GENERAL TERMS AND CONDITIONS

General Terms and Conditions of MMR Media GmbH for the Distribution of Advertising Media

  1. Subject matter of the GTC, contractual partner
    • These General Terms and Conditions govern the publication and broadcasting of advertising (hereinafter referred to as "advertising media") on advertising media of MMR Media GmbH in return for payment. The contracting parties are MMR Media GmbH, Zollstockgürtel 65, 50960 Cologne (hereinafter referred to as "MMR") and the advertising customer or an agency/advertising agent commissioned by the advertising customer (advertising customer and agency/advertising agent commissioned by the advertising customer hereinafter referred to as "client" or "customer" unless expressly differentiated).
    • Services provided by MMR Media GmbH ("MMR") are exclusively subject to the following terms and conditions ("GTC").
    • Silence on the part of MMR to provisions of the client to the contrary is not to be regarded as agreement with the client's terms and conditions; their validity is objected to. Any deviation from the GTC of MMR Media GmbH is deemed to be a rejection of the order, an acceptance of a service nevertheless - even under reservation - is deemed to be an agreement with the GTC of MMR.
    • Provisions deviating from these GTC require written confirmation.
  1. Conclusion of contract
    • The contract on the publication of advertising media on advertising media between the client and MMR Media GmbH (hereinafter: "advertising contract") is concluded as a result of the non-binding and non-binding offer of MMR Media GmbH on the basis of a booking enquiry (order offer) of the client and its express acceptance of the order (e-mail is sufficient) by MMR.
    • Order offers for advertising space on advertising media displayed by MMR in the presentation are also subject to change and are only non-binding offers.
    • The Client shall specify the product group to be advertised in the booking request.
    • If the client is an agency/advertising agent, the name of the advertising client must also be stated in the booking request. The agency/advertising agent assigns its claims against the advertising client arising from the contract concluded with the latter to MMR Media GmbH upon conclusion of the present advertising contract, insofar as the claims are the subject of this advertising contract. MMR Media GmbH hereby accepts the assignment (assignment by way of security). MMR Media GmbH shall be entitled to disclose the assignment to the advertising client if the agency/advertising agent defaults on its payment obligation.
  1. Duration
    • The advertising contract ends automatically with the expiry of the broadcasting period stated in the offer of MMR Media GmbH without the need for termination.
  1. Advertising material
    • The advertising content or advertising spots ("advertising material") must be supplied by the customer in the specified format and quality. The costs for the production of the advertising material shall be borne by the client. The client shall make the advertising material available to MMR in a binding manner for public reproduction in accordance with the contract. The client shall be informed of the format requirements, including the template. The advertising material provided to MMR shall only become part of the contract once it has been approved by MMR after a non-binding check. They shall be deemed approved if MMR does not refuse approval or object to their use within 4 days of receipt. A change to the advertising material requires the express authorisation of MMR. Changes of motif during the term of the contract require a separate order and/or express amendment to the contract, unless otherwise agreed in the order.
    • The delivery and/or online provision and release by MMR of the advertising medium must take place at the latest 3 working days before the start date. If MMR Media GmbH cannot execute the order or cannot execute it on time because the advertising material has not been delivered or has been delivered late or has not been delivered in the required format or in the required number, this shall not release the client from his obligation to pay, whereby MMR Media GmbH shall take into account saved expenses.
    • If the client makes the advertising material available before the expiry of the agreed advertising campaign, MMR Media GmbH shall endeavour to place it, if necessary for a shortened period, without the client having any claim to this. In the event of execution, the client shall be obliged to pay MMR Media GmbH for the special expenses incurred due to the late delivery or delivery not in the correct format or too small. If the client refuses the execution against payment of the special expenditure, he shall nevertheless remain obliged to pay the agreed remuneration. MMR Media GmbH shall charge a flat fee of 5% of the gross order value as special expenditure. The gross order value is defined in this context as the value before the granting of discounts. MMR Media GmbH shall also charge additional costs of EUR 150.00 plus VAT per hour for any necessary adjustments to the advertising material. MMR Media GmbH will inform the client of the calculated special expense for approval.
