Términos y Condiciones

Date of last edit: 06.02.2012

A. General Regulations

1. Area of Application

1.1 The following terms and conditions apply to the use of the platform ‘madvertise.com’ (subsequently referred to as ‘platform’) of the madvertise Mobile Advertising GmbH and corporations associated with madvertise (subsequently referred to as ‘madvertise’) as well as for all business relations between madvertise and the respective contractual partner. Contract partner (subsequently referred to as ‘user’) can be a publisher of mobile websites and/or applications (subsequently referred to as ‘publisher’) or an advertising client who intends to place advertising on the mobile websites and/or applications in the madvertise network (subsequently referred to as ‘advertiser’).

The following general regulations in section A are subject to all users, the special regulations in section B are subject to publishers and the special regulations in section C apply to advertisers.

1.2 madvertise reserves the right to change or alter the user regulations as well as all other documents that are relevant to the contract, which will then automatically be effective in the future. In such a case, madvertise will beforehand inform the contract partner about the changes. The changes will be pertained as accepted if the user does not object to the notification of change within four weeks or continues to utilize the services as previously without opposing to the changes. If the user opposes to the changes, madvertise has the right to terminate the contractual partnership.

1.3 Contrary or alternative terms of business, which are ascribed by the users, are not legally forceful, even if madvertise does not object in an isolated instance. A user’s differing or complementary claims to those that took place on the platform via message dialogues or via information input options are not valid even if madvertise does not object in an isolated instance. In any case, effective, individually negotiated terms will remain unaffected.

2. Conclusion of the Contract; User Account

2.1 Holder of the rights of use can be legal entities as well as natural persons that are legally competent. For conclusion of the contract with a natural person madvertise assumes the age of consent and unlimited legal competence of the user. In case of a legal entity, the legal or authorized representative of the entity must confirm the contractual agreement.

2.2 While registering the user is obligated to provide truthful, accurate, current and complete information according to the terms of reference of the registration form. In addition, he or she (subsequently only referred to as ‘he’) is obliged to always maintain his or her (subsequently referred to as ‘his’) information in the member account updated and accurate.

2.3 The licence agreement between users and madvertise concerning the utilisation of the platform is only effective upon madvertise’s registration confirmation. If the user is a publisher, madvertise reserves the right to review the mobile websites and/or applications with regards to their consistency with these terms and conditions. The user has no guaranteed right to participate. madvertise can decline a registration without stating the reason.

2.4 The user is aware that contractual claims, which are made via a legal transaction (e.g. confirmation e-mails, amendments of the terms and conditions or other notifications) can be received via e-mail. These are considered to be received by the user if under normal circumstances; they can be accessed via the user’s inbox of the e-mail address that the user stated during his registration.

2.5 After registering every user receives a user account on the platform, which stores and displays the information that the user specified during his registration as well as the required information for using the platform and the payment transaction service. The user account is neither transferable nor inheritable.

3. Law Relations, madvertise’s Services

To publishers, madvertise offers the opportunity to register advertising spaces on mobile websites and/or applications on the madvertise platform for the purpose to be marketed by madvertise. madvertise offers advertisers and agencies the possibility to place ads on the aforementioned mobile websites and applications. At the same time madvertise is on its own behalf and on its own account the contract partner of publishers or advertisers. Direct contract relations between the advertiser and the publisher are not available and will also not be facilitated by madvertise. madvertise also does not act for its publishers and / or advertisers as a consultancy, an agency, a fiduciary, a business supplier or similar. Legally the contracts between madvertise and publishers as well as between madvertise and advertisers deal with separate agreements whose content is adjusted according to these terms and conditions.

4. General Duties of the User

4.1 Users must ensure that their user account is only used by them and must especially due to this reason keep their password secret. The user account holder is entirely responsible for all activities that are carried out via his member account

4.2 During the participation, the user must follow madvertise’s technical requirements and guidelines for advertising contents and advertising placements (as stated below, please refer to the ‘technical guidelines’). These guidelines will be provided to the user on the website madvertise.com and on request.

4.3 The user is obligated to set up his systems and programmes in such a way that neither the safety, nor the integrity nor the availability of the systems that madvertise utilizes for the performance of its services are restrained. madvertise has the right to carry out necessary measures (e.g. disabling account access) that are required to secure system integrity of madvertise’s or third parties’ systems.

