Terms and Conditions for Online Advertising
1. Subject matter and scope
1.1 These Terms and Conditions (“T&Cs”) are valid for all commercial relationships between mobile.de GmbH, Albert-Einstein-Ring 26, D-14532 Kleinmachnow, Germany (“mobile.de”) and advertising clients and advertising agencies (“Client” or “Clients”) regarding the provision of online marketing services (“Online Advertising”) and related services by mobile.de.
Mobile.de is responsible for the marketing of the following websites and mobile-enabled websites and applications:
(including all associated internet websites referred to as the “Mobile.de Websites”) as well as
(including all associated internet websites referred to as the „MOTOR-TALK-Website and associated websites“) as well as
(including all associated internet websites referred to as the “Kleinanzeigen Websites”) as well as the marketing of the mobile-enabled websites and applications:
- m.mobile.de (mobile portal mobile.de)
- mobile.de iPhone App
- mobile.de iPad App
- mobile.de Android App
- MOTOR-TALK iPhone App
- MOTOR-TALK Android App
(the „Mobile MEWs and Apps”)
- m.ebay-kleinanzeigen.de (Mobil-Portal ebay-kleinanzeigen.de)
- Kleinanzeigen Android App
- Kleinanzeigen iPhone App
(the “Kleinanzeigen MEWs and Apps“)
(the mobile.de MEWs and Apps and the Kleinanzeigen MEWs and Apps together are herein referred to as „MEWs and Apps“):
In addition, as part of the so-called "Motors Marketing Suite" program, mobile.de also markets online advertising on certain third-party websites and mobile offerings (the "Third-Party Inventory").
Mobile.de is responsible for providing local support and advice to Clients and for coordinating and managing the realization of booked online advertising services on or in connection with the Mobile.de Websites, Kleinanzeigen Websites, MOTOR-TALK-Website and associated websites as well as the MEWs and Apps, including special advertising forms (like “Partner Portals”, “Content Specials” et al.) and e-mail newsletter available to users of the websites as well as the Third-Party Inventory (together the “Advertising Space”).
1.2 Terms and conditions or other standard contract terms of the Client or third parties shall have no validity, even if mobile.de does not object to them expressly in individual cases.
2. Conclusion of contract
2.1 A contract between mobile.de and the Client on the rendering of online advertising services including special advertising forms and related services (if applicable) shall come into effect when mobile.de accepts a written offer submitted by the Client based on a proposal, always non-binding, from mobile.de (“individual contract”). The declaration of acceptance need not reach the Client. The specific individual contract in question shall contain the respective scope of performance and the contractual terms as defined based on the circumstances of each individual case. If the provisions of an individual contract diverge from those of these T&Cs, the provisions of the individual contract shall take precedence.
2.2 If the Client is an advertising agency, mobile.de will only conclude a contract if the advertising client for whom the agency is placing the ad with mobile.de is specified by name. The same shall apply if the Client wants to conclude a contract with mobile.de via an advertising intermediary not acting in his/her own name. In all cases, mobile.de shall be entitled to demand from the advertising intermediary proof that they have been instructed to carry out the transaction.
2.3 In the event of mobile.de rejecting an offer from a client to conclude a contract concerning online advertising, mobile.de shall notify the respective client accordingly without undue delay.
2.4 The cancellation of an order must be made in text form (Section 126b German Civil Code (BGB)). If a cancellation request arrives immediately before the beginning, or after the start, of the agreed advertising campaign, mobile.de will stop and end the advertising campaign without undue delay upon receiving the cancellation request, usually within 72 hours of its receipt. The cancellation of an order up to two weeks before the launch date is free of charge. The day on which the advertising campaign is first placed online is regarded as the launch date. For more short-term cancellation requests or cancellation requests made after the launch date, mobile.de shall have the right to invoice the Client for damages as follows:
a) In the case of cancellation less than 2 weeks before the agreed launch date: 30% of the net invoice value.
b) In the case of cancellation after the agreed launch date: 50% of the net invoice value still outstanding at the time when the advertising campaign is stopped. Additionally, the Client will be invoiced for the price of the online advertising already rendered. Where applicable, the price will be based on the discount rate for the lesser volume (see Section 6).
2.5 Mobile.de will, as a general rule, only accept offers for online advertising in the minimum order amount of EUR 3,500 net invoice value.
3. Obligations of the Client
3.1 The Client must check the legality of the information, data, files, content and other material (hereinafter referred to as “Advertising Material”), including links to advertising material on other websites and shall assume sole responsibility for the legality of the advertising material made available for publication.
