Terms and Conditions for Advertisements and Third-Party Supplements in Newspapers and Magazines
1. Exclusive Scope, agreement
1.1 In its own name and for its own account, the Ebner Verlag GmbH & Co KG, Karl Strasse 3, D-89073 Ulm (hereinafter referred to as "publisher") markets advertisements for the news-papers and magazines that it publishes.
1.2 The following terms and conditions are exclusively valid for all contractual relationships between the publisher and the customer (hereinafter referred to as "customer") with regard to the placement of advertisements. The validity of any general terms and conditions of the customer is expressly excluded, even if the publisher does not contradict in individual cases.
1.3 The publisher agrees to comply with the regulations of the minimum wage (MiLoG). This is also valid, insofar as the publisher orders other contractors with attendances.
2. Services; Submission for Publication; Completion
2.1 In the context of these terms and conditions, an "advertising order" is a contract by an advertiser or other purchaser of advertising space for the publication of one or more ad-vertisements in a publication for the purpose of dissemination.
2.2 In case of doubt, advertisements are to be submitted for publication within one year after the signing of the contract. If a contract grants the right to submit individual advertise-ments, then the contract is to be completed within one year after the publication of the first advertisement, assuming that the first advertisement was submitted and published during this year.
2.3 Upon signing an advertising contract, the customer also has the right to submit, within the agreed or one-year period according to paragraph 2.2, additional advertisements beyond the volume specified in the contract.
2.4 If an order is not completed due to reasons for which the publisher is not responsible, then, notwithstanding any other legal obligations, the customer shall pay the publisher the difference between the contractually granted discount (taking into consideration the pre-defined total volume) and the actual total volume (discount adjustment charge). The pay-ment shall not apply if the failure is due to force majeure within the risk area of the pub-lisher.
3. Calculation of Volumes
3.1 For the calculation of volumes, text millimeter lines are converted according to price into advertisement millimeters.
3.2 The publisher must receive orders for advertisements and third-party supplements which are intended for publication in specific numbers, in specific issues or in specific places within the publication before the closing date so the publisher can notify the customer, prior to the advertising deadline, that the order cannot be completed in this way. Classi-fied ads will be printed in the relevant section without the need for express agreement.
3.3 Text advertisements are advertisements bordered on at least three sides by text and not by other advertisements. Advertisements that are not identifiable as advertisements due to their layout can be clearly labeled as such by the publisher with the word "advertisement."
4. Publisher's Right of Refusal; Orders for Supplements
4.1 The publisher reserves the right to refuse advertising orders, individually submitted adver-tisements in the context of a signed contract or orders for the insertion of supplements due to the contents, the origin or the technical form according to uniform, objectively justi-fied principles of the publisher if their content violates laws or legal regulations. This also applies to orders placed with branches, reception points or representatives.
4.2 Orders for supplements are binding on the publisher after submission of a sample of the supplement and its approval. Supplements which, due to their format or layout, give the reader the impression that they are part of the newspaper or magazine, or which contain third-party advertisements, will be accepted subject to change. The customer will be noti-fied immediately if the publisher decides to refuse an order.
5. Obligations of the Customer
5.1 The customer is responsible for assuring the timely delivery of the advertising copy and the flawlessness of the printing documents or supplements. If advertising orders, changes in the scheduling or the desired issue, textual corrections and/or cancellations are com-municated via telephone, the publisher assumes no liability for same. If printing docu-ments are obviously unsuitable or damaged, the publisher shall immediately request re-placements for same. Within the limitations imposed by the printing documents, the pub-lisher guarantees the standard of printing quality customary for the publication.
5.2 Cancellations must be made in writing. If an order is cancelled, the publisher can bill the customer for the costs incurred due to typesetting.
5.3 The customer is obliged to bear the costs of publication of a reply which refers to actual assertions in the published advertisement. These costs will be calculated according to the currently applicable advertising rate. This applies only in the event that the publisher is obliged to print the reply.
5.4 Exclusion of competition cannot be guaranteed. Placement requests are subject to avail-ability of space. The publisher reserves the right to change previous placements due to reasons related to the page layout; such changes shall not affect the validity of the order. The publisher likewise reserves the right to change branch-of-industry designations.
5.5 If the printed advertisement is wholly or partly illegible, incorrect or incomplete, the cus-tomer has a claim to price reduction or to a perfectly corrected replacement advertise-ment, but only to the extent to which the purpose of the original advertisement was im-paired. If the publisher fails to publish the replacement advertisement within an agreed and reasonable time period or if the replacement advertisement is again flawed, then the customer has a right to a price reduction or to cancellation of the order.
