§1 Applicability and exclusivity
1 For the acceptance and the publication of all advertising contracts and any such subsequent contracts, the following shall exclusively apply: the present General Terms and Conditions, the Publisher’s price list valid at the time of closing of such contracts, as well as the stipulations contained in this price list. Any other General Terms and Conditions of the Contracting Party, insofar as they are not in agreement with the present General Terms and Conditions, shall not apply.
2 The present General Terms and Conditions shall apply where applicable to contracts for inserts. The Publisher will in all cases accept these orders only after submission and examination of a sample.
§ 2 Quotation and closing of a contract
1 Orders for advertising can be submitted personally, by telephone, in writing, by fax, by e-mail, or by Internet. The Publisher accepts no responsibility for mistakes made during transmission.
2 A contract shall be considered to be closed only after written confirmation of order by the Publisher. The price list valid at the time of closure of the contract shall apply.
3 The Publisher is entitled, on its duly based discretion, to refuse orders, including individual orders part of an overall contract. This especially applies when the content of such advertising violates current law or legal stipulations; if it has been objected to by the German Press or Advertising Council as part of a complaint process; if publication would be unacceptable to the Publisher owing to its content, its origin, or its technical form; if its format or design could leave the impression with the reader of having an editorial content; or if it contains advertising from another company.
§ 3 Processing of the order
1 Orders must be processed within one year after closure of the contract, beginning with the first insertion (publication) of the advertising.
2 The Contracting Party will provide the Publisher with all content, information, data, files and other materials (“materials”) required for the advertising. These materials must be complete, free of mistakes and malware, and promptly submitted in accordance with contractual agreements. If materials are provided to the Publisher in digital form (e.g., by CD-ROM or e-mail), they must be provided as closed files: i.e., files whose content the Publisher cannot change. The Publisher cannot be held responsible for the faulty publication of advertising that had been submitted in open files (e.g., files saved under Corel Draw, QuarkXPress, Freehand, or the like). Files that belong together must be saved and submitted by the Contracting party in one folder. In case of digitally submitted print materials for colour advertising, the Contracting Party must at the same time submit a colour proof and a proof or measurement log. Otherwise, the Publisher may not be held responsible for any claims for restitution of damages by the Contracting Party owing to colour deviations. The Contracting Party is legally responsible for providing files free of computer malware. The Publisher may delete files with computer malware, without being held legally responsible by the Contracting Party. The Publisher reserves the right to lodge claims for damages if computer malware gives rise to subsequent damage at the Publisher. The Publisher will request immediate replacement for obviously unsuitable or damaged materials. The Publisher will return materials to the Contracting Party only upon its express request; otherwise, the materials will become the property of the Publisher. The Publisher’s responsibility to save all submitted materials will end three months after publication of the respective order.
3 The Contracting Party will bear all costs for the preparation of ordered materials, films, or drawings, as well as for any required or acceptable modifications made by the Contracting Party to originally agreed versions.
4 Proofs will be delivered only upon the express wish of the Contracting Party. The Contracting Party will be responsible for the correctness of the returned proof. If the proof is not returned to the Publisher before the deadline, the Publisher will consider the proofs to be approved. 5 If requested, the Publisher will deliver an advertising receipt with the invoice. If such a receipt can no longer be provided, the Publisher will instead provide confirmation of publication and distribution of the advertising.
6 The version and the designation of editorially created advertising must be coordinated with the Publisher in due time before publication. The text parts of an advertisement must be clearly distinguishable beginning with the basic form of the font from the editorial part of the magazine. The Publisher is entitled to clearly designate as advertising any adverts that are not clearly recognizable as such.
7 Replies to adverts with a code for response will be kept by the Publisher for four weeks after publication. They will be submitted to the Contracting Party by normal post (also in cases in which the replies had been sent by special delivery or registered mail). The Publisher cannot, however, provide a guarantee for the safekeeping or prompt return of these replies.
8 The advertising deadlines and publication dates given in the price list are not legally binding for the Publisher. The Publisher will be entitled to adjust these dates on short notice, in accordance with the production process.
9 The Contracting Party may withdraw an order only in due time at the latest, by the advert deadline and in writing, by fax or e-mail. If the advert has already gone to press, the Contracting Party must pay for the advert. Otherwise, the Publisher can, in accordance with legal stipulations, demand payment of the costs that it has incurred up to withdrawal.
