GENERAL TERMS AND CONDITIONS OF BUSINESS
The following General Terms and Conditions of Business (hereinafter “Terms and Conditions”) govern the relationship between Live-Production.TV GmbH (hereinafter: “LPTV”) and the Client and/or Agencies in placing and processing Advertising orders for the Advertising Media marketed by LPTV. These Terms and Conditions apply exclusively in this regard, unless otherwise expressly agreed. The Client’s General Terms and Conditions are hereby expressly rejected and excluded.
“Agency” means an agency that engages in the placement of advertising in its own or another’s name.
“Agency client” is a client whose advertising is booked by an Agency engaged by a client in the Agency’s own name and for its own account. In this case, the Agency client is not a contractual partner of LPTV but the Agency is a contractual partner of LPTV.
“Client” is a contractual partner of LPTV (all contractual partners of LPTV, including Agencies, are hereinafter together referred to as “Client”).
“Advertising order” is an order placed in accordance with the Terms and Conditions for one or more Advertisements on the Internet or another medium, as defined in the respective order. An Advertising order is placed when the Client books an Advertisement (offer), and LPTV confirms the booking in text form (acceptance). The publication of the Advertisement also constitutes acceptance by LPTV. When Agencies or other intermediaries place orders, it is them who become contracting parties, unless otherwise agreed upon in writing. Every Advertising order relates to an Advertiser specifically designated by surname or company name by the Client. Any substitution of the Advertiser by the Client after the booking shall require prior written consent of LPTV.
An “Advertising Medium” can consist of one or more of the following elements:
- pictures, photos, graphical representations of all kinds, three-dimensional animations, videos, moving images (including banners),
- text, sound sequences and/or moving images (including banners),
- sensitive areas that, upon being clicked on, connect to other data in the Client's domain at an Internet address as provided in the advertisement (e.g. hyperlinks).
“Advertisement(s)” encompass all the Advertising Media offered by LPTV.
“Advertiser” is the natural person or legal entity that is being advertised or whose products or services are being advertised.
2. LPTV's duties
LPTV shall publish the Advertisements in the agreed quantity, applying commonly used technical standards. The Client acknowledges however, that even current technical standards do not make it possible to create digital reproduction techniques and software programs which are completely free of errors. Furthermore, the operability of the communication infrastructure is partly beyond LPTV’s control. Notwithstanding the liability set out in section 11, an error regarding Advertisements shall be considered insubstantial, if it is caused by
- the use of unsuitable software and/or hardware (e.g. a browser) by viewers, or
- failures in the communication networks of operators and providers, or
- a computer crash of internet providers or online service providers, or
- incomplete and/or un-updated offers on so-called proxy servers (caches), or
- down-time of the ad server, which does not last more than 24 hours (continuously or cumulatively) within 30 days, commencing with the start of the contractually agreed-upon Advertising order.
3. Client’s duty to deliver Advertising Media
3.1 The Client shall deliver Advertising Media in due time in the agreed manner and in proper form suitable for immediate use, unless expressly otherwise agreed. The Advertising Media shall be delivered “in due time” if they are delivered
- two business days before the start of the placement (for standard advertising media), and
- five business days before the start of the placement (for special forms of advertising).
If the Advertising Media are not delivered in its entirety in due time before the agreed Advertisement period commences, LPTV may refuse to publish the Advertisement.
3.2 Advertising Media shall be returned only upon special request of the Client. LPTV’s duty to store the Advertising Media shall end three months after its last placement.
3.3 Advertising Media that are not identifiable as such, due to their structure, shall be clearly labeled as advertising by the Client.
3.4 The Client shall bear all costs for any changes to the Advertising Media requested by the Client or for which the Client is responsible. If the Advertising Media are delivered late, the Client must pay the full value of the Advertising order. This shall also apply in the case of a late shipment.
4. Expansion of the Advertising order
When Advertising orders are made and accepted by LPTV, the Client shall be entitled to demand additional publications of Advertisements beyond the quantity referred to in the order within the agreed-upon period pursuant to LPTV’s Price list,, subject to available capacity.
5. Reimbursement of discount
If an Advertising order is not fulfilled for reasons for which LPTV is not responsible, the Client shall, notwithstanding any other legal duties, reimburse LPTV the difference between any discount awarded and the quantity actually used. The reimbursement is waived if non-fulfilment was due to force majeure in LPTV’s area of risk.
