PIA Advertising GmbH
PIA Advertising GmbH, with its registered ofﬁce Gorch-Fock-Wall 1a, 20354 Hamburg, Germany, registered at Amtsgericht Hamburg under number HRB 106511 having VAT No. DE261196263 (hereinafter referred to as “PIA Advertising”) operates a performance display network (“PIA Advertising Network“), with whose help advertisers (“Advertisers“) can offer their products online using selected operators of websites or mobile applications („Publishers“).
For this purpose the Advertisers place at PIA Advertising’s disposal advertising materials – e.g. banners, pop-ups, texts, graphics, videos, emails, or animations („Advertising Material“) –, which PIA Advertising in turn places at the Publisher‘s disposal for publication on the latter‘s advertising space – e.g. websites or mobile applications („Advertising Space“) – via the PIA Advertising Network. For this service the Advertiser makes a result-based payment to PIA Advertising.
These Terms and Conditions for advertiser are speciﬁed in this document (the “Terms and Conditions”), which, together with the terms of the Insertion Order (“IO”) signed between Parties, form the entire agreement between PIA Advertising and Advertiser (the “Agreement”). In the case of any conﬂict or ambiguity between any provision contained in the Insertion Order and any provision contained in the Terms and Conditions, the provision in these Terms and Conditions shall prevail.
Article 1. Definitions
- Ad(s) or Advertisement(s): text-based, graphical, interactive, rich media and video, or other online advertisements, including, without limitation, banners, buttons, towers, skyscrapers, pop-ups, pop-unders and video advertisements or similar.
- Advertiser: the natural person or legal entity that has decided to enter into this Agreement and that has decided to assign PIA Advertising GmbH to provide the Services in accordance with the provisions of this Agreement.
- Agreement: this terms and conditions agreement entered into by PIA Advertising GmbH and Advertiser, arranging all contractual matters between the Parties.
- Campaign: an Advertisement campaign as defined by the Advertiser.
- Effective Date: the date of signature of this Agreement.
- Insertion Order (“IO”): an order granted to PIA Advertisingby Advertiser on the basis of which PIA Advertising will place an Ad via the Service and which arranges the specification of the Services and is part of the Agreement.
- Party: Advertiser or PIA Advertising.
- Parties: Advertiser and PIA Advertising jointly.
- Personal Data: personal data as defined in the latest version of the General Data Protection Regulation, which may be accessed, processed or created as part of the Services.
- PIA Advertising: the company providing the Service(s) as Publisher to the Advertiser and counterparty to the Agreement with Advertiser and user of these terms and conditions.
- Services: all by PIA Advertising , in accordance with the terms of the Insertion Order, executed consulting, advertising published via PIA Advertising, other payable events, its assignments, publishers and/or affiliates, whether on an hourly, sponsorship, CPA (Cost per Action), CPI (Cost per Install), CPL (Cost per Lead), CPC (Cost per Click) or e.g. CPM (Cost per thousand, e.g. impressions) basis.
- Tracking Method: the reporting and/or tracking procedures currently used by PIA Advertising to measure traffic, performance and related data.
- User Activities: activities of end users applying the incentive mechanism and/or all other activities relevant for the payment arrangement under this Agreement and/or an Insertion Order subject to this Agreement.
Article 2. General
- The present terms and conditions are applicable to any and all offers, Agreements and Service of PIA Advertising with the Advertiser, of whatever nature, unless this applicability is fully or partly expressly excluded in writing and/or unless expressly stipulated otherwise.
- This Agreement concerns the rights and obligations of each Party with respect to the Services agreed between the Parties via an Insertion Order sent by Advertiser and agreed on by PIA Advertising. Advertiser understands that the sole obligation of PIA Advertising is to execute the Services. The Effective Date of these terms and conditions is the date set forth in the IO. These terms and conditions will remain effective until both Parties agree otherwise in writing.
- Should one or more provisions of the present terms and conditions or of any other Agreement concluded with PIA Advertising be in breach of a mandatory statutory provision or any applicable legal provision then the relevant provision shall expire and shall be replaced by a new, legally permissible and comparable provision to be established by PIA Advertising.
