General terms and conditions for advertising
EFFECTIVE: September 2023
§ 1 Scope, customer’s terms and conditions, individual Agreements, future advertising orders
(1) The following terms and conditions apply to contracts between the customer and MOCHNI Media Group/Antonia Böhlke, Mansteinstraße 29, D-20253 Hamburg (hereinafter the “publishing house”) for the production and/or implementation of one or more individual advertisement services (e.g an online advertisement and/or social media or influencer campaigns) (hereinafter jointly “Custom Solutions”), in print, online and/or social media of the publishing house (hereinafter “advertisement placement order”) as well as to the marketing of advertising on websites, mobile offerings or websites (for smartphones and tablets) and other digital products. Unless agreed otherwise in writing, the customer’s general terms and conditions shall not apply. Any individual agreements made with the customer shall prevail over these GTC.
(2) In case of ongoing business relationships, these GTC shall also apply to all future advertising orders with the customer, even if the GTC are not expressly referred to again.
§ 2 Advertising order, advertisements, written form
(1) “Advertising order” within the meaning of the following GTC is the contract between the publishing house and the customer for the publication of one or more advertisements within the framework of standard advertising formats, special advertising formats and/or within the framework of other advertising cooperations published in information and communication services, in particular the Internet as well as mobile offerings, including social media platforms and mobile applications. Internet and mobile offers shall be treated equally, unless agreed otherwise.
(2) “Advertisements” within the meaning of these GTC are designed advertising messages, which may consist in particular of one or more of the following elements:
a) texts, images, sound sequences and / or moving images,
b) further elements within the framework of special advertising formats (e.g. advertorials, MicroChannel) and other advertising cooperations (e.g. content specials on specific subjects),
c) a sensitive area which, when clicked, establishes a connection by means of an online address specified by the customer to further information which are within the customer’s sphere (e.g. a link).
(3) Insofar as written form is required under these GTC, this requirement may be fulfilled by letter, fax or e-mail.
§ 3 Offers, conclusion of contract, placement
(1) Unless stated or agreed otherwise, all offers by the publishing house are without commitment and an order becomes effective when the publishing house confirms the customer’s request in writing but at the latest when the publishing house publishes the Custom Solution. Where no individual agreement has been made, the prices set out in the rate card as applicable at the time of the order and as published at www.mochni.com or sent to the customer by the publishing house at the customer’s request (hereinafter the “rate card”) shall apply.
(2) Subject to any other differing agreement, the advertising order shall come into effect upon written confirmation of the customer’s request by the publishing house, but no later than upon publication of the advertisements by the publishing house.
(3) Insofar as advertising agencies submit requests for advertising orders, the advertising order shall – subject to any other differing written agreement – be concluded with the advertising agency and not with its client. If a client of the advertising agency should become party of the contract with the publishing house, the advertising agency must expressly refer to its representation and name its client. The publishing house is entitled to demand proof of power of attorney from the advertising agency.
(4) Advertising of goods or services by more than one advertiser or other advertising space buyers within one advertising order requires an additional written agreement.
(5) If the publishing house has not agreed expressly in writing on a definite placement, there will be no claim for any specific placement.
§ 4 Rejection of advertising orders, withdrawal and blocking of advertising orders, identification of advertisements
(1) The publishing house reserves the right to reject advertising orders – including legally binding confirmed orders or individual releases within the scope of an advertising order – due to the content, origin or technical form of the advertisements in accordance with standard, objectively justifiable principles of the publishing house, when the advertisements violate laws, official provisions, the rights of third parties or morality according to the best judgment of the publishing house, or their publication is unacceptable to the publishing house.
(2) The publishing house is entitled to withdraw or block advertisements that have already been published if circumstances subsequently arise or become known to the publishing house which fulfill the requirements of section § 4 (1).
(3) The publishing house shall notify the customer of any rejection or withdrawal or blocking without delay.
(4) Advertisements that are not clearly recognizable as advertising due to their design/presentation may be indicated as such by the publishing house, e.g. by the reference “Advertisement”.
§ 5 Execution of the advertising order, placement of advertisements, rebooking, retrieval, ad impressions/volume, discount scale, changes to the websites
(1) Booked advertisements shall be published on the agreed website/platform within the agreed placement period. There is no entitlement to a placement in a specific position, unless otherwise expressly agreed in writing. The publishing house will make every effort to enable the placement of the advertisements in the position requested by the customer.
