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General Terms and Conditions of SevenOne Media GmbH A: General conditions for all services |
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A.1. Contracting parties and object of the contract |
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SevenOne Media GmbH [hereinafter "SevenOne Media"] is a wholly affiliated company of ProSiebenSat.1 Media AG. In addition to SevenOne Interactive GmbH [hereinafter "SevenOne Interactive“], SevenOne Media also markets advertising time and forms of advertising on the television stations ProSieben, Sat.1, kabeleins and N24 and 9Live [hereinafter "television stations"], and - within the scope of convergent advertising - their Internet and teletext page offers, and mobile services.
Marketing is effected in the company's own name and in compliance with internal regulations on behalf of the relevant television station and/or SevenOne Intermedia GmbH [hereinafter "SevenOne Intermedia"], which is wholly affiliated to SevenOne Media.
SevenOne Media may be contracted either by the advertiser or by an agency on behalf of the advertiser.
Object of the contract is the range of reciprocal services between the contracting parties as established in this contract.
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A.2. Scope of application |
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A.2.1.] The General Terms and Conditions [hereinafter "GTC"] of SevenOne Media regulate the contractual relationships between SevenOne Media and its clients [advertisers].
A.2.2.] Insofar as not otherwise agreed in writing, the GTC of SevenOne Media shall apply exclusively for the contractual relationship. Deviations from these GTC and any verbal agreements shall only be effective where confirmed in writing by SevenOne Media. Any amendment of this requirement of form will only be effective where confirmed in writing. Any general contractual provisions or general terms and conditions of the client are hereby expressly precluded. This shall also apply where no express objection has been raised in respect of the client’s conditions and/or SevenOne Media renders performance without objection.
A.2.3.] The client will be notified of any changes to these GTC by email or fax. Such changes shall be deemed accepted where the client does not raise objections vis-à-vis SevenOne Media in writing within one month following notification of the changes.
A.2.4.] Insofar as provisions of the General Terms and Conditions and special conditions of these GTC are in conflict, in case of doubt, the provisions of the special conditions of these GTC will apply.
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A.3. Formation of contract |
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A.3.1.] SevenOne Media offers are subject to change without notice, that is, are non-binding and are subject to the availability of the services offered.
A.3.2.] Formation of contract is exclusively effected by means of written acceptance from SevenOne Media of the offer accepted by the client, or through the rendering of performance by SevenOne Media. The contract will apply on the basis of the content confirmed by SevenOne Media, insofar as the client has not submitted a written objection to the contract content within three working days of receipt of such.
A.3.3.] Orders placed by agencies must accurately specify the advertiser by name [name, complete address and other data potentially required by SevenOne Media in certain cases]. SevenOne Media may require agencies to provide verification of the client relationship concerned. The calendar year applies with regard to orders. The contractual relationship is with the agency in such case. Billing is directed to the agency.
In the event that the advertising agency is the client, upon formation of the contract it hereby assigns to SevenOne Media all claims for payment vis-à-vis its customers that ensue from the advertising contract upon which the claim is based. SevenOne Media hereby accepts any such assignment [assignment of accounts receivable] and is entitled to effect commensurate disclosure vis-à-vis the agency’s customer where the debt has not been settled within one month of the due date.
A.3.4.] In the case of agency bookings, SevenOne Media reserves the right to also forward booking confirmations to the customer.
A.3.5.] The consolidation of a number of clients within one commercial [so-called association advertising] is subject to the express written agreement of SevenOne Media. All the clients are to be specified by name. SevenOne Media is entitled to levy an association surcharge of 20% [twenty percent] for two clients and 30% [thirty percent] for three or more clients.
This provision does not apply to wholly affiliated group companies. Wholly affiliated group companies are companies within the meaning of Section 15 of the German Companies Act [AktG].
A.3.6.] To the extent that these GTC refer to program structures/schedules, price groups or price lists of the television stations and/or SevenOne Interactive, these shall be deemed elements of the GTC. The client is to confirm receipt of this documentation prior to conclusion of contract.
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A.4. Warranty |
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A.4.1.] Within 12 [twelve] working days following performance of the contractual service at the latest, the client is to provide SevenOne Media with written notification that the broadcast was essentially carried out in accordance with the contract ["acceptance"], or notify SevenOne Media that acceptance is rejected or that performance was not carried out in full. Performance shall be deemed accepted in the absence of such notification to SevenOne Media within the specified period.
