1. GENERAL
1.1 Scope of application
The General Terms and Conditions aeroTELEGRAPH GmbH apply to all advertising orders and regulate the conclusion, the content and the handling of contracts concerning the offer of aeroTELEGRAPH for the integration of advertisers. The general terms and conditions of aeroTELEGRAPH apply exclusively. Counter-confirmations of the advertiser or the agency (contracting party)
with reference to its own terms and conditions is hereby expressly contradicted. Deviations from these terms and conditions or terms and conditions of the contracting party apply only if and as far as aeroTELEGRAPH confirms this in writing.
1.2 Definitions
Advertisers are individuals or companies who advertise for themselves, their products and/or services or the products and/or services they sell. Any contract between aeroTELEGRAPH and the contracting party regarding the integration of any form of commercial communication (“advertising media”) of the advertiser is considered an advertising order. The contractual partner is either the advertiser himself (irrespective of whether he contracts himself or through an advertising or media agency) or an advertising or media agency (agency), provided that this is the actual contractual partner of aeroTELEGRAPH and enters into the contractual relationship with aeroTELEGRAPH in his own name and for his own account. All electronic media of aeroTELEGRAPH are to be understood as advertising media. Advertising media are basically those formats which are shown in the valid offer or price list. Special formats and forms of advertising are possible after consultation and examination by aeroTELEGRAPH. aeroTELEGRAPH is entitled to change the offered advertising material at any time or to remove it from the offer.
1.3 Representation by an agency Advertising orders of agencies in the name and on account of the advertiser (customer of the agency) as well as in the name of the agency and on account of the advertiser (indirect representation) will only be accepted by aeroTELEGRAPH for specifically exact names.
customers are accepted. The agency acting vis-à-vis aeroTELEGRAPH shall inform aeroTELEGRAPH prior to the conclusion of the contract whether it is acting in the name and for the account of the advertiser (direct representation) or in its own name and for the account of the advertiser (indirect representation). In the case of direct representation, the advertiser of the contract shall be the only representative of the advertiser.
In the case of indirect representation, the agency is the contractual partner of aeroTELEGRAPH. In case of ambiguity about the representation, the contract is considered as concluded with the agency itself (indirect representation). aeroTELEGRAPH is entitled to demand proof of mandate or power of attorney from agencies. The advertiser declares in the power of attorney issued by him to inform aeroTELEGRAPH immediately about the revocation of the order given to the agency or the power of attorney. The advertiser declares in the power of representation to be responsible for the content of the agreement, in particular for the form and legality, and to be liable for possible consequences of non-compliance with legal regulations. The advertiser is liable to aeroTELEGRAPH for the payment of the services listed in the agreement and the corresponding invoices issued by aeroTELEGRAPH in the name of the representative. Any rights of appeal of the advertiser against the agency are part of the bilateral legal relationship between the advertiser and the agency and may not be invoked against aeroTELEGRAPH nor as a basis for non-payment or late payment of invoices issued by aeroTELEGRAPH.
An advertiser directly represented by an agency can only be released from his obligation to pay aeroTELEGRAPH by paying aeroTELEGRAPH. aeroTELEGRAPH reserves the right to contact the directly represented advertiser directly and to send him a copy of the signed contract. The Agency is responsible for informing its clients of their obligations and rights arising from any part of the contract. The Agency undertakes to comply with the accounting obligations towards its clients in accordance with articles 400 and 401 of the Swiss Code of Obligations.
2. CONCLUSION OF ADVERTISING CONTRACTS
Offers from aeroTELEGRAPH are always subject to confirmation and are especially subject to the availability of advertising time and/or advertising space. An advertising order is legally effective if aeroTELEGRAPH confirms an advertising order in writing or by e-mail and the advertiser or the agency does not contradict this order confirmation in writing or by e-mail within 48 hours or if necessary a corresponding agreement is countersigned by the advertiser or the agency. aeroTELEGRAPH has the right to request a written counter-confirmation of the advertising order from the advertiser or the agency.
(e-mail is sufficient). With the integration of the advertising media on the agreed advertising spaces, the advertising order is concluded in any case. The integration of the advertising media replaces the confirmation of aeroTELEGRAPH in these cases. In this case an objection of the advertiser or the agency is excluded. For the advertising order exclusively the present general terms and conditions as well as the following listed documents are valid, which form an essential and integral part of the contract:
Confirmation of order
– any existing customer agreements
– any existing agency agreements
– Advertising media specifications
3. RIGHTS AND OBLIGATIONS OF AEROTELEGRAPH
3.1 General
aeroTELEGRAPH provides the agreed services carefully. It is entitled at any time to call in third parties for the fulfilment of its contractual obligations.