(2) The customer is entitled to rebook agreed advertising placements (change of booked website, placement request and placement period) if the rebooking request is communicated in writing no later than two weeks before the agreed campaign start, the agreed booking volume (fee amount according to the respective price list) is maintained, the placement of the rebooked volume is not delayed compared to the originally booked volume and the publishing house has sufficient free capacity with regard to the desired new advertising booking.
(3) If the customer has been granted the right to retrieve individual advertisements within the scope of an advertising order, the advertising order shall be executed within one year after the conclusion of the contract, unless otherwise agreed. If the right to retrieve is not exercised within this period for reasons for which the customer is responsible, the right to retrieve shall lapse without compensation after the expiry of the year. The obligation to pay the corresponding remuneration shall remain unaffected.
(4) If the publishing house has guaranteed a certain number of ad impressions to be delivered or a certain volume to be delivered (hereinafter collectively referred to as “volume”) in the respective advertising order, the publishing house undertakes to provide the corresponding volume on the agreed advertising spaces/formats. If the agreed volume cannot be delivered in full during the agreed placement period for reasons for which the publishing house is not responsible, the placement period shall be extended until delivery is complete, unless otherwise agreed in writing. Unless expressly agreed otherwise in writing, the evaluation of the ad server used by the publishing house shall be exclusively decisive for the delivered volume, also see § 9 of these GTC for reporting.
(5) If a discount scale has been agreed and less volume is delivered than agreed in the advertising order, the discount shall be calculated on the basis of the actual volume, not the volume booked. This shall not apply if the publishing house is responsible for delivering less volume than agreed.
(6) In the interest of a constantly up-to-date design, the publishing house is entitled to adapt the appearance of its websites and/or their layout at its own discretion, or to move them to an international platform, unless an equivalent presentation of the advertisements is not guaranteed.
§ 6 Data delivery by the customer, changes to the advertisements by the customer
(1) The customer is obligated to provide proper and flawless advertisements and materials, in particular in compliance with the format, delivery instructions and/or technical requirements and specifications of the publishing house, respectively the data and materials (e.g. images and text) required – depending on the advertising order – or the design of the advertisements, in a timely manner, but no later than:
a) ten working days before the start of the campaign regarding standard advertising formats (e.g. display ads),
b) fifteen working days before the start of the campaign regarding advertising orders which relate exclusively or partially to special advertising formats (e.g. social media ads, newsletter sponsorship).
c) twenty-five working days before the start of the campaign regarding exclusively or partially to special advertising formats (“Custom Solutions”) produced specifically by the publishing house for the customer, e.g. sponsoring of content specials on specific subjects (e.g. native article, brand article, special issue sponsorship, placement in shopping guide), and
d) for productions of MOCHNI Studio (development, concept and realization of photo and/or video campaigns/packages incl. photo and/or video production/shooting by MOCHNI Studio) according to the respective deadline agreed individually between the publishing house and the customer.
(2) Costs for the publishing house due to changes to the advertisements which are requested by the customer or for which the customer is responsible, e.g. in the case of changes resulting from the customer’s failure to comply with the publishing house’s delivery instructions (including delivery instructions for social media ads) and technical specifications, shall be paid by the customer.
§ 7 Customers’ use of Custom Solutions
Unless individually agreed otherwise, the customer may only use Custom Solutions produced by the publishing house in the publishing house’s media (not, however, for its own publications, company brochures, POS materials and/or online channels of the customer or third parties), only in the types of use and advertising channels expressly named in the offer or order confirmation (whichever forms the basis of the agreement) (e.g. a promotion ad in a specific magazine of the publishing house, a specific defined Instagram accounts, certain defined POS material) and only for the agreed campaign period or publication period of the Custom Solution. The customer does not acquire any rights of use beyond this.
