General terms and conditions for advertisements and other advertising media in print and online media - Holzmann Medien GmbH & Co. KG
For the placement of Advertisements and other advertising media in the print and online media of Holzmann Medien GmbH & Co. KG, Gewerbestraße 2, 86825 Bad Wörishofen (hereinafter referred to as “Holzmann Medien”), the following General Terms and Conditions (hereinafter referred to as “GTC”) shall apply exclusively in the version valid at the time of the Order. The Customer’s terms and conditions shall not become part of these unless Holzmann Medien expressly agrees to them.
1. “Order” within the meaning of these GTC shall be the contract for the publication of one or more Advertisements or other advertising media (collectively “Advertisements”) by advertisers (“Customer”) in a print publication (“Print Publication”) and/or in online media for the purpose of distribution. An advertising medium in online media may, for example, consist of one or more of the following elements:
– image and/or text, sound sequences and/or moving images (e.g. banner, skyscraper, pop-up);
– a sensitive area which, when clicked, establishes a connection via an online address specified by the Customer to further data which is in the area of the Customer and/or third parties (e.g. link).
2. Orders can be placed in person, by telephone, in writing, by e-mail, fax or via the internet. Holzmann Medien shall not be liable for transmission errors. The Customer shall receive confirmation of receipt one to four working days after placing the Order. The confirmation of receipt shall not constitute acceptance of the Order. Subject to individual agreements to the contrary, the contract shall only come into effect through an express declaration of acceptance (Order confirmation) by Holzmann Medien. Order confirmations via electronic data processing (e.g. by e-mail) shall also be legally binding without a signature. Cancellations, changes to sizes, formats and changes to colors are no longer possible after the advertising deadline or, in the case of online media, five working days before publication.
3. Cancellation must be made in writing (by mail, fax or e-mail).
Cancellation of a print Advertisement is possible free of charge until the original advertising deadline. Thereafter, the Customer has to pay for the Advertisement.
Online advertising media must be cancelled in text form with a notice period of two weeks before the first publication.
In the event of cancellation at shorter notice, Holzmann Medien shall be entitled to charge up to 80% of the net Order value for the campaign volume still to be delivered.
In addition, the price for online advertising already placed shall be invoiced. The discount rate applicable to the lower volume shall be used as a basis.
In the event of late delivery of the necessary data for the online Advertisement placement and the resulting additional expenditure, Holzmann Medien shall be entitled to charge a fee of € 50 per working day.
4. “Completion” is an Order for which discounts are granted in accordance with the respective price list and for which the individual publications of the Advertisements are made on demand by the Customer. The discounts provided for in the price list shall not be granted to Customers whose business purpose is, inter alia, to place advertising Orders for various advertisers in order to claim a joint discount. If the right to release individual Advertisements is granted within the framework of a Completion, the Order must be processed within one year of the publication of the first Advertisement, provided that the first Advertisement is released and published within one year of the conclusion of the contract.
5. If individual or several releases of a Completion are not fulfilled due to circumstances for which Holzmann Medien is not responsible, the Customer shall reimburse Holzmann Medien for the difference between the discount granted and the discount corresponding to the actual purchase, without prejudice to any further legal obligations. The reimbursement shall not apply if the non-performance is due to force majeure within Holzmann Medien’s sphere of risk. Unless otherwise agreed, the Customer shall be entitled retroactively to the discount corresponding to its actual purchase of Advertisements within one year. The release of further Advertisements in excess of the quantity specified in the Order shall be subject to available capacity.
6. When calculating the quantities of printed Advertisements purchased, text millimeter lines shall be converted into ‘advertisement millimeters’, depending on the price, if applicable.
7. Orders for Advertisements to be published only in specific issue numbers, specific issues or in specific places in the Print Publication must be received by Holzmann Medien in good time so that the Customer can be notified before the advertising deadline if the Order cannot be executed in this way. Classified Advertisements will be printed in the relevant section without this requiring express agreement. Confirmations of placement and the exclusion of competing Advertisements shall only be effective if Holzmann Medien confirms this in writing.
8. Partial text Advertisements are Advertisements which are surrounded by text on at least three sides and are not adjacent to other Advertisements. Advertisements which are not recognizable as Advertisements due to their design shall be clearly labelled as such by Holzmann Medien with the word “Advertisement”.
