Terms and Conditions

1. 

Scope of application; future validity

1.1

These Terms and Conditions apply to all contractual relationships between Factor Eleven GmbH (hereinafter referred to as “Factor Eleven”) and its clients. Factor Eleven clients are exclusively contractors as per Section 14 of the German Civil Code.

1.2

Deviating Terms and Conditions of the client shall not be applicable, even if Factor Eleven does not object to the validity thereof in individual cases.

2. 

Quotes; conclusion of the contract; agency booking

2.1

Unless otherwise expressly agreed to the contrary, quotes submitted by Factor Eleven shall be non-binding in nature.

2.2

A contract shall first be concluded upon written confirmation of an order from Factor Eleven or upon initial performance of the service by Factor Eleven once the service content of the respective media plan has been created or confirmed by Factor Eleven.

2.3

Orders from agencies shall be concluded directly between Factor Eleven and the agency, unless the agency expressly acts on behalf of agency clients with the specification of a domestic summonable address.

3.

Provision of advertising materials; Factor Eleven’s right of modification

3.1

Unless otherwise specified in the product specification, the client must provide Factor Eleven with all information and data material in image, text, video or audio form (advertising materials) as per the technical specifications required for proper execution of the order at the latest 4 working days prior to the start of the ad placement.

3.2

The advertising materials must be suitable for the agreed media service and, in particular, correspond to the agreed technical requirements and formats. Factor Eleven reserves the right to edit the materials provided by the client, provided this is required and reasonable for optimal advertising applications. However, Factor Eleven shall not be obligated to the above provision.

3.3

If owed media services are not rendered, or not rendered on time or in the proper manner due to the client’s failure to provide the advertising materials on time or as per the technical requirements, the client shall be held liable in this regard. The claim for full remuneration remains unaffected by the above provision.

3.4

Advertising materials that cannot be distinguished as such on the basis of their design may be marked as advertisements by Factor Eleven or the operator of the advertising space, in particular to ensure compliance with competition and media regulations.

3.5

Any additional expenses incurred by a culpable breach of the duty to cooperate must be reimbursed by the client. In this case, media services shall be billed on the basis of the media plan; Factor Eleven shall invoice a fee of 80 EUR plus VAT per hour for other services.

3.6

Factor Eleven does not grant any warranties or retention obligations for disclosed advertising materials. It shall also not be obligated to return the advertising materials.

4. 

Prohibited advertisement content; temporary interruptions

4.1

Advertising materials are not permitted to violate third-party rights or statutory provisions on media services applicable in the circulation area. In the case of advertising materials featuring links to client or third-party content, the content of the linked advertising materials (advertising target) must satisfy the requirements of the above clause.

4.2

Factor Eleven shall not be responsible for reviewing the content of the advertising materials in this regard. Factor Eleven is entitled to temporarily halt the provision of the owed media services if there is reason to suspect that the content of the advertising materials is unlawful. The client may avert this interruption by providing unobjectionable advertising materials or targets. Factor Eleven must inform the client of the interruption to the provision of services within 24 hours.

5. 

Granting of rights; the client’s warranty of harmlessness; declaration of indemnification

5.1

The client hereby grants Factor Eleven all usage, service protection and other protection rights to the necessary extent (with regards to time, content and location) required for the provision of the owed media or creation services. Factor Eleven is entitled to transfer the granted rights or non-exclusive usage rights to third parties within the scope of the performance of media or creation services in this regard.

5.2

With the placement of an order, the client warrants that the contractual provision of the media or creation services violates neither statutory provisions nor third-party rights. The client is liable for the content of the advertisement, in particular with regards to competition, trademark, personal and copyright laws.

5.3

The client hereby confirms that it owns all usage rights, in particular copyrights, trademarks and personality rights, required to place advertisements for the advertising material and other data material it provides for the creation of advertising materials by Factor Eleven and that any fees payable to collecting societies (e.g. GEMA) have been paid in an orderly manner. The client shall be liable to pay any additional charges from the original content creator as per Sections 32, 32a, 32c of the German Copyright Act.

