and for journalistic purposes both in print and in electronic media (e.g. but not limited to brochures, presentations, websites, social media accounts, rate cards, email signatures, mailings) . This consent can be revoked for an important reason; The legitimate interests of the contractor will be taken into account.
Section 8 – Prices
(1) Unless otherwise agreed, the current list prices of the contractor apply. All prices are exclusive of the applicable VAT.
(2) In the case of contracts with an agreed assembly date of more than 4 months after the conclusion of the contract, the contractor reserves the right to increase the prices in accordance with the actually incurred cost increases (in particular changes in material prices, etc.) at its own discretion, if this means that the performance ratio is no longer appropriate.
(3) For collective advertising (advertising for several products, brands or services of different entrepreneurs) separately agreed price surcharges apply. When placing the order, the client must refer to collective advertising.
Section 9 – Terms of Payment / Due Dates
(1) Invoices are issued in advance before the start of the posting. The invoice amounts are due for payment immediately. If the client is in default with payment obligations or if there are justified doubts about the client’s solvency based on objective facts, the contractor is entitled to continue executing the contract during the term of the contract regardless of an originally agreed payment term for the settlement of outstanding invoice amounts or to make an advance payment dependent.
(2) Offsetting is only permitted with undisputed or legally established claims.
(3) The client can only assert a right of retention if the counterclaim is based on the same contractual relationship and has been legally established or has been recognized by the contractor.
Clause 10 – breach of contract / liability
(1) Claims for damages due to breach of duty only exist in the event of intent and gross negligence on the part of the contractor. Liability for slight negligence on the part of the contractor is excluded. This restriction does not apply to damage resulting from injury to life, limb or health or the breach of essential contractual obligations.
(2) In relation to business people, liability for property and pecuniary damage in the event of gross negligence on the part of simple vicarious agents (except in the event of a breach of essential contractual obligations) is limited to the foreseeable damage typical of the contract.
(3) Liability on the part of the contractor for indirect damage, in particular loss of profit, is excluded.
(4) If a notice at the agreed location or at the agreed time is not possible or has to be terminated prematurely for technical, structural reasons, weather-related or other reasons for which the contractor is not responsible, the contractor will offer the client an alternative location or notice date . The same applies if necessary official approvals are not granted or are revoked. If the contractor cannot provide an alternative location or posting date, or if the customer rejects this because the advertising purpose can no longer be achieved, the customer is entitled to terminate the contract without observing a notice period. Any payment already made will be reimbursed to the client on a pro-rata basis. The client is not entitled to any further compensation claims. Insofar as additional costs for dismantling and / or reassembly arise due to the premature termination or relocation, these shall be borne by the client.
(5) In the event of a defect, the client’s claims are limited to a right to remedy the defect. If the contractor tries unsuccessfully to remedy the defect for the second time, the client is entitled to choose to reduce the price or to withdraw from the contract.
(6) Obvious defects must be reported to the contractor in writing immediately after they are posted / broadcast, hidden defects immediately after they become known.
(7) The contractor is not liable for damage to notices by third parties or force majeure. The same applies to failures or disruptions in the infrastructure that is beyond his control. The resulting necessary replacement purchases or repairs as well as assemblies / disassemblies are carried out immediately after the obstruction has ceased to exist. The client bears the costs of these measures.
(8) The above limitations of liability do not apply if the contractor has fraudulently concealed a defect or has assumed a guarantee for the quality of the service. The same applies to the customer’s claims under the Product Liability Act. The above provisions also apply in the event of the fault of a vicarious agent of the contractor as well as for the personal liability of the employees, representatives and organs of the contractor.
Section 11 – Contractor’s right of withdrawal
(1) The contractor has the right to withdraw from the contract if the client fails to meet his obligation to provide timely delivery in accordance with § 6.2 to 6.4 of these General Terms and Conditions, even after being requested to do so by the contractor with a reasonable deadline.
(2) If the contractor exercises his right of withdrawal, any claims by the contractual partner, in particular claims for damages, are excluded. Possible claims for damages by the contractor remain unaffected by the exercise of the right of withdrawal.
Section 12 – Other
(1) The place of jurisdiction is, as far as legally permissible, the seat of the contractor. The law of the Federal Republic of Germany.
(2) Should a current or future provision of these terms and conditions be or become fully or partially ineffective, void or impracticable for reasons other than those mentioned in §§ 305-310 BGB, the validity of the remaining provisions of these terms and conditions shall not be affected. The same applies if there is a gap that needs to be filled after the conclusion of the contract. The parties will replace the ineffective provision or loophole that needs to be filled with an effective provision that takes into account the ineffective provision and the content of the contract in its legal and economic content.
Status: November 2020