Terms & Conditions

Terms and Conditions for Magazines

 

Preliminary note

 

These Terms and Conditions are an English translation of the original German-language Terms and Conditions. In the event of any dispute arising out of or in connection with these Terms and Conditions, in particular, regarding their interpretation, the German version shall prevail exclusively.

 

Unless agreed otherwise in writing, the following Terms and Conditions govern the relationship between the Publisher and the Client regarding the placement and processing of Advertising Orders for magazines marketed by the Publisher, including mobile and tablet PC applications (“apps”) and e-papers (hereinafter jointly referred to as “magazines”) that are based on the magazines and readable offline. The Client can access, print out, download, or save these Terms and Conditions at any time at www-bm-marketing.net/terms-and-conditions

1. Definitions

1.1 In these Terms and Conditions, an “Offer” is an offer made by the Publisher for the placement and publication of one or more advertising media in magazines for the purpose of distribution. Unless expressly otherwise designated as a binding offer, offers from the Publisher are non-binding and subject to availability of the offered services.

 

1.2 In these Terms and Conditions, an “Advertising Order” is an offer by a Client to publish one or more advertisements or other advertising media (hereinafter collectively referred to as “Advertisements”) by an advertiser or other entity buying advertising space (hereinafter collectively referred to as “Advertiser”) in a magazine for the purpose of distribution. The Client can be an agency or a direct Advertiser.

 

1.3 A “Transaction” is a contract for the publication of several Advertisements, taking into account any applicable discounts that are to be granted to the Client in accordance with the price list. The publications are made at the Client’s request. If a Transaction allows for requests to publish single Advertisements one at a time, the last Advertisement must be published within one year of publication of the first Advertisement (hereinafter referred to as the “Insertion Year”), unless expressly agreed otherwise on a case-by-case basis.

 

1.4 “Publisher” means Axel Springer SE for all magazines marketed by this entity, even if they are published by third parties. For Advertising Orders in magazines marketed by Axel Springer Auto Verlag GmbH, the aforementioned GmbH will be the Publisher instead of Axel Springer SE.

 

 

2. Conclusion of contract

 

2.1 A contract for an Advertising Order shall be concluded, unless expressly agreed otherwise individually, either when the Advertisement (or in the case of several Advertisements, the first Advertisement) is printed or by written confirmation by the Publisher. If the Publisher makes a binding Offer, the contract shall be deemed concluded by the Client’s declaration of acceptance.

 

2.2 When agencies place Advertising Orders, the contract shall be deemed concluded with the agency, subject to other written agreements. The agency undertakes to provide proof of its business license by submitting an excerpt from the commercial register and proof of mandate to the Publisher upon request prior to the conclusion of the contract.

 

2.3 Advertising Orders from advertising and media agencies will only be accepted for specifically named Advertisers. Advertising the products or services of an Advertiser other than the one specified at the time the Order was placed always requires the Publisher’s prior written consent.

 

2.4. If the Publisher outsources the marketing of Orders or contracts to third parties, they shall act as the Publisher’s representatives and on the Publisher’s account.

 

2.5 Provided that allowances for expenses are not excluded, a mediation fee of 15 % on the net invoice amount (i.e., on the invoice total exclusive of VAT after deduction of discounts) shall be credited to all Orders placed via any advertising agency that has been recognised by the Publisher. This excludes setup fees, technical costs, and remuneration for creative services.

 

2.6 Changes and additions to a contract as well as deviations from these Terms and Conditions must be agreed in writing. For contract amendments and addenda, this also applies to any waiver of this written form clause.

 

2.7 In case of agency orders, the Publisher reserves the right to also forward order confirmations to the agency’s client.

 

3. Publishing the Advertisement

 

3.1 Requirements to publish Advertisements only on certain publication dates or in certain places in the magazine must be expressly agreed the Publisher. The Publisher must receive Orders for such Advertisements with sufficient time so it can notify the Client before the advertising deadline if the Order cannot be fulfilled as requested. Classified Advertisements will be printed in the relevant section without a need for any express agreement.

