1.1 The company blogfoster GmbH, address: Mehringdamm 34, 10961 Berlin; company registration number: HRB 153622B; registry court: Charlottenburg District Court (in the following referred to as “blogfoster”) operates various internet platforms. The following general terms and conditions of business (in the following referred to as “Advertiser T&Cs”) set out definitive terms and conditions for the provision of services and for other forms of collaboration between blogfoster and Advertisers (in the following referred to jointly as “the parties”). The Advertiser T&Cs apply to all declarations of intent and contractual or quasi-contractual transactions with or by the Advertisers in connection with the use of blogfoster. The agreed services shall be rendered solely in accordance with the following terms and conditions.
1.2 blogfoster renders services to other companies, legal entities or special funds under public law (in the following referred to as “Advertisers”) in connection with the publication of online advertising (such as banner ads, content, video and affiliate marketing formats, sponsored content, etc.).
1.3 The blogfoster Advertiser T&Cs shall apply exclusively. Unless accepted by the written consent of blogfoster, any contradictory or supplementary terms and conditions of Advertisers shall not be allowed as contract provisions, even if blogfoster executes a contract and/or renders a service without explicitly contradicting such terms and conditions.
1.4 The blogfoster offer to Advertisers is not made to consumers as designated in section 13 of the German Civil Code (BGB).
2 Signing of the contract, contract term, cancellation
2.1 The contractual relationship between the parties shall be instigated by the Advertiser’s return of one or more signed order forms (in the following referred to as “service contracts”) previously issued by blogfoster, completed/modified by the Advertiser only as and where appropriate and otherwise left unchanged. Employees of blogfoster are not authorised to make legally binding promises beyond the provisions of the service order. Any such promises may be made only by executives authorised by law to represent the company. Modified Advertiser offers shall be classed as new offers, and require explicit written acceptance by blogfoster in order to take effect. Such Advertiser offers shall not impose any obligation on blogfoster, and are subject to change without notice.
2.2 Blogfoster reserves the right to engage subcontractors to fulfil some or all of its contractual obligations.
2.3 The Advertiser shall notify blogfoster immediately of any fundamental change in its circumstances (company name, address, legal form, VAT registration number, etc.). If rendering of the service(s) is impaired by the said change such that blogfoster’s ability to fulfil contractual obligations is no longer assured, or assured only in part, payment of fees in advance may be requested. The prior written consent of blogfoster must be obtained in the event of transfer of rights and obligations arising from a contract with blogfoster to a third party. All publications and/or other content subject to German press law provided by the Advertiser and used for further processing shall not be checked by blogfoster for correctness, and shall require release by the Advertiser. Responsibility for this lies solely with the Advertiser.
2.4 All terms, conditions and prices agreed on signing the service contract shall apply for the entire duration of the campaign and contract term. Unless otherwise agreed explicitly in writing between the parties, the duration of the contractual relationship and the modalities of contract termination shall be based solely on the specific service contract.
Cancellation of contracts shall always be notified in writing (as per section 126 BGB). Failure to comply with this requirement shall render the cancellation void in accordance with section 125 BGB. The right of cancellation for good cause shall remain unaffected. blogfoster reserves the right to cancel existing service contracts without specifying reasons. Notification of any such cancellation to the Advertiser must be made in writing.
2.5 Where special agreements have been made between the parties in respect of specific supplementary services to be rendered by blogfoster (such as particular events, or legally required audits), the scope and cost of said supplementary services shall be stipulated in the relevant service contract.
3 Placement of sponsored content in blogs and social media profiles
3.1 The blogfoster software offers Advertisers targeted placement of online advertising, especially in blogs and on other social media channels. blogfoster has at its disposal large numbers of bloggers and influencers (in the following referred to as “Publishers”) who run blogs and social media sites of all kinds providing blogfoster with advertising space. blogfoster selects appropriate blogs as advertising platforms for its Advertisers, and coordinates the implementation and running of campaigns to the extent previously agreed with the Advertiser. The specific advertising budget and volume are stipulated in each service contract.
