Item 1 – Subject of the General Terms and Conditions
These General Terms and Conditions apply to contracts with blowUP media GmbH and associated subsidiaries in accordance with Sections 15 et seq. German Stock Corporation Act (Aktiengesetz, AktG), regarding the implementation of large-sized advertisements in classic and digital form (e.g. Giant Posters, Traffic Towers or LED Boards).
Item 2 – Awarding and accepting contracts
(1) The contract only becomes effective if the order placed by the client (“Client”) is accepted in writing by the Contractor. The Contractor’s offerings are non-binding.
(2) Orders from agencies/agents will only be accepted for designated advertisers under specification of the product group. At the request of the Contractor, the Client must provide supporting documentation to show that an advertiser has placed a corresponding order. Unless expressly specified otherwise in an order placed by agencies/agents, the contract exists between the agency/agent and the Contractor. For orders placed by agencies/agents, to be made in the name of and on behalf of an advertising company (“Advertiser”), this must be expressly communicated when the order is placed. In both cases, upon conclusion of the contract, the agency/agent assigns its claims against the Advertiser from the advertising contract signed between the agency/agent and the Advertiser to the Contractor provided they form part of the Contractor’s commission. The Contractor hereby accepts this assignment (security assignment). It is entitled to disclose this to the agency’s/agent’s customers if the claim is not settled within a month of the due date.
(3) The Contractor reserves the right to reject the acceptance of orders – in whole or in part – on grounds of content, origin or technical format in accordance with standard, objectively justifiable principles of the Contractor, if the advertising content is unacceptable (e.g. advertising containing extreme political, ideological or religious, xenophobic, distasteful or immoral views), is contrary to the law or official regulations or the interests of people/companies on whose property the advertising media is located. For contracts already in place, the Contractor has the right to withdraw from the contract in the aforementioned cases if the Client does not provide a lawful alternative 15 working days (weekdays: Monday to Friday) before the display start date at the latest. If the agreed start of the service is delayed due to the rejection, this does not release the Client from its payment obligation.
If there are any legal or moral concerns against the running of this advertising campaign due to its content, origin or format, or the advertising campaign is found to be incompatible with this provision, the Contractor shall have the right to terminate it immediately and/or to cancel the contract without notice. The Client must compensate the Contractor in this case for the damages resulting from the premature termination.
(4) A transfer of rights and obligations from this contract or the contract itself to third parties must be made with the prior approval of the other contracting party. However, the Contractor is entitled to transfer rights and obligations from the contract or the contract itself to an associated company in accordance with Sections 15 et seq. AktG without the Client’s approval.
(5) The application of the Client’s general terms and conditions is excluded.
Item 3 – Withdrawal
(1) The Client can withdraw from the contract without penalty by giving written notice up to 90 days before the display start date. If the Client withdraws after this period, the Contractor is entitled to demand lump-sum compensation. This compensation amounts to 50% of the agreed consideration for a withdrawal made up to four weeks before the display start date, and 100% of the consideration for anything later than that. The Client reserves the right to prove a lower level of loss. The compensation amount may be reduced accordingly. Receipt by the Contractor is decisive for determining the punctuality of the notice. This right to withdraw does not exist for contracts where the parties have only agreed the duration of the display but the selection of the display date and/or the specific location still remains at the discretion of the Contractor.
(2) In the event of complete or partial withdrawal from one or more contracts with display periods, the agreed start date of the first display period is decisive for the calculation of compensation, regardless of whether the withdrawal from one of the display periods is complete or only partial. Any volume discounts granted do not apply either in the event of complete or partial withdrawal and will not be included in the compensation calculation. The same applies accordingly to contracts that are concluded for several display periods but a schedule has not yet been fixed for them and instead they will be carried out within a specific period at the Contractor’s discretion. The start date of this period is decisive for the compensation calculation.
Item 4 – Contract term, display start date
(1) . The contractual display period starts on the date agreed in the order (“Start date”) or, if no precise date has been agreed, on the calendar date on which the display/advertising campaign starts, yet no later than on the calendar date on which the advertising campaign could have started without delay on the part of the Client in the provision of documents/information/advertising media to be provided by it and ends at the end of the agreed period.
(2) If the necessary official permits have not been issued, issued permits have been revoked or the advertising media needs to be dismantled for town planning or other reasons for which the Contractor is not responsible, the advertisement is banned during the contract term in full or in part by the property owner or by the responsible supervisory authorities or the contract with the property owner (“Advertising agreement”) ends prematurely, the Contractor is entitled to terminate the contract without notice. In these cases, the Client must be reimbursed the consideration already paid for the remaining display period on a pro rata basis. The Client shall have no further claims in excess thereof.
