General Terms and Conditions for Advertising Orders via “Booking Tool” (“GTC Booking Tool”)
1. SCOPE OF APPLICATION
1.1 These General Terms and Conditions of Sale (hereinafter: "GTC") govern the relationship between Goldbach Audience (Switzerland) AG (hereinafter: "agent") and the advertiser when booking and processing advertising orders via “Booking Tool” (https://booking.tamedia.com) (hereinafter: "Booking Tool"). The booking tool is an online offer allowing the advertiser, via a self-reservation, to advertise products directly on the selected websites of the publishers who are linked to the Booking Tool. The technical service provider of the booking tool is Digital Ad Services AG.
1.2 These GTC as well as the provisions concerning the offer and prices of bookings via the booking tool in their current version at the time of conclusion of the contract are applicable to all advertising orders placed via the Booking Tool (hereinafter: “advertising orders" or "advertising campaign") relating to the publication of advertisements and other advertising media (hereinafter: "advertising media") on websites associated with the booking tool and other digital applications (especially for mobile devices; hereinafter: "media”) of the agent (or another group company affiliated with the agent) and third parties. Unless otherwise expressly agreed in writing between the advertiser and the agent, these GTC are the only applicable; the validity of the advertiser's general terms and conditions is therefore excluded.
2. CONTRACT CONCLUSION
2.1 With completion of the registration and booking process via Booking Tool a contract is concluded between the advertiser and the agent.
2.2 The various advertising orders are accepted when the agent has confirmed and validated them by e-mail. Until confirmed and validated by the agent, which generally takes place within 24 hours of the finalization of the booking process, this is an offer from the advertiser and may be refused at any time by the agent (see section 3.5 below).
2.3 Acting as an "advertiser" within the meaning of these GTC and thus as a contracting party of the agent:
(a) the agency responsible for placing advertising in its own name or on behalf of others, reserving advertising means of an advertising company for and on behalf of that company through the booking tool, or
(b) the legal or natural person promoting its products, if it reserves the advertising means via the booking tool as a direct customer.
3. BOOKING CONDITIONS
3.1 By registering in the Booking Tool, the advertiser creates a customer account that can be accessed via a login. Via the customer account, an advertising campaign manager is made available to obtain information on current and completed advertising campaigns, enter and create advertising media, make reservations, interrupt or stop a campaign. However, it is not possible to change advertising media and orders once they have been reserved.
3.2 An advertising order can only be placed for one advertising medium. Fixed dates for different publications can be agreed upon within the framework of an advertising order. In principle, the following booking conditions apply:
(a) Bookings can be made at any time online and autonomously.
(b) The validation of advertising means is generally carried out within 24 hours following the reservation.
3.3 If the launch date of an advertising campaign is prior to validation of the advertising medium, the launch date is automatically moved to the earliest possible date after validation.
3.4 Advertising media must be made available by the advertiser or created by him in accordance with the guidelines for the Booking Tool. Unless otherwise agreed, the quality of advertising material is based on current specifications. Advertising media which are not recognizable as such because of their presentation shall be made recognizable as advertising in accordance with the legal requirements. The advertiser is solely responsible for the technical quality and content of the advertising media.
3.5 Advertising material with political or erotic content and advertising for games of chance of all kinds may not be reserved via the Booking Tool. The agent is entitled to demand changes in advertising media at any time and to refuse or suspend advertising media, also without having to justify itself. This applies in particular if their content violates legal provisions, administrative decisions or industry rules, has been the subject of a complaint by the Swiss Commission for Loyalty, or if their publication or delivery cannot reasonably be demanded from the agent because of the content, presentation, origin or for technical reasons, at the agent's free and fair discretion. Moreover, the advertising terms and conditions of the agent are applicable.
3.6 After the execution of an advertising order in accordance with the contract, the agent has the right but not the obligation to retain the advertising medium.
4. EXECUTION OF ADVERTISING COMMISSIONS
4.1 The agent publishes the advertising means provided by the advertiser or created by him via the Booking Tool on the reserved media.
4.2 Unless otherwise expressly agreed, the advertiser shall not be entitled to obtain a certain number of delivered advertising media or ad impressions, clicks, leads, orders or downloads. Delivery on the media linked to the Booking Tool takes place for an unlimited period of time up to the limit set in the advertising order (e. g. number of clicks, etc.) or when the available budget is exhausted.
4.3 A current advertising campaign may be interrupted (paused) or stopped at any time by the advertiser. It ends as soon as the budget defined by the advertiser according to the contract issued has been reached. The basic contractual relationship regarding the use of the customer account and the manager of the advertising campaign remains unchanged at the end or interruption of the advertising campaign.
4.4 The agent reserves the right to stop a campaign temporarily if the contractually agreed budget for the advertising campaign is not reached within 3 months or if the click-through rate is less than 0.1%. In this case, the agent can contact the advertiser to propose an adaptation or the end of the advertising campaign.
5. PRICES AND TERMS OF PAYMENT
5.1 The relevant prices and surcharges as well as other terms and conditions are set out in full in the offer and tariff provisions for the Booking Tool in force at the time of publication or delivery of the advertising material. Unless otherwise expressly agreed, all prices are exclusive of VAT.
5.2 Changes in prices, surcharges and other conditions may be made at any time. Price changes for already validly designed advertising orders will only take effect if they have been announced by the agent at least 10 calendar days before the start of delivery. In the event of a price increase, the advertiser has the right of cancellation. This right of cancellation must be exercised within 5 working days after receipt of the information. Without contrary communication of the advertiser, the agent is authorized to deliver advertising media at the new prices.