5. Availability of the madvertise Platform

5.1 madvertise guarantees the availability of the offer to 95 % of the year. Availability is understood as the relation between the actual time (AT) to the set time (ST) A (%) = (AT/ST) * 100. The actual time (AT) is the period of time during which the system at the router-output of the computer centre is actually available.

5.2 The duration of the system maintenance time and the length of interruptions for offline safeguarding are always appropriately considered, as well as the length of the period of interruptions that occur due to higher forces or other unforeseeable causes that are not within madvertise’s power, e.g. emergency measures in order to avoid an extreme virus outbreak. However, these are not incorporated in the calculation of the actual time.

5.3 madvertise does not make any guarantees for the performance and service of ad servers of third parties.

6. Billing and Payment Procedures

6.1 The invoice that is provided by madvertise to its customers exclusively occurs electronically. Details as to the billing and payment procedures can be found in section B for publishers and section C for advertisers. Amounts stated on invoices do not include legal sales tax but will be subjected to VAT, if not stated otherwise.

6.2 The invoice is based on the reporting that is displayed exclusively in the statistics section of the user account.

6.3 If within the scope of the payment, debit return is caused due to the user or the transaction fails, the user must carry the additionally arising costs that amount to 10 Euros unless the user can prove that a smaller deficit has taken place.

7. Termination of the Utilisation of the Services: Termination of the Advertising Contract

7.1 Every user has the right to terminate the utilization of madvertise’s services at any time without stating reasons by deleting their user account or through a written cancelation. madvertise can terminate a customer’s utilization of its services within two weeks’ notice without stating reasons.

7.2 madvertise can terminate a customer’s utilization of its services if

• the advertiser is in default with the payment of an invoice to madvertise for a utilized advertising service or
• actions are taken against the user for the discharge that is declared legally by an insurance or insolvency proceedings concerning their economic capability is initiated unless the user performs appropriate security or
• the user offends his duties of the contract and despite warnings with an appropriate final deadline does not offer remedial action within the time stipulated. A warning is not required if it does not assure success or the breach is that fatal that it is not reasonable for madvertise to adhere to the contract. The extent of the breach can also be a result of the fact that the user has previously already been numerously warned due to comparable breaches.

7.3 The right for both parties for the cancellation due to an important reason as well as the legal right of revocation that may arise via the customer remains.

7.4 Already facilitated or executed advertising placements are not affected by the termination of the utilization of the services. The termination of the utilization of the services is at the same time the termination of all operating or running advertising contract relations. Capacity advertising contract relations also are terminated upon regular cancelations (paragraph 7.1) once the expiration of the scheduled running time occurs. If at that point the agreed service is not entirely executed, it is extended regardless of paragraph 7.3 until the completed execution of the service is achieved. The obligation for the payment of already existing responsibilities is not affected by the termination of the contract.

8. madvertise’s Liability

8.1 madvertise will not be liable for the non-availability or operational failure of the mobile phone network or any other occurring operational faults, mobile phone errors, data corruption, server, soft- or hardware failures of other companies or losses that are outside of madvertise‘s sphere of influence.

8.2 Moreover, madvertise is liable according to the legal requirements for harms to life, body or health, caused by a gross negligence of madvertise, or their legal representatives, as well as for damages that result on the culpable breach of material contractual obligations and for claims in accordance with the German Product Liability Act. madvertise is liable according to the legal requirements for damages that are not covered by sentence 1 and that are caused deliberately or due to gross negligence or fraudulent intent. In case of slightly negligent violations of major contractual obligations, liability will be limited to the substitution of the typical damage expected at conclusion of the agreement.

8.3 No further liability is granted without taking into respect the legal nature of the claim, especially for claims for compensation of unavailing expenditures or for loss of profit.

8.4 Claim for damages against madvertise expire after 12 months after their origin unless they are due to an illegal or deliberate action.

9. Liability for contents; liability exemption of madvertise through the user

9.1 madvertise merely provides the technical infrastructure for the procurement of online advertisements for the availability and is not responsible for the content of the advertisements of the participating advertisers or for the content of the publisher in the advertising space’s context. Especially, not for the mobile websites and/or applications that are registered on the madvertise platform for participation.