Item 5 – Competition exclusion
The exclusion of the Advertiser’s competitors is not guaranteed. However, the Contractor may not as far as possible install advertising media belonging to the Advertiser’s competitors directly beside each other.
Item 6 – Advertising media and advertising image
(1) The contractual implementation of the order comprises, unless agreed otherwise in the contract, the manufacture, installation and removal of the advertising media according to specification by the Contractor.
(2) For classic media services, the Contractor acquires the advertising media (networks, canvases, large screens, etc.) at the Client’s expense. Minor deviations in the colour, form and design of the advertising media and minor deviations in the printed design of the original material supplied by the Client are allowed and do not constitute a defect. The advertising media manufactured by the Contractor involves items that are subject to considerable wear depending on the weather conditions and the level of use. In this respect, under usual weather conditions (rain, sunshine, wind force up to 6 max.), the advertising media has a material-related useful life of around 12 months.
Canvases, which are increasingly being installed as part of the moving canvas concept, have a useful life of around six months. The advertising media remains the property of the Contractor until full and complete payment has been made by the Client. The Client must provide the Contractor with the reproducible documents for the creation of the requested advertising media no later than 21 calendar days before the agreed display start date. The Client must pay for any additional costs incurred due to late provision.
There are more precise specifications for the materials to be provided for the production of the advertising media in the corresponding product information sheet or the Client will provide this separately. The Contractor shall inform the Client without delay of any visibly unsuitable and/or damaged materials. The Client is responsible for ensuring that the materials to be supplied are delivered on schedule and this will not be monitored by the Contractor.
(3) External banners can only be installed with the prior written consent of the Contractor. Once consent has been granted, manufacture and supply must be provided at the Client’s expense and in line with the Contractor’s instructions in terms of measurements, material and manufacture, which can be found in the corresponding product information sheet and/or will be provided by the Contractor separately in writing for the individual case.
The Client must deliver the manufactured advertising media at its own expense – unless otherwise agreed – to the address provided by the Contractor no later than 20 calendar days before the agreed start date.
(4) For digital formats, the Client is responsible for manufacturing the reproduction materials. The Client must at its own expense provide the Contractor with suitable reproduction documents (materials/artwork) no later than 10 working days before the agreed display start date. The Contractor shall inform the Client without delay of any visibly unsuitable or damaged reproduction documents. At the request of the Client and at its expense, the Contractor shall undertake the manufacture of the advertising media or it shall carry out any necessary adjustments to the unsuitable reproduction documentation at the request of the Client and at its expense. If the Client does not provide the reproduction documentation on time and the operation is delayed or reduced as a result, this will not release the Client from its payment obligation. Expenses saved will be deducted for the Contractor.
(5) If the Contractor provides creative services to the Client, the advertising ideas and computer-generated elements (jointly referred to as “Creative service”) developed by the Contractor constitute protected works under German copyright law. The Client only receives the simple non-transferable right to use these works for the implementation and duration of the contractually agreed advertising campaign. The Client is not entitled to a usage right extending beyond this scope. If the Client intends to use the Creative service beyond this scope, a separate license agreement must be concluded with the Contractor about this. If the Contractor uses the Creative service without such a license agreement or beyond the scope of the agreed right of use, the Client is entitled to compensation in line with the latest remuneration schedule or, if the type of use is not provided for, compensation in the usual amount.
(6) The Client is responsible for the form and content of the image and its legal reliability, in particular its reliability in terms of copyright and competition laws. In this respect, the Client indemnifies the Contractor from any third-party claims and from all costs incurred by the Contractor from this and other disadvantages including the necessary legal defence fees. The Contractor is not subject to inspection obligations. This also applies if the advertising image has been created as a Creative service by the Contractor. The Contractor shall, however, point out any risks in these cases that it becomes aware of during the preparation of the Creative service. The Contractor shall in no way be responsible for the statements expressed in the advertising campaign about the products and services of the Client.
(7) The advertising media remains the property of the Client after it has been installed. Unless otherwise agreed, the Client must communicate in writing no later than five days before the end of the display period whether it requires the advertising media to be issued to it or it would like the Contractor to store the advertising media. The first month of storage by the Contractor is free of charge.
Subsequent storage is charged at EUR 100.00 for each month started. If no communication is received from the Client or is not received within the time limit pursuant to Clause 2, the advertising media becomes the property of the Contractor free of charge at the end of the display period and is disposed of. Any advertising media still to be paid for in full will be released to the Client upon request only after full settlement has been made. Until such time, the aforementioned storage costs must be paid.
Item 7 – Reference consent, use of image
The client grants the Contractor the right to name the Client or, in the case of contracts with agencies, their advertisers as reference clients using the company logo and to use the name, logo, the advertising image or, if applicable, photos and videos created by the advertising campaign in the context of marketing campaigns, for illustration, for advertising purposes and for publication in both print and electronic media (e.g. but not limited to brochures, presentations, website, social media accounts, rate cards, e-mail signatures, mailings). This consent may be revoked for good cause; the legitimate interests of the Contractor will be taken into account.
