PIA Advertising GmbH
1 scope of application
1.1 These General Terms and Conditions apply to contracts between PIA Advertising GmbH (hereinafter “PIA Advertising”) and its clients.
1.2 PIA Advertising does not recognize any terms and conditions of the client that conflict with or deviate from these General Terms and Conditions unless PIA Advertising has expressly agreed to their validity in writing.
1.3 These General Terms and Conditions shall also apply to all future contracts with the client.
2 Offer; Conclusion of Contract; Agency Booking
2.1 Unless expressly agreed otherwise, offers by PIA Advertising are always non-binding and subject to change.
2.2 Orders of the client are binding. PIA Advertising may accept them within two weeks of receipt either in writing by means of an order confirmation or by commencing performance of the service.
2.3 In the case of orders placed by agencies, the contract shall be concluded directly between PIA Advertising and the agency, insofar as the agency does not expressly act on behalf of an agency client, naming a domestic address capable of being charged.
2.4 In the event that the agency itself becomes a contractual partner of PIA Advertising, the agency shall, in order to secure the claims of PIA Advertising against the agency, assign to PIA Advertising by way of security upon conclusion of the contract all existing and future claims against its agency client in the amount of 110% of the order value from open contracts with PIA Advertising (assignment by way of security). PIA Advertising is entitled to disclose this assignment to the agency client.
3 Provision of Advertising Media; Right of Adjustment for PIA Advertising
3.1 The client is obligated, no later than two business days prior to the start of the advertising placement, to provide all information and data materials required for the proper execution of the order, whether images, text, video, audio, etc., (advertising materials). (advertising media), in accordance with the technical specifications of PIA Advertising. PIA Advertising will be happy to provide the client with an outline of the technical specifications in writing upon request.
3.2 The advertising media must be suitable for the agreed media service and, in particular, must comply with the technical specifications of PIA Advertising and agreed formats. PIA Advertising reserves the right to edit the advertising media supplied by the client, insofar as this is necessary and reasonable for the optimal provision of the media service. However, PIA Advertising is not obligated to do so.
3.3 If media services owed cannot be provided or cannot be provided properly because advertising media were not provided on time or in accordance with the technical specifications for reasons for which the client is responsible, the full remuneration shall nevertheless be owed.
3.4 Advertising media that are not clearly recognizable as such due to their design may be marked as advertising by PIA Advertising or the operator of the advertising space (Publisher), in particular in order to comply with competition and media law requirements.
3.5 Additional expenses incurred as a result of the culpable breach of duties to cooperate by the client shall be compensated by the client. Media services shall be invoiced on the basis of the offer; for other activities, PIA Advertising shall invoice 80.00 euros net per hour.
3.6 PIA Advertising assumes no responsibility for advertising materials provided and no obligation to retain them. There is no obligation on the part of PIA Advertising to return the advertising materials.
4 Prohibited advertising content; temporary interruption
4.1 Advertising Media may not violate any law applicable in the area of distribution of the Media Services or infringe the rights of third parties. In the case of advertising media with links to content of the client or third parties, the content to which the advertising media links (advertising target) must also satisfy the requirements of sentence 1.
4.2 PIA Advertising is entitled to temporarily suspend the performance of a media service owed, insofar as there is sufficient suspicion of illegal content of the advertising medium or the advertising target. The client may avert the suspension by providing unobjectionable advertising media or advertising targets. PIA Advertising will inform the client of this within 48 hours of the start of the interruption in the provision of services.
5. granting of rights; client’s guarantee of non-objection; declaration of indemnity
5.1 The client grants PIA Advertising all rights of use, ancillary copyrights and other intellectual property rights required for the performance of the media service owed to the extent required (in terms of time, content and territory). PIA Advertising may transfer the rights of use granted to third parties within the scope of the performance of the media service.
5.2 By placing the order, the client guarantees that the provision of the ordered media service does not violate any statutory provisions or the rights of third parties. The Customer shall bear responsibility for the content of the advertising media and objectives, in particular with regard to competition law, trademark law, personal rights and copyright.
5.3 The customer guarantees that he owns all rights of use necessary for the placement of the advertising, in particular copyrights, trademark rights, personal rights, to the advertising media he submits.
5.4 The client guarantees that the advertising does not contain any viruses, Trojans, spyware or other malware.
5.5 The client shall indemnify PIA Advertising against all damages, losses and expenses (including the costs of legal defense) incurred by PIA Advertising or its directors and employees as a result of the breach of the foregoing warranties.
6. right to push; liability for defects; obligations to give notice of defects
6.1 If insertion periods have been agreed for the media services owed, PIA Advertising shall have the right to defer if the media service cannot be provided by the Publisher during the agreed period. The duration of the right to postpone corresponds to the booked placement period, i.e., for example, in the case of a placement period of 14 days, PIA Advertising may still provide the service during the 14 days following the placement period.