3.2 Right to rejection and suspension of performance
aeroTELEGRAPH has the right at any time to refuse advertising orders from advertisers and/or agencies without giving reasons. aeroTELEGRAPH will inform the advertiser or the agency without delay of any rejection. In addition, aeroTELEGRAPH is entitled to reject immoral or illegal contents of the advertising material (especially violence, pornographic or racist contents, calls for violence or criminal offences).
The following are prohibited: games and bets that violate the Lottery Act, unsolicited advertising mailings (spamming), content that violates the rights of third parties, such as in particular copyrights, trademark rights, design rights, patent rights or personal rights, content that violates the Act against Unfair Competition or relevant advertising regulations such as for tobacco, alcohol, medicines, food advertising, etc. aeroTELEGRAPH is expressly released from the provision of services regarding (outstanding) freespace, condition and service compensation credit balances. aeroTELEGRAPH is expressly released from the provision of services regarding (outstanding) freespace, condition and service compensation credit balances. The contracting party does not have any claims against aeroTELEGRAPH.
3.3 Editorial freedom
The editorial freedom with regard to all contents lies with aeroTELEGRAPH. It remains unaffected by this contract and also includes the design such as the channel division. Changes to the design of the electronic media or the advertising media during the term of the contract are permissible at any time, provided that the advertising media of the contracting party are at least equally relocated. In case of disagreement on equivalence, aeroTELEGRAPH is responsible for the decision on equivalence.
3.4 Passing on of data for advertising statistics
The contracting party acknowledges and agrees that aeroTELEGRAPH may use data for the preparation of advertising statistics and forward them to third parties.
3.5 Storage
aeroTELEGRAPH is entitled, but not obliged, to store the advertising material and to archive it indefinitely.
4. RIGHTS AND OBLIGATIONS OF THE CONTRACTUAL PARTNER
4.1 Provision of advertising material
The contracting party is obliged to provide aeroTELEGRAPH with the necessary advertising material for the delivery/placement of the advertisement, also within an ongoing campaign, according to the respectively valid technical specifications, at his own expense at the latest at the following times before the confirmed placement date (campaign start):
– 3 working days (by 17h at the latest) for conventional advertising media in the form of GIF, JPEG, iFrame, SWF, 3 Party Tags
– 5 working days (until 17h at the latest) for special advertising media such as pushdown, mobile interstitials and html5
– 5 working days (until 17h at the latest) for all video advertising media such as Pre Rolls, Start Up Ads, Channel Switch Ads
– 10 working days (until 17h at the latest) for PR texts such as Advertorials and Native Advertising
The advertising material must be delivered to one of the following e-mail addresses: werbung@aerotelegraph.com or daniel.straessle@aerotelegraph.com. The consequences of late delivery or defective advertising material shall be borne by the contractual partner. In the event of improper delivery, in particular late delivery or subsequent alteration, no warranty shall be given for the
The customer shall be responsible for compliance with the agreed connection date or performance of the agreed service. The full remuneration claim of aeroTELEGRAPH remains valid even if the placement of the advertising material is delayed or does not take place.
4.2 Remuneration
The contracting party shall pay aeroTELEGRAPH the remuneration specified in the advertising order plus the value added tax and, if applicable, plus other applicable taxes in the respective legally prescribed amount. The contractual partner is obliged to integrate or have integrated a Toolbox Program Code (AdTag) for reporting and tracking on the advertiser’s websites, if the remuneration or a share of the remuneration is based on a postal charge.
Click value (billing per registration etc.) based. If aeroTELEGRAPH is based on the agreed remuneration model (e.g. share of sales) on the settlement by the customer, then the
If the customer instructs aeroTELEGRAPH to instruct an account partner, aeroTELEGRAPH shall prepare and deliver a detailed account to aeroTELEGRAPH by the third working day of each following month. aeroTELEGRAPH has the right to have the account audited by an independent auditor and/or computer scientist who is bound to secrecy. If the deviations found by these auditors exceed 5 %, the following shall apply
to the detriment of aeroTELEGRAPH, the costs of the inspection shall be borne by the contracting party and the deviations shall be charged to the corresponding amount.