 

3.2. Irrespective of the placement in the magazines, the Publisher is entitled, but not obligated, to additionally publish placed Advertising Orders in other print media and telemedia of Axel Springer SE and its affiliated companies within the scope of its technical possibilities. The print documents that were made available to the magazines may be adapted to the respective requirements. The presentation in telemedia may differ from the way the ad appears in the printed edition.

 

3.3 For publication in the electronic editions of the magazines, the Publisher may adapt print documents that were made available to it for paper editions to meet the requirements of the electronic edition. The presentation may deviate from the printed paper edition. In order to avoid such deviation, the Client may request from the Publisher exact specifications so the Client can supply the Advertisement with the right specifications for the electronic edition. When Advertisements are published in electronic editions of magazines, they are scaled largely proportionally to the page size of the electronic edition in relation to the printed edition. In addition, we guarantee that placements in the electronic editions are equivalent to those in the printed edition.

 

3.4 If there are no special size requirements, the calculation will be based on the actual print height in the printed edition that is customary for the given type of Advertisement.

 

3.5 As a matter of principle, we do not guarantee the exclusion of any competing advertisements.

4. Publisher’s right of refusal

4.1 The Client is responsible for ensuring that the content it provides, in particular its Advertisements, do not violate any legal provisions and, in particular, comply with any and all regulations relating to the protection of minors, press law, competition law, data protection law, criminal law, and media public service law. In the event of a violation of sentence 1, the Client shall fully indemnify the Publisher against any and all costs incurred by the Publisher as a result of such violation, including any legal costs, upon first request. The Publisher is not obligated to verify the advertising material before it is placed and published.

 

4.2 The Publisher reserves the right to reject Advertisements or other advertising media, in particular if their content violates any laws or official regulations, or has been subject to a reprimand by the German Advertising Council in an official complaints procedure, or if their publication infringes the rights of third parties or the Publisher’s interests due to their content, design, origin, or technical form; or if other advertising media (in particular supplements, inserts, etc.) cannot be enclosed or attached to the object for technical reasons. The Client will be immediately notified if an Advertisement or another advertising material is rejected. In keeping with its publicist mission, the Publisher reserves the right to object to Advertisements whose appearance mimic the editorial design of the magazine itself. Advertisements that are editorial in design must be clearly distinguishable from the main newspaper typeface and must be marked with the word “advertisement”. Advertisements which are not recognizable as such due to their design will be clearly identified by the Publisher with the word “advertisement”.

 

4.3 Advertising media containing advertising by or for third parties (joint advertising) require the Publisher’s prior written consent in each individual case. The involved Advertisers must be named. The Publisher reserves the right to charge a joint advertising surcharge or change the discount amount.

 

4.4 The Client must immediately notify the Publisher if the Client has already received a warning or is currently under a warning because of the content of an advertising medium, or if the Client has already committed or is currently committing to an order to cease and desist. If the Client fails to comply with this obligation, the Publisher shall not be liable for any damage incurred by the Client as a result of repeated publication of any Advertisements (or content) that are subject to such objections.

 

5. Transfer of print documents

5.1 It is the Client’s sole responsibility to supply suitable printing material or other advertising materials on time and in perfect condition. Unless otherwise agreed with the Publisher, the print documents are to be delivered via the portal DUON (). The Client is obligated to provide digital print documents in keeping with the format and technical requirements as specified in the contract – for publication in digital editions, the documents must be provided as per the Publisher’s technical specifications for the creation and transfer of online advertising media – with sufficient time before the Advertisements are to be published. The Client shall bear any costs incurred by the Publisher for changes to the print documents that are either requested by the Client or for which the Client is responsible. The print documents for Advertisements or other advertising materials are to be supplied in the customary quality in accordance with the binding technical specifications in the DUON portal for the relevant title in accordance with the price list and the order confirmation. This requires the Client’s compliance with the Publisher’s specifications for the creation and transfer of the print documents via the DUON portal. The Client shall not be entitled to a price reduction if undesirable printing results are caused by a deviation from the above agreement. The same applies in case of errors in repeated Advertisements if the Client does not point out the error before the next Advertisement goes to press.