Item 8 – Pricing
(1) Unless otherwise agreed, the Contractor’s price list in force at the time will apply. All prices are listed exclusive of the applicable VAT.
(2) For contracts with an agreed installation date of more than four months after conclusion of the contract, the Contractor reserves the right to increase the prices as it reasonably sees fit in line with the actual cost increases incurred (in particular changes in price of materials, etc.), if the price performance ratio is no longer reasonable.
(3) For collective advertising (advertising for several products, brands or services of different companies), separate markups must be agreed. The Client must indicate whether collective advertising is involved when the contract is awarded.
Item 9 – Payment terms/Due dates
(1) Invoices must be created before the display start date. Invoice amounts must be paid immediately. If the Client falls behind with its payment obligations or if there are justified doubts about the solvency of the Client based on objective fact, the Contractor shall be entitled, even during the term of the contract, to make the continuation of the contract dependent on the settlement of outstanding invoice amounts or an advance payment regardless of any payment date originally agreed.
(2) Counterclaims can only be offset if they are undisputed or have been determined without further legal recourse.
(3) The Client can only claim the right of retention if the counterclaim involves the same contractual relationship and has been determined without further legal recourse or is accepted by the Contractor.
Item 10 – Breach of contract/Liability
(1) Damage claims for breach of duty only exist where there is intent and gross negligence on the part of the Contractor. Liability for minor negligence on the part of the Contractor is excluded. This restriction does not apply to damages resulting from injury to life, limb or health or from violations of material contractual obligations.
(2) Liability vis-à-vis merchants for property damage or financial loss in the event of gross negligence on the part of a vicarious agent (excluding violation of material contractual obligations) shall be limited to such damages as are typical of contracts and foreseeable.
(3) Liability on the part of the Contractor for indirect damages, in particular loss of profit, is excluded.
(4) If it is not possible to install a display at the agreed location or at the agreed time or the display needs to be terminated prematurely for technical or structural reasons or due to the weather or other reasons for which the Contractor is not responsible, the Contractor must offer the Client an alternative location or display date. The same applies if the necessary official permits are not issued or are revoked. If the Contractor cannot provide an alternative location or display date, or if the Client refuses these alternatives because the advertising purpose can no longer be achieved, the Client is entitled to terminate the contract without notice. Any payment already made must be reimbursed to the Client on a pro rata basis. The Client shall have no further claims for compensation in excess thereof. The Client shall bear any additional costs incurred for dismantling and/or re-installation due to the premature termination or change of location.
(5) If there is a defect, the Client’s claims to the right to defect remedy are limited. If the Contractor tries to remedy the defect for a second time without effect, the Client shall be entitled to choose to reduce the price or withdraw from the contract.
(6) Claims for obvious defects must be made in writing to the Contractor immediately after display/broadcast, and immediately after discovery in the case of hidden defects.
(7) The Contractor is not liable for damage to displays caused by third parties or force majeure. The same applies to failures or disruptions in the infrastructure outside of its sphere of influence. Any necessary replacements or repairs and installation/dismantling must be carried out immediately after the failure or disruption has been remedied. The Client shall bear the costs for these measures.
(8) The preceding liability limitations do not apply if the Contractor fraudulently concealed a defect or provided a guarantee for the condition of the service. The same applies to claims made by the Client under German product liability law. The above provisions also apply in the event of default on the part of a vicarious agent of the Contractor and to the personal liability of employees, representatives and institutions of the Contractor.
Item 11 – Contractor’s right of withdrawal
(1) The Contractor is entitled to withdraw from the contract if the Client does not comply with its obligation to provide in due time in accordance with Item 6.2 to Item 6.4 of these General Terms and Conditions even upon request with reasonable deadline of the Contractor.
(2) In the event that the Contractor exercises its right to withdraw, any claims of the contracting partner, in particular claims for damages, are excluded. Potential claims for damages on the part of the Contractor remain unaffected by the fact that it has exercised its right of withdrawal.
Item 12 – Miscellaneous
(1) To the extent permitted by law, the jurisdiction is the registered office of the Contractor. The laws of the Federal Republic of Germany apply.
(2) In the event that a current or future term of these Terms and Conditions is or becomes invalid, void or unenforceable in whole or in part for reasons other than those listed in Sections 305-310 German Civil Code (BGB), the validity of the remaining terms of these General Terms and Conditions will not be affected. The same applies if, after the conclusion of the contract, a loophole is found that needs to be closed. The parties shall replace the invalid provision or loophole with a valid provision that in its legal and economic content corresponds to the invalid provision and the overall content of the contract.
Version dated: November 2020
