General Terms and Conditions for Marketing Services

I. Subject of the Contract

1. Advertising bookings, services, and their scope are bindingly set in the order and the remuneration to be provided for it.
    
2. Upon acceptance, the order simultaneously serves as the invoice for the service.
    
3. The contractual parties agree that the offer and acceptance of the provision of advertising services constitute a contract for work (§ 631 BGB) that is closely related to a service contract.
    
4. The Contractor is the Client's agent in providing advertising services.

II. Sequence of Performance and Exclusion of Acceptance

1. The parties expect that the Contractor will provide the advertising services after receiving the advanced (partial) remuneration. The parties do not intend to conduct an acceptance of the work nor do they assume that it should be conducted. This is a contract for work that is closely related to a service contract. 
    
2. The agreed advertising services, due to their nature, are not subject to acceptance. Accordingly, the parties rely on the impossibility and the customarily recognized dispensability of acceptance in the distribution of advertising services according to the advisory decision of the Kammergericht (Higher Regional Court) of February 9, 2007 – 11 U 35/06, NJW-RR 2007, 998 and in the publication of advertising services according to the judgment of the Landgericht (Regional Court) Hannover, from August 25, 1989 – 8 S 158/89 –, juris and the judgment of the Amtsgericht (Local Court) Königstein from September 14, 1998 – 21 C 920/98 –, juris; cf. also KG JW 1916, 1295. The completion (§ 646 BGB) of the respective specific advertising service occurs at the latest with the publication, distribution, or a comparable action.
    
3. Should the parties agree to the acceptance of individual services, it is expressly not to be considered a primary obligation. According to the agreement between the parties and customary business practice, the approval is not required for the maturity of the counterperformance.

III. Obligation to Pay, Default in Payment, and Right to Refuse Performance

1. The parties agree, unless specified otherwise in the offer, on an advanced payment obligation of 100%, due upon acceptance of the offer, but no earlier than four weeks before the provision of the service.
    
2. The parties recognize the practicality of the mass business of advertising services on the one hand, and the protection of the Contractor on the other hand, as the reason for the advanced payment obligation. Only the advanced payment enables a swift handling of the contract at competitive prices, which is in the interest of the Client. The Contractor must also make capital-intensive advance payments for the fulfillment of the contract. They plan the advertising services in advance, schedule the projects closely, work together with graphic designers and printers, whose contingents must be booked and paid for. The Contractor has to plan and pay for both internal and external personnel for each project in advance. Moreover, depending on the booked service, additional advertising media must be provided or rented in advance at their own expense, which must be amortized. These risks of the Contractor are countered by the obligation to provide advance payment. Indeed, the Client loses the right to refuse payment until the service is performed (§ 320 BGB). However, this right to refuse performance is generally of no significance since the Client has no insight into the service preparations of the Contractor, cf. judgment of the X. Civil Senate from 16.2.2016 - X ZR 98/14 -, juris.
    
3. Default interest is generally calculated at 8 percentage points above the respective valid base interest rate of the Deutsche Bundesbank. The assertion of a higher interest rate is reserved.
    
4. In the event of a payment delay, the Contractor is entitled to suspend further execution of the ongoing contract until payment is made.
    
5. The Contractor may refuse the services due from her if, after the conclusion of the contract, it becomes apparent that her claim for counterperformance is endangered by the Client's lack of performance, provided that the counterperformance has not been rendered or security for it has been provided.

IV. Rights and Duties of the Contractor

1. Unless otherwise agreed upon in the order, the Contractor decides, according to their own discretion, on which advertising carriers the advertising materials will be placed. There is therefore no claim by the Client to a specific placement or to a certain media volume on a particular advertising carrier. However, the Contractor will appropriately consider the Client's interests. The Contractor is entitled to reject advertising placements for editorial reasons or other grounds.
    
2. The Contractor will not provide advertising that exclusively or predominantly contains the following material: sexually explicit, offensive content, depictions of violence, discriminatory statements or representations regarding race, gender, religion, nationality, disability, sexual orientation, or age, and radical political content.
    