 

5.2 The Client shall bear any costs incurred by the Publisher for changes to the print documents that are either requested by the Client or for which the Client is responsible. In case of difficult typesetting work that requires a greater than usual effort, the Publisher reserves the right to charge for the actual effort involved. For the booked title, as per the information in the price list as well as the order confirmation, we guarantee the customary quality for advertisements within the given possibilities, which are determined by the print documents and the technology used by the printing company.

 

5.3 Prior to digitally transferring the print documents, the Client must ensure that the transmitted files are free of computer viruses. In particular, the Client is obligated to use commercially available, up-to-date protection programmes for this purpose. If the Publisher discovers any sources of damage of the aforementioned type on a file that was transmitted to it, the Publisher shall no longer make use of this file and shall delete it to the extent necessary to prevent or contain damage (in particular to prevent the source of damage from spreading to the Publisher’s IT system). The Client shall not be able to assert any claims for damages in such a case. The Publisher reserves the right to claim damages from the Client if such sources of damage, which have been introduced by the Client, cause damage to the Publisher.

 

5.4 If a contract is not executed, or executed incorrectly, because the Client violates its obligations to cooperate, in particular by delivering production documents that are late, incomplete and/or defective or incorrectly labelled, or does not deliver them at all, or if they have been deleted in accordance with Clause 5.3, the Publisher shall still be entitled to the agreed remuneration.

 

5.5 Digitally transmitted print documents for colour advertisements can only be reliably processed with a colour proof supplied on paper. Without a colour proof, colour deviations are unavoidable, and the Client shall not be entitled to any price reduction.

 

5.6 Independently of the digital print documents, a written order with motif identification is required. The delivery of the print documents alone does not constitute the placement of an order.

 

5.7 Print documents will only be returned to the Client upon specific request. The obligation to retain the print documents shall end one month after the first publication of the Advertisement or other advertising material.

6. Defects

6.1 If the publication of the Advertisement does not meet the contractually owed quality or performance standards, the Client is entitled to a price reduction or a replacement Advertisement that is free from flaws, yet only to the extent that the purpose of the Advertisement was impaired. The Publisher has the right to refuse a replacement Advertisement or replacement publication if

 

(a) it requires an effort which, regarding the scope of the contractual obligation and the principles of good faith, would be grossly disproportionate to the Client’s interest in the performance of the contract, or

 

(b) it would only be possible for the Publisher at a disproportionately high cost. If the Publisher fails to meet a reasonable deadline set for a replacement Advertisement or the publication of other advertising material, or if the replacement Advertisement/replacement publication is flawed again, the Client shall be entitled to a price reduction or to cancel the order. Cancellation of the order is excluded if defects in the Advertisement or the publication of another advertising medium are non-material.

 

6.2 The Client will verify the Advertisement immediately after publication. If the Client is a merchant, notifications of defects must be made to the Publisher immediately after publication, unless the defects are not obvious, in which case a period of six months applies. If the Client is a private consumer, complaints regarding obvious defects must be made within two weeks. Complaints regarding non-obvious defects must be made within one year of the statutory commencement of the limitation period.

 

6.3 The Publisher shall be liable for all damages, whether arising from a breach of contractual obligations or from tort, in accordance with the following provisions:

 

(a) In the event of gross negligence, its liability towards companies shall be limited to compensation for typical foreseeable damage; this limitation shall not apply if the damage was caused by the Publisher’s legal representatives or executive employees.

 

(b) In the event of simple negligence, the Publisher shall only be liable for breaches of material contractual obligations, when a guarantee has been assumed, or when a fraudulent misrepresentation has been made. In such cases, liability shall be limited to the typical foreseeable damage. In the latter case, there shall be no liability for indirect damage, consequential damage caused by a defect, or loss of profit.

 

6.4 Any and all claims against the Publisher arising from a breach of contractual obligations shall lapse under the statute of limitations one year after the statutory commencement of the limitation period, unless they are based on intentional or grossly negligent conduct or involve injury to life, limb, or health; in such cases the limitation period shall be governed by statutory provisions.

 

6.5 If claims are made under the Product Liability Act (Produkthaftungsgesetz), and in the event of injury to life, limb, or health, the Publisher’s liability shall be unlimited in accordance with statutory provisions.

