GENERAL TERMS AND CONDITIONS (GTC) of HD Berlin brillant LED Boards GmbH (HD Berlin) for contracts for the placement of electronic advertising
Item 1: Subject matter of the contract
1.1 The subject matter of the GTC are contracts with HD-Berlin (order taker=AN) for the placement of electronic advertising (contract) on LED boards.
1.2 The client’s contractual partner is HD-BERLIN.
1.3 Unless agreed otherwise, the contract covers the broadcasting of advertising motifs, commercials and other content programmed on electronic media (circuit).
1.4 Outages of a minor extent, e.g. due to cleaning, maintenance and service, do not exceed 3% of the agreed total broadcasting time, and shall not affect remuneration. Broadcasts in excess of the owed amount (excess broadcasts) shall be charged with any downtimes.
Item 2: Placing and acceptance of order
2.1 The contract shall only be concluded by the Contractor’s written acceptance of the order placed by the Principal (Client); agreements on changes shall require the written form. The amendment of this clause shall also require the written form.
2.2 Unless expressly agreed otherwise, when an order is placed by agencies/intermediaries the contract shall be concluded between the agency/intermediary and the Contractor. In the case of orders placed by agencies/intermediaries which are to be carried out in the name of and on behalf of an advertising company (“advertiser”), this must be explicitly stated when the order is placed. In both cases, the agency/intermediary shall assign its claims against the advertiser arising from the advertising contract concluded between the agency/intermediary and the advertiser to the Contractor upon conclusion of the contract, insofar as they are the subject of the commissioning of the Contractor. The Contractor hereby accepts this assignment (assignment by way of security).
2.3 Orders of the Client shall contain a meaningful designation of the product to be advertised (“product group”) and of the advertiser.
2.4 As a matter of principle, the Contractor reserves the right to refuse acceptance of orders in whole or in part because of their content, origin or technical form. In no case shall there be an obligation to accept. As a rule, rejection shall take place if the content of the advertising is unreasonable, e.g. political, ideological or religiously extreme, xenophobic, contrary to good taste or morality, violates laws or official regulations or is contrary to the interests of the persons/companies in whose facilities the electronic advertising will be carried out. In the case of contracts that have already been concluded, the Contractor shall have a unilateral right to withdraw from the contract in the aforementioned cases. The right of withdrawal shall expire within 1 week after the complete content of the advertising to be placed is known. If justified legal or moral objections to an advertisement arise only in the course of its placement due to its content, origin or form, or if the advertisement proves to be incompatible with the above provision of this paragraph, the contractor shall be entitled to terminate the placement immediately and to cancel the contract without notice. The Client shall grant the Contractor an express special right of termination in this respect.
2.5 Any transfer of rights and obligations under this contract or the contract itself to third parties shall require the prior written consent of the other contracting party. However, the Contractor shall be entitled, without the Principal’s consent, to transfer rights and obligations under the contract as well as the contract itself to a company affiliated with it in accordance with §§15ff of the German Stock Corporation Act (AktG).
2.6 The validity of the Principal’s own GTC is excluded. Only these GTC of the Contractor shall apply in the contractual relationship.
2.7 There shall be no claim to a specific sequence or a specific editorial environment of the placed advertising.
Item 3: Placement time
The insertion time shall begin on the calendar day of the first broadcast of the Advertisement and shall end on the expiry of the agreed insertion. The insertion time and the placement in the programme schedule are determined by HD-Berlin.
Item 4: Exclusion of competitors
The exclusion of competitors of the advertiser is not guaranteed.
Item 5: Advertising media
5.1 The manufacturer of the video or photo file for display on the LED board shall be the responsibility of the Principal. The Principal shall provide the Contractor with suitable video or photo files at his own expense no later than 2 days before the agreed start of switching. The Contractor shall inform the Client immediately of any recognisably unsuitable or damaged video or photo files. If the Client does not provide the video or photo file in time and the switching is delayed as a result, this shall not release the Client from its payment obligation. Saved expenses shall be credited to the Contractor. Subject to any other proof possible for each party, these shall be set at a flat rate of 25 % of the agreed price, so that 75 % shall then be payable. If the Client is in default with the delivery of the video or photo file, an insertion or its postponement cannot be guaranteed. Furthermore, expenses incurred by the Contractor may be passed on to the Client or the full placement costs may be invoiced.