3. The respective Contractor is entitled to postpone the agreed date for placing the advertising spaces for a reasonable period if technical or operational reasons make a postponement necessary. In this case, the Contractor will promptly inform the Client about the delay and provide the expected new date for the placement. If it is possible and reasonable, the Contractor will take into account the Client's known interests when rescheduling the date.
    
4. The Contractor's duty to store the advertising material ends three months after its last publication, distribution, or a similar activity. The Contractor will return the advertising material to the Client at the Client's cost and risk if the Client requests this in writing from the Contractor within the previously mentioned period. The request must be personally signed with a name signature. Otherwise, the respective Contractor is entitled to destroy the advertising materials.
    
5. The respective Contractor reserves the right to reject advertising orders - including individual advertising materials within an advertising campaign - due to content, origin, or technical reasons, especially if the advertising materials do not comply with the provisions of these General Terms and Conditions, the confirmed order, or any special agreements and/or the publication is unreasonable for the respective Contractor; furthermore, if the content of the advertising order/materials has been objected to by the German Advertising Council in a complaint procedure. The rejection of the order will be communicated to the Client. If the Client provides the Contractor with legally compliant replacement advertising materials promptly, these will be placed. Additional costs incurred will be borne by the Client.
    
6. In the provision of work performances, the Contractor owes the customary care in the industry. In determining whether the Contractor is at fault for a breach of duty, it is particularly important to consider that the agreed advertising services represent a mass business for the Client, so that the service can be offered at competitive prices. The proximity to the character of a service contract should also be considered. Likewise, the nature of the specific service must be taken into account. Therefore, for example, generally: 
   
   
   1. With the placement of advertising posters, the visual judgment for the orientation is decisive.
       
   2. Numerical agreements on distribution and publication actions represent guideline values. Temporal or numerical deviations of +/- 10% do not constitute a significant defect. For example, poster sites can be occupied at short notice. Circumstances arising after planning, such as erected scaffolding, can make execution impossible in individual cases. Executing third parties can fall ill at short notice, and adequate replacement capacities may not be obtainable at short notice. Nevertheless, the Contractor will strive for comprehensive fulfillment of the order (proximity to service contract character). 
       
   3. With advertising services that contain an artistic element, such as with hand-painted advertisements, a reasonable scope must be granted to the creative execution by the executing party. This artistic freedom is to be recognized as part of the quality of the work and is not to be seen as a reason for complaints.

V. Execution by Third Parties

1. The Contractor is not required to personally execute the services and may use subcontractors for this purpose. According to § 278 BGB, the entrepreneur is only responsible for those persons who are directly involved in the provision of the service. Suppliers of required materials are not generally considered subcontractors of the Contractor.
    
2. The Client grants the Contractor the necessary usage rights for the execution according to section XII.

VI. Duty to Document the Service

1. The Contractor is only obligated to create and provide photo documentation if expressly agreed upon. For this, the parties agree on an additional fee.
    
2. The duty for photo documentation, if agreed upon, is not to be considered an essential contractual obligation. Photo documentation is to be understood as a "sample" of the service provision. Unless otherwise agreed, photo documentation will cover up to 5% of the poster campaign. A more comprehensive documentation would lead to increased costs and thus to a higher fee, which would have to be accounted for as an independent item in the offer. Also, the specific scope of a more extensive documentation would have to be contractually defined.
    
3. Comprehensive lists of the exact locations and the number of posters pasted are not to be created. Lists of the specific plastered surfaces will only be provided to the Client if this has been expressly agreed upon at the time of order placement. For this, the parties agree on an additional fee.
    
4. In the event of a dispute, the Contractor may substantiate the fulfillment of the service by presenting control reports of the random inspections carried out.
    

VII. Co-operation Duties of the Client

1. The Client is obliged to ensure that the Contractor is provided free of charge with all the documents, information, and print data necessary for the performance of their activity in a timely, correct, and complete manner. Unless otherwise expressly agreed, the print data and production specifications must be provided with order confirmation and at the latest two weeks before implementation. The advertising materials are to be delivered free from viruses or other sources of damage. The Client bears the shipping costs.
    
2. If the Client is at fault for not performing a required cooperative action, not doing so in time, or not in the agreed manner, the Client shall bear the costs incurred by the Contractor as a result (e.g., delays, additional effort).
    