- Advertiser with whom the present terms and conditions were contracted once is deemed to implicitly agree with the applicability of these terms and conditions to an Agreement concluded with PIA Advertising at a later date.
- In case of a discrepancy between the content of an Agreement concluded by and between Advertiser and PIA Advertising and the present terms and conditions the content of the Agreement shall prevail.
- Unless expressly agreed otherwise, offers by PIA Advertising are always non-binding and subject to change.
- 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.
- 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.
Article 3. Services
- PIA Advertising shall carry out on behalf of Advertiser the Services as defined in the Insertion Order.
- PIA Advertising does not guarantee: (i) the placement, positioning or the timing of delivery of any Ad, or (ii) the number (if any) of impressions, publications, conversions or clicks on any Ad in respect of the Services.
- 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.
Article 4. Obligations of the Parties
- PIA Advertising must comply with the Insertion Order, including all advertising placement restrictions and requirements, to create a reasonably balanced delivery schedule and provide the Services within the scope of the Insertion Order. Any exception must be approved by Advertiser in writing.
- PIA Advertising is responsible for displaying and administrating all active Campaigns and, except as otherwise provided herein, tracking and calculating associated Campaign payments owed to PIA Advertising. Except as otherwise provided herein, PIA Advertising shall compile, calculate and electronically deliver data to the Advertiser regarding the Campaign including but not limited to, the applicable spend/costs of the Campaign.
- PIA Advertising represents and warrants having all necessary permits, licenses, and clearances to place the Advertiser’s ads and links on its’ sites and on its’ affiliates sites and to sell the inventory represented in the Insertion Order subject to this terms and conditions.
- Advertiser represents and warrants having all necessary intellectual property rights, licenses and clearances to use the content contained in its Ads and advertising materials and accepts and acknowledges the full responsibility in the event that the Ads and/or Advertising Materials in a Campaign would be deemed illegal in any jurisdiction.
- The Advertiser assigns to PIA Advertising all rights, in particular intellectual property rights, in the Ads and advertising materials to the extent necessary for the performance of the services under the Agreement, i.e. in particular an IO or these Terms and Condition, or any other related order.
- PIA Advertising will allocate all its resources to deliver the highest quality services to Advertiser, however, can at any moment or period, not guarantee non-occurrences of fraudulent traffic and/or re-brokering and/or underscoring of requested performances. Parties will closely and diligently work together to maximize the results of the Services, whilst not adversely affecting the subject campaign’s execution, payments and activities.
- Advertiser will be solely responsible for creating, managing, editing, reviewing, cancelling and otherwise controlling the advertising banners, display creatives, text advertisements and other materials issued to PIA Advertising. PIA Advertising agrees that it will only use the materials provided by Advertiser and no changes or alterations are permitted unless Advertiser has provided prior written approval. PIA Advertising is obligated to ensure that its affiliates and third party distributors only use the creative materials approved and provided by the Advertiser.
- Ad delivery shall comply with the guidelines stated in the Insertion Order and/or that are provided separately in writing via e-mail or digital file format.
- Advertiser is fully responsible for informing PIA Advertising on any KPI’s per each campaign provided to PIA Advertising.
- In the event that Advertiser is violating the Insertion Order guidelines, the following rules are applicable: (i) ads that run in violation of the guidelines, if PIA Advertising is notified by Advertiser of such violation within 3 business days of the violation, shall be non-billable; (ii) after Advertiser notifies PIA Advertising in writing that specific Ads (placements or creative units) are in violation of the guidelines, PIA Advertising will make commercially reasonable efforts to correct within forty-eight (48) hours such violation. In the event that PIA Advertising cannot correct the violation within forty-eight (48) hours, Advertiser, upon conclusion of seventy-two (72) hours from the notice of such violation, may immediately cancel such IO, without penalty.