§ 8 The customer’s obligation to cooperate and rules for photo / video shoots for Custom Solutions
(1) The customer must comply with the deadlines for the briefing, including, where applicable, the submission of image and text material, for coordination with the publishing house upon receipt of the layout and text proposal, and for the final layout (placement of images) approval. The layout design is defined by the publisher. Except where different deadlines were agreed at the conclusion of the contract, the deadlines specified in the offer shall apply; if no deadlines have been specified in the offer, the deadlines specified on the website www.mochni.com shall apply. If deadlines shorter than those have been individually agreed at the conclusion of the contract, the publishing house shall not be obligated to publish the image and text material in the agreed edition of the medium in the event of a late briefing and/or late delivery after expiry of the agreed deadlines. The publishing house remains entitled to payment of the agreed price; any expenditures as may have been saved will be treated in accordance with the applicable laws. Alternatively, the publishing house in any such case will have the right but no obligation to postpone the publication to the next possible publication date against payment of the full price, unless this is not reasonably acceptable for the customer.
(2) Where a photo shoot for a Custom Solution was agreed upon, a representative of the customer, who is present on set, will choose the photos to be included in the Custom Solution’s layout from a selection of pictures, together with the publishing house. Notwithstanding the foregoing sentence, it may also be agreed, provided that the necessary technical equipment is available on set, that the photos for this selection will be sent to a different place via electronic data transmission to an appointed representative of the customer, who is on standby during the shoot. The selection is bindingly agreed upon during the shoot. Subsequent changes are only possible by separate agreement, and they will be charged separately. The foregoing does not apply if it has been agreed that the selection of photos will take place after the shooting; in this case, the customer shall make the selection within 48 hours from transmission of the photos by the publishing house by electronic data transmission, unless another period has been agreed. If the customer fails to comply with the obligation to cooperate, the publishing house will select the pictures at its own discretion in accordance with the contractual agreements. If outdoor shooting is impossible due to bad weather conditions, an alternative shoot (in a building or at a weatherproof location, for example) will be planned on location by mutual agreement, considering the on-site possibilities. A reshoot on another day is only possible by separate agreement and will be charged separately.
(3) The customer agrees that MOCHNI MEDIA GROUP has its own creative freedom in the creation of the video work.
The client is obliged to accept the work produced in accordance with the contract. Acceptance cannot be refused due to insignificant defects.
§ 9 Cancellation of advertising orders
(1) The customer is entitled to cancel the advertising order against payment of the following remuneration, unless the customer or the publishing house can prove that the remuneration to which the publishing house is entitled to pursuant to Section 648 Sentence 2 BGB (German Civil Code) is lower or higher:
a) In the case of advertising orders that involve standard advertising formats, cancellation is possible up to four weeks before the start of the campaign, whereby 50 percent of the order value will be charged. If this deadline is not met, 70 percent of the order value will be charged. In the case of cancellation after the start of the campaign, the full invoice amount must be paid.
b) In the case of advertising orders that involve exclusively or partially special advertising formats “Custom Solutions” and all other advertising cooperations (with the exception of MOCHNI Studio, for which § 7 (1) c) applies), cancellation is possible up to eight weeks before the start of the campaign whereby 50 percent of the order value will be charged. If this deadline is not met, 70 percent of the order value will be charged. In the event of cancellation after the start of the campaign, the full invoice amount shall be paid. And the technical costs already incurred for the advertising order up to the time of cancellation will be charged.
c) In the case of MOCHNI Studio productions, cancellation is possible up to eight weeks before the start of pre-production whereby 50 percent of the order value will be charged. If this deadline is not met, 70 percent of the order value will be charged. In the event of cancellation after the start of the pre-production, the full invoice amount must be paid. And the costs/expenses already incurred at the respective time of cancellation by the customer at the expense of the publishing house shall be invoiced to the customer. This includes costs/expenses for services already rendered by the publishing house, for services already rendered by third-party and for external third-party costs/expenses/fees/remuneration (e.g. for shooting locations, models/influencers, photographer, etc.) which are already incurred and which are contractually binding for the publishing house.
(2) The right to terminate for cause remains unaffected.
(3) Terminations, including cancellations, must be in writing to be effective.
§ 10 Customer’s right guarantees, indemnification, advertising for medicinal products and remedies, granting of rights by the customer
(1) The customer warrants that he holds all rights necessary for the placement of the advertisements and that the advertisements and the data supplied by him for this purpose are not encumbered with third-party rights and do not infringe third-party rights (e.g. copyrights, personal rights, trademark rights) or other official or statutory provisions. The customer shall indemnify the publishing house against any claims by third parties based on the infringement of the aforementioned guarantee respectively the customer shall compensate the publishing house for corresponding damages, in particular costs due to a necessary legal defense, unless the customer is not responsible for the infringement. The publishing house is not obliged to check advertising orders to determine whether they infringe the rights of third parties or violate legal provisions. The customer is obliged to support the publishing house in good faith with information and documents for the legal defense against third parties. The publishing house is entitled to make the advertising for medicinal products and remedies dependent on a written assurance from the customer regarding the legal permissibility of the advertising and/or, with the customer’s consent and at the customer’s expense, to have the legal conformity of the advertising template verified by an expert.