6.2 If an agreed number of ad impressions, clicks, leads (inquiries) or orders (contracts concluded) is intended for a certain period of time, PIA Advertising points out that it cannot, of course, promise that the number will be reached within the intended period of time. If the agreed number is not reached within the intended period, the contract can be terminated prematurely at the request of the client and billed accordingly or the switching period can be extended until the agreed number of ad impressions, clicks, leads or orders is reached. If the placement booked by the client for the extended placement period has already been allocated to another client, PIA Advertising shall be entitled to switch to a comparable placement, taking reasonable account of the interests of the client.
6.3 If the media service owed has been provided in a defective manner, PIA Advertising shall be entitled to subsequent performance. For this purpose, the client must grant PIA Advertising reasonable time and opportunity. If the client refuses to do so, PIA Advertising shall be released from liability for defects. If the subsequent performance fails, the client shall be entitled – subject to the provisions under clause 9. of these General Terms and Conditions – to assert the defect rights otherwise provided by law.
6.4 The client is obligated to check the proper performance of the agreed media services within 48 hours of receipt of a report for compliance with the contract and to notify PIA Advertising of any complaints in text form without delay. If the client fails to make a complaint in due time and form, the media service provided shall be deemed to be in conformity with the contract as a whole.
6.5 Invoices shall be issued exclusively on the basis of PIA Advertising’s reporting. The correctness of the reportings shall be presumed as long as the client does not provide proof of incorrectness. Deviations in measurements of up to 15% are minor and shall not be deemed to be a defect or overfulfillment (fluctuation tolerance).
7 Extraordinary Termination
7.1 In the event of violations of applicable law or of obligations under these General Terms and Conditions by the client or its vicarious agents, PIA Advertising shall be entitled to extraordinary termination of the contract.
7.2 In particular, PIA Advertising shall be entitled to extraordinary termination if
the client has not fulfilled its payment obligation despite repeated requests;
the client violates key provisions of these General Terms and Conditions.
8 Remuneration; Terms of Payment; Invoicing
8.1 Unless otherwise agreed, the agreed remuneration shall be due upon conclusion of the contract and shall be paid by the client within 5 working days, but in any case before the agreed start of the provision of services.
8.2 If the client is in default of payment or if an application has been filed against the client to open insolvency proceedings, PIA Advertising may withhold the provision of the agreed media services unless the client provides security in the amount of the remuneration in a timely manner.
8.3 The client may set off claims against claims of PIA Advertising only with claims that are undisputed, legally established or recognized by PIA Advertising. The client may assert a right of retention only if the respective claims are based on the same contractual relationship.
8.4 Invoices shall be issued exclusively on the basis of PIA Advertising’s reporting. The correctness of the reportings shall be presumed as long as the client does not provide proof of incorrectness.
9.1 PIA Advertising shall be liable for damages suffered by the client which PIA Advertising, its legal representatives, executive employees or vicarious agents have caused intentionally or through gross negligence.
9.2 Irrespective of the degree of fault, PIA Advertising shall be liable for damages caused by the fact that the persons named in clause 9.1 have breached an obligation that is essential for achieving the purpose of the contract (cardinal obligation) as well as in the event of fraudulent misrepresentation. In the same way, PIA Advertising shall be liable, regardless of the degree of fault, if the damage is based on a breach of a guarantee assumed by PIA Advertising or on a slightly negligent organizational fault.
9.3 Claims for damages by the client arising from injury to life, limb or health that are based on a breach of duty by PIA Advertising or the group of persons named in clause 9.1 shall also remain unaffected.
9.4 In cases other than those specified in clauses 9.1 to 9.3, the liability of PIA Advertising – irrespective of the legal grounds – is excluded.
9.5 Non-excluded claims for damages shall be limited to the foreseeable damage typical for this type of contract, except in the cases specified in Sections 9.1 and 9.3.
9.6 Claims for damages against PIA Advertising shall become statute-barred 12 months after they have arisen, unless they are based on a tortious or intentional act.
10 Applicable Law; Place of Jurisdiction; Severability Clause; Written Form
10.1 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
10.2 Place of performance and exclusive place of jurisdiction shall be Hamburg, to the extent permitted by law.
10.3 There shall be no verbal or written collateral agreements. Amendments to the terms of the contract must be made in writing. This shall also apply to the cancellation or amendment of this written form clause.
10.4 If individual provisions of this Agreement are or become invalid in whole or in part, the remainder of the Agreement shall remain valid. In the event of such invalidity, the contracting parties shall agree on a legally valid replacement provision that comes as close as possible to the invalid provision in economic terms. The same shall apply in the event of a loophole.
10.5 Insofar as written form is referred to in these General Terms and Conditions, this shall mean text form within the meaning of § 126 b BGB.
Status: Feb 2022