4.3 Responsibility for Quality and Advertising Content / Indemnification
The contracting party bears the sole responsibility for the advertising media and their contents given by him to aeroTELEGRAPH for publication. The contracting party undertakes to check his advertising material, contents, products and other information for their legality and guarantees this. If aeroTELEGRAPH, an organ member or an employee of aeroTELEGRAPH is held responsible under criminal, civil or administrative law for the illegality of information provided by the advertiser or the agency or for the lack of consent of third parties, the contractual partner shall indemnify and hold harmless the parties concerned from all claims
.4.4 Property rights
The contractual partner guarantees that he and/or the advertiser has obtained all the rights necessary for the production of the advertising material and that he possesses all the rights necessary for the placement of the advertising material in the booked advertising media. The contracting party transfers to aeroTELEGRAPH all copyrights, ancillary copyrights and other rights necessary for the use of the advertising in the booked electronic media, in particular the right to duplicate, distribute, transfer, edit, store in and retrieve from a database, in terms of time, location and content to the extent necessary for the execution of the advertising order as well as the corresponding sub-licensing rights of the booked advertising medium. The contracting partner grants aeroTELEGRAPH the right to label the advertising material with the name advertising or the like where necessary, to store copies of the advertising and to make them accessible via a database aeroTELEGRAPH as far as necessary for the execution of the advertising order. The contracting partner indemnifies aeroTELEGRAPH against all claims of third parties which may arise due to the violation of rights of third parties (including legal defense costs). aeroTELEGRAPH will inform the contracting partner about the assertion of corresponding claims of third parties. Furthermore, all property rights (copyrights, trademark rights, design rights etc.) to contents, logos, layouts etc., which are accessible on the advertising media, belong to and remain with aeroTELEGRAPH, or third parties which have made them available to aeroTELEGRAPH. The contracting party acknowledges and agrees that he does not have any claims to the mentioned industrial property rights due to the contractual relationship with aeroTELEGRAPH.
4.5 Notice of defects
The contractual partner must check the integration of the advertising media within 24 hours of the start of placement and notify any defects without delay. In the case of obvious defects, the complaint period begins with the placement of the advertising material, in the case of concealed defects with their discovery. If the contractual partner fails to notify the defect in good time, the placement shall be deemed to have taken place. of the advertising medium as approved.
5. INVOICING AND TERMS OF PAYMENT
5.1. invoicing
aeroTELEGRAPH invoices the contracting party pro rata temporis after complete delivery of the agreed service or always at the end of each month. The AdManagement Tools used by aeroTELEGRAPH are decisive for the invoiced services. In the case of time-based advertising placements (fixed placements), the service is deemed to have been completely fulfilled if at least 80 % of the media service predicted in advance (indicative values of ad impressions) has been delivered. For the invoicing of variable costs, the tracking system is authoritative, which provides information on measured variables such as clicks, leads, turnover (order value), sales volume (order value) and the number of impressions delivered.
there is. The tracking system of aeroTELEGRAPH is only decisive for this. A counting discrepancy between the tracking system of aeroTELEGRAPH and that of the contracting party of up to 10 % is not taken into account. In case of a discrepancy exceeding 10 %, aeroTELEGRAPH will try to reach an agreement with the contracting party. If aeroTELEGRAPH is unable to provide the agreed service during the agreed campaign period due to circumstances for which the contractual partner is responsible (i.e. not to the extent of at least 80% of the media service forecast in advance), in particular because aeroTELEGRAPH has not received the advertising material in time, incorrectly, in an incorrect format or with illegal content, aeroTELEGRAPH is entitled to invoice the contractual partner in full for the remuneration owed for the service according to the advertising order. If aeroTELEGRAPH cannot deliver the agreed service during the agreed campaign period or not in full (i.e. not to the extent of at least 80% of the media service forecast in advance) due to circumstances for which the contracting party is not responsible, aeroTELEGRAPH shall invoice the contracting party for the payment owed for the service according to the advertising order reduced proportionately. The same applies to those cases in which the agreed service is not delivered or not delivered in full due to circumstances for which aeroTELEGRAPH, but not the contracting party, is responsible. Any further compensation by aeroTELEGRAPH (e.g. lost commission due to underdelivery) is excluded. The contracting party is not entitled to any rights or claims in connection with the underdelivery described in this section 5.1.
5.2 Payment Period / Default of Payment
Unless otherwise agreed, all invoices are payable and due 20 days after invoicing at the latest. In the event of default in payment, the contractual partner shall be charged the usual statutory default interest and collection expenses. If the contracting party does not pay the invoice(s) despite reminder, aeroTELEGRAPH is entitled to cancel the advertising order without notice (cancellation for important reason according to clause 9.6).