9. Holzmann Medien reserves the right to reject or block Advertisements – including individual releases within the framework of a Completion- if their content violates laws or official provisions, in particular provisions of the Criminal Code or youth protection laws, or if they have been objected to by the German Advertising Council in a complaints procedure, or if their publication is unreasonable for Holzmann Medien due to their content, design, origin or technical form, or if the Advertisements contain advertising by or for third parties, or if their content violates the interests of the publishing associations and organizations.
In particular, Holzmann Medien may withdraw and/or block an Advertisement that has already been published if the Customer subsequently makes changes to the content of the Advertisement itself or if the data linked to is subsequently changed and the requirements of paragraph 1 are thereby fulfilled. Orders for loose inserts shall only be binding on Holzmann Medien after a sample has been submitted and approved. Loose inserts which, due to their format or presentation, give the reader the impression that they are part of the newspaper or magazine, or which contain third-party Advertisements, shall not be accepted. Advertisements containing advertising by or for third parties (joint advertising) shall require a prior written declaration of acceptance by Holzmann Medien in each individual case. This entitles Holzmann Medien to levy a composite surcharge. The Customer shall be notified immediately of the rejection of an Advertisement or any other advertising material.
10. The Customer shall be solely responsible for the timely delivery and perfect condition of suitable printing material or other advertising media. In the case of delivery of digital print documents or data for online advertising media, the Customer shall be obliged to deliver proper artwork for Advertisements, in particular in accordance with the format or technical specifications of Holzmann Medien. The templates for digital print documents must be submitted to Holzmann Medien by the respective advertising deadline, the templates for online advertising media at the latest five working days before the start of placement. Costs incurred by Holzmann Medien for changes to the artwork which are requested by the Customer or for which the Customer is responsible shall be borne by the Customer. The usual quality of the Advertisements is agreed for the selected title in accordance with the information in the price list as well as in the Order confirmation within the limitations afforded by the print documents. This shall only apply in the event that the Customer complies with Holzmann Medien’s specifications for the preparation and transmission of print documents.
The Customer shall ensure that data is free of computer viruses prior to digital transmission. If Holzmann Medien discovers computer viruses on a file transmitted to it, this file shall be deleted without the Customer being able to assert any claims arising from this. Holzmann Medien reserves the right to claim damages from the Customer if such computer viruses infiltrated by the Client have caused damage to Holzmann Medien. If any defects in the advertising material are not obvious, the Customer shall have no claims in the event of insufficient publication. The same shall apply in the event of errors in repeated advertising placements if the Customer does not notify of the error in good time before publication of the next advertising placement.
11. Print documents/media will only be returned to the Customer on special request. Print documents/media shall not be retained by Holzmann Medien for longer than one year after the last placement.
12. In the event of wholly or partially illegible, incorrect or incomplete printing of the Advertisement or in the event of insufficient reproduction quality of the advertising medium, the Customer shall be entitled to a reduction in payment or a non-defective replacement Advertisement or replacement publication of the other advertising medium, but only to the extent to which the purpose of the Advertisement or the other advertising medium was impaired. Holzmann Medien shall have the right to refuse a replacement Advertisement or replacement publication if this would require effort which, taking into account the content of the contractual relationship and the principles of good faith, would be grossly disproportionate to the Customer’s interest in performance or if this would only be possible for Holzmann Medien at disproportionate cost. If Holzmann Medien fails to meet a reasonable deadline set for the replacement Advertisement or the publication of the other advertising material or if the replacement Advertisement/replacement publication is defective once again, the Customer shall be entitled to a reduction in payment or to rescind the Order. In the event of insignificant defects in the Advertisement or the publication of the other advertising medium, rescission of the Order shall be excluded. Complaints must be made within four weeks of receipt of the invoice. In the case of non-obvious defects, complaints must be asserted within one year of the commencement of the statutory limitation period.