9.2 madvertise principally does not monitor the contents stated in paragraph 9.1 and is also not obliged to do this task, however reserves the right at its own discretion.

9.3 The user is ordered to release madvertise as well as staff, employees, associates, representatives, shareholders, auxiliary persons of madvertise and/ or corporations that are associated with madvertise upon initial request in regard to demands and claims of any kind that are made by third parties

• on the basis of or in relation to content and/or information that the user saved, published and or/transmitted on his mobile websites and/or applications or
• or that are made on the basis of violations against these terms and conditions or violations of the rights of third parties.

This includes in any case moderate legal charges and lawyer fees.

10. CONFIDENTIALITY

10.1 For the period of this agreement and up to 3 years after termination of this agreement, the parties are obliged to keep confidential to third parties any documents, knowledge, experience and other confidential information given to the other party or passed on in the context of this agreement. The parties agree to protect the documents, information and other data of the other party as if it were their own confidential information, however at least with the diligence of a prudent business man.

10.2 Documents, information and data, affecting corporations associated with the parties, other co-operating parties or suppliers as well as customers and commercial agents are also subject to this confidentiality agreement.

10.3 The confidentiality agreement does not apply to documents, information or data that were already rightfully in their knowledge before disclosure and not subject to any confidentiality clause, or that were subsequently excluded from this confidentiality clause in writing via telefax or e-mail, or that had to be disclosed in accordance with legal or administrative regulations.

11. FINAL PROVISIONS

11.1 Marketing measures or press reports regarding the cooperation have to be agreed between the parties before disclosure. This especially applies to the use of the logo and/or name of the other party. madvertise is authorized to prohibit the use of their logo and/or name at any time if the use does not correspond with the quality standards demanded by madvertise or if the use has not been agreed upon by madvertise.

11.2 madvertise is entitled to transfer any or all of the rights and obligations deriving from this contractual agreement to any company associated with madvertise according to §§ 15 ff. AktG. The user agrees to a corresponding transfer when agreeing to these terms and conditions.

11.3 This agreement is exclusively governed by German law excluding the UN Convention on the International Sales of Goods.

11.4 In as far as this is permissible for any legal conflicts arising from this agreement the place of jurisdiction will be Berlin.

11.5 There are no verbal or written agreements. Alterations and/or amendments of this agreement need to be done in writing. This does also apply when waiving this written form.

11.6 Should an individual clause of this agreement be or become invalid or impracticable this will not affect the validity of the entire agreement. The parties shall replace the invalid or impracticable clause by a clause that will come nearest to the commercial content of this agreement and the intention of the parties. The same applies for possible gaps in the agreement.

11.7 Within the scope of these terms and conditions the ‘written form’ means text form according to § 126 b BGB.

Cancellation Policy

Right to Cancellation

Clients have the right to withdraw their contractual statement within two weeks in written form (e.g. letters, faxes, e-mail) without having to articulate reasons. The deadline begins upon receipt of these instructions in text form, but not before the conclusion of this contract and not before conduction of madvertise’s duty to inform according to article 246 § 2 in conjunction with § 1 paragraph 1 and 2 EGBGB (Introductory Law to the German Civil Code) as well as madvertise’s duties according to § 312g paragraph 1 sentence 1 BGB (German Civil Code) in conjunction with article 246 § 3 EGBGB. Timely notice of cancellation guarantees the maintenance of its deadline. Cancellations are to be submitted to:

madvertise Mobile Advertising GmbH
Oranienplatz 2
10999 Berlin

or via e-mail: info@madvertise.com

Consequences of Cancellation

In the case of an effective cancellation, services and profits derived thereof (e.g. interest) received by both parties are to be returned or refunded. If the user is not able to fully refund received services or refund them in a deteriorated state, madvertise maintains the right to demand value compensation. It may therefore be necessary for the user to carry out the contractual duty of payment for the period until the cancellation becomes effective. The user is obligated to refund payments within 30 days of submitting your cancellation. The deadline for the user begins upon dispatch of the cancellation request and for madvertise upon receipt of the request.

Special Remarks

The user’s right to cancellation ends prematurely if, with the explicit agreement of the user, the contract has been fulfilled entirely from both parties, even before the user has exercised his right to cancellation.