3.2 The Client shall be obliged to design and structure the advertising material in such a way that it does not infringe legal provisions, official prohibitions or public morality. In particular, the Client shall not deliver advertising material which
contains pornographic content as defined by the applicable laws (in Germany: Section 184, German Criminal Code (StGB));
- constitutes an inadmissible offering as defined by the applicable laws on protection of minors (in Germany: Section 4, State Treaty on Youth Media Protection (JMStV));
- constitutes an offering which impairs young people’s development as defined by the applicable laws on protection of minors (in Germany: Section 5, JMStV);
- contains inadmissible propaganda material as defined by the applicable laws (in Germany: Section 86, StGB) or characteristics of unconstitutional organisations as defined by the applicable laws (in Germany: Section 86a, StGB);
- contains representations inciting hatred and violence against specific groups or glorifying violence as defined by the applicable laws (in Germany: Sections 130, 131, StGB);
- incites racial hatred, glorifies war or promotes a terrorist organisation;
- invites people to break the law;
- contains insulting and/or defamatory remarks and/or representations;
- is contrary to fair competition;
- contains viruses, trojans, spyware or other malware,
- contains illegal content of some other kind, or is generally suited to damaging the reputation of EKA or an affiliate of EKA within the meaning of Sect. 15 et seq. German Stock Corporation Act („Affiliates“; particularly but not limited to Kleinanzeigen GmbH).
3.3 The Client shall ensure that the above are complied with and gives its assurance that the advertising material that it delivers is free of any third-party rights which present an obstacle to use as defined by the contract and of any other third-party rights, in particular trademark rights, patent rights or copyright. This refers, in particular, to the fact that the Client must be entitled to use (Section 7) the advertising material supplied and intended for publication in accordance with this contract for the intended type of realisation.
3.4 The Client shall ensure that the above is complied with and gives his assurance that it is entitled to use any links to other content that may be integrated into its advertising material.
3.5 The Client undertakes to supply the advertising material necessary for the online advertising at its own expense up until such time as is agreed in the individual contract or – should no time be agreed in the individual contract – until no later than five working days before the agreed publication date, and in complete and perfect condition and in accordance with the contractual agreements. The Client undertakes to ensure that the advertising material is suitable for the agreed purposes, in particular for display on screen in the appropriate environment and that it is of the type and size agreed in the individual contract. The advertising material must – unless otherwise agreed with regard to Third-Party Inventory – correspond to the technical specifications for Google Marketing Platform that are relevant in each case. The Client can receive these from mobile.de on request. Insofar as links are contained in the advertising material provided, the Client must indicate the respective target addresses (URL) of the links in advance. If the Client does not comply with the agreed date and the publication or performance of the online advertising and/or related services (if applicable) is thereby delayed or made impossible, this shall not impair mobile.de’s claim to the full payment of the agreed remuneration. In cases where it is no longer possible to publish the online advertising or perform the related services (if applicable), mobile.de must take into account the amounts which it saves as a result of its exemption from performance or which it acquires or culpably fails to acquire as a result of the alternative use of the freed resources.
The Client further undertakes not to collect or retrieve any information (incl. data), either personally or through an unauthorized third party, and/or to intercept or let a third party intercept any program operated by mobile.de or its Affiliates of and/or to hack or let a third party hack into any data network operated by mobile.de or its Affiliates. This also applies to programs and data networks of the partners commissioned by mobile.de with the marketing of Third-Party Inventory as well as the providers of this Third-Party Inventory (together "Third-Party Inventory Partners").
3.6 Each of the parties shall specify to the other party an employee of its own as the contact person for all questions that arise in connection with the rendering of the online advertising.
3.7 The Client is obliged to perform effective maintenance of the URLs it has specified to which the online advertising is intended to be linked for the duration of the online advertising placement period. The Client shall ensure that the website pages and documents to which links are provided can be accessed in accordance with the state of the art for the duration of the online advertising placement period. If one of the parties discovers a fault in the linking of the online advertising, it shall inform the other party of this without undue delay. Mobile.de can suspend the placement of the online advertising for the duration of the linking fault if this fault was caused by the Client.
3.8 If the Client provides advertising material by means of a Redirect, the Client shall not change or exchange the advertising material unless the Client has discussed the change or exchange with mobile.de and has obtained prior written approval (an email is sufficient) from mobile.de.
