General Terms and Conditions
1. Scope of application; future applicability
- These General Terms and Conditions apply to contractual relationships between cmmrcl.ly GmbH (hereinafter “cmmrcl.ly”) and its customers.
- Any general terms and conditions of the customer to the contrary do not apply even if cmmrcl.ly does not object to such an individual case.
2. Offer, conclusion of contract; agency orders
- Unless expressly specified otherwise, offers by cmmrcl.ly are nonbinding.
- A contract is concluded only upon order confirmation by cmmrcl.ly or start of services by cmmrcl.ly with the service content of the respective media plan created or confirmed by cmmrcl.ly.
- Orders from agencies are concluded directly between cmmrcl.ly and the agency, unless the agency expressly and with disclosure of a domestic serviceable address acts on behalf of an agency customer.
- In the event that the agency itself becomes contractual partner of cmmrcl.ly, the agency, to secure cmmrcl.ly’s claims against the agency, upon conclusion of contract, assigns all existing and future receivables in the amount of 130% of the order value from open agreements with cmmrcl.ly to cmmrcl.ly as security (assignment for security). cmmrcl.ly is authorized to disclose this assignment to the agency customer.
3. Provision of advertising material, cmmrcl.ly’s right of modification
- The customer is obligated, at the latest 5 business days prior to the start of the advertisement, to provide all information and data material necessary for proper fulfillment of contract, whether image, text, video, or audio (advertising material) pursuant to the technical specifications.
- The advertising material must be suitable for the negotiated media service and must in particular fulfil the negotiated technical requirements and formats. cmmrcl.ly reserves the right to process the material supplied by the customer as required and reasonable for optimal advertising use. cmmrcl.ly is not obligated to do so.
- Insofar as owed media services cannot be provided or cannot be provided in a proper manner be-cause the customer did not provide advertising material or did not do so in a timely manner or pur-suant to technical requirements, full compensation is still owed.
- Advertising material not discernible as such due to their design may be marked as advertisement by cmmrcl.ly or the operator of the advertising space, in particular in order to satisfying competition and media law requirements.
- Additional expenses arising based on the customer’s culpable infringement of participation obligations must be compensated by the customer. Media services are charged pursuant to the media plan, other activity shall be invoiced by cmmrcl.ly at a rate of EUR 80 per hour.
- cmmrcl.ly does not accept any responsibility or retention obligations for supplied advertising material. An obligation to return advertising material does not exist.
4. Prohibited advertising content; temporary suspension
- Advertising material shall not violate applicable law within the distribution range of the media ser-vices or third-party rights. In case of advertising material linking to customer or third-party content, the content to which the advertising material links (advertising target) must also meet the require-ments of Clause 1.
- cmmrcl.ly is authorized to temporarily suspend performance of owed media services insofar as a rea-sonable suspicion of illegal content of the advertising material or advertising target exists. The cus-tomer may avert suspension by providing unobjectionable advertising material or advertising tar-gets. cmmrcl.ly shall inform the customer within 48 hours of the suspension of services.
5. Granting of rights; customer’s guarantee of harmlessness; indemnification
- The customer grants to cmmrcl.ly, to the necessary extend (in terms of time, place, and content) all necessary usage, performance, and other property rights. cmmrcl.ly within the scope of performance of the media services is authorized to transfer the granted utilization rights to third parties.
- The customer, upon placing the order, guarantees that the contractual provision of the media service does not violate statutory provisions or third-party rights. The customer is responsible for the content of the advertisement, in particular in terms of competition law, trademark law, personal rights, and copyright law.
- The customer guarantees that it holds all utilization rights necessary for advertisement, in particular arising from copyright or trademark law, personal rights, to the advertising material transmitted by it as well as to other data material transmitted by it serving for the creation of the advertising mate-rial by cmmrcl.ly.
- The customer indemnifies and holds cmmrcl.ly harmless from all damages, losses, and expenditures (including costs of a legal defense), which cmmrcl.ly or its managing directors and employees incur based on a violation of these guarantees.