10 The Contracting Party is responsible for the content and the legality of the advertising. The Contracting Party grants indemnity to the Publisher for all claims for damages lodged by third parties owing to the publication of the advertising; the Contracting Party shall also be liable for legal costs incurred in conjunction herewith. The Publisher is not responsible to check whether advertising infringes on the rights of third parties. If the Publisher is forced by legal action to print a counterstatement or correction as a result of the published advertising, the Contracting Party must pay for this publication in accordance with the valid price list.
11 Advertising agencies are obliged to observe the price list of the Publisher in their quotations, contracts, and invoices with respect to advertisers. The brokerage commission granted by the Publisher is calculated on the basis of the customer’s net sum: i.e., after deduction of discounts, bonuses, and any reductions for faults. The brokerage provision is valid only for brokerage of orders of third parties. It will be granted only to advertising agencies recognized by the Publisher under the condition that the order is granted directly by the advertising agency, that it is responsible for the creation of the final printing materials ready for press, and that the agency is officially commercially registered as an advertising agency. The Publisher is entitled to refuse orders from advertising agencies if there is doubt of the professional exercise of agency activity or of the credit rating of the agency. Orders through advertising agencies are awarded in their names and on their accounts. Insofar as advertising agencies grant orders, and in case of doubt, the contract will take place with the advertising agency. If an advertiser intends to become the Contracting Party, this must be agreed especially with the name of the advertiser. In such cases, the Publisher is entitled to request proof that an order has been placed.
§ 4 Prices, terms of payment, and discounts
1 The price for publication of advertising is governed by the price list valid at the time that the order was placed. For advertising created by the editorial department of the Publisher, inserts, special publications and composite adverts, as well as advertising ordered after the advertising deadline, the Publisher is entitled to set prices that deviate from the price list. Price changes for orders awarded are effective for businesses if these changes were announced by the Publisher at least one month before publishing the advertising. In case of a price increase, the Contracting Party has the right to withdraw from the contract. The Contracting Party must take advantage of this right within 14 days, in written form, after receiving the notification of the price increase.
2 The discounts regulated in the price list are granted only to the Contracting Party and only for the advertising published within one year (the “advertising year”). Frequency discounts apply only within one advertising year. This period begins with publication of the first advertising, unless agreed to the contrary.
3 If the Contracting Party requests more extensive advertising, it is entitled to a retroactive discount, insofar as the initial order was discountable. This entitlement will expire if it is not claimed within one month after expiry of the advertising year. If an order does not reach the planned order volume, then the excessive discount granted will be subsequently invoiced to the Contracting Party.
4 Unless agreed to the contrary, order invoices must be paid within the period set forth in the price list, as reckoned from the date of receipt of the invoice. The Contracting Party shall be responsible for dunning and debt-collection costs. In case of delay in payment, the Publisher is entitled to interrupt execution of a running order until payment is rendered, and to demand advance payment. In case of justified doubts as to the solvency of the Contracting Party, the Publisher is entitled contrary to any other agreed terms of payment, and during the term of an overall order block to make publication of further advertising dependent on advance payment and payment of arrears. The Publisher may correct faulty invoices within six months after original issue of the invoice.
5 For all prices, the legally valid value-added tax (VAT) applicable on the date of invoicing must be added to the base price.
6 For orders from outside Germany that are not subject to valueadded tax (VAT), invoicing will take place without addition of VAT. The Publisher is entitled to add the VAT and invoice it subsequently to the Contracting Party if the pertinent tax authorities subsequently decide that an advertising order is in fact subject to VAT.
7 If circulation is reduced, and in case of an order for several advertising forms, the Contracting Party may derive a claim for price reduction, under the following conditions: if, on the average over the advertising year beginning with the first publication, the average circulation stated in the price list or in another manner or, if the circulation is not stated, the average number of copies actually sold falls below the average actual circulation of the previous calendar year. Reduction in circulation will lead to justification for price reduction only if circulation falls by at least 20 percent. In addition, claims for price reduction will not be possible if, at the point in time of contract closure, the Publisher informs the Contracting Party of the fall in circulation in such time that the Contracting Party can withdraw from the contract before appearance of the advertising. Such claims for reduction by merchants as Contracting Party lose validity twelve months after publication of the advertising.
§ 5 Guarantee for shortcomings in advertising
1 The Publisher cannot guarantee that advertising will be published in certain numbers or issues or at particular places in the publication.