5.4

Factor Eleven shall not be obligated to review the accuracy of factual statements on products or services provided by the client contained in the advertisement that have been conveyed or approved by the client.

5.5

If Factor Eleven creates any advertising materials on behalf of the client, Factor Eleven must submit these creations to the client for review and approval prior to publication. Upon approval of the creations for publication, the client shall assume liability for compliance with the applicable statutory provisions and the accuracy of the content, images, audio and text.

5.6

Any editing or modifications to the content of advertising materials created by Factor Eleven requires prior consent from Factor Eleven. In order to transfer or licence the usage rights to third parties, the client must obtain prior written consent from Factor Eleven.

5.7

Factor Eleven reserves the right to use the advertising materials it has created for an unlimited period on its website for its own advertising purposes, provided nothing has been agreed to the contrary. This right also extends to companies affiliated with Factor Eleven.

5.8

If third-party claims are asserted against Factor Eleven on the basis of media services provided for the client or advertising materials created, in particular with regards to compensation for damages, the client shall indemnify Factor Eleven at first request from all respective claims, including all future third-party claims, and the required costs to defend these claims.

6.

Right to postpone; warranty; obligation to give notice of defects

6.1

If the client has booked a certain number of UniqueUser/Clicks for a specific time frame, Factor Eleven points out that this information is based on previous experience. If, in an exceptional case, the number of UniqueUser/Clicks is not achieved within the agreed time frame, the placement period for the ad campaign shall be extended until the number of booked UniqueUser/Clicks is achieved.

6.2

In cases of force majeure, Factor Eleven reserves the right to refuse the performance of the service for the duration of the respective service interruption. If Factor Eleven is prevented from performing owed services for a period that exceeds six months as the result of a force majeure event, Factor Eleven shall be released from its duty to provide the respective services. A force majeure event comprises all circumstances for which Factor Eleven is not responsible and render performance impossible or constitute unreasonable hardship for Factor Eleven, e.g. strikes, lock-outs, riots, natural disasters, regulatory limitations, etc.

6.3

If the owed media service is significantly impaired, Factor Eleven may, at its own discretion or by agreement, initially remedy the defect in a faultless manner. A claim to reduce payment or cancel the order shall only exist if Factor Eleven fails to remedy the defect or this cannot be reasonably expected.

6.4

The client must check that the agreed media services have been rendered in the contractually agreed manner within 48 hours after placement of the advertisement and inform Factor Eleven of any complaints in writing without delay. If the client fails to inform Factor Eleven of any complaints in time or in the correct form, the rendered media services shall be regarded as completed in accordance with the contract.

6.5

Payment shall be settled exclusively on the basis of reported expenditure by Factor Eleven. The accuracy of the figures reported shall be presumed, unless the client is able to prove any inaccuracies. Any deviations in calculations that are less than 5% shall be deemed minimal and not be regarded as a defect or overfulfilment (fluctuation allowance).

6.6

If the services to be rendered by Factor Eleven are work services, the client is obligated to accept the work upon delivery, provided the work service is not found to contain any major defects and corresponds in principle to the agreed terms upon delivery. Any refusal to accept services must be declared within 3 calendar days after delivery with an indication of the specific defect. If acceptance is not refused within the aforementioned period, the work service shall be deemed accepted. If significant deviations or defects are found to exist, Factor Eleven must eliminate these issues within an appropriate deadline and resubmit the work for approval. Approval shall be deemed granted at the latest upon use of the produced work.

7.

Extraordinary termination

7.1

In the case of severe violations of the applicable law or duties arising from these T&Cs by the client or its vicarious agents, Factor Eleven shall be entitled to extraordinary termination of the contract, without prejudice to statutory provisions or any future claims that may arise.