 

7. Proofs

Proofs will only be supplied upon express request. The Publisher will take into account all error corrections that are communicated to it by the advertising deadline or within the deadline that was set when the proof was sent. Proofs for digital editions shall be supplied in pdf format.

 

8. Payments

 

8.1 The invoice must be paid within the period stated in the price list, unless otherwise agreed in writing on a case-by-case basis. Any discounts for early payment will be granted according to the price list. The Publisher reserves the right to demand advance payment by the advertising deadline for justified reasons, such as the commencement of a new business relationship.

 

8.2 The Client may only offset amounts due to the Publisher against an undisputed or legally established claim. If the Client is a business, it is only entitled to exercise a right of retention if the counterclaim is undisputed or has been legally established and pertains to the same contractual relationship.

 

8.3 In the event of a late payment, reasonable reminder fees shall be charged in addition to the statutory default interest. In addition, the Publisher may suspend the further processing of the current Advertising Order or Transaction until payment is made, and demand advance payment for the remaining Advertisements.

 

8.4 When there is justified doubt regarding the Client’s solvency, the Publisher may, even during the term of a contract, make the publication of further Advertisements contingent upon advance payment of the amount by the closing date for Advertisements and upon settlement of any outstanding invoice amounts, irrespective of any originally agreed payment period.

 

9. Proof of Advertisement

Upon request, the Publisher will provide a proof of the Advertisements and other advertising materials; the Publisher reserves the right to charge a separate fee for this. If a proof can no longer be issued, it shall be replaced by a legally binding certificate from the Publisher confirming the publication and distribution of the Advertisement. No proofs can be provided for text-only or classified Advertisements.

 

10. Drops in circulation

10.1 For Transactions comprising several advertisements, a price reduction for a drop in circulation can be claimed in accordance with sentence 2 if the total average circulation of the Insertion Year, beginning with the first Advertisement, falls short of the guaranteed circulation. A drop in circulation shall only be considered a defect that is grounds for a price reduction if and to the extent that the following applies:

 

for a guaranteed sold circulation of up to 50,000 copies, a drop of at least 20 %,
for a guaranteed sold circulation of up to 100,000 copies, a drop of at least 15 %,
for a guaranteed sold circulation of up to 500,000 copies, a drop of at least 10 %,
and for a guaranteed sold circulation of more than 500,000 copies, a drop of at least 5 %.

 

A drop in circulation for reasons listed in Clause 15 does not entitle the Client to a price reduction. The guaranteed sold circulation shall be the average circulation stated in the price list or otherwise, or if no circulation figure is stated, the average sold circulation (for specialist journals, if applicable, the average actually distributed circulation) of the preceding calendar year. Furthermore, claims for price reductions are excluded if the Publisher has informed the Client of the drop in circulation in such good time that the Client was able to withdraw from the Order or Transaction prior to publication of the Advertisement.

 

10.2 Notwithstanding Clause 10.1, a drop in circulation of titles that publish circulation data for each issue shall only entitle the Client to a price reduction if and to the extent that this drop exceeds 10 % for a (guaranteed sold) circulation of up to 500,000 copies and 5 % for a (guaranteed sold) circulation of more than 500,000 copies. A drop in circulation for reasons listed in Clause 15 will not be taken into account.

 

10.3 The guarantee is based on total sold circulation as defined by IVW. It is calculated for the Insertion Year from the circulation average of the four quarters prior to the Insertion Year unless the Publisher has specified an absolute figure as guaranteed circulation in the respective price list. In order to claim a price reduction, the Client must have a discountable Transaction that is based on quantity discounts and covers at least three issues. The price reduction shall be calculated based on the Order per company, unless invoicing by brands was defined and agreed at the time of the Order placement. Any possible drop in circulation is calculated as the balance of surpluses or shortfalls in circulation of the booked issues within the Insertion Year. A claim for reimbursement must be made within six months of the end of the Insertion Year. Reimbursement shall be made based on the Client’s net balance, taking into account any agency remuneration that has already been granted, either as a credit for future Advertisements, or, if this is no longer possible, as a pay-out. A claim for reimbursement is only due for reimbursement amounts of at least 2,500 EUR.