3. The Contractor is entitled to set a reasonable deadline for the Client to perform the required cooperative action, with the declaration that they will terminate the contract if the action is not taken by the end of the deadline.
    

VIII. Change Requests

1. The Client may request changes to the content and scope of the services. This also applies to parts that have already been produced and delivered.
    
2. If the changes are not minor, the Contractor will determine the resulting time delays and additional effort, and the parties will agree on an appropriate contract adjustment. If the parties do not reach an agreement, the Contractor is entitled to reject the change request. There is no right to change.
    
3. All changes in performance must be regulated before the start of execution in a supplementary agreement, which must include the additional remuneration and any changes to the timeline.

IX. Contract Termination and Cancellation

1. Fixed-term contracts end automatically with the expiration of the agreed term without the need for cancellation.
    
2. The possibility of early cancellation or free termination according to § 648 BGB is excluded in fixed-term contractual relationships. The exclusion of the right to free termination is justified by the close relation to the character of a service contract and by the fact that the Contractor offers timed services to a multitude of Clients, which can only be offered at competitive prices in this way. The costs are essentially not individual costs of processing each advertising service but fixed costs for the advertising services to be provided for all Clients during the period. Therefore, the Contractor cannot avoid these costs even if individual contracts are terminated. Saved expenses typically only occur to a minor extent. Also, an "alternative use of labor" for the Contractor only comes into consideration insofar as they may be able to provide the same service to another Client for the duration in the same execution after terminating the contract with one Client.
    
3. If the Client fails to provide substitute content in the event of the conditions set forth in § IV 2. And 5., the Contractor may terminate the contract. If the contract relationship is terminated, the Contractor may demand the agreed remuneration, but must deduct what they save in terms of expenses or earn through alternative use of their labor, or maliciously fail to earn due to the termination of the contract.
    
4. The right to terminate the contract without notice for good cause remains unaffected. A significant reason for immediate termination exists if the terminating party cannot reasonably be expected to continue the business relationship. The legitimate interests of the other contracting party must be taken into account. A significant reason for the respective Contractor in particular exists if there is a significant deterioration or a considerable risk to the financial circumstances of the Client, or if the Client stops payments to the Contractor or declares an intention to do so. Additionally, a significant reason exists if enforcement proceedings are initiated against the Client or if insolvency proceedings over the Client's assets are imminent.
    
5. The cancellation requires written form. The termination must be personally signed by the terminating party with a name signature.

X. Content Responsibility of the Client 
 

The Client is responsible for the legality of the content of the advertising materials provided by them, as well as for such content to which links are provided. Legality is to be determined according to German law. However, if there are indications that the content is also subject to the regulations of one or more other legal systems (especially due to their language or targeting other states), legality is also determined by these other legal systems. The content must not violate laws, official regulations, or public decency. 
 

1. In particular, the Client will not provide, offer, enable access to, or advertise content that violates the provisions of the Criminal Code (StGB), youth protection laws, or that serves to incite hatred (in accordance with §§ 130, 130a, and 131 StGB), incite criminal offenses or glorify or trivialize violence. - Depict children or adolescents in an unnaturally sexually emphasized posture; this also applies to virtual representations. - Are pornographic and involve acts of violence, sexual abuse of children or adolescents, or sexual acts between humans and animals; this also applies to virtual representations. - Are included in parts B and D of the list according to § 18 of the Youth Protection Act (JuSchG) or are entirely or substantially similar in content to a work listed therein (absolute prohibition in accordance with § 4 para 1 of the State Treaty on Media Services for Young People (JMStV)). 
    
2. Furthermore, the Client will also provide, offer, enable access to, or advertise content that - is pornographic in any other way, - is included in parts A and C of the list according to § 18 JuSchG or is substantially similar in content to a work listed therein, or - is obviously suitable for seriously endangering the development of children and adolescents or their education towards an autonomous and community-capable personality considering the special impact of the distribution medium (relative prohibition in accordance with § 4 para 2 JMStV) only if it ensures that they are made accessible only to adults (closed user group). This requirement is currently only considered fulfilled for such content that is offered in a closed user group or linked to by the closed user group. Making such content available in other areas requires a separate written agreement between the parties, which the Client will proactively initiate with the Contractor. 
    
