§ 1 General

1.1. These General Terms and Conditions (hereinafter referred to as “GTC”) apply to all media activities (as described in more detail in Section 2.2) and all services and/or deliveries provided in this context by DCI Database for Commerce and Industry AG and its affiliated companies within the meaning of Section 15 of the German Stock Corporation Act (“AktG”) (hereinafter referred to collectively as “DCI”).

1.2. In the event of a conflict, all contractual agreements shall be in the following order of precedence; gaps shall be filled by the subordinate provisions:
a) Individual contracts (hereinafter referred to collectively as “agency contracts”);
b) these GTC;
c) statutory provisions.

1.3. The GTC shall also apply to all future business relationships, even if they are not expressly agreed again.

1.4. Conflicting or the customer’s own general terms and conditions are expressly excluded by the conclusion of the contract. This shall also apply if the offer is submitted or accepted by the customer with reference to the overriding validity of the customer’s own General Terms and Conditions.

§ 2 Commissioning of DCI, range of services

2.1. Offers made by DCI are generally non-binding, unless an offer made by DCI is expressly designated as binding in writing. Offers made by the customer shall only become binding for DCI upon acceptance of the offer. DCI may accept offers from the customer within two weeks of receipt.

2.2. As part of its media activities, DCI offers its customers the following range of services.

2.2.1. Media strategy, media consulting and media planning
– Consulting on the basis of a briefing to be prepared by the client, in the fine-tuning of marketing/communication objectives and media objectives.
– Consulting on the definition and distribution of the media budget required to achieve the advertising and marketing objective.
– Development of a media strategy in line with the communication objective, including the timing, location, content and intensity of use in all media.
– Creation of a media plan until final approval by the client and – if necessary – up to two revisions of an approved media plan or its complete re-creation to implement any changes to the client’s specifications (e.g. postponement of launches, changes to media, budget changes). If further revisions or the creation of additional media plans are required or requested by the customer, the costs incurred in this respect shall be invoiced separately according to the price list on a time basis (cf. Section 6.5).

2.2.2. Media buying, media processing and reporting
– Negotiations with the media to achieve favorable volume and repeat discounts, taking into account the client’s total order volume.
– Commissioning the media to implement the media plan approved by the client in its own name and for its own account by DCI or subcontractors commissioned by DCI.
– Creation of scheduling and production document plans (circuit diagrams) based on order confirmations.
– Taking into account the payment deadlines of the media, subject to the timely settlement of corresponding advance invoices by the customer (see Section 6.5), so that all available discounts can be fully utilized.
– Review of media invoices.
– Final billing of the switching costs to the customer, stating all price factors and details.
– Preparation of reports on all media budgets, distribution plans, media services, conditions, discount claims.
– Creation and interpretation of ex-post documentation and analysis of all media measures carried out in relation to the entire year/contract term.

2.3. The scope of the services to be provided by DCI to the customer from the range of services described above (Section 2.2) in individual cases is set out in the agency agreement agreed between the parties, including its annexes.

2.4. DCI’s range of services does not include the production of product-related advertising material, content and other documents or the timely dispatch to the media, including the necessary approvals and checking for legal admissibility and content and graphic design (regulated in detail under Section 3).

2.5. To the extent that DCI develops services for the customer that are capable of being protected by intellectual property rights, DCI shall be entitled to all copyrights and exploitation rights thereto. Any reproduction, use or disclosure not expressly authorized is prohibited.

2.6. The customer grants DCI the right to use its company name and logo as a reference in advertising.

§ 3 Delivery of and responsibility for advertising material

3.1. DCI shall draw up schedules and production document plans showing which medium must have which production documents available at which address at which time for timely placement. The customer must ensure that the advertising material is dispatched in accordance with DCI’s specifications. The lead times calculated by DCI at the planning stage are intended to ensure timely placement, subject to the corresponding availability of the media. In the event that the customer falls short of the lead times on which the scheduling and production documentation plans are based, DCI shall not be liable for any resulting errors, delays and switching failures.

3.2. The booked media reserve the right to check submitted advertising material for its content, suitability for presentation, technical suitability and, in the case of digital media, also its performance suitability and, if necessary, to refuse to place the advertising material.