A.4.2.] In the event that contractual obligations cannot be performed, cannot be performed on schedule, or cannot be performed in due form as a result of force majeure, SevenOne Media will be released from its obligation to perform for the duration of the force majeure event. “Force majeure” shall exclusively relate to any events where the cause of such lies outside the control of SevenOne Media.
A.4.3.] Where contractual performance cannot be rendered, cannot be rendered on schedule, or cannot be rendered in due form for program-related reasons and/or for reasons occasioned by SevenOne Media, at its own choice and within the scope of availability, SevenOne Media is to ensure performance as per order by means of remedial performance. The form of remedial performance shall be at the reasonable discretion of SevenOne Media. In the event of unsuccessful remedial performance, the client is entitled to require a reduction in the purchase price commensurate with the extent of the shortfall in performance.
A.4.4.] The rights specified in paragraphs [2] and [3] above are barred by limitation following a period of 12 months from the time the client gains knowledge of the performance not rendered or not rendered as per order.
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A.5. Liability on the part of SevenOne Media |
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A.5.1.] Within the scope of and in accordance with the terms of this agreement, SevenOne Media is liable for damages to the contracting party - resulting from wrongful intention or gross negligence on the part of SevenOne Media, its legal representatives, or senior vicarious agents, - resulting from the infringement of an obligation by SevenOne Media, which is of material importance for effecting the purpose of the contract [cardinal obligations], - where the claims are asserted on the basis of the Product Liability Act [Produkthaftungsgesetz], - where, in contracts of sale or service contracts, SevenOne Media has guaranteed the quality of the object or been willfully deceitful, - from injury to life, body or health resulting from a breach of duty by SevenOne Media, one of its legal representative or vicarious agents.
A.5.2.] SevenOne Media is liable without restriction for all damage suffered as a result of wrongful intention or gross negligence, and for injury to life, body or health. In remainder, claims for damages are limited to foreseeable damage that is typical to the contract and in the case of delayed performance to 5% of the order value. Liability in accordance with the Product Liability Act remains without prejudice herefrom.
A.5.3.] Insofar as SevenOne Media is only liable for typically foreseeable damage pursuant to [2] above, it shall not be liable for indirect damage, consequential damage or loss of profit.
A.5.4.] Irrespective of legal foundation, liability on the part of SevenOne Media is excluded in all cases other than those specified in [1] to [2] above.
A.5.5.] Insofar as liability on the part of SevenOne Media is excluded, such exclusion shall also apply with respect to the personal liability of any employees, representatives, and vicarious agents of SevenOne Media.
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A.6. Legal responsibility |
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The client bears sole legal responsibility, in particular, responsibility under the provisions of media, press, and advertising law, for the content of all provided commercials/co-operation content, particularly any material made available. The client is obliged to effect careful examination to ensure that any such content does not infringe statutory provisions or any applicable mutual advertising directives issued by the state media authorities [Landesmedienanstalten]. The client hereby guarantees that the respective content does not encroach upon any third-party rights; and further guarantees that it will not publish or make reference to any unlawful or immoral content within the scope of the co-operation. The client hereby agrees, upon first request, to fully indemnify SevenOne Media and/or the relevant Internet providers or television stations against any detriments that may arise vis-à-vis SevenOne Media on the basis of or in connection with performance of this contract. This will apply particularly in the event of any third-party claims, irrespective of legal foundation, and also extends to any resulting costs for legal defense.
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A.7. Withdrawal |
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A.7.1.] Either party to the contract may cancel orders, withdrawing from the contract, up to six calendar weeks prior to broadcast date given objectively justifiable cause.
A.7.2.] SevenOne Media may withdraw from the contract at any time where performance of services owed by SevenOne Media is not possible for reasons of force majeure, or in the event of unforeseeable hindrances not occasioned by SevenOne Media that cannot be resolved at reasonable expense, such as program changes, for example. In particular, this shall include any measures or directives issued by official authorities or other governmental offices. In any such case, claims on the part of the client are precluded. Where SevenOne Media is responsible for the hindrance to performance, it is not entitled to withdraw from the contract.
A.7.3.] The client may not withdraw from any contract, where the object of the said contract pertains to the broadcast of a commercial lasting more than 89 seconds or concerns format sponsoring [including trailer sponsoring] or title sponsoring.
A.7.4.] Should SevenOne Media agree, as an exception, to a request by the client to withdraw from the contract within the six calendar weeks prior to the scheduled broadcast date [campaign start], withdrawal will be effected subject to the imposition of a cancellation fee determined at the reasonable discretion of SevenOne Media. Any entitlement to cancellation on the part of the client irrespective of payment of a cancellation fee is precluded.