2 If the Contracting Party does not observe the recommendations of the Publisher with respect to creation and submission of the advertising material, it will not be entitled to claims for shortcomings in the advertising. This also applies if the Contracting Party does not observe other stipulations in these General Terms and Conditions or in the price list.
3 In the case of obvious shortcomings in the advertising, the Contracting Party must lodge its claim no later than two weeks after receipt of the invoice. If the shortcomings are not obvious, the Contracting Party must lodge its claim no later than one year after publication of the printed matter in question. In case of faulty advertising despite prompt submission of faultless materials and prompt lodging of claim the Contracting Party may request a correct substitution publication (replacement) but only to the extent to which the purpose of the advertising had been impaired. A claim for replacement will not apply if it is associated with disproportionate costs for the Publisher. The Contracting Party will be entitled to withdraw from the contract or to demand payment reduction to the extent that the purpose of the advertising was impaired, under the following conditions: if the Publisher does not observe the time limit set, if the Publisher refuses a replacement advertising, if the replacement is not reasonable for the Contracting Party, or if the replacement fails. The Contracting Party will not be entitled to withdraw from the contract in case of insignificant shortcomings. Guarantee claims by merchants may not be lodged later than 12 months after publication of the advertising.
4 If shortcomings in the advertising materials become evident not immediately, but only during processing, the Contracting Party will be responsible for the additional costs arising or for losses in production. If shortcomings in the advertising materials are not obvious, the Contracting Party will have no claims in the event of unsatisfactory publication. The same applies for errors in repeated advertising publications, if the Contracting Party does not promptly call attention to the faults before publication of the next-following advertising. 5 For material provided by the Contracting Party (e.g., bound or loose inserts), the Publisher cannot guarantee the correctness of the quantities or qualities designed as delivered.
§ 6 Liability
1 Claims for restitution of damages lodged against the Publisher, for whatever legal reason, are not possible, especially claims owing to delay, the infringement upon contractual obligations or the commercial proprietary rights of third parties, or impermissi-ble actions. This will not apply under the following conditions: if the Publisher, its representatives, or its agents intentionally or grossly negligently act or slightly negligently fail to comply with their contractual obligations that are essential for achievement of the contractual purposes, or if claims for restitution of damages arise from a quality guarantee. If the Publisher is liable in principle, the claim for restitution of damages is limited to the predictable damages. This limitation of liability does not apply if the damages were caused by intentional or grossly negligent action by the Publisher, its representatives, or its agents, or if the claims arise from product liability law, or if the claims result from damages to life, limb, or health. The exclusion of liability for the Publisher shall also apply to the same extent for the personal liability of its employees, representatives, legal entities, and agents. All claims for restitution of damages lodged against the Publisher shall expire in twelve months after the point in time at which the Contracting Party had knowledge of the conditions on which the claims are based, or should have had such knowledge.
2 In the event of force majeure, or in case of labour disputes not the fault of the Publisher, the Publisher will be released from its obligation to fulfil the contract. Claims for restitution of damages shall not arise in such cases.
§ 7 Granted rights
The Contracting Party guarantees that it possesses all rights required for insertion, publication, and distribution of the advertising. The Contracting Party grants to the Publisher the copyright usufructuary rights, intellectual property rights, and all other rights necessary for the intended usage of the advertising in the respective advertising media. This especially includes the respectively required rights for reproduction, distribution, transmission, submission, processing, public access, entry in a data base, removal from a database, and provision for retrieval to the extent as required with respect to time, space, and content for execution of the contract. These stated rights are granted without limitation as to locale. They authorize the Publisher to employ all known technical methods in all known forms of advertising media.
§ 8 Storage of data from the Contracting Party
Within the context of business relationships, the Publisher will store data from the Contracting Party with the aid of electronic data processing in accordance with the legal stipulations of the German Federal Act on Data Privacy (Bundesdatenschutzgesetz). The Publisher is entitled to forward for publication to companies that specialize in the recording and analysis of such information data on gross advertising sales and comparably relevant data from the Contracting Party on the product level. These data will be compiled in these companies and communicated to the market in anonymized form.
§ 9 Place of performance and legal venue
These General Terms and Conditions are subject to the law of the Federal Republic of Germany, under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and under exclusion of conflict law. The place of performance is the legally registered home office of the Publisher. Any dispute with merchants, legal entities under public law, or public separate estates will be settled in the relevant court of law at the registered home office of the Publisher.
Date of this version: August of 2012