    • The client is obliged to make backup copies of the advertising media transmitted to MMR. Advertising media transmitted to MMR electronically (upload, e-mail, etc.) shall be deleted by MMR at the client's request or at MMR's discretion after fulfilment of the order. If the advertising media were provided to MMR on a media carrier, MMR Media GmbH shall return the transmitted and approved advertising media to the client at the client's expense and risk, provided the client has requested MMR to do so in writing (e-mail sufficient) before the start of broadcasting. Otherwise MMR Media GmbH shall be entitled to destroy the advertising media together with the media carrier three months after broadcasting.
  1. Rights of use
    • Upon conclusion of the contract, the client shall grant MMR all rights of use under copyright, trademark law and other rights of use, in particular the rights to duplicate, publicly reproduce, present and archive the transmitted content, which are necessary for the broadcasting and reproduction of the advertising material under the contract. The Client guarantees that it holds the aforementioned rights and is authorised to use, transfer and transmit them in accordance with the contract and free of third-party rights. The aforementioned provisions also apply to advertising material which MMR Media GmbH designs or creates at the request of the client, insofar as MMR Media GmbH has acted in accordance with the client's specifications.
    • The client also grants MMR Media GmbH the right to use the supplied advertising material for its own advertising purposes free of charge, in particular within the framework of reporting on the media offer of MMR Media GmbH. MMR Media GmbH is entitled to name the client as a reference customer.
  1. Contents of the advertising material/competition protection
    • The Client guarantees that the advertising media and the supplied templates are neither harmful to minors nor discriminatory and also do not violate any advertising bans or other legal prohibitions or official orders and permits. Advertising media that violate these provisions shall be rejected or not broadcast by the contractor.
    • The type of playout (still image, cinemagram, animation, video) depends on the location and is bound to legal permits and may also change during the term of the contract. If the relevant permits change during the term of the contract, the client shall be obliged to adapt the type of playout for MMR free of charge. Unless otherwise agreed, MMR's obligation to publicly reproduce the advertising content refers to one advertising medium at the respective location. If there are several advertising media at one location, MMR shall be authorised to select and change the advertising media for the playout of the advertising content at its own discretion, unless otherwise agreed.
    • MMR Media GmbH does not guarantee the exclusion of competitors of the client. However, MMR Media GmbH will, as far as possible, not place or broadcast advertising from competitors in immediate succession.
  1. Contractual disruptions
    • The client may withdraw from the contract by written declaration up to 90 days before the start of placement. In the event of withdrawal less than 90 days before the start of the placement, MMR Media GmbH shall be entitled to demand a lump-sum compensation. This compensation amounts to 50% in the case of withdrawal up to 60 days before the start of placement, 80% in the case of withdrawal up to 30 days before the start of placement, and 100% of the gross media service booked thereafter. The client reserves the right to provide evidence of minor damage. The amount of compensation shall then be reduced accordingly. In addition, the client must reimburse MMR Media GmbH for costs already incurred at the time of withdrawal (e.g. production costs).
    • MMR Media GmbH is entitled to postpone the agreed date for the placement of the advertising medium by a reasonable period of time if technical, operational or sales reasons in the sphere of MMR make a postponement necessary. In this case MMR Media GmbH will inform the client immediately about the delay and give him the expected date of placement. The advertising contract shall be extended by the cancelled period without any further agreement being required in this respect.
    • The contractual obligation to perform is 95 percent availability of the booked airtime, calculated for the total duration of the advertising service. Downtimes exceeding this shall be compensated by MMR Media GmbH insofar as MMR Media GmbH is responsible for them.
  1. Liability
    • MMR shall not be liable for technical disruptions in the area of responsibility of third parties or actions of third parties. In the event of technical disruptions to playback, a defect shall only be deemed to exist if MMR is responsible for this and playback is restricted for more than 90% during the period covered by the order. Claims for damages due to breach of duty shall only exist in the case of intent and gross negligence on the part of MMR Media GmbH. Liability for slight negligence on the part of MMR Media GmbH is excluded. This restriction does not apply to damages from injury to life, body or health as well as in the case of breach of essential contractual obligations. In the case of gross negligence, the liability for material damage and financial loss vis-à-vis merchants is limited to the foreseeable damage typical for the contract. This shall also apply to slightly negligent breaches of duty by MMR's legal representatives or vicarious agents. The above limitations of liability shall not apply in the case of claims by the client arising from product liability or in the case of personal injury attributable to MMR. Liability for indirect damage, in particular loss of profit, is excluded.