End of Instructions on Cancellation Policy.

B. Special Conditions for Mobile Website Operators and Mobile Application Developers (Publisher)

12. MADVERTISE RIGHTS & OBLIGATIONS

12.1 marketing through madvertise

On behalf of the publisher, madvertise will undertake the marketing of advertising spaces on the mobile websites and/or applications of the publisher. MADVERTISE will be entitled to conclude and process ad placement orders with advertising customers on its own behalf and on its own account. madvertise is entitled to form contractual terms with advertising clients as they see fit and to determine the price of the advertising media and possible discounts using their discretion.

12.2 Self Service Platform

The publisher registers on the madvertise website for the purpose of the marketing of his mobile websites and/or apps through madvertise. By doing so, he receives access to the madvertise ‘self service platform’ where he can register his mobile websites and/or applications to be automatically filled with mobile advertising formats. The use of the ‘self service platform’ requires the publisher to inform and register himself at http://madvertise.com/publisherdeveloper/self-service/

12.3 Delivery of Advertising Media

madvertise places advertising media provided by their advertising clients into the adspaces provided by the publisher according to these terms and conditions. For this, madvertise connects the advertising format with a code (cf. paragraph 13.3) and delivers the advertising media via an ad server. madvertise will principally use their own adserver for delivery of advertising media. In exceptional cases, that need to be agreed upon in written form, the adserver of the publisher or of a third party will be used. In this case, madvertise maintains the right to have the results of the advertising campaigns as stated by the publisher or the third party checked by an independent and sworn accountant.

12.3 Warranty

madvertise will do their best to fill the ad spaces provided by the publisher to the highest degree possible with advertising formats and to maximize the revenues of the publisher. However, madvertise does not warrant the marketability of the advertising space and explicitly does not guarantee any amont of revenues and AdImpressions as well as click rates or other results of the advertising campaigns. To ensure capacity utilization of the ad spaces, madvertise is entitled to fill ad spaces otherwise free of advertising with self-promotion campaigns of madvertise and/or the publisher. After previous consent of the publisher, madvertise is authorized to make the ad spaces available to third parties without separate charging.

madvertise will not be liable for the functionality or the content of the advertising media and/or the website it will be linked to. madvertise will also not be liable for the advertising media or links to be in a thematical or in any other correlation with the mobile website and/or app of the publisher. madvertise will remove advertising media as it sees fit or upon written request (email will be sufficient) by the publisher, if there are objectively obvious reasons that the content of the advertising media or websites they are linked to do violate existing laws or  third party rights and/or are impermissible due to other reasons. madvertise will be entitled to continue the placement of advertising media if the suspicion and/or inadmissibility has been removed or the advertising customer has provided a suitable substitute. madvertise will not be liable for possible loss of payment that may be incurred due to the aforementioned disruption or cancellation of an advertising campaign.

Furthermore, any warranty is according to the legal requirements.

12.4 Self Promotion

If madvertise have granted the publisher the opportunity for self-promotion, madvertise will give the publisher access to the madvertsise adserver for the integration of advertising media (so-called “house ads”). The publisher does not have a general right to be enabled for self-promotion. The publisher may use the “house ad feature“ free of charge to promote his company, products or services within its own apps and/or mobile websites. The “house ad feature” grants the publisher exclusive access on ad spaces that are linked with the connected to the madvertise adserver. In comparison to paid advertising campaigns the inclusion of self-promotion advertising is of secondary priority. If madvertise is able to commercially market the actual advertising space such marketing efforts have primary priority. Prioritization is automatic.

If the publisher uses the madvertise adserver to promote  companies, products and/or services other than his own, he will be obliged to pay madvertise an ad serving fee upon request. The adserving fee will be invoiced separately by madvertise to the publisher separately and on a monthly basis.

madvertise can block access to the adserver immediately and without any prior warning, if the publisher abuses the access or if there is sufficient suspicion.

12.5 Reporting

If agreed between madvertise and the publisher, madvertise will create a regular report regarding the sales activities for the publisher. Alternatively or in the case of registering via the “self service platform”, madvertise will grant the publisher access to a reporting system free of charge. The reports provided by madvertise are the exclusive basis for the invoicing and credit notes from madvertise to the publisher.