In case of default of payment aeroTELEGRAPH is entitled to stop the advertising order of the contracting party immediately. The claim for payment, also for these omitted services, remains nevertheless valid.
5.3 Advance payment / security deposits
Irrespective of the provisions according to clause 5.1 aeroTELEGRAPH reserves the right to invoice advertising orders monthly in advance. Unless otherwise agreed, this advance invoice is to be paid one week before the first placement of the advertising material. In case of non-compliance with this payment deadline, aeroTELEGRAPH is entitled to cancel the planned advertising material.
without a reminder. The contracting party remains obliged to pay the contract sum in full and is also liable for all further damages. aeroTELEGRAPH is especially entitled in the following cases to make further prepayments or security deposits.
to make me dependent on you:
– In the event of default in payment by the contractual partner in accordance with Clause 5.2;
– If aeroTELEGRAPH becomes aware of payment difficulties of the contracting party or if the economic situation of the contracting party deteriorates significantly.
5.4 Prohibition of offsetting
The contracting party is not entitled to offset counterclaims against aeroTELEGRAPH.
6. DATA PROTECTION
6.1 General information
Data protection and data security have high priority for aeroTELEGRAPH. When processing personal data, aeroTELEGRAPH complies with the requirements of the European Data Protection Ordinance (DSGVO) and the Swiss Data Protection Act, respectively. aeroTELEGRAPH warrants to comply with the applicable data protection legislation and confirms in particular that all personal data provided by the contracting party has been validly collected and may be used by aeroTELEGRAPH for the performance of the contract awarded by the contracting party. aeroTELEGRAPH commits itself to use the data of the contracting party only for the fulfilment of the contract and for the administration of the contractual relationship. Furthermore, aeroTELEGRAPH is entitled to process the personal data of the contractual partner for marketing purposes, in particular for tailor-made offers. The contractual partner may restrict or prohibit the use of his data for marketing purposes in writing.
6.2 Evaluation of access data
If the client or agency obtains or collects data from online advertising by using special techniques such as cookies or counting pixels, the client or agency warrants that it will comply with the requirements of the European Data Protection Regulation (DSGVO) or the Swiss Data Protection Act (DSG) when collecting, processing and using personal data.
7. SECRECY
aeroTELEGRAPH, the advertiser and the agency treat all information confidentially, which is neither generally known nor generally accessible. This confidentiality obligation applies as soon as the respective parties gain access to confidential information, irrespective of the date of commencement of the contract, and lasts beyond the termination of the contract. The data for advertising statistics mentioned under item 3.4 shall be an exception.
8. WARRANTY AND LIABILITY
8.1 Warranty
aeroTELEGRAPH guarantees the best possible reproduction of the advertising material according to the usual technical standard. The contracting party acknowledges that according to the state of the art it is not possible to enable a completely error-free reproduction of an advertising material at any time. aeroTELEGRAPH does not guarantee an uninterrupted and trouble-free availability of the advertising material on the advertising media. aeroTELEGRAPH is not obligated to use the provided advertising material or aeroTELEGRAPH does not guarantee the correctness, up-to-dateness and completeness of information which can be accessed via the advertising media. aeroTELEGRAPH is not responsible for the correctness, up-to-dateness, completeness, quality and/or correctness of the information provided.
8.2 Direct and indirect damages
The liability for indirect damage as well as for lost turnover and lost profit is excluded. Mandatory legal provisions remain reserved. As far as aeroTELEGRAPH is obliged to pay damages, aeroTELEGRAPH has to place the contracting party as if the contract had not been concluded (so-called negative interest); damages due to non-performance are excluded.
8.3 Damages for reasons not attributable to aeroTELEGRAPH
aeroTELEGRAPH is not liable if the performance of the service is temporarily interrupted due to force majeure, completely or partially limited or impossible. Force majeure includes in particular power failure and the occurrence of harmful software (e.g. virus attack). In no case is aeroTELEGRAPH responsible for abuse by third parties (e.g. hackers, senders of computer viruses), for security deficiencies of telecommunication networks and the internet and for costs of possible support services of the advertiser or the agency or of third parties commissioned by the advertiser or the agency. If the advertising material is not located on a server of aeroTELEGRAPH but is delivered by the server of a third party (so-called redirect procedure) and the contracting partner provides the advertising material to aeroTELEGRAPH via notification of the URL of the advertising material on the server of the contracting partner or the third party, aeroTELEGRAPH does not assume any guarantee and no liability for the delivery of the data via the Internet as well as not with regard to the resulting further risks such as e.g. error-free delivery and quality of the advertising material and data security.