3.10 If the Client fails to fulfil its obligations to cooperate, or does so only in part, mobile.de’s obligation to render those services, which cannot be rendered or can only be rendered with unreasonable additional expense without the Client fulfilling their obligations of cooperation, shall be suspended for the duration of the Client’s non-performance. Any additional expense resulting from the Client’s non-performance of its obligations to cooperate must be paid by the Client in accordance with the prices agreed in the contract in question, or, if no prices were stipulated, on a time basis in accordance with the general mobile.de rates applicable at the time when the expense was incurred. Outlays must be reimbursed. In any event, the legal rights of mobile.de to cancel or rescind the contract shall remain unaffected.
4. Services rendered by mobile.de
4.1 Mobile.de shall, subject to these T&Cs, deliver the advertising material made available and specified for publication by the Client under the individual contract in question in the contractually agreed scope and for the contractually agreed period. Mobile.de shall be entitled to edit the advertising material with regard to its format, size and technical properties insofar as mobile.de regards this as necessary for the delivery of the advertising material and reasonable for the Client in consideration of mobile.de’s interests. If mobile.de regards it as necessary to edit the content of the advertising material (e.g. due to the illegality of some or all content), mobile.de shall obtain the Client’s consent to pursue this course of action. Any delays in the rendering of mobile.de’s services that result from this shall be the responsibility of the Client.
4.2 The placement of the online advertising shall be made only for the period agreed in the individual contract and/or until the maximum number of ad impressions (Internet users’ visual contact with the online advertising), page impressions (retrievals of the Internet page on which the online advertising is placed) or ad clicks (Internet users’ clicks on the online advertising) or other results specified in that individual contract ("Other Results") has been reached. Unless provided otherwise in the individual contract, the parties may agree on changes to the agreed period of delivery in text form (Section 126b German Civil Code (BGB)).
4.3 Insofar as mobile.de has assured the Client that it will deliver a particular number of ad impressions, page impressions, ad clicks or Other Results within a particular period for an item of online advertising and the number thus assured was not delivered in full during this period, mobile.de shall be entitled, but not obliged, to carry on placing the online advertising in question and subsequently deliver the missing number of ad impressions, page impressions, ad clicks or Other Results. The deadlines for such delayed deliveries shall be coordinated with the Client taking the legitimate interests of both parties into account.
If the agreed number is not subsequently delivered within the period allowed for delayed delivery, the Client shall be entitled to reduce the remuneration proportionally for the ad impressions, page impressions, ad clicks and Other Results that were not delivered.
4.4 If mobile.de and the Client have agreed to include targeted advertising (retargeting) in the advertising campaign, mobile.de shall only be obliged to try re-advertising to users who visited the Client’s advertising website/s in accordance with the terms of the individual contract. Terms relating to the success of retargeting contained in an individual contract are non-binding for mobile.de.
4.5 The Client, notwithstanding any divergent agreement contained in the individual contract in question, shall have no claim to delivery of the advertising material at particular placements. If mobile.de modifies or abandons certain media formats and placements, respectively, or introduces new media formats or placements, mobile.de shall be entitled to exchange such media formats or placements against other media formats or placements with the same overall ad volume.
4.6 Insofar as the advertising material determined and handed over for publication by the Client is not clearly recognisable as advertising, mobile.de shall be entitled to identify the material as advertising, and in particular to label it with the word „Advertisement“ or similar indications and/or to separate it spatially from any editorial content present in order to make clear its advertising character.
4.7 Mobile.de shall not be obliged to hand over or retain the advertising material provided to it for the realisation of the online advertising to the Client upon termination of the online advertising.
4.8 Mobile.de shall not be obliged to create graphics or advertising copy for the Client. Insofar as mobile.de renders services of this kind on the basis of an individual agreement in the respective individual contract, these services must be remunerated separately on the basis of the hourly rates agreed in the individual contract or, if no such agreements exist, on the basis of mobile.de’s currently valid hourly rates.
4.9 Mobile.de shall be entitled to postpone or cancel altogether an agreed date for the publication of an item of online advertising if a service within whose scope the publication is supposed to take place is not offered on the agreed date or if technical circumstances prevent publication on the agreed date, provided that mobile.de was not responsible for such obstacles arising. If it is possible to postpone the placement until a later date, mobile.de shall give due consideration to the Client’s interests of which it is aware as far as is reasonable and possible.