(2) The customer shall grant the publishing house all copyrights, ancillary rights and other rights necessary for the use of the advertisements by means of all known technical processes as well as in online media and mobile offerings of all kinds, in terms of time and content, to the extent necessary for the execution of the advertisement order and in terms of location without any restrictions, in particular the right to reproduce, distribute, publish, communicate to the public and making available to the public , transmit, broadcast, extract from a database and retrieve.
§ 11 Grant of rights for publication in electronic editions of the publishing house
Insofar as the customer provides content (e.g. text, image or video material) for the Custom Solutions, the customer shall ensure that the publishing house is entitled to use such content as part of the Custom Solutions in any electronic and/or interactive edition/application of the agreed publication (e.g. online platform, print magazine, facsimile, e-paper, magazine preview, e-book edition, in an online archive, on CD ROM, DVD, application e.g. for smartphone, tablet or similar) (hereinafter the “electronic edition”), in particular, and without any limit as to time, to reproduce, disseminate, transmit, broadcast, make available to the public or retain in a database for retrieval, the advertisement for this purpose.
§ 12 Reporting by the publishing house
Unless otherwise agreed, the publishing house shall inform the customer with regard to standard advertising formats within ten working days after placement of the advertisements about the volume delivered, about the accesses to the advertisements (clicks). With regard to special advertising formats and other advertising cooperations, reportings require a separate agreement, e.g. on making available a report restricted in accordance with the respective agreement.
The placement of cookies, (counting) pixels, tags and similar technologies in the advertisements by the customer or by third parties commissioned by the customer, which enable the collection and evaluation of data from the placement of the advertisements and/or an analysis of user behavior, shall in each case require the prior consent of the publishing house and shall be subject to the provision that the customer and/or the third party commissioned by the customer complies with all legal provisions, in particular with data protection provisions, in particular with regard to transparency and the granting of necessary information to data subjects/users and, if necessary, with regard to obtaining the prior consent of the data subject/user.
§ 14 Prices
Unless otherwise agreed, the publishing house’s current price list at the time of the customer’s request shall apply. The prices stated therein are in each case in EURO plus statutory VAT (if applicable).
§ 15 Invoicing, terms of payment, agency remuneration, set-off and customer’s right of retention
(1) Invoices shall be issued monthly in advance at the beginning of the placement month for the advertisements to be placed in the respective placement month. The invoice amount shall be calculated on the basis of the agreed advertising placements in the invoice period in conjunction with the prices calculated on the basis of an agreement or the valid price list. 50% of the invoice amount is due immediately upon booking. If the publishing house or a third party commissioned by the publishing house undertakes the production of the advertisements on the basis of a contractual agreement, the remuneration agreed for this will be invoiced separately.
(2) Invoices are due for payment without discounts within 5 days of the invoice date. Payment shall be made to the publishing house’s account designated in the invoice. Bank charges shall be paid by the customer.
(3) Advertising agencies or intermediaries shall receive an agency fee (AE commission) in the amount of 15% of the order value to be paid by the customer (after discounts and excluding VAT), provided that they advise their clients or can provide evidence of corresponding services and invoicing is made directly to the advertising agency or intermediary.
(4) The customer may only assert a right of retention against claims of the publishing house insofar as it is based on claims of the same contractual relationship that are undisputed, ready for decision by court or legally established. Setoffs by the customer are only permitted if the customer’s counterclaim has been legally established, is ready for a decision by court or is undisputed.
§ 16 Default of payment, danger of return through lack of performance of the customer
(1) In the case of default or late payment, statutory default interest and statutory default fees shall be charged. The publishing house’s right to claim further compensation is not affected. In the case of late payment the publishing house, without prejudice to any further rights it may be entitled to, can suspend work on a current order until payment has been made.