3. The Client will also provide, offer, enable access to, or advertise content that - is pornographic in any other way, - is included in parts A and C of the list according to § 18 JuSchG or is substantially similar in content to a work listed therein, or - is obviously suitable for seriously endangering the development of children and adolescents or their education towards an autonomous and community-capable personality considering the special impact of the distribution medium (relative prohibition in accordance with § 4 para 2 JMStV) only if it ensures that they are made accessible only to adults (closed user group). This requirement is currently only considered fulfilled for such content that is offered in a closed user group or linked to by the closed user group. Making such content available in other areas requires a separate written agreement between the parties, which the Client will proactively initiate with the Contractor. 
    
4. Content that is likely to impair the development of children or adolescents into autonomous and community-capable personalities, in particular such that is not approved by the JuSchG for children or adolescents of the respective age group, or that is substantially similar in content to offers that are not approved for children or adolescents of the respective age group (relative prohibition in accordance with § 5 Abs. 1, 2 JMStV), will only be offered by the Client if they ensure through technical means that the offer is impossible or significantly difficult for children or adolescents of the affected age group to perceive. The offer of such content must be announced to the Contractor in writing in advance and may only occur if the Contractor does not object within 10 working days. 
    
5. The Client is required to label their content and linked content according to § 12 JMStV and comply with the advertising design guidelines of § 6 JMStV. 
    
6. The Client is required to program their content and linked content for a youth protection program recognized as suitable in accordance with § 11 Abs.1 JMStV. 
    
7. Furthermore, it is required to observe - the national and international copyright and trademark, patent, name, and emblem rights as well as other industrial property rights and personal rights of third parties, and - the legal systems and/or recognized codes of conduct of professional associations valid in Germany and other target countries (especially the rules of conduct of the German Advertising Council).

XI. Rights of Use
 

1. The Client grants the Contractor a simple, non-exclusive, non-transferable, unlimited, worldwide right of use limited to the duration of the advertising order and limited in content to the purpose of the contract for the provided advertising materials. The aforementioned granting of rights includes the necessary rights of use under copyright law, related rights, and other rights, in particular the right to publish, reproduce and/or distribute, publicly perform, broadcast and show, archive, make publicly accessible, as well as edit the advertising materials, as far as necessary for the execution of the advertising order.
    
2. The Client exclusively grants the Contractor the right to use the advertising materials and the advertising measures created for the purposes of self-promotion (such as within a reference archive or for presentations). The Contractor is entitled to name the Client as a reference customer. Specifically, the Client grants the Contractor the non-exclusive, temporally unlimited and on-demand unlimited, worldwide, irrevocable right to comprehensively use the advertising materials for self-promotion. The Contractor can decide at any time whether and how the advertising materials are to be included in self-promotion, whereby technical processing or format changes are permitted without altering the content. Furthermore, the Client grants the Contractor the right to reproduce and/or distribute/make publicly accessible the advertising materials (either alone or together with other products) in any number on digital data carriers, print media, online media, advertising films, newsletters, or other mailing actions and presentations. Should the Client not have the corresponding rights in full, only temporarily, or for a limited time, this must be communicated to the Contractor.
    

XII. Prohibiton of Solicitation

1. The parties commit, during the term of the contract and the respective individual project order and for two years thereafter, not to employ or engage, either directly or indirectly, any employees or agents of the other party in their service, whether directly or indirectly, unless the respective other party has consented beforehand in writing, i.e., the agreement must be personally signed with a name signature.
    
2. In every case of a culpable breach of this obligation by one party, the other party is entitled to demand a contractual penalty of up to one year's salary of the solicited employee from the party that solicited, which can be reviewed for its appropriateness upon request by that party at the Landgericht Berlin, unless the soliciting party proves that they did not solicit the employee.
    