13. Rights and Obligations of the Publisher

13.1 Marketing Rights

The publisher guarantees that he is entitled to market all ad spaces on the contractually agreed mobile websites and/or apps and is entitled to freely use such and is entitled to employ madvertise for marketing purposes in accordance with the regulations of these terms and conditions.

13.2 Legality and availability of the mobile websites and/or applications

The publisher warrants that the content and design of the contractually agreed mobile websites and/or apps will each comply with valid law and in particular will contain the data according to TMG (so-called imprint). The same applies for type and kind of placement and description of the advertising media. The publisher will additionally ascertain not to publish or link any illegal content on its mobile websites and/or apps, in particular no content glorifying violence or war and no erotic, pornographic, racial hatred or degrading content or characteristics of unconstitutional organizations.

The publisher is obliged to make sure that his mobile websites and/or apps are steadily available and not constantly under construction. Substantial content changes and technical alterations of the publisher‘s mobile websites and/or apps have to be reported in writing with sufficient timely notice to madvertise.

13.3 Technical integration

a) The publisher will technically place the offer on the mobile websites and/or apps in such a manner that all current and conventional advertising media and -formats can be used. The publisher will principally place the ad spaces for the user in the visible area (“above the fold“), unless the parties have agreed otherwise.

b) The publisher is obliged to integrate the adserver tags provided by madvertise on the mobile websites and/or apps as per specifications provided by madvertise and/or establish a server-to-server integration as per API specifications of madvertise. If the publisher does not adhere to the integration specification of the adserver tags and/or API specifications it will be impossible for madvertise to warrant a correct delivery of the advertising media. madvertise will not be liable for any errors arising (e.g. reduced delivery of booked media performance and/or erroneous delivery of the advertising media) and any damage resulting hereof. The publisher will release madvertise from any third party claims that may be claimed in connection with the reduced, late or bad delivery resulting from not adhering to the specifications for integration of the adserver tags including reasonable cost of legal action.

c) The publisher may only use the adserver tags provided by madvertise exclusively under the provided URL and in the determined and described environment. The publisher will not receive any turnover share for the inappropriate use of the HTML code on non-designated mobile websites and/or in apps or in any other defined advertising environment. Any entitlement to compensation of madvertise against the publisher will remain intact. The publisher is not allowed to remove or modify in any way the tracking tags integrated in the codes.

d) The publisher must ensure that after clicking any means of advertising the URL of the advertising client is clearly displayed in the address bar. It is prohibited to frame the target sites within partner websites.

13.4 Rights of use in case of self-promotion

In case of self-promotion the publisher will transfer from the time of placing the advertising media in the “house-ad-feature“ to MADVERTISE all necessary copyrights, ancillary copyrights and other rights for the contractual use of the advertising, in particular public broadcasting rights, reproduction, distribution, transfer, broadcasting, extraction from a database and viewing time and content required for the fulfillment of this agreement. The aforementioned rights will in all cases be transferred locally unlimited and provide the entitlement of placement using all known technical procedures in on and offline media.

13.5 Other support

The publisher will support the work of madvertise and will provide madvertise with all information necessary for the sale of advertising media.

13.6 Name and Logo of the publisher

The publisher will grant madvertise for the duration of this agreement free of charge the local unlimited and irrevocable usage right to use the name, logo and any other ID of the Contract Partner for its marketing activities, in particular for the creation of media data and any other materials, presentations and possible trade fair events necessary for acquisition and sale. Furthermore the publisher will grant madvertise the right to create screenshots of the mobile websites and/or apps to be marketed and to use as it sees fit as described before.

13.7 Inadmissible practices

The publisher is not permitted to directly or indirectly, by himself or through third parties create ad requests to the advertising media marketed by madvertise, in particular by repeated manual clicking or by using automatic programme procedures (e.g. “robots”, “forced clicks“, etc.). Should madvertise detect unusual clicking behaviour or inadmissible practices, madvertise will be entitled to immediately block the corresponding mobile website and/or app for at least 24 hours until further notice and without prior notification. The corresponding share of turnover will be lost without compensation, unless the publisher can prove a lesser damage. In case of reasonable suspicion of culpable violation against the stipulations regarding inadmissible practices, madvertise will be entitled to withhold the corresponding payment of the publisher until the matter has been resolved, unless the publisher will grant a security of the same amount. Madvertise expressly reserves the use of any other rights.