Article 5. Reporting
- Reporting will be based on the numbers of Services as shown by PIA Advertising’s own tracking methods, usually done by implementing a “tracking pixel” or by counting the delivered impressions or clicks to the Advertiser’s Campaign(s). PIA Advertising shall ensure that such “tracking pixel” shall not distribute or trigger any malicious software that may harm either Advertiser’s or end-users’ equipment.
- PIA Advertising will provide confirmation to the Advertiser, either electronically or in writing, stating whether an advertising Campaign has been initiated and begun delivery.
- Advertiser agrees and acknowledges that all tracking of User Activities will be determined by the PIA Advertising Tracking Method. The total sum of events, impressions, clicks, leads, sales, installs, conversions and revenue count is to be based on PIA Advertising statistics. PIA Advertising takes commercially reasonable measures to ensure that its Tracking Method at any point shall meet technical industry standards, but it cannot guarantee the absolute accuracy of the Tracking Method. If discrepancies occur, the parties will negotiate in good faith an amiable solution, otherwise PIA Advertising numbers will be decisive.
- Any User Activities determined by Advertiser to be “invalid” “fraudulent” or “unauthorized” shall be reported (excel reports not accepted) to PIA Advertising as soon as possible but not later than within fourteen (14) days of the sale, otherwise the User Activities shall be considered valid by the Advertiser. In the event that Advertiser and PIA Advertising encounter such activities, both parties agree to work diligently to resolve matters.
Article 6. Payment
- Unless otherwise agreed, the agreed remuneration shall be due upon conclusion of the Agreement and shall be paid by the Advertiser within 5 working days, but in any case before the agreed commencement of the provision of services.
- If the Advertiser is in default with payment or if an application for insolvency proceedings has been filed against the Advertiser, PIA Advertising may withhold the performance of the agreed media services unless the customer provides security in the amount of the remuneration in due time.
- The Advertiser may only offset claims of PIA Advertising against claims that are undisputed, legally established or recognised by PIA Advertising. The Advertiser may only assert a right of retention if the respective claims are based on the same contractual relationship.
Article 7. Rejection rights
- PIA Advertising reserves the right within its discretion to reject or remove from its Publisher’s websites, applications and or games, any Ads that do not comply with these terms and conditions or that in PIA Advertising’s sole judgment, do not comply with any applicable law, regulation or other judicial or administrative order(s) from representative authorities. In addition, Publisher reserves the right within its discretion to reject or remove from its Publisher’s websites, applications and or games any Ad(s) which would bring, or may tend to bring, disparagement, ridicule, or scorn upon PIA Advertising , its Publishers or any of its affiliates, developers or other business partners, or deemed otherwise inappropriate in its sole discretion.
- In the case that Publisher suspects that Advertiser’s Account has been used in an invalid or fraudulent manner or if Advertiser has provided any information that is untrue or inaccurate, not current or incomplete, the account may be deactivated effective immediately and without prior notice to the Advertiser pending further investigation and, without limiting obligations to make all the due payments in accordance with this Agreement.
- Publisher reserves sole judgment in determining invalid or fraudulent activity of the Advertiser and the Advertiser agrees to be bound by these determinations. When invalid or fraudulent activity is detected, it is the obligation of the Advertiser to prove to PIA Advertising that the Advertiser and its Ad Campaign(s) have not infringed the restrictions as mentioned in this Agreement. Advertiser will not withhold any due payments to PIA Advertising. Advertiser has the obligation to provide satisfactorily evidence that it has not engaged in invalid or fraudulent activity.
Article 8. No exclusivity
This Agreement shall not prevent PIA Advertising from entering into similar Agreements with third parties, including other Advertisers within the same area of business as Advertiser, or from independently developing, using, selling, brokering or licensing products and/or services which are similar to those provided under this Agreement.
Article 9. Indemnification
Advertiser agrees to indemnify and hold PIA Advertising, its Publishers, affiliates, subsidiaries, successors and assigns harmless for any and all claims, actions, judgments or liabilities arising out of or in connection with Advertiser’s Campaign or Services for the Advertiser, any breach of this Agreement by Advertiser and/or of any representation, warranty or provisions of this Agreement and these terms and conditions.