4.10 If mobile.de and the Client agree on special advertising formats (“Partner Portal” or “Content Special”) the following terms shall apply in addition to these T&Cs:
a) If mobile.de and the Client have agreed by individual contract on the delivery of a Partner Portal, mobile.de shall provide the Client for the duration of the contract term with an inline frame (“iframe”) which will be hosted by the Client and integrated by mobile.de into the Mobile.de Websites, the Kleinanzeigen Websites and/or MOTOR-TALK-Website and associated websites (including MEWs and Apps as agreed between the parties. The Client shall be solely responsible for integrating the advertising material into the iframe. Mobile.de has no access to the advertising material. The Client’s obligations pursuant to Section 3 of these T&Cs shall apply accordingly. If the Client (or, in the case that the Client is an advertising agency, the advertiser which has engaged the Client) is a registered user of the Mobile Website, Kleinanzeigen Website and/or MOTOR-TALK-Website and associated websites (including MEWs and apps), the Client (or advertiser) shall be entitled to link from the Partner Portal to listings of its Mobile.de Websites, Kleinanzeigen Websites and/or MOTOR-TALK accounts or to display these listings in the Partner Portal. The Client agrees to make a site notice publicly available on the Partner Portal during the entire contract term in accordance with the regulations of Art. 5 of the EU Directive on electronic commerce (2000/31/EC) and the applicable local laws and regulations. If the Partner Portal enables users to enter user data and to pass it on to the Client (or, in the case that the Client is an advertising agency, to the advertiser which has engaged the Client), the Client shall be liable to mobile.de, irrespective of fault, for the observance of any applicable laws and regulations, in particular but not limited to data protection laws. The Client shall be solely responsible for the communication with users regarding any enquiries as to the Partner Portal and any goods and services offered or promoted on the Partner Portal, as well as for the due performance of the agreements made between the user and the Client (or, in the case that the Client is an advertising agency, the advertiser which has engaged the Client). Section 8 of these T&Cs shall apply accordingly. If mobile.de and the Client agree on the delivery of additional online media for the promotion of the Partner Portal, all media shall link to the Partner Portal unless otherwise agreed in writing (email is sufficient).
b) If mobile.de and the Client have agreed by individual contract on the delivery of a Content Special, mobile.de shall ensure for the duration of the contract term the integration of a theme site featuring editorial content which shall be accessible by users through the Mobile.de Websites and/or Kleinanzeigen Websites and/or MOTOR-TALK-Website and associated websites (including MEWs and Apps) as agreed between the parties. The contents of the Content Special will be produced and integrated by mobile.de at its own cost and with free editorial discretion. The style and layout of the Content Special are subject to mobile.de’s complete discretion having regard to the Client’s legitimate interests (or the advertiser’s legitimate interests if the Client is an advertising agency). If mobile.de and the Client agree on the delivery of additional online media for the promotion of the Content Special, all media shall link to the Client’s website (or the advertiser’s website if the Client is an advertising agency) unless otherwise agreed in writing (an email is sufficient).
5. Rejection or discontinuation of online advertising
5.1 Mobile.de shall be entitled to either wholly or partly reject advertising material submitted by the Client for publication if such material contains illegal or immoral content as defined by Section 3.2 or infringes the rights of third parties as defined by Section 3.3.
5.2 Section 5.1 shall also apply if the advertising material is not supplied to mobile.de by the Client for the purpose of placement on the Advertising Space, but is instead made available by the Client on a different ad server chosen by the Client and is integrated into the Websites and/or MEWs and Apps only via a link. The Client may not alter or replace such advertising material without the prior consent of mobile.de.
5.3 Mobile.de shall also be entitled, under the provisions of Section 5.1, to remove either temporarily or permanently, either wholly or partly, advertising material already published, or in the case of Section 5.2 to disable the relevant link. This shall also apply if the Client subsequently alters advertising material that has already been published and the provisions in Section 5.1 have been satisfied.
5.4 If there is reasonable suspicion that the advertising material provided by the Client has illegal content as defined by Section 3.2 or infringes third-party rights as defined by Section 3.3, mobile.de shall be entitled to reject the online advertising or discontinue its publication until a statement has been made by the Client and the matter has been cleared up, or until the Client succeeds in dispelling the suspicion. A reasonable suspicion in this sense shall apply in particular when such a suspicion has been induced by official proceedings or by a criminal investigation or when there are reasonable grounds to believe that such proceedings will soon be initiated. The same shall also apply if mobile.de, an Affiliate and/or a Third-Party Inventory Partner is requested by a third party to refrain from any further placement of the online advertising because it is illegal or immoral or infringes third-party rights, provided that the third party’s claim is not clearly, and for mobile.de recognisably, unfounded. Mobile.de shall notify the Client of the rejection or blocking of the online advertising without undue delay and specify the reasons for this course of action.
5.5 Sections 5.1 to 5.4 shall apply accordingly if the advertising material provided and intended for publication by the Client contains links to illegal or immoral content as defined by Section 3.2 or to content that infringes third-party rights as defined by Section 3.3.