14. Remuneration

14.1 The publisher receives sixty percent (60%) of the turnover subject to commission, unless other agreements have been made in writing. No ancillary verbal agreements shall be valid. Turnover that is subject to commission is the actually through business transactions with advertising customers realized invoiced net amount and the invoice net amount after deduction of all discounts, possible agency commissions, early payment discounts and other benefits before VAT.

14.2 The compensation claim of the publisher only emerges once the advertiser has paid madvertise entirely. madvertise is obliged to send the publisher up to the end of the following month a credit note that adheres to the prevailing taxation laws and states the turnover share due to the publisher. The publisher agrees that the transfer of the credit note will be made electronically. madvertise will transfer the amount resulting from the credit note plus statuary VAT principally within 40 days after the corresponding invoicing month. Publishers based outside of Germany will generally receive payments within 60 working days after the corresponding invoicing month. The money transfer will be made to the bank account that is stated in the publisher’s user account. If the advertising commission funds do not amount to 100 Euros, madvertise is authorized to not disburse the cash sum immediately but with the amount due on the following settlement date or else if the accumulated amount due is at least 100 Euros. Transfers to bank accounts within Europe are without additional cost for the publisher, as long as the banking information necessary for the transfer are stated in his user account (IBAN and BIC). For transfers to bank accounts outside of Europe, each party has to bear the costs arising from his own bank. For amounts less than 100 Euros, the transfer will only be made on explicit request from the publisher and with deduction of additional banking and/or handling costs. In case of a termination of the agreement between madvertise and the publisher before the month’s end, the pro rata turnover will apply.

14.3 If madvertise markets more than one mobile websites and/or applications of the publisher, the turnover for all of them will be stated on one credit note.

14.4 If the publisher does not raise any objections within four weeks after receipt the credit note and/or invoicing is regarded as being accepted.

C. Special Conditions for Advertising Clients (Advertiser)

15. Rights & Obligations of the Advertiser

15.1 Delivery of Advertising Media

The Advertiser is obliged to deliver the agreed advertising media to madvertise timely, however at the latest three (3) working days before the agreed campaign start and in the agreed format. For special advertising media, madvertise has the right to demand an earlier delivery date. The advertising media must be free from viruses or other potential sources of damage. Not delivering the advertising media in the aforementioned time period does not free the advertiser from his duty of payment. If a late delivery or changes to the advertising media cause a delay of the campaign, it is in the discretion of madvertise to claim from the advertiser the complete or reduced amount due.

15.2 Legality of advertising media and landing pages

The advertiser guarantees the legality of the advertising media and the websites they are linked to. Legality is understood according to German law. If there are indications that contents of the advertising media or websites they are linked to are also subject to stipulations of other legal systems, then this legal system also defines legality. The contents of the advertising media or websites they link to must not violate laws, regulatory status or public policy, in particular stipulations of the German Criminal Code (Strafgesetzbuches, StGB), the German Act against Unfair Practices (Gesetz gegen den unlauteren Wettbewerb UWG), the German Broadcast Media Act (Telemediengesetz TMG), the German Price Regulations Act (Preisangabenverordnung PAngV) and specific laws such as the German Law for Drug Advertisements (Heilmittelwerbegesetz HWG). In addition, all advertising media or websites they are linked to are explicitly forbidden that

• glorify violence or war,
• have erotic, pornographig or race baiting content or content harmful to youth,
• that contain human degrading content or characteristics of unconstitutional organizations.

In addition, the advertiser needs to respect the prohibition of disguised advertising, the national and international copy rights, trademark and patent laws, other industrial property and personality rights as well as the accepted code of conducts of national and international trade associations (in particular of the German Advertising Standards Authority).

15.3 Advertising Agencies

Orders from advertising/media agencies or other agents will only be accepted by madvertise for advertisers that are known by name. On request, the advertising agency or agent has to provide madvertise with a corresponding assignment.