6. Right to postpone; warranty; obligation to reprimand
- If advertisement periods are negotiated for the owed media services, cmmrcl.ly has a right to postpone such if the media service cannot be provided at the negotiated period by the media service provider (publisher). The duration of the postponement right is equal to the ordered advertisement period, i.e. for example in the event of an advertising period of 14 days, cmmrcl.ly in these cases may provide the service even in the 14 days following the advertisement period.
- Insofar as the customer has ordered a specific number of page impressions / clicks for a certain period, cmmrcl.ly notes that this information is based on empirical values. If the page impressions/clicks should, on an exceptional basis, not be reached within the negotiated period, the advertisement period of the advertisement measure is extended until the ordered page impressions/clicks have been reached. If the placement ordered by the customer for the extended advertisement period is already assigned to another customer, cmmrcl.ly is authorized, subject to reasonable consideration of the customer’s interests, to a comparable, alternative placement.
- In case of a not merely minor impairment of the owed media service, cmmrcl.ly at its own discretion or as negotiated can initially effect faultless supplementary performance or assign its own applicable warranty claims against the publisher to the customer. A claim to reduction of the compensation or withdrawal exists only if supplementary performance fails or is unreasonable for cmmrcl.ly or the assigned claims are ultimately not enforceable.
- The customer is obligated to review proper and contractual provision of the negotiated media ser-vices within 48 hours after publication and shall inform cmmrcl.ly of possible complaints immediately in text form. In the event that the customer omits timely and proper complaint, the provided media services are deemed to be contractually provided.
- Invoices are issued exclusively based on cmmrcl.ly’s reporting. The accuracy of the reporting is assumed as long as the customer does not verify inaccuracy. Deviations in measurements of up to 15% are minor and do not constitute a defect or overfulfillment (fluctuations).
7. Extraordinary termination
- In case of serious violations of applicable law or obligations under these GTC by the customer or its vicarious agents, cmmrcl.ly is authorized to extraordinary termination regardless of statutory provisions and possibly existing additional claims.
- cmmrcl.ly is in particular authorised to extraordinary termination if a) the customer does not meet its payment obligation despite repeated request; b) the customer continuously violates the provisions of these GTC despite prior warnings.
- The negotiated compensation is due and payable upon conclusion of contract and must be paid by the customer within 5 business days, in any case however prior to negotiated start of provision of services.
- In the event that the customer defaults in payment or a request for opening of insolvency proceedings is filed against it, cmmrcl.ly is authorized to withhold performance of the contractual media services unless the customer provides a security in the amount of the compensation in a timely manner.
- The customer is authorized to offset only undisputed or legally ascertained receivables against cmmrcl.ly’s claims. The customer can assert a retention right only if the respective claims are based on the same contractual relationship.
9. Limitation of liability
- cmmrcl.ly is liable for the customer’s damages caused by cmmrcl.ly, its legal representatives, executive employees, or vicarious agents based on intent or gross negligence.
- Regardless of the degree of culpability, cmmrcl.ly is liable for damages caused by a violation of a duty by those listed in Section
- that is of essential significance for the fulfillment of the contractual purpose (cardinal obligation) as well as in case of a fraudulent misrepresentation. In the same manner, regardless of the degree of culpability, cmmrcl.ly is liable if a damage is based on a violation of a guarantee accepted by cmmrcl.ly or based on slightly negligent organizational fault.
- The user’s claims for damages arising from an injury to life and limb based on a breach of duty by cmmrcl.ly or the group of persons listed in Section 9.1 also remains unaffected.
- In cases other than those listed in Sections 9.1 through 9.3, cmmrcl.ly’s liability is excluded regardless of the legal ground.
- Claims for damages that are not excluded, aside from the cases listed in Sections 9.1 and 9.3, are limited to the foreseeable damage typical for the contract. In case of default, they amount to a maximum of 5% of the order value.