    • The warranty is initially limited to the elimination of the defect by making up the reproduction. If the defect is not remedied, the client may choose to reduce the remuneration or withdraw from the contract, provided that the defect is not merely minor.
    • In the event of withdrawal from the contract, the client shall not be entitled to claim damages due to the defect. The compensation for damages is limited to the amount of the agreed remuneration pro rata, insofar as MMR has not fraudulently concealed the defect.
    • Warranty rights of the Client shall become statute-barred 12 months after the existence of a defect.
    • In the case of slightly negligent breaches of duty, MMR's liability shall be limited to the direct average damage that is foreseeable and typical for the type of contract. MMR shall not be liable to entrepreneurs in the event of a slightly negligent breach of immaterial contractual obligations.
    • MMR Media GmbH is entitled to refrain from the agreed broadcast of the advertising media supplied by the client if technical reasons, force majeure, strike, official orders or other circumstances prevent the broadcast for which MMR is not responsible. In the aforementioned cases the client shall not be entitled to any claims against MMR Media GmbH.
    • The client shall indemnify MMR Media GmbH against all claims of third parties upon first request; this applies in particular to claims due to the infringement of rights of use. In the event of a claim by third parties, the orderer shall provide MMR Media GmbH immediately, truthfully and completely with all information required for the examination of the claims and defence. Without prejudice to any further claims for damages, the client shall reimburse MMR Media GmbH for the reasonable expenses and costs incurred in connection with the claim by third parties. This applies in particular in the event of a necessary legal defence.
  1. Prices and terms of payment
    • Remuneration and ancillary costs are always net prices plus statutory taxes and duties. The prices do not include any copyright or ancillary copyright fees, insofar as these are payable to collecting societies in respect of the advertising content. Should the order not be executed in full due to technical, legal or other reasons, invoicing shall be pro rata temporis.
    • Die Rechnungsstellung erfolgt entweder durch MMR oder durch die screenery GmbH, Gentzstraße 4, 80796 München. Sofern nichts anderes vereinbart wurde, erfolgt diese mit der Auftragsbestätigung.
    • Der Rechnungsbetrag ist mittels Überweisung auf das in der Rechnung angegebene Konto zu zahlen. Er ist zwecks Planung und Disposition unmittelbar nach Erhalt der Rechnung zur Zahlung fällig und muss spätestens am siebten Tag nach Rechnungsdatum gutgeschrieben sein. Abweichende Bestimmungen bedürfen der schriftlichen Bestätigung.
    • MMR Media GmbH & screenery GmbH reserve the right to send invoices electronically to the client.
    • A client shall pay the remuneration in time and in full (receipt of payment) before the advertising placement is carried out (advance payment).
    • In the event of justified doubts about the solvency of the client, MMR Media GmbH is entitled to make the execution of further advertising placements - also during the term of the advertising contract - dependent on the advance payment of the amount and on the settlement of outstanding invoice amounts without the client incurring any claims against MMR Media GmbH as a result.
    • Insofar as MMR Media GmbH grants a discount on an invoice amount, this shall not apply to such amounts which do not relate to the media service but may additionally arise within the framework of an advertising campaign (e.g. technical costs, production costs, graphic services etc.). These amounts are payable without deduction of any discount.
    • The client shall only be entitled to a right of set-off if his counterclaim has been legally established or is undisputed. The client shall only be entitled to assert a right of retention due to counterclaims arising from this contractual relationship.
  1. Other
    • Amendments and supplements to the agreements made must be in writing in order to be effective; this also applies to a waiver of the written form requirement.
    • Verbal collateral agreements shall not be valid.
    • The place of performance is Cologne, the registered office of MMR.
    • German law shall apply to the exclusion of private international law.
    • The exclusive place of jurisdiction for all disputes arising from or in connection with these GTC and the advertising booking as a whole shall be Cologne, Germany, unless mandatory provisions to the contrary apply.
    • Should individual provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. The contracting parties undertake to replace an invalid provision with a valid provision whose content comes as close as possible to the economically intended meaning and purpose of the invalid provision. This applies accordingly in the event of loopholes in the GTC.

 

Köln, im August 2024