3.3. The customer is responsible for the following measures:
– the production of the technical production documents until they are ready for placement. Ensuring the technical specifications as required by the media / marketers and the direct coordination or adaptation of these with the media / marketers.
– The timely dispatch of the advertising material to the recipients specified by DCI or uploading to the communicated advertising material server.
– If necessary, the labeling with regard to the insertion sequence and the scheduling assignment.
– Checking the switching quality

3.4. DCI shall not be liable for the content and the legal admissibility of the advertising, in particular under competition law. In this respect, the customer shall indemnify DCI against all third-party claims upon first request. This includes, in particular, the costs of DCI’s legal representation. If possible, the customer shall conduct any necessary legal disputes itself in its own name and at its own expense. This shall not affect DCI’s right to claim damages in accordance with the statutory provisions and to withdraw from the contract.

3.5. Furthermore, the customer shall indemnify DCI against any third-party claims if DCI has acted at the express request of the customer although DCI has informed the customer of any concerns regarding the permissibility of the advertising measures. However, DCI has no duty to warn.

3.6. DCI does not check the keywords, contributions, advertising content, other information and data used, neither under trademark law nor under copyright law. The customer must also ensure that it is the owner of all rights of use required for the placement of the advertising. The legal responsibility in this respect lies with the customer. If claims are asserted against DCI by third parties due to trademark or copyright infringements, the customer shall indemnify DCI upon first request. This includes in particular the costs of legal representation. Section 3.4 shall apply accordingly.

§ 4 Inspection obligations of the customer

4.1. The customer is obliged to carefully check all documents (campaign planning, media plan, etc.) provided to the customer by DCI for review and approval within the reasonable period of time set by DCI. The customer is obliged to notify DCI immediately in text form of any errors and/or requests for changes and to give written approval for documents that are not objectionable within the reasonable period set by DCI. DCI is under no obligation to implement projects and measures described in documents not approved in writing by the customer.

4.2. DCI shall not be responsible for errors or the failure or delay of campaigns and/or circuits resulting from the fact that the customer has not performed the inspection obligations described in Section 4.1 in the manner owed.

4.3. Agreed deadlines shall be postponed to a reasonable extent in the event that the customer has not performed the inspection obligations described in Section 4.1 in the manner owed, but at least by the duration of the non-fulfillment of obligations in accordance with the contract. Any further rights of DCI shall remain unaffected. If DCI incurs additional costs (e.g. due to the provision of employees, increased processing costs, etc.) as a result of the customer’s failure to perform the inspection obligations described in Section 4.1 in the manner owed, the customer shall be obliged to provide compensation against proof in accordance with the current DCI price list as set out in Section 6.5.

§ 5 Cancellation of already ordered circuits

In the event that ordered placements are canceled, the current cancellation conditions of the respective media and marketers shall apply, which will be communicated to the customer by DCI on request. DCI will make every effort to reduce or eliminate any cancellation costs incurred; however, a positive outcome of such negotiations cannot be guaranteed. Any cancellation costs incurred shall be borne by the customer. The additional time spent on cancellation negotiations shall be invoiced separately in the case of the commission model, as set out in Section 6.2, and in the case of the fee model according to time and effort and the current DCI price list, as set out in Section 6.3.

§ 6 Remuneration DCI

6.1. General
DCI is obliged to pass on to the customer any remuneration and conditions (volume and multiple discounts) granted by the media or special intermediaries in relation to the customer’s turnover (hereinafter “customer-related discounts”). If DCI bundles the volume of several customers at their request and DCI thus achieves higher customer-related discounts in the sense of a higher volume and/or multiple discount, DCI is obliged to pass this on to the customers concerned on a pro rata basis. In addition, DCI is not obliged to pass on to the customer or credit to the customer on a pro rata basis any other advantages granted by DCI’s media or third parties commissioned by DCI (e.g. agency commissions, agency discounts, discounts on the agency’s total volume, cash discounts, etc.).

6.2. Commission model
If DCI has agreed a commission-based remuneration with the customer, DCI shall receive the contractually agreed percentage of the switching volume realized for the customer. The basis for calculating the switching volume is the so-called net customer price (hereinafter “Net Customer Price”), i.e. the gross prices of the media excluding VAT, less any customer-related discounts within the meaning of Section 6.1 sentence 1 and sentence 2. When determining the Net Customer Price, any benefits granted by the media to DCI or third parties commissioned by DCI within the meaning of Section 6.1 sentence 3 shall not be deducted.

Unless otherwise contractually agreed, DCI shall be entitled to the commission-based remuneration even if DCI has provided services relating to a period after the expiry of the agency agreement.

In the event of cancellation of placements already ordered, DCI shall charge a cancellation fee amounting to 40% of the fee that DCI would have received if the order had not been canceled.

As a rule, DCI shall settle the commission claim as part of the advance invoices (see Section 6.6).