Article 10. Limitation of liability
- PIA Advertising shall be liable for damages to the client caused intentionally or through gross negligence by PIA Advertising, its legal representatives, executive employees or vicarious agents.
- Irrespective of the degree of fault, PIA Advertising shall be liable for damages caused by the fact that the persons named in clause 10.1 have breached an obligation that is essential for the achievement of the purpose of the contract (cardinal obligation) as well as in the case 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.
- Claims for damages by the client arising from injury to life, body or health, which are based on a breach of duty by PIA Advertising or the group of persons named in clause 10.1, shall also remain unaffected.
- In cases other than those mentioned in clauses 10.1 to 10.3, the liability of PIA Advertising is excluded, regardless of the legal basis.
- Non-excluded claims for damages shall be limited to the foreseeable damage typical for the contract, except in the cases mentioned in clauses 10.1 and 10.3. In the event of default, they shall amount to a maximum of 5% of the order value.
- Claims for damages and any claims for defects against PIA Advertising shall become statute-barred 12 months after they have arisen. Excluded from this are claims for damages due to injury to life, body or health and/or claims for damages due to damage caused by gross negligence or intent as well as claims under the Product Liability Act. In this respect, the statutory limitation periods shall apply.
Article 11. Non-disclosure
- PIA Advertising and Advertiser shall preserve as confidential all information related to the business activities of the other Party, its Publishers, affiliates, clients, and entities with whom that Party does business, that may be obtained by either side from any source, whether that information is marked as confidential or is confidential by its nature, including the Ad description and the pricing of the Ad, set forth in the Insertion Order, all trade secrets, ideas, know-how, concepts, processes, techniques, research, data, plans, materials, product development and all other information of a confidential nature (in whatever form) constitute together the “Confidential Information”.
- PIA Advertising and Advertiser shall hold all Confidential Information in trust and confidence and shall not disclose Confidential Information to any person, firm or enterprise, or use any Confidential Information for its own benefit or the benefit of any other person, unless specifically authorized in writing.
- PIA Advertising and Advertiser shall limit access and disclosure of the Confidential Information to its personnel on a “need to know” basis only and where such personnel are aware and have agreed to comply with the confidentiality obligations set out in these terms and conditions.
- Confidential Information does not include any particular information that PIA Advertising and/or Advertiser can demonstrate (i) is currently in the public domain, (ii) was previously known as to be free from any obligation (iii) was or is publicly disclosed by or on behalf of PIA Advertising and/or Advertiser.
- At any time at the request and option of PIA Advertising and Advertiser, both Parties agree to promptly: (i) return the Confidential Information; or (ii) destroy or permanently erase the Confidential Information (in whatever form it is recorded).
Article 12. Data Protection, Data Collection, Processing and Transfer of Data
- If the Services include any services in relation to the processing of Personal Data, PIA Advertising GmbH will comply with all relevant provisions of the General Data Protection Regulation (“GDPR”).
- PIA Advertising shall carry out all necessary data processing for the fulfilment, implementation and execution of the Advertiser’s orders and the obligations under this Agreement.
- PIA Advertising may also use the Personal Data obtained in connection with the orders for processing for its own products and purposes that are not the subject of the Advertiser’s orders or the Services offered to the Advertiser. In doing so, PIA Advertising will independently ensure compliance with the requirements of data protection law, such as the existence of suitable legal bases, and fulfil the obligations under data protection law.
- Within the scope of this Agreement, Advertiser shall transfer inter alia the following data to PIA Advertising for the purpose of advertisement, billing and reporting: a. Device identifiers and data, b. Publisher ID, c. Ad campaign ID, d. Location data (if requiredand available), e. Demographic data (if required and available), and/or f. Event data. These data and other data, including additional tracking data and performance data required to optimize and further develop the services of PIA Advertising, may be transferred between the Parties as required for the execution of this Agreement.