6. Granted Rights and Indemnification
6.1 The Client grants LPTV all rights necessary for the publication of the Advertising Media and components thereof including, but not limited to copyrights, ancillary copyrights, and other intellectual property rights for advertising in online media, particularly the right to reproduce, save, disseminate, publicize, and transmit the Advertising Media, The aforementioned rights shall be granted with no geographical restrictions and shall entitle LPTV to place the Advertisements according to the Advertising order in all forms of online media. The Client shall further permit LPTV to copy and disseminate the Advertisements offline (e.g. as a CD-ROM, DVD, print or other advertising medium) for the purpose of self-advertising.
6.2 The Client warrants that it holds all rights necessary for the publication of the Advertising Media according to the Advertising order and to the extent defined in paragraph 6.1 above, that the Advertising Media do not violate any third party rights and are in accordance with the applicable laws.
6.3 If the Client becomes aware of statutory violations or malpractices or if third parties assert claims pertaining to the Advertisements against the Client, the Client shall notify LPTV without undue delay and shall take appropriate counteractive measures.
6.4 The Client shall indemnify, defend and hold LPTV harmless against and from all third-party claims, liability and costs, arising from or in respect of any breach of LPTV’s warranties and obligations according to these Terms and Conditions. The Client shall support LPTV in good faith with information and documentation in any legal defense against third parties.
7. Right to review and reject
7.1 LPTV is not obliged, but entitled to review Advertising Media to determine if they may violate the rights of third parties or statutory provisions, especially press and media law, competition law, data protection law, and/or criminal law. This shall not affect any statutory duty to perform such review.
7.2 LPTV shall have the right to immediately replace Advertising Media containing the Client’s content with other advertising media, to bar the Advertising Media without replacing it, and/or to terminate the contract, effective immediately with no notice period, if placement of the Advertising Media or linking to related pages is prohibited by a court or by government authorities or if claims are filed against it by third parties for placing the Advertising Media or with respect to the pages linked to such Advertising Media. If the Client demands that an advertisement it has ordered should not be published because it violates or may violate the rights of third parties or for other reasons, the Client shall be required to pay full compensation. The Client shall be entitled to prove however, that LPTV suffered a lesser loss. 7.3 LPTV reserves the right to reject or bar Advertising orders if
- the content of Advertising Media violate laws or official provisions or
- the content of Advertising Media has been objected to by the German Advertising Council in a complaint procedure, or
- the publication of the Advertising Media by LPTV is unreasonable due to their content, origin, or technical form, or
- the Advertising Media contain products or services other than those of the Advertiser or those of third parties.
Moreover, LPTV shall be entitled to bar Advertising Media that have already been published if the Client subsequently changes the content of the Advertising Media
7.4 LPTV shall promptly inform the Client of the termination, rejection, or barring of the Advertisement. In such case, the Client shall be entitled to deliver modified or different advertising media to which the reasons for rejection do not apply. If such Advertising Media are delivered late and miss an agreed-upon deadline or are not delivered at all, LPTV shall have a right to remuneration. Any further rights are reserved.
8. Price lists, changes, and discounts
8.1 The price list that is published on LPTV`s website (www.live-production.tv) at the time the Advertising order is placed shall be applicable. The prices do not include any compensation to be remitted to copyright collecting societies under the applicable law.
8.2 LPTV shall be entitled to change its Terms and Conditions and prices at any time, effective for the future, unless such change is not reasonable for the Client, taking into account the interests of LPTV. LPTV will notify the Client about such changes of the Terms and Conditions in due time by e-mail. The changes shall be deemed to have been approved if the Client makes no written objection to them within two weeks of notification. LPTV shall expressly inform the Client of its right to objection.
8.3 If LPTV grants Client special discounts, additional costs incurred (e.g. for external streaming or mobile services) are not eligible for discount. With the exception of the provisions below, discounts are not granted for Advertisers who place Advertising orders for other Advertisers in order to claim joint discounts. LPTV reserves the right to grant discounts to an Agency that places orders, which are not dependent on the individual Advertising order or Advertiser. If affiliated companies claim a joint discount (“group discount”) as Advertisers, written proof of the Advertiser’s membership in the group is necessary. Affiliated companies within the meaning of this provision are companies in which there is an equity holding of at least 50% in the affiliated company. Corporations shall prove membership in the group through confirmation by an independent auditor or by submitting the most recent annual report. Partnerships shall prove membership in the group by submitting an excerpt from the Commercial Register. In any case, group discounts must be expressly confirmed by LPTV in text form. Group discounts shall last only as long as the company is a member of the corporate group. Prompt notice must be given if membership in the group has ended. When membership in the group ends, so does the group discount.