5.3 Payments must be made in Swiss francs. Only credit cards (Mastercard, Visa) and Postcard are accepted as payment methods. Fees for different card providers apply. When paying with a credit card, the debit is made at the end of the advertising campaign. All payments made with a credit card or Postcard are processed on a secure server. The stored information (in particular the card number, validity date and/or security code) can only be consulted by Postfinance, which carries out payments for the agent. The means of payment and payment information can be modified and/or updated at any time by the advertisers.
5.4 Only the measurements carried out by the agent are decisive for the calculation of clicks. The account can be consulted at any time in the manager of the advertising campaign with a delay due to technical reasons.
5.5 If the contractual services cannot or can no longer be provided for reasons for which the agent is responsible (e.g. due to the suspension of the Booking Tool), the advertiser is entitled to demand repayment of the remaining credit. In principle, however, the advertiser must use the available credit to purchase services in accordance with this contract.
6. WARRANTY AND LIABILITY
6.1 The agent guarantees the best possible execution of advertising orders in accordance with the given technical conditions. The advertiser acknowledges that the state of the art does not guarantee an available system and error-free delivery at all times. The agent can in particular not guarantee the availability and faultless functioning, the absence of defects and incidents with regard to media linked to the Booking Tool. Defects and disturbances not attributable to the agent or outside the scope of the agent's influence, such as those due to force majeure, disturbances caused by third parties as well as third-party deliveries and services (e.g. communications network failures, line and server malfunctions, power outages) are excluded from the warranty.
6.2 In the event of faulty delivery of advertising media attributable to the agent and timely complaint, the advertiser shall only be entitled to compensation for defects (replacement or subsequent delivery) insofar as the purpose and impact of the advertising has been compromised by the faulty delivery. Other claims such as price reductions, etc. are expressly excluded.
6.3 The agent shall only be liable for willful misconduct and gross negligence. In all cases, the agent is not liable for any manipulation of the advertising campaign by third parties (e.g. click fraud), consequential damage, loss of turnover and loss of profit. These exclusions and limitations of the agent’s liability are also valid for the personal liability of its employees, organs and auxiliaries.
6.4 In the case of advertising material made available by third parties or externally hosted target pages, it is the advertiser's responsibility to make available the corresponding technical capabilities and to ensure that the target pages remain searchable. In the event of failure to comply with content requirements, technical instructions or deadlines and recommendations for the production and delivery of advertising media, all claims arising from the defective delivery of advertising media shall be null and void.
6.5 The advertiser is solely responsible for the content and compliance with the legislation of the advertiser. The agent and the media linked to the Booking Tool are not obliged to check whether an advertising medium violates the legal regulations or the rights of third parties. The advertiser transfers to the agent and the various operators and owner of the media all rights of use and other rights necessary for the publication of the advertising media, in particular the right to reproduce, distribute, transmit, make available, send, retrieve a database and consult to the extent necessary for the execution of the advertising order, with regard to time and content. These rights act as unlimited transfers in space and allow for publication using all known current and future technical processes.
6.6 The advertiser releases the agent and (in the sense of the Stipulations for third parties in accordance with art. 112 CO) the media linked to the Booking Tool of all third party claims due to infringements of trademark, personality, copyright or other violations of the law, including possible claims for damages from third parties as well as reasonable attorneys' fees and legal costs for legal defense.
7. DATA COLLECTION AND TRACKING
7.2 Unless otherwise agreed, the advertiser is responsible for providing a link to a data protection notice informing about the type, volume and purpose of the follow-up and mentions the advertiser or a third party as the person responsible with name and contact details. The advertiser guarantees that the data protection notice it has issued is accessible and that the nature, volume and purpose of the data collection, processing and use are presented in an exhaustive and correct manner and that any opt-out is taken into account. The advertiser releases the agent and the operators of the media linked to the Booking Tool from all claims of third parties against the agent and the operators of the media due to tracking or use of collected data.
7.3 All information collected in connection with the measures taken by the agent concerning the advertising means of the advertiser of the agent and the operators of the media and statistical evaluations are the property of the agent resp. the operators of the media and may be evaluated and used for its own purposes (in particular the execution of the contract, but also for marketing purposes). The agent and the operators of the media will keep this information confidential and will only make it available in anonymized form.
8. DATA PROTECTION
8.1 The advertiser acknowledges and agrees that the agent collects and processes its personal data automatically in connection with the use of the Booking Tool's services, particularly in connection with the placing and processing of the order, possibly using third party service providers.
8.2 The agent and the operators of the media linked to the Booking Tool comply with the applicable data protection regulations, but cannot guarantee, in particular with regard to advertising media provided in digital format, the confidentiality and authenticity of the advertiser's data. In addition, reference is made to the data protection declarations of the individual websites; it is assumed that these are known to the advertiser when an advertising contract is concluded.
9. APPLICABLE LAW AND PLACE OF JURISDICTION
9.1 These GTC are governed by Swiss substantive law. Insofar as these GTC do not contain any regulations, the provisions relating to the contract of employment (art. 363 et seq. CO) are in particular valid.
9.2 The place of jurisdiction is the agent. The agent is however entitled to take legal action against the advertiser before the court having jurisdiction over the advertiser.
Version: February 11, 2020
In the event of discrepancies between the English and German version of this General Terms and Conditions the German version shall prevail.