- Claims for damages against cmmrcl.ly lapse after the expiration of 12 months as of their creation, unless they are based on an unlawful or willful act.
10. Applicable law; place of jurisdiction; severability clause; written form
- German law applies to the exclusion of the UN Sales Convention.
- Place of fulfillment and exclusive place of jurisdiction is Hamburg, Germany, insofar as legally permissible.
- No oral or written collateral agreements exist. Modifications of the contractual terms require the text form. This also applies to the cancellation or modification of this clause governing the use of written form.
- In the event that individual provisions of this agreement should be or become invalid in full or in part, the remainder of the agreement shall remain valid. In the event of such an invalidity, the contractual partners shall agree on a substitute provision that comes as close as possible to the economic intent of the invalid regulation. The same applies in the event of a gap.
- Insofar as these GTC refer to the written form, this means text form in terms of Section 126 b BGB
11. Data protection
- The customer is obligated to fulfill necessary legal prerequisites for the provision of cmmrcl.ly’s services. In particular, the customer is obligated to ensure that cmmrcl.ly, pursuant to applicable statutory requirements, is authorised to advertise through the customer website in social networks or in the programmatic environment pursuant to the following prerequisites. The customer is obligated to provide on its website in particular an easily accessible and comprehensible privacy notice and in this privacy notice must inform of the various services provided by cmmrcl.ly shown below to the contractually negotiated extent.
- If the integration of pixels on customer websites (e.g. website custom audiences of Facebook, Twitter, Snapchat, LinkedIn, Google/YouTube, Pinterest) is the subject matter of the respective campaign, then the customer is obligated to fulfil the following requirements:
bb) that the user is authorised to object to the capture and use of information for ad targeting, and
cc) where users can access a mechanism to make such selection (e.g. through corresponding linking).
b) The customer must furthermore verifiably ensure that the respective user grants consent insofar as such is required to allow the respective platforms to store and access cookies or other information on the user’s terminal device.
- If the use of CRM custom audiences is the subject matter of the campaign, the customer assures the following:
a) The customer guarantees that it has all necessary rights and authorizations as well as a legal basis to disclose and use the data with hash value in compliance of all applicable laws, regulations, and industry guidelines. If hashed data are provided on behalf of an advertising customer, the ordering agency assures and guarantees that the agency has been authorized by the respective customer to disclose and use such data on its behalf.
b) The customer furthermore assures and guarantees that the hashed data do not relate to data of a data subject that has utilized the option provided by the customer to object to disclosure and use of the data for targeted advertisement, insofar as the customer is already directly or indirectly obl-gated to respect such. Insofar as the data subject uses such a right to object after the customer has used the data pertaining to that data subject to create a custom audience, the customer is obligated to remove the data subject from the respective custom audience.
c) The customer is obligated to not sell or transfer the created custom audiences to third parties and to also not authorize a third party to sell or transfer custom audiences.
d) Insofar as the hashed data contain personal data referring to a data subject residing in the European Union or Switzerland, the parties recognize and agree that the customer for the purpose of creating the custom audiences as described above is the controller with regard to such personal data, and that the customer to this extent orders cmmrcl.ly as contract data processor to implement the corresponding campaign. In light of this, the parties conclude a separate data processing agreement in terms of Art. 28 GDPR.
- If the use of the proprietary cmmrcl.ly tag on the respective customer website is the subject matter of the campaign, the customer shall ensure that the respective user prior to using this technology on its website obtains the consent required prior to the use of the proprietary cmmrcl.ly tag.
This consent shall also ensure that the customer will be authorised, for the purpose of performance assessment of the respective campaign, to install so-called click/view tags that allow the targeting partner of cmmrcl.ly commissioned pursuant to Art. 28 GDPR to read clicks and views based on cookie IDs for the purpose of a performance assessment, and to transmit the results to cmmrcl.ly and the customer. The customer is obligated to ensure that no personal data is transmitted to cmmrcl.ly for the creation of target group information through the provided tags.
Status: 31 July 2020