5.6 Mobile.de also reserves the right to reject particular forms of online advertising on grounds of its content, its origins or its technical quality on the basis of uniform, factually justified principles if their placement is unreasonable for mobile.de, one of its Affiliates or a Third-Party Inventory Partner.
5.7 There shall be no obligation for mobile.de to check the advertising material or the links referred to by the advertising material, including the content of those links. Any checks carried out by mobile.de shall not release the Client from its responsibility for the advertising material and/or the links referred to by the advertising material, including the content of those links.
6. Remuneration, settlement, taxes
6.1 The remuneration to be paid by the Client for mobile.de’s services shall ensue from the individual contract between mobile.de and the Client that is agreed in each case.
6.2 Insofar as the remuneration is calculated on the basis of TCP (thousand contact price, calculated per 1000 page impressions or ad impressions) or per ad click (cost per click = CPC), mobile.de shall inform the Client on request about the relevant number of ad impressions, page impressions or ad clicks and the click rate (= ratio of ad clicks to ad impressions or page impressions) for the Advertising Spaces in which the Client’s online advertising is placed.With regard to Other Results, the numbers to be provided by mobile.de are stipulated in the respective individual contract.
6.3 Mobile.de’s reporting activities (recorded by mobile.de’s ad server) or, where applicable, the reporting of a service provider engaged by mobile.de (for example, an SSP operator) or a Third-Party Inventory Partner shall be solely decisive for the number of ad impressions, page impressions, ad clicks or Other Results delivered to the advertising client, as well as the click rate. If the advertising client has counted divergent quantities of ad impressions, page impressions, ad clicks, Other Results or click rates with its own ad server, these shall not be taken into account. This shall not apply if the counts by the Client and mobile.de demonstrably differ by more than 10% or, in the case that MEWs and Apps or mobile Third-Party Inventory are used, by more than 30%. In such cases, the parties shall come to an agreement on the counted quantity that is authoritative for the contractual relationship.
a) If the relevant business units are unable to agree within fifteen days on the definitive quantity counted, they shall refer the dispute to the parties’ respective management bodies.
b) If the parties’ management bodies are unable to agree within a further fifteen days on the definitive quantity counted, the parties shall have recourse to the arbitration board of the Deutsche Gesellschaft für Recht und Informatik e.V.
Prof. Dr Axel Metzger, LL.M. (Harvard)
Humboldt-Universität zu Berlin
Unter den Linden 6
D 10099 Berlin
to resolve the dispute in accordance with its arbitration rules as amended at the time the arbitration proceedings were initiated.
c) The limitation of the right of action arising from the commercial situation being dealt with by arbitration shall be suspended from the time of the arbitration request until the end of the arbitration. Section 203, German Civil Code (BGB) shall apply analogously, according to which the limitation of the right of action is suspended during negotiations until one of the parties ends such negotiations and according to which the limitation of the right of action will occur three months after the end of the suspension at the earliest.
d) If one of the parties is dissatisfied with the arbitration decision made by the arbitration board, it can reject the arbitration board and assert its claims before a court.
6.4 The remuneration for targeted advertising (retargeting) shall be calculated on the basis of successful repeated approaches of customers. Mobile.de’s reporting activities shall serve as the sole authoritative factor for the counting of repeated approaches (recorded by mobile.de’s ad server).
6.5 Unless otherwise agreed in an individual contract, mobile.de shall charge the agreed remuneration for the services rendered after the online advertising in question has come to an end. If the term of the online advertising is longer than one month and monthly remuneration has been agreed, mobile.de can charge the agreed remuneration at the end of the respective month. The agreed sum must be paid in full within 30 (thirty) days from the invoice date to an account specified by mobile.de. If the Client fails to pay by the due date, the Client shall pay any dunning and processing costs incurred. In other respects, the legal provisions on default shall apply.
6.6 Mobile.de reserves the right to demand payment in advance from Clients.
6.7 The Client may set off its own claims against claims by mobile.de only if such claims have been recognised by mobile.de or enforced by law.
6.8 Mobile.de reserves the right to grant individual clients a discount in writing when a particular booking volume has been reached.
a) If the discount is granted on the basis of a booking volume to be achieved per month, the discount shall be included in the monthly invoice in question and granted for the entire monthly booking volume.
b) If the Client is granted a discount in the event of its achieving a particular booking volume for a period longer than one month (e.g. one year), the Client, on achievement of the booking volume in question, shall receive the discount solely for the booking volume which exceeds the agreed limit.
c) If the Client, in derogation of Section 6.8 (b), is granted a discount by mobile.de at the time of the first ad booking on the basis that the Client, within a defined period, reaches a booking volume liable to an aggregate di