Claims for damages arising from positive breach of obligation, breaches of pre-contractual obligations (‘culpa in contrahendo’) and tort are excluded – even if the Order was placed by telephone. Claims for damages arising from impossibility of delivery and default are limited to compensation for foreseeable damages and to the fee payable for the Advertisement in question. This shall not apply to intent and gross negligence on the part of Holzmann Medien, its legal representatives and its vicarious agents. Liability on the part of Holzmann Medien for damages due to the absence of warranted characteristics shall remain unaffected. Furthermore, in commercial business Holzmann Medien shall not be liable for gross negligence on the part of its vicarious agents; in other cases the liability for gross negligence towards merchants shall be limited to the extent of the foreseeable damage up to the amount of the Advertisement fee in question. Liability under the Product Liability Act shall remain unaffected. All claims against Holzmann Medien arising from a breach of contractual obligations shall become time-barred one year after the commencement of the statutory limitation period, unless they are based on intentional conduct.
13. Proofs shall only be supplied upon express request. The Customer shall be responsible for the correctness of the returned proofs. Holzmann Medien shall take into account all error corrections notified to it by the advertising deadline or within the deadline set when the proof is sent.
14. If there are no special size requirements, the actual print height customary for the type of Advertisement shall be used as the basis for invoicing.
15. The invoice is to be paid within the period shown in the price list, unless a different payment period or advance payment has been agreed in writing in individual cases. Any discounts for early payment shall be granted in accordance with the price list.
16. In the event of default in payment, the Customer shall pay Holzmann Medien interest on arrears for the year at the rate of five percentage points above the base interest rate. In the event of deferment of payment, interest at the usual bank rate as well as collection costs shall be charged. In the event of default in payment, Holzmann Medien may defer further execution of the current Order until payment has been made and demand advance payment for the remaining Advertisements. In the event of reasonable doubt as to the Customer’s ability to pay, Holzmann Medien shall be entitled, even during the term of an advertising Completion, to make the publication of further Advertisements dependent on the advance payment of the amount on the advertising deadline and on the settlement of outstanding invoice amounts, irrespective of any originally agreed payment period.
17. Holzmann Medien will supply proof of Advertisement on request. Depending on the type and scope of the Advertisement Order, Advertisement clippings, whole pages or complete copies of the issues containing the Advertisements shall be supplied. If proof of Advertisement can no longer be obtained, it shall be replaced by a legally binding certificate from Holzmann Medien regarding the publication and distribution of the Advertisement.
18. Subject to the provisions of clause 19 of these GTC and in accordance with sentence 2, a reduction in circulation may give rise to a claim for price reduction in the case of a Completion for several Advertisements if the total average circulation for the insertion year commencing with the first Advertisement falls short of the guaranteed circulation. A reduction in circulation is only a defect entitling the advertiser to a price reduction if and to the extent that it is
– in the case of a guaranteed circulation of up to 50,000 copies, at least 20%,
– in the case of a guaranteed circulation of up to 100,000 copies, at least 15%,
– in the case of a guaranteed circulation of up to 500,000 copies, at least 10 %,
– in the case of a guaranteed circulation of more than 500,000 copies, at least 5 %.
A reduction in circulation for reasons set out in clause 25 shall not be taken into account. The guaranteed circulation shall be the average circulation stated in the price list or otherwise or, if a circulation is not stated, the average circulation sold in the preceding calendar year. In addition, claims for price reductions shall be excluded in the case of Completions if Holzmann Medien has informed the Customer of the reduction in circulation in such good time that the Customer was able to withdraw from the Completion prior to publication of the Advertisement.
19. Notwithstanding clause 18 of these GTC, a reduction in the circulation of titles that publish circulation data for each issue shall only entitle the Customer to a price reduction if and to the extent that it exceeds 10% for a circulation (guaranteed circulation) of up to 500,000 copies and 5% for a circulation (guaranteed circulation) of more than 500,000 copies. A reduction in circulation for reasons set out in clause 25 shall not be taken into account. The circulation on which the guarantee is based is the total paid circulation as defined by IVW. It is calculated for the insertion year from the circulation average of the four quarters prior to the insertion year, unless Holzmann Medien has specified an absolute circulation figure as a guarantee in the respective price list. The prerequisite for a claim for price reduction is a discountable Completion based on the volume scale and for at least three issues.
The basis for calculating the price reduction is the Order per company, unless invoicing by brands, which are to be defined when the Order is placed, has been agreed. The possible circulation reduction is calculated as the balance of the circulation overruns and underruns of the selected issues within the insertion year. The refund will be made at the end of the campaign on the basis of the Customer’s net account, taking into account the agency remuneration already granted, as a credit in kind or, if this is no longer possible, as remuneration. An entitlement to reimbursement only exists if the reimbursement sum amounts to at least 2,500.00 euros.