9. DURATION OF CONTRACT, RIGHT OF RESCISSION, POSTPONEMENT AND TERMINATION OF CONTRACT
9.1 Duration of contract
The start and duration of the contract are determined by the advertising order.
9.2 Right of withdrawal / Cancellation
A resignation on the part of the advertiser and/or the agency is in principle impossible.
aeroTELEGRAPH can, however, grant the advertiser or the agency such a right of withdrawal at its own discretion in individual justified cases. The cancellation must be made in writing (e-mail is sufficient) and must contain a comprehensible reason for the cancellation. Cancellation by telephone or verbally is not possible. Does aeroTELEGRAPH hold the
If, on the other hand, the withdrawal is unfounded, no such withdrawal will be granted at any time. If the advertiser or the agency is exceptionally granted a right of withdrawal by aeroTELEGRAPH, the withdrawal is possible free of charge up to 11 working days prior to the agreed date of placement at the latest. Within the last 10 working days before the agreed campaign start the contractual partner’s right of rescission granted by aeroTELEGRAPH is only valid against a pro rata payment.
The advertising fee is calculated on the basis of the net/net value of the advertising order in question:
– between 10 and 6 working days: 25%.
– between 5 and 3 working days: 50%.
– Less than 3 working days before campaign launch: 100%.
– after successful connection: 100 %.
9.3 Postponement of dates
The written postponement of an agreed connection time is only possible up to 11 working days before the initially agreed connection date and is subject to existing capacities.
9.4 Termination of fixed-term contracts
If the term is clearly fixed in the sales order, the contract ends automatically at the end of the agreed term.
9.5 Termination of contracts with a minimum term or contracts with an indefinite term
Unless otherwise agreed, the contract may be terminated in writing by either party with 30 days’ notice to the end of the minimum contract period, subject to a minimum contract period specified in the advertising order. If the contract is not terminated at the end of the minimum contract period, it shall be automatically renewed for an indefinite period.
and may be terminated in writing with 60 days’ notice to the end of each month. The same applies to contracts with an indefinite term without a minimum term.
9.6 Termination for good cause
A termination without notice on the part of aeroTELEGRAPH for important reason remains reserved in any case. Important reasons are in particular, but not conclusive:
– Default of payment of the contracting party according to clause 5.2;
– Violation of these GTC or other rules of conduct
– If the contracting party misuses services of aeroTELEGRAPH for illegal or immoral purposes.
In case of termination without notice for important reason, aeroTELEGRAPH is entitled to suspend the placement of the advertising material with immediate effect. Damages and further claims remain reserved. In case of a termination without notice for important reason, the contracting party has to reimburse aeroTELEGRAPH the difference between any volume discounts granted and the discount as calculated after the termination related to the actual volume purchased, without prejudice to any further legal obligations.
10. CHANGES
10.1 Adaptation of the General Terms and Conditions of Business
aeroTELEGRAPH is entitled to change or adapt the general terms and conditions at any time.
10.2 Price changes
aeroTELEGRAPH is free to make price changes and to change its advertising space at any time as well as to remove completely or partly from the offer. Price changes compared to the published rates are possible at any time. For legally binding advertisements that have come into being
the price changes are not effective. Price adjustments as a result of changes in the tax rates (e.g. increase in value-added tax) shall not be deemed price increases. A further development of an advertising space or an appropriate adaptation of an advertising medium for objective reasons shall not be deemed to be a change in the contract. The appropriateness of a further development or adaptation – e.g. in the context of a redesign of an advertising medium – is presumed.
11. WRITING
Changes and additions to the contractual relationship, including changes to this clause, must be made in writing to be legally effective.
12. SEVERABILITY CLAUSE
Should individual or several provisions of these GTC be or become invalid, the validity of all other provisions or agreements shall not be affected in case of doubt. Instead of ineffective provisions, a provision shall apply which comes as close as possible to the economic sense and purpose of the ineffective provision in a legally permissible manner. The same shall apply in the event of gaps requiring filling.
13. TRANSFER TO THIRD PARTIES
Rights and obligations under this Agreement may only be transferred to a third party with the written consent of the other party. The transfer of the entire agreement to a legal successor and/or within the group is excluded from the requirement of consent. Such transfer must be notified in writing to the other party.
14. PLACE OF JURISDICTION
The contractual relationship is subject to Swiss law to the exclusion of the Federal Act on International Private Law (IPRG) and the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction is the city of Zurich (Switzerland).
aeroTELEGRAPH GmbH, as of January 1, 2019