 

11. Price lists

11.1 Prices are always subject to applicable statutory VAT; this applies, in particular, to prices stated in Advertising Orders and price lists.

 

11.2 If the price list for the title states text lines in millimetres, they shall be converted into advertisement millimetres based on the price when calculating the purchase quantities.

 

11.3 The Publisher may change prices at any time with effect for the future. Price changes for advertising contracts are effective when announced by the Publisher at least one month before publication of the Advertisement; in which case, the Client shall have a right of withdrawal. The right of withdrawal must be exercised in writing within 14 days of receipt of the notification of such a price increase. The right of withdrawal shall not apply to Orders that are processed in the context of an ongoing contractual obligation, in which case, changes to the price list shall come into effect immediately, unless expressly agreed otherwise.

 

11.4 As per the price lists, text-adjacent Advertisements are adjacent to text and not to other advertisements on at least three sides.

 

12. Groups of affiliated companies

Written proof of the Advertiser’s group status is required to apply a joint discount to a group of affiliated companies. Affiliated companies within the meaning of this provision are companies with a mutual capital participation of at least 50 percent. Upon the Publisher’s request, corporations must provide proof of group status by submitting an auditor’s confirmation or their most recent annual report; partnerships shall provide proof by submitting an excerpt from the commercial register. The group discount must be claimed no later than at the time the contract is concluded. Subsequently made claims will not be recognised retroactively. Group discounts outside the price list require the Publisher’s express written confirmation in every case. Group discounts are only granted for the duration of membership in the group. If affiliation with the group is terminated, the Publisher must be notified immediately; the group discount ends with termination of such group affiliation.

 

13. Transfer and guarantee of rights

13.1 The Client must ensure that the print documents it provides do not infringe any rights of third parties. The Client declares that it owns all rights of use and exploitation required for the placement and publication of the printed material provided by it and that it is entitled to freely dispose of them. If Advertisements are produced by the Publisher, the Client also declares that it holds all the required rights to produce the Advertisement. In this respect, it shall indemnify the Publisher against any and all third-party claims, including any legal costs, upon first request. The Client is obligated to assist the Publisher by providing information and documents in its legal defence against third parties.

 

13.2 Regarding the print documents the Client provides for the production and publication of the Advertisement in print, online, and telemedia of all kinds, including the Internet, the Client shall transfer to the Publisher the non-exclusive rights of use, ancillary copyrights, trademark rights and other rights, in particular the right to reproduce, distribute, transmit, broadcast, make publicly available, and extract and retrieve from a database; for the duration and in the scope and extent necessary to execute the Order. The Publisher shall also have the unlimited right to self-promote or promote the respective objects. In any case, the aforementioned rights are transferred without territorial limitation and freely transferable to third parties.

 

13.3 Any concepts and components on which the Publisher’s Offers are based are protected by copyright and competition law and must be kept confidential by the Client. In particular, these concepts may not be passed on to third parties, neither in their current nor in any modified form, nor may the Client use them for its own purposes outside the scope of the contract.

 

13.4 If a graphic element is used in connection with the Advertisement or if the name, logo, company mark, trademark, work title, or other business name is used in any other way, the Client shall grant the Publisher the non-exclusive, non-transferable right to use the graphic element or corresponding visual elements in the respective Advertisement for the duration of the contract.

 

13.5 Advertising visuals (promotions) designed by the Publisher for the Client may only be used for Advertisements in the titles/issues booked for this purpose with the Publisher. No further rights are granted.

 

14. Term

14.1 The contract shall terminate with the expiry of the agreed contract period

 