20. In the case of box number Advertisements, Holzmann Medien shall exercise the care of a prudent business person for the safekeeping and timely forwarding of the offers. Registered letters and express letters on box number Advertisements will only be forwarded by normal mail. Mail received on numbered Advertisements will be kept for four weeks. Letters not collected within this period will be destroyed. Holzmann Medien will return valuable documents without being obliged to do so. Holzmann Medien may be granted the right by individual contract as an agent to open incoming bids in place of and in the declared interest of the Customer. Letters exceeding the permissible DIN A4 format (weight 500 g), as well as consignments of goods, books, catalogs and small packages shall be excluded from forwarding and shall not be accepted. However, acceptance and forwarding may be agreed upon as an exception in the event that the Customer assumes the fees/costs incurred in the process.
21. The advertising intermediaries and advertising agencies (“Agencies”) are obliged to adhere to Holzmann Medien’s price list in their offers, contracts and invoicing with advertisers. Agency remuneration shall only be paid to proven Agencies. Holzmann Medien reserves the right to reclaim any Agency remuneration paid to unproven Agencies. The Agency remuneration granted may not be passed on to the Customer either in full or in part. Orders by Agencies shall be placed in their name and on their account. If Agencies place Orders, the contract shall be concluded with the Agency, in case of doubt. If an advertiser is to become the Customer, this must be agreed separately and the advertiser must be named. Holzmann Medien shall be entitled to demand proof of mandate from the Agency.
22. Price changes for placed advertising Orders shall be effective vis-à-vis companies if they are announced by Holzmann Medien at least one month before publication of the Advertisement. In the event of a price increase, the Customer shall have a right of withdrawal. The right of withdrawal must be exercised in text form within 14 days of receipt of the notification of the price increase. Holzmann Medien may set prices deviating from the price list for Advertisements on special pages, in special supplements and collectives.
23. If a joint discount is claimed for affiliated companies, written proof of the group status of the advertiser shall be required. Affiliated companies within the meaning of this provision are companies between which there is a capital participation of at least 50 percent. In the case of corporations, the group status must be proven by confirmation from an auditor or by submission of the most recent annual report, and in the case of partnerships by submission of an excerpt from the commercial register. The proof must be provided by the end of the insertion year at the latest. Later proof cannot be recognized retroactively. Group discounts require express written confirmation by Holzmann Medien in all cases. Group discounts are only granted for the duration of membership in the group. Termination of membership in the group must be notified immediately; the group discount shall also end upon termination of membership in the group.
24. The Customer guarantees that it holds all rights necessary for the placement of the Advertisement. The Customer shall bear sole responsibility for the content and legal admissibility and transmission of the text and image documents provided for the insertion as well as the advertising materials supplied. Within the scope of the Order, it shall indemnify Holzmann Medien against all claims by third parties which may arise due to the infringement of legal provisions. Furthermore, Holzmann Medien shall be indemnified against the costs of necessary legal defense. The Customer is obliged to support Holzmann Medien in good faith with information and documents in its legal defense against third parties. The Customer shall grant Holzmann Medien the necessary usage rights to copyrights, ancillary copyrights and other rights required for the appropriate use of the Advertisements in the respective print and online media, in particular the respective rights required for duplication, distribution, transmission, broadcasting, editing, making available to the public, placing in a database, extraction from a database and making available for retrieval, in terms of time, space and content to the extent necessary for the execution of the Order.
25. In the event of operational disruptions or in cases of force majeure, illegal industrial action, unlawful seizure, traffic disruptions, general shortage of raw materials or energy and the like – both in Holzmann Medien’s operations and in third-party operations used by Holzmann Medien to fulfill its obligations – Holzmann Medien shall be entitled to full payment for the published print Advertisements if the object of publication has been delivered with 80 percent of the average circulation sold or otherwise guaranteed by Holzmann Medien over the last four quarters. In the event of lower deliveries, the invoice amount shall be reduced in the same proportion as the guaranteed sold or assured circulation to the actually delivered circulation. If the execution of an Order in online media cannot be carried out or can only be carried out in part for reasons for which Holzmann Medien is not responsible, this shall be made up for as far as possible. Such reasons include, in particular, computer failure, force majeure, strike, due to legal provisions, disruptions from the area of responsibility of third parties (e.g. other providers), network operators or service providers or for comparable reasons. In the event of catch-up within an appropriate and reasonable period of time after elimination of the disruption, Holzmann Medien’s claim to remuneration shall remain in effect.