6. Liability of the Publisher
The publisher assumes unlimited liability for damages caused by his legal representatives or executive employees and for damages caused deliberately by other agents acting on his behalf; in the event of a negligent breach of duty, the publisher is also liable for dam-ages arising from injury to life, body or health. The publisher is liable for product liability damages in accordance with the provisions of the Product Liability Act. The publisher is liable for damages caused by his legal representatives or executive employees arising from the breach of cardinal obligations; cardinal obligations are the essential duties which form the basis of this contract, which were crucial for the completion this contract, and upon the fulfillment of which the licensee can rely. If the publisher has breached these cardinal obligations due to slight negligence, then his liability is limited to the amount that was predictable for the publisher at the time when each service was rendered. The pub-lisher is liable for the loss of data only up to the amount that would have been incurred for recovery of the data if proper and regular back up of the data had been undertaken. Fur-ther liability of the licensor is excluded.
7. Proofs; Calculation
7.1 Proofs will be provided only by request. The customer bears the responsibility for the cor-rectness of the returned proofs. The publisher has the right to expect the corrections to be communicated to him within the period specified when the proofs were sent to the cus-tomer.
7.2 If no special instructions about the size and dimensions are given, the calculation will be based on the customary and actual printed height of the advertisement.
8. Invoicing; Delay; Voucher Copy of the Advertisement
8.1 If the customer has not paid in advance, then the invoice will be sent immediately or no later than fourteen days after the publication of the advertisement.
8.2 Unless a different payment period or prepayment has been agreed in individual instances, the invoice must be paid within the period specified in the price list. This period begins with the customer's receipt of the invoice. Any discounts for early payment will be granted as specified in the price list.
8.3 Interest and collection fees will be charged if the payment is delayed or deferred. In the event of a delayed payment, the publisher can delay completion of the current order until the payment is received and can demand prepayment for the remaining advertisements.
If there is reasonable doubt about the solvency of the customer, the publisher has the right, also during the running time of an advertising contract and without consideration of an originally agreed payment date, to make the publication of further advertisements con-tingent upon the advance payment of the amount and the settlement of outstanding in-voices.
8.4 If so desired by the customer, the publisher will deliver a voucher copy of the published advertisement together with the invoice. Depending on the nature and size of the order, the delivered voucher copy will consist of tear sheets, full pages or complete copies of the issue that carried the advertisement. If a voucher copy can no longer be obtained, its place shall be taken by a legally binding certification from the publisher averring that the advertisement was indeed published and disseminated.
9. Cost; Price Reduction
9.1 The customer shall bear the expenses of preparing ordered printing blocks, stencils and drawings, as well as the expenses of significant changes to the originally agreed versions desired by the customer or for which the customer is responsible.
9.2 In case of a contract covering several advertisements, a decrease in circulation can serve as the basis for a claim to price reduction if the average circulation specified in the price list or otherwise mentioned is not achieved in the overall average of the year beginning with the scheduled publication of the first advertisement or, in the event that no circulation volume is mentioned, if the average sold circulation (for special-interest magazines: the average actually distributed circulation) is less than the average sold circulation during the previous calendar year. A decrease in circulation is a shortcoming which justifies a price reduction only to following extents:
- 20% price reduction for circulation up to and including 50,000 copies
- 15% price reduction for circulation up to and including 100,000 copies
- 10% price reduction for circulation up to 500,000 copies
- 5% price reduction for circulation of 500,000 or more copies.
Additionally, claims for price reduction are excluded if the publisher has informed the cus-tomer of the reduced circulation so far in advance that the customer could cancel the or-der prior to the publication of the advertisements.
10. Classified Advertisements with Box Numbers; Documents; Storage
10.1 For classified advertisements with box numbers, the publisher will exercise the due dili-gence incumbent upon a prudent businessman to assure the safekeeping and timely for-warding of offers. Registered and express letters in response to classified advertisements with box numbers will be forwarded by normal post.
10.2 The publisher will return valuable documents without being obliged to do so. Letters which exceed the permissible DIN C 4 format (weight: 500 grams), parcels containing merchan-dise, books or catalogues, and small packages will not be forwarded and their delivery will be refused. However, in exceptional instances, acceptance of delivery and forwarding can be agreed if the customer pays the costs and/or fees incurred for same.
10.3 In the interest of the customer and for his protection, the publisher reserves the right to open and to inspect incoming letters or parcels in order to preempt or eliminate any mis-use of box-number services. The publisher is not obliged to forward business proposals or brokerage offers. Printing documents will be returned only at the specific request of the customer. The ob-ligation to keep such documents ends three months after the expiration of the order.
11. Place of Performance and Place of Jurisdiction; Applicable Law
11.1 In business transactions with merchants, legal entities or special funds under public law, the place of performance and the place of jurisdiction is the head office of the publisher. However, the publisher also has the right to sue at the court of law which is responsible for the region in which the customer's head office is located.
11.2 German law applies with the exclusion of the UN Sales Convention.