6.3. Fee model
If DCI has not agreed any commission-based remuneration with the customer, DCI shall charge the customer a time-based fee for DCI’s work in accordance with the hourly rates set out in the current DCI price list, unless expressly agreed otherwise. The time-based fee shall be calculated on the basis of quarter hours or part thereof, with the times recorded being totaled at the end of the working day. Unless otherwise contractually agreed, the fee shall be invoiced on a monthly basis.

6.4. Service fee
Unless otherwise agreed, DCI shall receive a flat fee (hereinafter referred to as the “Service Fee”) in addition to the remuneration set out in Sections 6.2 and 6.3 in the amount of 5% of the Mediaeta quantified by the customer upon conclusion of the agency contract or, in the event of an extension of the agency contract, in the amount of 5% of the Mediaeta in the respective extension period. If the mediaeta increases during the initially agreed contract term or during an extension period, the service fee shall also increase accordingly. The service fee is due in the amount of 50% upon placement of the order and in the amount of a further 50% upon termination of the agency contract or at the end of the initially agreed contract term. If the agency contract is extended, the above provision shall apply accordingly for the respective extension period.

6.5. Procurement of third-party data, additional services, surcharges, expenses and travel costs, media placements abroad
Costs incurred for the procurement of third-party data (e.g. editorial contributions, advertising material) from DCI or third parties commissioned by DCI and which DCI can demand reimbursement from the customer if the customer has approved the procurement of this data are not included in the remuneration pursuant to Sections 6.2 – 6.4.

The DCI price list in its current form shall apply to additional services and any surcharges.

Expenses and travel costs incurred by DCI in the course of providing the contractually owed service, as well as other cash expenses incurred by DCI after prior consultation with the customer, shall be reimbursed by the customer after appropriate invoicing and submission of evidence. DCI may not charge administrative surcharges or the like.
In the case of media placements abroad, price changes may occur due to currency fluctuations in the exchange rate if the contracts with the foreign media are not in EURO. Price changes, both if they are to the customer’s advantage and if they are to the customer’s disadvantage, will be passed on to the customer in the actual amount.

6.6. Costs of media processing, advance invoice
The customer shall bear all costs of media processing (switching costs etc.) on the basis of the customer’s net price. Unless otherwise agreed, DCI shall issue quarterly advance invoices at the beginning of each quarter for the placements of the following quarter.

In the case of short-term marketing campaigns that cannot be invoiced via the advance invoices described above for time reasons, DCI shall agree the invoicing and payment dates separately with the customer.

6.7. Invoicing and payment modalities
DCI shall base its advance invoices (cf. Section 6.6) for switching costs on the expected net customer price, i.e. after deduction of all customer-related discounts to be granted by the media upon timely payment within the meaning of Section 6.1 sentence 1 and sentence 2 plus the respective VAT.

Once the complete invoice documents for an insertion have been submitted, DCI shall prepare a final invoice based on the actual net customer price, i.e. after deduction of all customer-related discounts actually granted by the media within the meaning of Section 6.1 sentence 1 and sentence 2 plus the relevant value-added tax.

Any bank charges incurred for payment by the customer to DCI or by DCI to the media shall be borne by the customer. This applies in particular to foreign payments.

6.8. Payment, default in payment
All invoices from DCI are to be paid without deduction within 14 calendar days of receipt of the invoice, unless otherwise agreed.

The timeliness of payment shall be determined by the date of receipt of payment by DCI.

In the event of late payment by the customer, DCI shall be entitled to charge interest on arrears at a rate of nine percentage points above the base interest rate, but at least 12% of the outstanding amount per calendar year. DCI reserves the right to claim further damages in any case.

If the customer exceeds a deadline for payment of an advance invoice, claims of the customer against DCI for any loss of discounts or other benefits attributable to the late payments are excluded.

If the customer defaults on payment of an advance invoice, DCI shall be entitled to cancel the media order at the customer’s expense following a reminder from the customer.

§ 7 Liability and warranty claims of the customer

7.1. The warranty for all media activities provided by DCI shall be governed by the statutory provisions of the service contract in accordance with Sections 611 et seq. of the German Civil Code (BGB), unless expressly stipulated otherwise in the agency contract or in these GTC.

7.2. DCI’s liability for damages and reimbursement of futile expenses, irrespective of the legal grounds (e.g. due to culpa in contrahendo; due to breach of contractual or statutory ancillary obligations; due to breach of an obligation arising from the contractual relationship, in particular impossibility, delay, defective or incorrect performance; due to tort) is excluded or limited in accordance with the following provisions:

7.2.1. DCI shall not be liable for:
– In the event of simple negligence on the part of DCI’s executive bodies, legal representatives, employees or other vicarious agents;
– In the event of gross negligence on the part of DCI’s non-executive employees or other vicarious agents.

