- trafficrunner GmbH (hereinafter “trafficrunner”) sells to commercial users advertising space on its website and in the e-mail-based newsletters and direct mailing campaigns it operates.
- The contract for the execution of an adverting order provided by a third party (hereinafter the “Contracting Party”) or an intermediary Agency is performed by trafficrunner in its own name and for its own account.
- trafficrunner is entitled to engage sub-contractors.
- These Terms and Conditions (GTC) have exclusive application to the marketing opportunities of trafficrunner stated in paragraph 1.1 (hereinafter the “Services”).The terms and conditions of the Contracting Party, insofar as differing from the present, shall not apply, even if they are not expressly prohibited by trafficrunner.
- For subsequent transactions, no further express inclusion shall be necessary.
- If any provision of these Terms and Conditions proves to be wholly or partly ineffective, the contractors shall replace this provision with a new one that comes as close as possible to its legal or economic meaning.
Conclusion of contract
- All offers are subject to confirmation by trafficrunner. Agreements are only valid if made in writing; a signed a written order confirmation by trafficrunner shall suffice to that end.
- Verbal collateral agreements and contractual amendments shall take effect only after written confirmation. Explanations in text form transmitted over or recorded in electronic media, such as e-mail or Internet, shall be equivalent to the writing form.
- The services of trafficrunner shall be exclusively listed in the order confirmation of trafficrunner .
Obligations of the Contracting Party
- The Contracting Party obligates itself to submit to trafficrunner ,via email to the agreed delivery address, all information and materials necessary for the proper performance of the service, at least three working days before the start thereof. The promotional material must be suitable for the agreed purposes, in particular as regards on-screen display, appropriate environment, and of the ordered type and size, as well as match the agreed format. trafficrunner reserves the right to modify the Contracting Party-supplied material and make changes and corrections thereto, especially as regards sizing, insofar as this is necessary or advisable for its optimal display and reasonable for the Contracting Party.
- The Contracting Party confirms with the order that the contractual provision of the service does not violate statutory provisions or rights of third parties. In particular, the contracting party carries the sole responsibility for the contents of advertising, from a media and competitive law standpoint, and in general. The Contracting Party ensures in particular that promotional materials do not include any sexual or pornographic images, names or terms used which point to sexual or pornographic programs, or advertise programs with sexual or pornographic content. trafficrunner is not obligated to verify the orders for legal admissibility.
- The Contracting Party warrants trafficrunner to be authorised to leverage the usage rights of holders of rights related to works, trademarks, services, personality and other rights on the promotional material provided by the former.(e.g., text, photos, graphics, files, audio and video tapes, etc.)
- The Contracting Party undertakes to hold harmless and indemnify trafficrunner for all damages, losses and expenses (including legal fees and expenses of attorneys appointed by trafficrunner ), which trafficrunner shall bear whole or individually as part of legal proceedings, or resulting from threatened or asserted claims, arising from the non-compliance with the warranties and obligations set out by the Contracting Party under this contract, or from the content of the advertising material along with embedded links.
- The Contracting party is obligated to check for contractual compliance the service provision within 48 hours after first use and to notify trafficrunner any complaints in writing. If the Contracting party fails to timely and duly provide such notification, the service provided is considered to be compliant and approved.
Refusal of orders
- trafficrunner reserves the right to refuse individual services – even if they already affect existing contractual relationships – for legitimate reasons, such as those of legal, ethical, or moral nature. trafficrunner shall immediately notify this refusal to the Contracting Party.
- If the refusal is in the interest of the Contracting Party, this shall pay the agreed compensation for the undelivered service (s), unless trafficrunner has culpably failed to exploit otherwise any freed-up and reserved advertising space up to the time reserved for the undelivered services. Otherwise, the Contracting Party shall be only entitled to the refund of an eventual deposit. Any further claims shall be excluded.
- trafficrunner is obligated to fulfil the order only if the Contracting Party duly fulfils the obligations arising under Section 4.