5.2 The advertising idea developed by the Contractor for the placement of electronic advertising and computer graphic implementations are protected works under the Copyright Act. The Client shall not be entitled to use these works without a separate usage agreement. 5.3 After expiry of the booking period HD-Berlin immediately deletes the video or photo files supplied by the Client, insofar as there are no legal obligations to retain them.
5.4 The Client is responsible for the form and content of the motifs and advertising spots as well as their unobjectionability under copyright and competition law. In this respect, the Client shall indemnify the Contractor against any claims by third parties and against all costs incurred by the Contractor as a result. The contractor shall not be obliged to carry out its own checks. 5.5 The Contractor shall be entitled until revoked to use the motif free of charge as a sample print and/or for its own advertising purposes, in particular to use it in the form of a web-based database.
5.6 The template and formats for your advertising should be in specific formats and templates. This information can be found in the media data of HD-Berlin.
5.7 From the day of the order the client is guaranteed a spot production within 7 working days. He has the right to make use of a maximum of two returns (for stills only one return). After that, he shall be obliged to accept one. A response time of one working day is defined per return.
Item 6: Prices
6.1 Unless agreed otherwise, the Contractor’s price list valid at the time shall apply. All prices are exclusive of the applicable value added tax.
6.2 Both parties are only permitted to offset counterclaims with undisputed or legally established claims.
6.3 The Principal may only assert a right to refuse performance or a right of retention if the counterclaim is based on the same contractual relationship and has been legally established or recognised by the Contractor.
Item 7: Terms of payment
7.1 Invoice amounts shall be debited from the Contractual Partner’s account in advance on the first of each month, starting with the month of the first advertising mailing, after the invoice has been issued. An invoice shall be issued by the Contractor in advance.
7.2 If there is no direct debit authorisation, the invoice amount shall be paid by the Client before the service is provided. Payment shall be made within 7 days of the conclusion of the agreement with which the advertising is agreed in detail, but no later than 7 days before the start of the first broadcast of the individual advertising placement. As long as the client has not paid the remuneration, HD-Berlin is entitled to refuse the broadcast. The customer remains nevertheless obliged to pay the remuneration also for the cancelled broadcasts. There is then no obligation to make up the missed advertising.
7.3 If the Client is in default with payment obligations and if there are reasonable doubts about the Client’s ability to pay, the Contractor shall be entitled, even during the term of the contract, to make the further performance of the contract dependent on the advance payment of the amount and on the settlement of outstanding invoice amounts, without this giving rise to any claims whatsoever on the part of the Client against the Contractor. Justified doubts shall exist in particular if the Principal is more than 10 days in arrears with payments or if there has been a repeated delay in payment of more than 3 working days.
7.4 If the client- through lack of cover of his account or- for other reasons, such as the unlawful cancellation of the direct debit mandate, is in default, HD-Berlin can terminate the contract without observing a period of notice and, in the case of services with minimum contract periods, demand a lump-sum compensation due immediately in one sum in the amount of one quarter of the remaining monthly prices to be paid until the expiry of the regular contract period.
7.5 The amount of damages is to be set higher if HD-Berlin proves a higher (loss) damage. The client reserves the right to prove a lower damage.
7.6 HD-Berlin reserves the right to assert further claims due to default of payment. Furthermore, the customer will be invoiced for any fees and labour costs incurred.
Item 8: Breach of contract/liability
8.1 Claims for damages due to breach of duty shall only exist in the event of intent and gross negligence on the part of the contractor, his legal representatives or vicarious agents. Liability for slight negligence on the part of the contractor is excluded. Furthermore, liability for the breach of obligations, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the customer may regularly rely on, shall remain unaffected. In the event of a slightly negligent breach of these contractual obligations HD-Berlin is only liable for the foreseeable damage typical of the contract. In the case of gross negligence on the part of a simple vicarious agent, the liability for material damage and financial loss vis-à-vis merchants is limited to the foreseeable damage typical for the contract. Liability for indirect damage, in particular loss of profit, is excluded. This previously agreed limitation shall not apply to damages resulting from injury to life, body or health or in the event of a breach of material contractual obligations.