26. Holzmann Medien undertakes to use the Customer’s personal data transmitted as part of the Order exclusively in accordance with the data protection provisions of the EU General Data Protection Regulation (GDPR), the German Federal Data Protection Act (BDSG) and the German Telemedia Act (TMG). Details can be found in our data protection information (https://www.holzmann-medien.de/datenschutzbestimmungen/). Holzmann Medien is entitled to forward gross advertising sales and comparably relevant data of the Customer at product level for publication to companies that deal with the collection and evaluation of such information. This data is aggregated there and communicated to the market in anonymized form.
27. Digitally transmitted artwork for color Advertisements can only be reliably processed with a color proof with media wedge delivered on paper. Color deviations may occur without a color proof. These do not constitute grounds for a price reduction claim.
28. Undesired print results that can be traced back to a deviation of the Customer from the technical specifications for the preparation and transmission of print documents do not justify a claim for price reduction.
29. For Orders published in the online media, Holzmann Medien warrants the best possible reproduction of the advertising material in accordance with the respective usual technical standards. However, the Customer is aware that in the electronic field it is not possible according to the state of the art to create a program that is completely free of errors. The warranty does not apply to insignificant errors. An error in the display shall not be deemed to exist if it is caused by the use of unsuitable display software and/or hardware, disruption of the communication networks of other operators, computer failure at third parties (e.g. other providers), incomplete and/or non-updated offers on so-called proxies, failure of the ad server lasting no longer than 24 hours (continuous) within 30 days after the start of the contractually agreed placement. In the event of a failure of the ad server for a considerable period of time (more than ten percent) within the scope of a time-bound fixed booking, the payment obligation of the Customer shall lapse for the period of the failure. In the case of cross-media bookings, the payment obligation shall lapse in proportion to the excess amount of a pure print Advertisement. Further claims are excluded.
30. Holzmann Medien may use its own ad server for the delivery of online advertising. The ad impressions counted by the ad server used by Holzmann Medien shall be decisive for billing in accordance with the price list. Holzmann Medien shall keep the number of accesses to online advertising media available for retrieval by the Customer for 60 working days from the date of invoicing.
If there is an under-delivery, Holzmann Medien shall be entitled to subsequently deliver the missing ad impressions after expiry of the booked insertion. If the subsequent delivery runs counter to the interests of the Customer or if a subsequent delivery is impossible, Holzmann Medien shall invoice on the basis of the ad impressions actually delivered. Over-deliveries shall be free of charge for the Customer. Invoicing shall be based exclusively on the values determined by the ad server. The Customer shall accept the data of the ad server used by Holzmann Medien as a conclusive basis for proving the placement success, unless the Customer proves that it is incorrect. The basis for the invoicing of newsletters shall be the dispatch reports provided by Holzmann Medien.
31. In the case of new business relations and Orders from abroad, Holzmann Medien reserves the right to demand advance payment on the advertising deadline. In the case of Orders from abroad, invoicing shall be carried out exclusive of value added tax on condition that tax exemption exists and is proven in writing by the Customer. Holzmann Medien reserves the right to charge VAT at the legally owed rate in the event that the tax authorities affirm the tax liability. Holzmann Medien reserves the right to correct incorrect Order invoices within six months of invoicing.
32. Place of performance is the registered office of Holzmann Medien. All disagreements and legal disputes arising in connection with this business relationship shall be governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The language of the contract shall be German. In business transactions with merchants, legal entities under public law or special funds under public law, Memmingen shall be the agreed place of jurisdiction for legal actions. Insofar as claims by Holzmann Medien are not asserted by means of written reminder, the place of jurisdiction for non-merchants shall be determined by their place of residence. If the place of residence or habitual abode of the Customer, also in the case of non-traders, is unknown at the time the action is brought or if the Customer has moved its place of residence or habitual abode outside the area of application of the law after conclusion of the contract, Memmingen shall be agreed as the place of jurisdiction.