7.2

Notably, Factor Eleven shall only be entitled to extraordinary termination if:

– the client fails to pay for more than 30 days and still fails to fulfil its payment obligations after repeated requests;

8. 

Remuneration

8.1

The agreed remuneration is due upon conclusion of the contract and must be paid by the client within 5 working days, in any case prior to the agreed commencement of the provision of services.

8.2

If the client is in default of payment or insolvency proceedings are opened against the client, Factor Eleven is entitled to suspend execution of the contractual media services, unless the client provides security in the amount of contractual remuneration in a timely manner.

8.3

The client may only offset claims from Factor Eleven with undisputed claims or claims enforced by law. The client is only entitled to assert a right of retention if the claims in question are based on the same contractual relationship.

9.

Cancellation of advertising orders

9.1

The client is entitled to cancel booked services after conclusion of the contract. If the order consists of several individual bookings (campaigns) that may be placed at the same or different time periods, the entire campaign must be cancelled. Cancellation requires the written form. Factor Eleven shall immediately cease placement of the respective campaign upon receipt of the notice of cancellation.

9.2

Cancellation is free of charge up to 2 weeks prior to placement of the advertisement. The placement date shall be deemed the date on which the advertisement is first placed. In cases of last-minute cancellations, Factor Eleven reserves the right to invoice the following costs:

9.2.1

Up to 30% of the net order value in cases of cancellations within 2 weeks before the placement date or 75% of the net order value in the case of homepage roadblocks;

9.2.2

50% of the net order value that remains outstanding at the time of cancellation of the placement of the online advertisement in cases of cancellation after the placement date. Furthermore, the price for any online advertisements that have already been placed shall be adjusted according to the remuneration specified in the order. 100% of the net order value in cases where the homepage roadblocks are cancelled after the placement date.

10.

Limitation of liability

10.1

Factor Eleven shall be liable for damages sustained by the client that are attributable to Factor Eleven, its legal representatives, executive staff or vicarious agents due to acts of intent or gross negligence.

10.2

Irrespective of the degree of fault, Factor Eleven shall be liable for damages attributable to the violation of a duty that is fundamental to the proper execution of the contract (cardinal duty) and in the case of fraudulent misrepresentation by the parties listed in Section 9.1. Likewise, irrespective of the degree of fault, Factor Eleven shall be liable for any damages attributable to violations of guaranties assumed by Factor Eleven or strict statutory liability.

10.3

The above provisions shall not affect claims for compensation asserted by the user due to injury to life, body or health that can be attributed to a breach of duties by Factor Eleven or the parties listed in Section 9.1.

10.4

The liability of Factor Eleven is excluded for all cases other than those specified in Sections 9.1 to 9.3, irrespective of the legal grounds.

10.5

Except for the cases stipulated in Sections 9.1 and 9.3, non-excluded claims for damages are limited to foreseeable, contract-typical damages. In the event of a delay, these shall amount to a maximum of 50% of the order value.

10.6

Claims for damages asserted against Factor Eleven shall become statute-barred after a 12-month period following their assertion, unless they are based on an intentional act.

11.

Applicable law; place of jurisdiction; severability clause; written form requirement

11.1

These Terms and Conditions are governed by the law of the Federal Republic of Germany, to the exclusion of the UN Sales Convention.

11.2

The place of performance and exclusive place of jurisdiction is Hamburg, wherever legally permissible.

11.3

There are no oral or written ancillary agreements to these Terms and Conditions. Any amendments to the provisions of these Terms and Conditions require the written form. This also applies to any amendment or revocation of this written form requirement.

11.4

If individual provisions of these Terms and Conditions are found to be invalid in whole or in part, the remaining provisions shall remain unaffected. In the above case, the contractual parties shall undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic intent of the original provision. The same shall apply in the case of regulatory gaps.

11.5

Any mention of the written form in these Terms and Conditions exclusively refers to the written form as per Section 126 b of the German Civil Code.

Version: May 2019