3.2 On signing the service contract, the parties shall jointly agree a timetable detailing the budget allocation. The said timetable shall be considered as binding, unless the parties agree to vary it by mutual consent.
3.3 The Publishers shall be selected solely at the discretion of blogfoster. The one-off set-up fee shall not be subject to reimbursement claims of any kind, and shall in all cases be charged in full.
4 Rights to data and work output
4.1 The data and information provided by the Advertiser (images, texts, advert proofs) is, and shall remain, the exclusive property of the Advertiser. blogfoster shall be assigned the simple, transferable rights of use of them in order to create and implement the campaign, for the duration of the campaign. On termination of the contract, blogfoster shall, at the Advertiser’s written request, return all data and information provided by the Advertiser, or shall delete the said data and information, provided it is not subject to keeping requirements imposed by law/tax rules, and shall confirm the deletion in writing where appropriate.
4.2 Where blogfoster creates, edits or adapts advertising material on behalf of the Advertiser, the Advertiser shall – unless otherwise agreed – use the output only within the blogfoster advertising programme. To that end, the Advertiser shall be granted a simple right of use of the output. The output shall not be issued to the Advertiser at any time however.
4.3 The rights to statistical analyses and the resultant data shall be held exclusively by blogfoster. The Advertiser shall be provided with the analyses/data only for the purposes of tracking/reviewing the campaign and as proof of correct and proper billing. In order to protect the privacy of the influencers, blogfoster shall bear sole responsibility for the specific configuration and level of detailing of the analyses. Where invoices are undisputed, the Advertiser shall delete the evidential data at blogfoster’s request and provide written confirmation of its deletion.
5 Provisions relating to the Advertiser’s content
5.1 The Advertiser shall be fully and solely responsible to blogfoster and to third parties for the content it provides (including advert proofs). The Advertiser undertakes to comply with all relevant laws. Blogfoster handles external content, which it in no way makes its own.
5.2 The Advertiser assures that it holds all the rights to the content and any other information it provides, and at the same time grants blogfoster and the publishers all rights to use the content as necessary in order to execute the campaigns. This explicitly includes the right of blogfoster to forward content to publishers for the purposes of briefing on the campaign. The Advertiser is aware that publishers will as a result possibly gain access to information which is not yet in the public domain. blogfoster shall work to ensure that the publishers treat the said information in confidence, though it accepts no liability to the Advertiser in this respect.
5.3 The Advertiser shall not include in the advertising material orders which it places with blogfoster any pornographic, disrespectful or racist content, any content which infringes against trademark or copyright, or any other illegal content. This shall also apply to the content of pages to which the advertising material links. blogfoster shall be under no obligation to check the content submitted by the Advertiser in terms of its legality. blogfoster may, at its own discretion, change, block or remove submitted content, or request the Advertiser to do so with regard to linked content, and the Advertiser shall then do so without delay.
5.4 The styling of the included content must render it identifiable as commercial content. blogfoster may, where appropriate, at its own discretion, flag the advertising material as such by the word “Advertisement” or “Promotion”. The advertising material must not contain any misleading, exaggerated or unverifiable claims. This includes, in particular, inaccurate claims regarding prices, discounts, free offers, or the availability of products and services. The advertisements also must not contain any excessive emphasising or repetition, exaggerated capitalisation or multiple punctuation marks (e.g. “Cheap!!!” or “Buy, buy, buy”).
5.5 Linked pages must not restrict browser functionality, such as by so-called “mousetrapping”, or surprise the user with automated functions differing from those unexpected (such as forwarding to a different advertisement or page).
6 Data protection, prohibition of competition and reference listing
6.1 The Advertiser undertakes to comply with all relevant data protection laws and shall, at blogfoster’s request, nominate a responsible contact person for data protection related information and procedures.