- In the event that any transferred data under the present Article contains information concerning the personal or material circumstances of an identified or identifiable individual (Personal Data), Advertiser warrants that the collection, processing and transfer of Personal Data comply with the applicable data protection law. In particular, Advertiser warrants that Advertiser has:
- Obtained the end user’s consent, approval, opt-in, waiver, authorization or clearance to collect, process or use the end user’s data as may be required by applicable laws and industry practice and standards;
- Notified the end user that the privacy and data protection laws in the countries in which the end user’s data may be collected, processed or used may vary from the laws in the country in which such end users live;
- Taken all adequate technical and organizational measures for the protection of the received Personal Data against accidental or illegal destruction, loss, and/or unauthorized alteration, amendment, disclosure or access, especially if the processing of such data implies transmission thereof within a network, as well as against any form of illegal processing;
- Complied with industry guidelines, local, national and European regulations on data protection and privacy laws;
- Contractually obligated any third party (including, but not limited to, any agent, employee etc.) who handles personal data on behalf of Advertiser to comply with all of the above.
- Advertiser must, in particular:
- Keep a written record of all of Advertiser’s efforts to comply with this Article 12;
- Provide PIA Advertising with proof of compliance under Article 12.4.b., should PIA Advertising request such proof.
- PIA Advertising will:
- Process Personal Data received from the Advertiser only in accordance with the instructions of the Advertiser unless otherwise provided for in this Article 12;
- Take all adequate technical and organizational measures for the protection of the received Personal Data against accidental or illegal destruction, loss, and/or unauthorized alteration, amendment, disclosure or access, especially if the processing of such data implies transmission thereof within a network, as well as against any form of illegal processing;
- Notify the Advertiser of any unauthorized or unlawful disclosure or use of Personal Data of which PIA Advertising becomes aware; and
- At the request and option of the Advertiser, promptly return or safely destroy all Personal Data in PIA Advertising’s possession or control.
Article 13. Term and termination
- The Agreement shall commence on the Effective Date and will continue in force until terminated as set out below in this Article 13.
- Parties may terminate the Agreement upon mutual agreement in writing at any time, providing all obligations, Services and due payments have been fulfilled.
- Advertiser may terminate this Agreement upon providing seven (7) business days’ notice in writing to PIA Advertising, however, Advertiser remains liable for all his obligations under this Agreement and for all due payments incurred prior to termination through the Services of PIA Advertising.
- PIA Advertising may terminate the Agreement upon providing seven (7) business days’ notice in writing, however, Advertiser remains liable for all his obligations under this Agreement and for all due payments incurred prior to termination through the Services of PIA Advertising.
- In the event of violations of applicable law or of obligations arising from these General Terms and Conditions by the client or the client’s vicarious agents, PIA Advertising shall be entitled to terminate the contract for cause without prejudice to the statutory provisions and any other claims that may exist.
- In particular, PIA Advertising is entitled to extraordinary termination if – the client has not fulfilled its payment obligation despite repeated requests; – the client continues to violate provisions of these General Terms and Conditions despite prior warning.
Article 14. Execution and delivery period
- All (delivery) dates specified by PIA Advertising are established to the best of its ability on the basis of information in its hands prior to entering into the Agreement.
- 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 media service provider (publisher) during the agreed period. The duration of the right to postpone corresponds to the booked insertion period, i.e., for example, in the case of an insertion period of 14 days, PIA Advertising may still provide the service during the 14 days following the insertion period.
- If an agreed number of ad impressions, clicks, leads or orders is planned for a certain period, PIA Advertising points out that the achievement of the number within the planned period can of course not be guaranteed. 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 advertising period has already been allocated to another client, PIA Advertising is entitled to switch to a comparable placement, taking due account of the client’s interests. 4.
- In case of not only insignificant impairment of the owed media performance, PIA Advertising may, at its own discretion or by agreement, initially perform faultlessly or assign its own existing warranty claims against the publisher to the client. For this purpose, the client shall grant PIA Advertising reasonable time and opportunity. If this is refused by the client, PIA Advertising shall be released from liability for defects. If the supplementary performance fails, the client shall be entitled – subject to the provisions of Article 9. of these General Terms and Conditions – to assert the rights for defects otherwise provided for by law.