14.2 The right to extraordinary termination for good cause with prior notice shall remain unaffected. Notice of termination must be given in writing. In particular, a party shall have the right to terminate the contract without notice for good cause if one of the parties repeatedly violates a material contractual obligation despite a written warning, if it fails to remedy a continuing contract violation within a reasonable period of time, or fails to remedy its consequences, if a warning has been issued against one and/or both parties and/or against a magazine that is marketed by the Publisher as a result of a contractual service, and/or an interim injunction has been obtained, or if the Publisher has reasonable grounds to suspect that the Client or the content provided by the Client violates or has violated applicable legal provisions, in particular the Criminal Code or applicable advertising guidelines; if there is reason to suspect, as soon as the Publisher has factual indications thereof, that the law may have been infringed, in particular when proceedings are brought against the Publisher, the Client, and/or against the magazines that are marketed by the Publisher, or when competent authorities make a request for a statement. A party shall also have grounds for termination without notice when insolvency proceedings are opened against the assets of a contracting party, or if such proceedings are not initiated due to a lack of assets, or if an application is made in this respect, and the concerned contracting party fails to prove within a reasonable time period after having been requested to do so that such a request is clearly unfounded. A party shall also have grounds for termination without notice if enforcement action has been taken against one of the contracting parties and not been lifted within one month.

15. Disruption of the contractual relationship by force majeure

 

In the event of operational disruptions or of force majeure, industrial disputes, confiscation, traffic disruptions, general shortages of raw materials or energy and the like – both affecting the Publisher’s operations and external operations upon which the Publisher relies to fulfil its obligations – the Publisher shall be entitled to full payment for the published Advertisements if the Publisher delivers the publication at 80 % of the average sold or otherwise guaranteed circulation over the last four quarters. If the deliveries fall short of this percentage, the invoice amount shall be reduced proportionately to the ratio of the actually delivered circulation in relation to the guaranteed circulation. The Publisher reserves the right to postpone publication dates if a current situation calls for it. The Client shall not be entitled to any claims against the Publisher arising from such postponement.

 

16. Third-party involvement

The Client must obtain the Publisher’s prior written consent to fully or partially transfer its rights and obligations from the Advertising Order. The Publisher is entitled to rely on third parties to fulfil its obligations from the Advertising Order.

 

17. Confidentiality and press

17.1 Unless otherwise agreed in writing, the contracting parties shall keep strict confidentiality regarding any and all details of the contract, in particular prices and conditions, as well as any business secrets of which they become aware directly or indirectly via the other party in the performance of the contract. This shall not apply if disclosure is ordered by a court of law or by an official authority, or if it is required for the judicial enforcement of a party’s own rights against the other party. In addition, the Publisher shall be entitled to disclose the contents of the Advertising Order to third-party contractors in accordance with Clause 16, and to affiliated companies in accordance with articles 15 et seq. of the German Stock Corporation Act (Aktiengesetz). This obligation shall apply throughout the term of the contract and survive its termination indefinitely.

 

17.2 The Publisher is entitled to forward the Client’s and the Advertiser’s gross advertising volumes (by product) to Nielsen Media Research or comparable institutions for publication.

 

17.3 Press releases as well as other public announcements to third parties concerning the business relationship between the Publisher and the Client or regarding the details of any agreements require the Publisher’s prior approval. This also applies to publications of logos supplied by the Publisher.

 

18. Final provisions

18.1 Any additional terms and conditions contained in the price list shall apply in addition to these Terms and Conditions.

 

18.2 If the written form is required as per these Terms and Conditions, it shall be deemed met by text form.

 

18.3 The Client will be notified of any amendments to the Terms and Conditions in writing as well as under www.bm-marketing.net/terms-and-conditions . Such amendments shall be deemed to have been approved by the Client unless the Client objects to them in writing within one month of notification.

18.4 Contractual or general terms or conditions of the Client are hereby expressly excluded. This shall also apply if the Client’s terms and conditions have not been expressly objected to and/or the Publisher provides the services without objection, i.e., if advertising material is placed and published without objection.

 

18.5 The place of performance is the Publisher’s registered office. In business transactions with merchants, legal entities under public law, or special funds under public law, the place of jurisdiction for litigation is the Publisher’s registered office. In case of non-merchants, the place of jurisdiction shall be determined in accordance with statutory provisions. German law shall apply, under exclusion of UN Sales law (CISG).

 

18.6 Should any individual provision of this contract, including these provisions, become wholly or partially invalid, or should the contract contain a loophole, the validity of the remaining provisions or parts thereof shall remain unaffected. The contracting parties undertake to replace any invalid provision with a valid one, the economic effect of which comes as close as possible to that of the invalid provision.