8.2 The Contractor shall not be liable for the non-execution, delay, interruption or termination of the circuit for reasons for which it is not responsible (e.g. strike, force majeure, construction/work measures carried out or ordered by public institutions; failures or disruptions of online and mobile phone traffic due to internal or external influences; programme failures due to technical defects outside the Contractor’s sphere of influence). In the event of non-execution, delay, interruption or termination of the circuit for reasons for which the Contractor is responsible, the Client shall be granted a substitute circuit for the time lost. If the purpose of the advertising can no longer be achieved by a substitute circuit, the contractor shall reimburse the client for the remuneration already paid for the lost time. The Client shall not be entitled to any further claims for compensation. This previously agreed restriction shall not apply to damages arising from injury to life, body or health or in the event of a breach of material contractual obligations.
8.3 Minor downtimes, e.g. due to cleaning, maintenance and service, which do not exceed 3% of the agreed total dispatch time, shall not affect the remuneration and shall be agreed as insignificant. Dispatches in excess of the owed amount (additional dispatches) shall be charged with any downtimes.
8.4 Obvious defects shall be notified to the Contractor in writing immediately after the start of the placement, at the latest within one week after completion of the placement.
Item 9: Data protection/data use
9.1 HD-Berlin uses personal data exclusively in the context of legal regulations. Customer data will only be used for consulting, advertising or market research if the customer has consented to this in writing. In addition, HD-Berlin may send text or picture messages to the customer’s telephone, postal or email address within the framework of the customer relationship for the above-mentioned purposes. The customer can contradict this use to HD-Berlin at any time or revoke his consent. Changes of address are also to be communicated in writing and without delay.
9.2 Unless agreed otherwise, the contracting parties undertake to treat all information, data, specifications and intangible rights obtained within the framework of this agreement as confidential for a period of 2 years from the time of their knowledge and not to disclose or pass them on to third parties without the written consent of the respective other contracting party, insofar as it does not concern information, data, specifications and intangible rights lawfully known to the respective third parties or generally accessible. In addition, the contracting party undertakes to use such confidential information, data, specifications and knowledge of intangible rights only within the framework of this contractual relationship. The contracting parties shall oblige their employees and vicarious agents accordingly and monitor them for compliance.
9.2 Unless otherwise agreed, the contracting parties undertake to treat all information, data, specifications and intangible rights obtained within the framework of this agreement as confidential for a period of 2 years from the time of their knowledge and not to disclose or pass them on to third parties without the written consent of the respective other contracting party, insofar as it does not concern information, data, specifications and intangible rights lawfully known to the respective third parties or generally accessible. In addition, the contracting party undertakes to use such confidential information, data, specifications and knowledge of intangible rights only within the framework of this contractual relationship. The contracting parties shall oblige their employees and vicarious agents accordingly and monitor them for compliance.
Item 10: Data exchange with credit agencies
HD-Berlin is entitled, for the protection of funding defaults and against the danger of misuse of the services by third parties, to transmit personal contract data as well as information about non-contractual processing (e.g. termination due to payment default), to the Fraud Prevention Pool (FPP) operated by Bürge Wirtschaftsinformationen GmbH & Co KG as well as to Schufa Holding AG (SCHUFA) and to obtain corresponding information there. Insofar as such data accrue in the FPP or at the SCHUFA from other customer relationships during the customer relationship, HD-Berlin shall receive information about this. The respective data transfer shall only take place insofar as is necessary to protect the legitimate interests of HD-Berlin, a contractual partner of SCHUFA or a participant in the FPP and insofar as the interests of the customer which are worthy of protection are not impaired. In the case of corporate clients, HD-Berlin shall exchange data with other credit agencies and credit insurance companies in accordance with these principles.
Item 11: Place of Jurisdiction
11.1 In the event that the Client does not have a general place of jurisdiction in Germany or his place of residence or habitual abode is unknown at the time the action is brought, the place of jurisdiction for all disputes arising from this contract is the registered office of HD-Berlin. The authority to call upon the court at another legal place of jurisdiction remains unaffected by this.
11.2 The relations between the contracting parties are governed by the law applicable in the Federal Republic of Germany. In relation to consumers, this choice of law shall only apply insofar as the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has his habitual residence.
11.3 If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from contractual relationships between the customer and HD-Berlin is the registered office of HD-Berlin.
Item 12: Severability clause
Should the GTC be or become ineffective in whole or in part, the remaining agreements shall remain valid to the greatest extent legally possible and permissible. In this case, the parties undertake to cooperate on a new agreement which comes as close as possible to the original meaning and purpose of the invalid provision. The legal presumption of complete invalidity in the case of partial invalidity shall not apply in this contractual relationship.
Status: Berlin 22 August 2022