6.2 The Advertiser undertakes to use the personal data it receives from blogfoster solely to enable running of campaigns and for other purposes explicitly stipulated by blogfoster (such as to verify correct and proper billing). As soon as the data is no longer needed, the Advertiser shall delete it without need of prompting, and at blogfoster’s request provide proof of its deletion.
6.3 blogfoster reserves the right to re-use files on its server for its own individual purposes. blogfoster reserves the right to use anonymised results of completed marketing campaigns in order to draft market standards in specific sectors. Where such usage potentially enables identification of individual Advertisers, blogfoster shall always consult the Advertiser in question beforehand.
6.4 The Advertiser shall be prohibited from contacting publishers acquired on the basis of its collaboration with blogfoster during the course of the business relationship or for a period of six months after termination of the relationship, either directly or through third parties, and/or from collaborating directly with the said publishers.
6.5 During and after execution of the contract with the Advertiser, blogfoster shall be entitled to use the Advertiser’s company name, logo and sector in customer and reference listings, quote the Advertiser’s details to customers and potential leads, and/or publicise the said details in other ways for promotional and reference purposes. No personal data of the Advertiser’s employees shall be disclosed.
7 Remuneration and payment terms
7.1 All prices are exclusive of the statutory sales tax (VAT), unless the Advertiser is not VAT-registered. If this is the case, it must notify blogfoster prior to submitting invoices, and in cases of doubt provide appropriate evidence that it is not required to pay VAT. Invoices shall be payable within 10 calendar days of receipt. If the Advertiser delays due payment by more than six weeks, blogfoster shall be entitled, without further reminder, to claim the one-off set-up fee owing as per the service contract (item 3.3), even if set-up of the campaign could not be completed as a result of the Advertiser’s lack of cooperation.
7.2 The prices, terms and conditions agreed on signing the service contract exclusively apply. Billing shall be based on the model desired by the Advertiser and stipulated in the service contract.
7.3 blogfoster may bill the contractually agreed fee for the advertising space in advance when it starts rendering the contracted service – that is to say, when setting up the campaign in the blogfoster software. Where the contract stipulates monthly payment, invoices shall be issued on a monthly basis, stating a monthly fee to be paid at the start of each month.
7.4 The Advertiser may only offset payments against undisputed or legally established claims. The Advertiser shall only have a right of retention, or objection in respect of non-performance, within the respective contract term.
7.5 These terms/this agreement and the rights hereunder are not transferable or assignable without the prior written consent of the non-assigning party; provided, however, that all rights and claims (including receivables) arising pursuant to these terms/this agreement may be assigned or transferred by either party (the “Assignor”) without prior written consent of the other party (a) to a person or entity who acquires substantially all of the Assignor’s assets, shares or business by sale, merger or otherwise; (b) to an affiliate of the Assignor; or (c) in connection with a lending, recourse or non-recourse factoring or other financing transaction entered or to be entered into by the Assignor.
8 Written form and allowable periods
8.1 Any amendments or additions to the contracts between blogfoster and the Advertiser, as well as all contractually relevant declarations relating to the exercise of framing rights – in particular notices of cancellation, reminders or setting of time periods – must be made in writing. The requirement of written form stipulated here and at other points in these Advertiser T&Cs may also be fulfilled by fax or letter. However, section 127 paragraphs 2 and 3 BGB shall not apply otherwise.
8.2 Any contractual guarantees and promises – especially if they extend beyond the scope of these Advertiser T&Cs – require explicit written confirmation by blogfoster.
8.3 Any periods set by the Advertiser based on law or contract provision must extend to a minimum of 10 working days. If fruitless expiration of a set period entitles the Advertiser to terminate the contract (such as by withdrawal, cancellation or claim for compensation in place of performance) or to claim reduction of fee payment, the Advertiser must give warning of the aforementioned consequences of fruitless expiration in writing together with the notice of setting of the period. On expiration of a period set in accordance with sentence 2, blogfoster may demand that the Advertiser exercises its rights arising from the expiration within 14 days of receipt of the request to do so.