16. Rights and Obligations of madvertise

16.1 Delivery of Advertising Media

madvertise will deliver the advertising media on the mobile websites and/or applications that have been agreed to with the advertiser and in the agreed time scope and/or until the agreed amount of clicks or impressions has been reached. madvertise will principally use their own ad server, unless the parties have agreed in writing that an external ad server shall be used.

16.2 Refusal of Advertising Media, Interruption of Campaigns

madvertise reserves the right to refuse an advertising campaigns or certain advertising media with regards to their contents or due to technical reasons and to discontinue a running campaign, especially if the advertising media or websites they are linked to do not comply with these terms and conditions or if the delivery is not reasonable for madvertise due to other reasons. madvertise will in this case inform the advertiser of the refusal and grant him the opportunity to replace the advertising media or run an alternative advertising campaign.

16.3 Reporting

madvertise determines the course and success of advertising campaigns with an ad server reporting tools. Invoices are principally based on the results of the reports that have been determined by madvertise (cf. number 18).

17. Rights of Use on Advertising Media and Campaigns

17.1 The advertiser will grant madvertise for the duration of the scope of time of the respective agreement the unlimited, not exclusive, not transferable, unrestrained towards quantity released and worldwide right of use towards the provided advertising media and campaign contents. With regards to content, this right is limited as to the purpose of the campaign agreement.

The aforementioned rights include all necessary copyrights, ancillary copyrights and other rights for the contractual use of the advertising media, in particular public broadcasting rights, reproduction, distribution, transfer, broadcasting, extraction from a database and viewing time and content required for the fulfilment of this agreement.

17.2 The advertiser warrants that he owns all necessary rights for the execution of an advertising campaign, including the rights on the advertising media, and that he is entitled to grant madvertise those rights of use in the aforementioned manner. The advertiser especially guarantees madvertise that he owns all rights necessary for the conclusion of this agreement with respect to originators, artists, record producers, other creative producers, conferrers, collecting societies and other owners of privacy privileges.

17.3 If the advertiser does not at all, or only partly, or only temporarily owns the aforementioned rights he is obliged to inform madvertise immediately.

17.4 The advertiser grants madvertise the right to use the advertising media or campaigns subject to this contract for the purpose of self-promotion, for example for presentations, references or other sales documents of madvertise.

18. Payment and Invoicing

18.1 madvertise will send the advertiser generally after the campaign end or in the agreed frequency (e.g. monthly for the previous month) an invoice that states the amount due for the campaigns realized during the invoicing period. Payment in advance only applies if agreed by both parties. madvertise reserves the right to demand payment in advance from advertisers domiciled abroad. The same applies to advertisers if the result of a credit screening, to which madvertise explicitly reserves the right, suggests payment in advance.

18.2 The invoice is principally based on the payment scheme that has been agreed between madvertise and the advertiser in conjunction with the media services actually provided and determined by madvertise.

18.3 If agreed on, an agency commission with an amount subject to agreement will be granted for agency bookings for proven agency activities and invoice processing. Advertising agencies and agents are obliged to keep their offers, contracts and invoices to their clients in accordance with the pricing that has been agreed with madvertise.

18.4 If a contract stays unaccomplished due to certain circumstances for which madvertise is not liable, the advertiser needs to refund the difference between the discount already granted and the discount that corresponds with the actual purchase. Other legal duties of the advertiser remain intact.

18.5 The advertiser transfers the amount stated in the invoice to madvertise immediately after receipt of the invoice to the bank account stated unless it has been agreed otherwise. If the advertiser doesn’t attend to his duty of timely payment, madvertise reserves the right to claim interest for delay amounting to 8% percentage points above the currently effective base lending rate of the German Federal Bank. Other rights of madvertise remain intact.

18.6 If the advertiser does not raise any objections within four weeks after receipt the credit note and/or invoicing is regarded as being accepted.

18.7 The advertiser is entitled to compensation only if his counterclaim has been accepted by madvertise or has been finally established.

19. Cancellation of Campaign Bookings and other Services

The advertiser is entitled to cancel a campaign up to 6 working days before the agreed campaign start without any additional costs. In case of a cancellation within 5 days before the agreed campaign start, madvertise charges the advertiser 50% of the cancelled booking volume or 100% respectively for bookings of specific ad spaces. For additional services such as the creation of landing pages, advertising media or market research, the complete amount will be charged.