(2) If, after signing of the contract, it becomes apparent that the publishing house’s right to payment is endangered because of the customer’s inability to pay, the publishing house is entitled to suspend work on the advertisement until the customer has settled his dues or has provided adequate security. The publishing house may set a reasonable deadline by which the customer must settle outstanding amounts or provide security for services provided at the customer’s request on a progressive basis. Upon expiry of the deadline, the publishing house is entitled to withdraw from the contract and/or to exert claims for compensation or reimbursement of expenses if the statutory prerequisites apply.
§ 17 Obstacles to performance
If the execution of an order fails for reasons for which the publishing house is not responsible or which are not imputable to the publishing house (e.g. software-related or for other technical reasons), in particular due to computer defects, force majeure, lawful strikes, statutory provisions, disruptions from responsibility of third parties (e.g. other providers), network operators or service providers or due to comparable reasons, the execution of the order shall be carried out as fast as possible. If the order is carried out within a reasonable period of time that is acceptable for the customer after the disruption has been eliminated, the publishing house’s claim to remuneration shall remain valid.
§ 18 Liability for defects, inspection duty to notify defects
(1) Within the scope of the foreseeable requirements, the publishing house guarantees to communicate the advertisements to the public in accordance with the respective usual technical standard, insofar as this is possible with the advertisements or data supplied by the customer. The customer is aware that it is not possible to create a program that is completely free of errors according to the state of the art. The aforementioned guarantee does not apply to insignificant errors. An insignificant error regarding the presentation of the advertisements exists particularly if it is caused by:
– the use of unsuitable display software and/or hardware (e.g. browser) or
– interference with the communication networks of other operators or
– computer failure due to system failure or
– incomplete and/or non-updated offers on so-called proxies (caches) or
– a failure of the ad server that does not last longer than 24 hours (consecutive or added) within 30 days after the start of the contractually agreed placement. In the event of a failure of the ad server for a significant period of time (more than 10% of the booked period of placement) within the scope of a time-bound fixed booking, the customer’s payment obligation shall be suspended for the period of the failure. Further claims are excluded subject to § 15 (1) sentence 1 and § 15 (2).
(2) The customer is obligated to check the advertisement immediately after the first placement and is obligated to notify the publishing house in writing of any errors within the first week of placement. After expiry of this period, any error shall be deemed to be approved. If the customer requests a change to the advertisement after the expiry of the aforementioned period, the customer shall be obliged to pay the costs caused by the change.
(3) In the event of deficient execution of the order, the customer is entitled, at the publishing house’s discretion, to receive a rectification of the defect or to receive a faultless replacement of the advertisement, but only to the extent to which the purpose of the advertisements was impaired. If the rectification or the replacement of the advertising fails, the customer may withdraw from the advertising order or reduce the remuneration.
(4) If any defects in the advertisements supplied are not obvious, the customer shall have no claims in the event of deficient placement. The same shall apply in the case of errors in repeated advertising placements if the customer does not point out the error before the next advertising placement.
§ 19 Liability
(1) The publishing house shall be liable for damages caused by itself or its employees if such damages were caused intentionally or by gross negligence. In the event of a violation of a main or an additional obligation which endangers the attainment of the purpose of the contract or the fulfilment of which directly enables the orderly execution of the contract and where the customer may be confident of its compliance (hereinafter “essential secondary obligation”), the publishing house’s liability at the conclusion of the contract shall be limited to the predictable damage usual in contractual relations. The publishing house shall not be liable in the event of a violation of secondary obligations which are not essential secondary obligations.
(2) Liability due to intentional silence with regard to defects, the assumption of a quality guarantee, as well as liability for claims based on the German Product Liability Act or due to injury to life, limb or health are not affected by the previous article. This does not apply to a change in onus probandi to the detriment of the customer.
§ 20 Applicable law, place of fulfilment, jurisdiction, partial invalidity
(1) German law shall apply.
(2) If the customer is subject to trade laws, the place of fulfilment shall be the place where the publishing house’s office is registered.
(3) If the customer is subject to trade laws or a legal entity under public law, a special funds under public law or if he has no general place of jurisdiction in Germany, the place of jurisdiction shall be the publishing house’s registered office. The publishing house has the right, however, to sue the customer in any other jurisdiction.
(4) Should one or more provisions of these GTC be invalid or unenforceable, this shall not affect the remaining GTC.