9.1 blogfoster shall bear unlimited liability (i) in case of intent or gross negligence; (ii) for fraudulently concealed defects; (iii) for injury to life, limb or health; (iv) in accordance with German product liability law; and/or (v) to the extent covered by a warranty given by blogfoster.
9.2 In rendering chargeable services on behalf of the Advertiser, blogfoster shall further be liable in case of minor negligence, though only in the event of its infringing against an obligation which is essential to attaining the contract goals, and only to the extent that the loss is foreseeable and typical based on the nature of the transaction in question. In such cases, liability shall be limited to a maximum of € 5,000 for each event and € 10,000 over the full contract term.
9.3 blogfoster shall not be held liable in any other respect.
9.4 The above limitation of liability shall also apply to the personal liability of the employees, agents, representative and executives of blogfoster.
9.5 Notwithstanding the above, blogfoster shall retain the right of objection based on contributory negligence of the Advertiser (such as where approval is given by the Advertiser in spite of errors being detectable by it; failure to check, or inadequate checking of, work output; inadequate or irregular data backup; inadequate IT security).
9.6 The Advertiser shall be liable in accordance with the provisions of item 5 for the content of its order and the data and content it submits. It shall immediately, in full, and on first request, indemnify blogfoster against all legal claims by third parties (in particular under competition, copyright, trademark, design, data protection and privacy laws) and against all costs incurred in connection with assertion of claims by third parties in relation to the content, provided such infringements were not the fault of blogfoster. This shall, where necessary, include appropriate legal costs. blogfoster shall notify the Advertiser immediately of any such claim. The Advertiser shall devote its best efforts to support blogfoster in its defence against the claim.
9.7 The above provisions shall also apply accordingly to the liability of blogfoster for quality defects and defects of title, damage caused by delay, and with regard to compensation for wasted expenditure.
10 Advertiser’s duties of cooperation
10.1 The Advertiser shall provide the documents and information necessary to render the contracted services. Instructions from blogfoster shall be followed.
10.2 As soon as a contract is being prepared, the Advertiser shall appoint a responsible contact person to coordinate its contribution, empowered to make legally binding decisions or quickly arrange for such decisions to be made.
10.3 The Advertiser shall implement routine data backup and IT security procedures according to the latest state of the art. blogfoster shall be able to assume that all data with which blogfoster staff come into contact has been protected by the Advertiser beforehand.
10.4 Further duties of cooperation for the Advertiser are linked to the specific service contract and, where appropriate, to additional agreements made between the parties, as well as general duties of due diligence.
10.5 The Advertiser shall bear the risk of loss arising from infringement of its duties of cooperation and contribution. blogfoster shall not be obliged to verify whether the Advertiser is fulfilling its duties of cooperation.
10.6 The Advertiser shall bear the disadvantages and additional costs of infringing against its duties of cooperation.
11 Concluding provisions
11.1 The law of the Federal Republic of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods and Conflict of Laws.
11.2 The place of performance shall be Berlin. Jurisdiction in respect of all disputes arising and in connection with the contracted services is agreed as lying with the courts of Berlin, though in case of legal disputes blogfoster may also choose the general jurisdiction of the Advertiser.
11.3 Blogfoster reserves the right to amend these terms and conditions from time to time. In such a case, blogfoster shall send a copy of the new version to the Advertiser in advance. The new terms and conditions shall take effect if the Advertiser does not object to them within four weeks of receipt, and provided blogfoster advised the Advertiser of its right of objection, the allowable period to do so, and the legal consequences of not exercising the said right, when it issued the new version.
11.4 If any one provision of these terms and conditions should prove to be ineffective, the validity of the remaining provisions shall not be affected. The same shall apply if any necessary provision has been omitted. The ineffective provision shall be replaced by a provision stipulating what the parties would have legally agreed if they had been aware that the original provision was ineffective.
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