9. Cooperative advertising
Advertisements that advertise the products or services of more than one Advertiser within a single Advertising Medium (“cooperative advertising”) require special permission from LPTV. Cooperative advertising entitles LPTV to request an additional charge.
10. Payments, offset
10.1 The invoice shall be paid within the period indicated on the price list, unless a differend payment period – or payment in advance – has been agreed upon in text form. Any discounts for early payment are included on the price list. LPTV retains the right to demand advance payment for good cause, e.g. the start of a new business relationship.
10.2 The Client shall promptly review LPTV’s invoices and make any objections to LPTV in writing within two weeks after receipt. At the end of two weeks, the invoice shall be deemed to have been accepted. All costs and fees associated with the payment transaction shall be borne by the Client. It is understood that statutory VAT must be added to all prices and invoices.
10.3 The Client may only set off counterclaims that have been finally adjudicated or acknowledged by LPTV in writing. The Client shall have the right to withhold payment only to the extent the claim is based on the same contractual relationship. Unless otherwise agreed in an individual case, the Client shall be in default with a payment if the amount to be paid by the Client is not received in the account designated by LPTV within two weeks of the due date. The calculation of default damages and default interest shall be governed by the applicable law. In case of default in payment, LPTV is entitled to interrupt further execution of the current Advertising order until payment is made and is entitled to demand payment in advance for the remaining placement.
11.1 LPTV shall only be liable for damages, regardless of the legal grounds, if such damages were caused with intent or gross negligence or was culpably caused by LPTV in connection with a violation of life, body or health, or in case of non-compliance with a guarantee, or if a defect was fraudulently concealed by LPTV.
11.2 This limitation shall not apply to the liability in the case of a culpable violation of an essential contractual obligation or cardinal duty, however, in the event of an essential contractual obligation or duty violated by simple negligence LPTV’s liability shall be limited to typical, foreseeable damages. A “cardinal duty” in the sense of this provision shall be a duty of LPTV whose fulfilment enables the proper performance of the contract and whose infringement jeopardizes achieving the purpose of the contract. Any further-reaching liability on part of LPTV shall be excluded. Liability und the German Product Liability Act and other mandatory provisions shall remain unaffected.
12. Data protection/cookies
13.1 Unless otherwise expressly agreed, the Contracting Parties shall treat the content of the Advertising order, particularly the prices and conditions, as strictly confidential. This shall not apply if disclosure has been ordered by a court or government authority or is necessary for one Contracting Party to enforce its rights against the other Contracting Party. In addition, LPTV shall be entitled to disclose the content of the advertising order to third parties that have been engaged and to affiliated companies.
13.2 If the Client receives an individualized password from LPTV, e.g. to access a personal website, it shall not disclose this password to third parties and shall store it carefully to prevent misuse by third parties. If the password is lost or the Client becomes aware that third parties may know the password, it shall promptly inform LPTV in text form. The Client shall be liable for all losses caused by the misuse of the password, unless the Client proves that it was not at fault. LPTV shall have no liability in this case.
14. Miscellaneous Provisions
14.1 The Client must have the prior written consent of LPTV to transfer its rights and obligations under the Advertising order to third parties, in whole or in part. To the extent the Client has a third party performing obligations according to the Advertising order it shall require such third party in writing to comply with these Terms and Conditions. LPTV shall be entitled to make use of third parties to meet its obligations with respect to the Advertising order.
14.2 All amendments to the contract between LPTV and the Client shall only be valid if made in writing. This shall also apply to any repeal of the requirement of written form.
14.3 Should one or more provisions of the Terms and Conditions be invalid or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected thereby.
14.4 The contractual language between LPTV and the Client shall be English. The Agreement shall be governed by and construed in accordance with the substantive laws of the Federal Republic of Germany, without having regard to the conflict-of-laws provisions thereof. To the extent legally permissible, all disputes arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of Cologne, Germany.
Applicable to transactions on and after January 1, 2010
HRB 68016 Amtsgericht Köln
D – 50678 Köln