3. The assertion of other claims, in particular for injunctive relief or damages, remains unaffected by this.

XIII. Confidentiality Agreement
 

1. The Client is obliged to keep all information obtained in connection with this contract and its execution confidential and to disclose or otherwise make it accessible to third parties only in the following exceptional cases, unless specified otherwise in this contract: 
   
        a. with the Client's consent to disclosure; 
   
        b. in case of a legal obligation to disclose; 
   
        c. in the context of court or arbitration proceedings or an obligation by an enforceable court order or an unchallengeable             administrative order; 
   
        d. for disclosure to independent auditors who are responsible for auditing the Contractor's annual accounts, and to the                    Contractor's legal and tax advisors.
    
2. The information does not require confidential treatment if: 
   
        a. it was independently developed by the Contractor without the Client; 
   
        b. it is or becomes publicly known without breach of the confidentiality obligations of this contract; 
   
        c. it is obtained by the Contractor from a third party, provided that such information is not part of a confidentiality                         agreement with the Client.
    

XIV. Liability, Limitation of Liability, and Indemnification

1. The Contractor is liable, unless otherwise specified in this contract, for intent and gross negligence. For slight negligence, the Contractor is only liable for the breach of a fundamental contractual obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the observance of which the contractual partner regularly relies, as well as for damages resulting from injury to life, body, or health.
    
2. Liability for other indirect consequential damages caused by defects is excluded. The same applies to slight negligence by simple agents.
    
3. In cases of slight negligence, the liability is limited to the amount of foreseeable damage which typically has to be expected; however, this liability is at most limited to the contractual fee.
    
4. In the event of data loss, the respective Contractor is only liable for the effort required to restore the data provided that the Client has performed proper data backup. In cases of slight negligence by the Contractor, this liability only applies if the Client has performed proper data backup daily.
    
5. Should the Contractor or its agents be held liable by third parties, including state institutions, under this contract for the infringement of third-party rights or other legal violations due to the contractual use of the advertising materials, the Client shall indemnify the Contractor against these claims and provide the necessary support to the Contractor in its legal defense, to which the Contractor is entitled but not obliged, and shall bear the necessary legal defense costs for the Contractor. This is subject to the condition that the Contractor promptly informs the Client comprehensively in text form about the asserted claims and legal violations, does not make any concessions or acknowledgments or statements equivalent to them, and allows the Client to conduct all judicial and extrajudicial negotiations about the claims at their expense. The assertion of further claims remains unaffected.
    
6. The foregoing provisions also apply for the benefit of the Contractor's agents.

XV. Defect Notification and Right to Complain

1. The period for defect complaints is restricted to one week after the execution of the specific advertising service (part). This is dictated by the joint interest in swift contract processing. Given the fleeting nature of the impact of advertising services on the recipients, there is an interest in prompt defect notification. This also aims to prevent potential evidence problems for the Contractor. This is also in the interest of the Client, whose interest lies in the focus of the measure.
    
2. The Client must make objections to the invoice amount in writing to the Contractor within four weeks of receiving the order. Failure to object in a timely manner is considered as approval.

XVI. Assignment, Right of Retention, and Offset

1. The assignment of claims that are not monetary claims is only permissible with the prior written consent of the other contract party. Consent must not be unreasonably withheld.
    
2. The right of retention can only be asserted for counterclaims arising from the respective contractual relationship.
    
3. The contract parties can only offset claims that have been legally established by court (absolutely) or are undisputed.
    

XVII. Final Provisions

1. Should any provision of this contract be invalid or contestable or ineffective for any other reason, the remainder of the contract shall nevertheless remain effective. The parties are aware that, according to the jurisprudence of the Federal Court of Justice, a severability clause merely leads to a reversal of the burden of proof. However, it is the express intent of the parties to maintain the validity of the remaining provisions in any case and accordingly to exclude the applicability of § 139 BGB in its entirety. In such a case, the parties undertake to agree on a provision that comes as close as possible to the intended purpose and ensures a corresponding economic success.
    
2. The German version and interpretation of this contract takes precedence. The English version is for informational purposes only.
    
3. Exclusively German law applies, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
    
4. The place of fulfillment is uniformly in Berlin due to the special local reference for performance and consideration. The contractor is a Berlin-based advertising service provider specialized in Berlin, operating predominantly in Berlin. Project planning, organization, and control always take place in Berlin.
    
5. The local court in Berlin shall have jurisdiction for all disputes arising in connection with this contract, unless an exclusive jurisdiction exists.