7.2.2 However, to the extent that DCI is liable on the merits, this liability – even if it is a breach of material contractual obligations – is excluded:
– For unforeseeable damage that is not typical for the contract;
– If the risk causing the damage is usually insured by the customer in the customer’s industry;
– For claims for damages in addition to or instead of performance, insofar as compensation for lost profit or other consequential damage is demanded;
– For damage that can be controlled by the customer.

These exclusions shall not apply in the event of liability due to gross negligence or intent on the part of DCI’s executive bodies, legal representatives or senior executives.

7.2.3. Statutory claims arising from product liability law and personal injury remain unaffected.

7.2.4. If DCI is prevented from fulfilling its contractual obligations due to force majeure such as mobilization, war, terrorism, riots, natural disasters, fire or other unforeseeable circumstances for which DCI is not responsible, e.g. strikes or lawful lockouts, operational or transmission disruptions or lack of fulfilment of switching orders by media, the agreed delivery periods shall be extended by the duration of the hindrance plus a reasonable start-up period. DCI shall not be responsible for the aforementioned circumstances even if they occur during an already existing delay. DCI shall notify the customer of the beginning and the expected end of such circumstances as soon as possible. If the hindrance lasts six months or longer, both parties may withdraw from the agency contract.

§ 8 Offsetting and right of retention

The offsetting or exercise of a right of retention by the customer due to disputed or not legally established counterclaims is excluded. The exercise of a right of retention by the customer is also excluded insofar as the counterclaims are not based on the same contractual relationship.

§ 9 Assignment

The customer may not assign, in whole or in part, the rights and obligations incumbent upon it in connection with DCI’s services without DCI’s prior written consent. DCI is permitted to assign the rights and obligations incumbent on DCI in connection with services, in particular to affiliated companies within the meaning of Section 15 of the German Stock Corporation Act (AktG).

§ 10 Subcontractors

DCI is entitled to engage third parties to perform the services owed to the Customer, regardless of whether or not these are affiliated companies within the meaning of Section 15 AktG. In this case, however, DCI is obliged to impose the obligations incumbent on DCI towards the customer on the third party as well.

§ 11 Confidentiality, data protection, exclusion of competition protection

11.1. DCI and the customer are obliged to maintain secrecy about all transactions and operating procedures of the other party that become known as a result of the cooperation and not to disclose them to third parties. This confidentiality obligation is unlimited in time, i.e. it shall also apply after termination of the contractual relationship as long as the relevant processes or facts have not become publicly accessible through no fault of the party obliged to maintain confidentiality. This applies in particular – but not exclusively – to all information about business partners, customers, internal company information, technologies and processes used. Both parties shall obligate their employees to maintain this confidentiality in an appropriate manner.

11.2. However, DCI is entitled to use anonymized data received from the customer for market research and guarantees not to pass on this customer-specific data to third parties without consent.

11.3. DCI undertakes to comply with the provisions of data protection law. If personal data is transmitted by the customer within the scope of the contractual cooperation, the customer warrants that it may collect, store and pass on the transmitted personal data to DCI within the scope of the contractual cooperation in accordance with the applicable data protection regulations and, in particular, that it has obtained the necessary declarations of consent. The customer shall indemnify DCI against all losses, damages and costs, including the costs of legal representation, arising from a breach of data protection regulations by the customer, including to the extent that expenses have to be incurred to defend against claims or prosecution by third parties, including the competent supervisory authorities.

11.4. Unless expressly agreed otherwise, DCI does not grant the customer any protection against competition. In particular, DCI shall not be liable to the customer for any competitive overlaps with other customers that exist or may arise in the future.

§ 12 Applicable law, place of jurisdiction, miscellaneous

12.1. All legal relationships between DCI and the customer shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

12.2. The place of performance for deliveries and services is DCI’s registered office. The exclusive place of jurisdiction for all disputes arising from or in connection with a service provided by DCI shall be the competent court at DCI’s registered office; however, DCI shall also be entitled to sue the customer at its registered office.

12.3. Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.

12.4. DCI reserves the right to amend these General Terms and Conditions at any time. DCI shall notify the customer of any changes at least four weeks before the change takes effect. If the customer does not object to the amendment of the Terms and Conditions within four weeks of receipt of the notification of amendment by letter to DCI’s business address, the amended Terms and Conditions shall be deemed to have been accepted by the customer. In the event that the customer does not agree to the changes, DCI reserves the right to extraordinary termination without observing any notice periods.