- The client is obliged to check the proper performance of the agreed media services within 48 hours after placement 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.
- Invoices shall be made exclusively on the basis of PIA Advertising’s reports. The correctness of the reportings is assumed as long as the client does not provide proof of incorrectness. Deviations in measurements of up to 15% are insignificant and shall not be considered a defect or overfulfillment (fluctuation tolerance).
- If the services to be provided by PIA Advertising are work services, the client shall be obligated to accept them after delivery, provided that the work services do not have any significant defects and essentially comply with the agreements. A refusal of acceptance must be declared within seven calendar days after delivery, stating the specific defects. If no refusal of acceptance is received during the aforementioned period, the work performance shall be deemed accepted. If there are significant deviations or defects, PIA Advertising shall remedy them within a reasonable period of time and resubmit the work result for acceptance. Acceptance shall be deemed to have taken place at the latest when the work is used.
Article 15. Assignment
- PIA Advertising shall be entitled, in whole or in part, to assign its rights and obligations under this Agreement to a company within the same de jure or de facto group or companies as PIA Advertising without Advertiser’s prior consent.
- Advertiser shall not be entitled to assign its rights or obligations under this Agreement without PIA Advertising’s prior written consent.
Article 16. Force majeure
Neither Party shall be liable for service interruptions, delays, failure to perform, damages, losses or destruction, or malfunction of any consequence thereof caused or occasioned by circumstances outside their control (“Force Majeure Event”). A Force Majeure Event includes without limitation, fire, flood, water, the elements, acts of God, acts of war (declared or undeclared), explosions, civil disturbances, acts of terrorism, insurrection, riots, rebellion or sabotage, acts of federal, state, local or foreign governmental authorities or courts, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, failures or fluctuations in electrical power or telecommunications service or equipment, labor disputes, lockouts, strikes or other industrial action, whether direct or indirect and whether lawful or unlawful. The Party so delayed or prevented from performing shall provide prompt notice of such event to the other Party and shall exercise good faith efforts to remedy any such cause of delay or cause preventing performance. To the extent that a Force Majeure Event has continued for five (5) business days, PIA Advertising or Advertiser has the right to cancel the remainder of the IO without penalty.
Article 17. Governing law and disputes
- This Agreement and the ensuing relationship between the Parties shall be construed in accordance with and governed by German law.
- Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination, or invalidity thereof, shall be finally settled by the Courts of Germany, location Hamburg.
Article 18. Entire agreement and variation
- This Agreement sets forth the entire understanding and agreement of the Parties and supersedes any and all prior oral or written agreements or understandings between the Parties as to the subject matter and may be changed only by a subsequent agreement in writing signed by both Parties.
- The Parties are independent contractors and expressly acknowledge that no agency, partnership, joint venture or employer- employee relationship is intended or created hereby.
- This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective permitted transferees, successors and assigns. In the event of any inconsistency between the terms of an IO and this Agreement in respect of the Services, then the terms of the IO shall prevail to the extent of any inconsistency.
Should it be necessary, PIA Advertising is entitled to amend these T&Cs with effect for the future. In the event of a change in the design of PIA Advertising’s offer or the technology used, it may be necessary to also make changes to these T&Cs so that they correctly and accurately reflect PIA Advertising’s offer. PIA Advertising will only make changes if the provisions are no longer applicable or incomplete, and only if the changes are reasonable, taking into account the interests of the Advertisers. In this case, PIA Advertising will notify the Advertiser of the changes in an appropriate form. Unless otherwise required by law, the changes shall be deemed accepted if the Advertiser does not object in writing or by e-mail to firstname.lastname@example.org within a period of 30 days from the date of notification and continues to use the offer of PIA Advertising. PIA Advertising will inform the Advertiser of the right to object and the legal consequences of missing the deadline as part of the notification. In the event of an objection, PIA Advertising shall be entitled to terminate the Advertiser’s contract with a notice period of three months.