- The service is deemed performed as the number of ordered contacts is called in the in-house trafficrunner system. The Contracting Party receives a written report from trafficrunner on called contacts.
- Should the non-performance of the contractual services through trafficrunner result from force majeure or other circumstances non-attributable to trafficrunner, this shall be entitled to suspend the obligation to perform for the duration of said event.
Prices and Terms of Payment
- The Contracting Party shall pay the fees set out in the price list as of contract conclusion for the placement of the ads. In case of cancellation after ordering, 70% of the order value shall be due by way of cancellation fee.
- All fees shall be subject to the applicable statutory value-added tax at the time of invoicing. Payments shall be due on the invoice presentation without deduction. The Contracting party shall bear any costs arising from dunning and deferment of payment. trafficrunner explicitly reserves the assertion of further damages (in addition to the statutory default damages resulting thereof).
- Should the Contracting Party be in arrears or should bankruptcy or insolvency proceedings be initiated against the same , trafficrunner shall be entitled to suspend the delivery of any further services and invoice for all services delivered. In this case, trafficrunner shall be entitled to make the provision of other services, even if these had been contractually agreed, contingent upon the payment of compensation for all outstanding orders.
- In case of default by the Contracting party, trafficrunner shall be entitled to an interest rate of 10%. The claim of further damages is reserved.
- The Contracting party may only set off claims of trafficrunner with counterclaims of the latter that have been neither disputed nor legally established.
- The Contracting party may only assert a right of withdrawal if the individual claims relate to the same contractual relationship.
Warranty and Liability
- Failure to properly perform the services in a way that significantly impairs their purpose or enjoyment shall entitle the Contracting Party to a proper supplementary performance. trafficrunner reserves the right to choose the type of supplementary performance. This shall especially apply should trafficrunner fail to perform, in whole or in part, due to technical reasons. A claim for the reduction of compensation shall only be allowed should the supplementary performance prove unfeasible or unreasonable to the Contracting Party. The Contracting Party shall grant trafficrunner a reasonable period to complete the supplementary performance. Failure to complete the supplementary performance within the agreed period shall entitle the Contracting party to seek reimbursement commensurate to the improperly performed services. The Contracting party, to the extent legally permissible, may bring no further claims against trafficrunner for the improper performance of the services under the contract.
- Should trafficrunner fail to provide or improperly provide a particular service because the necessary information to that end is incompletely, late or deficiently received, trafficrunner shall be entitled to the payment in full, unless trafficrunner culpably fails to exploit otherwise any resources freed-up by the non-performance or improper performance up to the original time of the non-performed or improperly performed services.
- trafficrunner shall be entitled to destroy the information furnished by the Contracting Party for the provision of the service as the order completes.
- Damage claims against trafficrunner shall be excluded, irrespective of the legal basis, unless trafficrunner has acted intentionally or with gross negligence, or said claim result from breach of warranty or injury to life, limb, or health.
- Insofar as trafficrunner is fundamentally liable, damages shall be limited to the foreseeable damage. This shall not apply to damage caused by grossly negligent and intentional acts or to liability for damage to life, body, and health. In no case whatsoever shall the Contracting party be entitled to consequential damages, such as loss of production, loss of use, loss of orders, loss of profits or other direct or indirect damages.
- Insofar as the liability is excluded, this shall also apply to the personal liability of employees, representatives, contractors and other employees.
Under the Data Protection Act, the Contracting Party is informed that trafficrunner stores its data in machine-readable form and automatically processes them for contract purposes. The Contracting Party hereby agrees to this storage. trafficrunner is entitled, insofar as third parties are required for the provision of its services, to forward data to third-party contractors as required.
Final terms of the agreement
- Place of performance and jurisdiction for all disputes arising from or in connection with the service provided is Nuremberg. trafficrunner may initiate legal action against the Contracting party at its general place of jurisdiction.
- This Agreement shall be governed by German law, excluding the CIST.