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A.8. Extraordinary termination |
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A.8.1.] The two parties to the contract are entitled to terminate this contract with immediate effect in the instance of important reason.
Important reason entitling SevenOne Media to effect termination without notice shall be any instance where:
- the client becomes insolvent, particularly in the event of a petition for or commencement of judicial bankruptcy proceedings against its assets, or where commencement of bankruptcy proceedings is rejected due to lack of funds; - the client resolves to liquidate its company or actually ceases its commercial activities; - an adhortatory letter has been served against one and/or both parties and/or a ProSiebenSat.1 Media AG company in relation to a contractual service, and/or where a temporary injunction has been effected; - the client infringes the authorization requirement pursuant to C.7. or D.8. below.
A.8.2.] All services rendered by SevenOne Media prior to receipt of termination are to be
recompensed by the client in proportion to the extent of service performed. Further, fees already paid prior to termination will not be refunded.
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A.9. Prices |
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A.9.1.] Prices for TV bookings effective upon conclusion of contract are based on the respective television station’s scheduling data. As such, details of times specified for respective price groups are to be understood as target times, which may also be subject to significant rescheduling. Prices for non-TV bookings effective upon conclusion of contract are based on the SevenOne Interactive price lists in the applicable version at the time of order acceptance. Therefore, in the event of changes to this data, SevenOne Media reserves the right to adjust its prices, including with respect to orders already agreed. Price amendments relating to agreed and confirmed orders will become effective following commensurate notification. In the event of an increase in price, the client is entitled to terminate the contract with immediate effect or reschedule advertising broadcasts irrespective of the period of notice [less than ten working days before broadcast] required by B.2.3. SevenOne Media is to be informed of such termination by written communication within three working days following receipt of information regarding the price increase by the client.
A.9.2.] Without prejudice to the aforestated provisions, SevenOne Media reserves the right to introduce special prices, including at short notice, as a consequence of any current modification to the range of services. Where the start of the period of performance agreed with the client is prior to the introduction of any such special price, the said client will be notified immediately; whereupon the client is to immediately confirm to SevenOne Media whether the agreed service is, nevertheless, to be performed at the scheduled time and that it subsequently agrees to pay the special price. Alternatively, the service owed by SevenOne Media will be broadcast at the next possible time slot within the same sector/field as originally booked for the service.
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A.10. Discount |
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A.10.1.] Discounts listed in the relevant price list [respective current version] are granted with respect to the gross media volume [MB1] for advertising forms supplied within a calendar year. For teletext bookings, discount is calculated on the basis of the gross media volume booked at the time of invoicing; and for all other forms of media, on the basis of the gross media volume invoiced. Discounts are taken into account accordingly at the point of invoice. No additional discounts beyond those contractually agreed to terms for individual cases will be granted for the event of bookings at station 9Live.
A.10.2.] In the case of a number of advertisers, these will be considered as a single group for the purposes of granting discount where the companies in question are affiliated within the meaning of Section 15 of the German Companies Act [AktG]. Proof of affiliation must be submitted to SevenOne Media by, at the latest, 30 June of the calendar year.
A.10.3.] In all cases, group discounts are subject to express written confirmation from SevenOne Media upon conclusion of contract. The group position as at 1 January of the calendar year shall be decisive. Cessation of group affiliation is to be notified immediately; whereupon, following expiry of the month following cessation of group affiliation, the group discount will no longer apply.
A.10.4.] When acting as contracting party, agencies shall disclose all price reductions and/or discounts received to its advertiser clients as required and pass these on as applicable. In all other respects, the client partner shall maintain secrecy as towards third parties in relation to all performances received from SevenOne Media. This shall also apply following the end of the contractual relationship with SevenOne Media.
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A.11. Terms of payment |
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A.11.1.] For classical bookings 1] [definition], invoicing occurs separately for the individual television stations effective from the start of the period of performance. For convergent bookings 2] [definition], invoicing for SevenOne Intermedia occurs not later than at the end of the first month of the period of performance. Outstanding amounts due are not paid until remitted to the designated SevenOne Media account. SevenOne Media reserves the right to require payment in advance.
Payment without deduction is immediately due following receipt of invoice. Default on payment will be deemed to have occurred 30 days following the due date and receipt of invoice.
Where payment of an advance invoice is received by the 15th day of the month of performance, SevenOne Media will grant a settlement discount of 2 percent; in all other cases, the period for settlement discount is ten calendar days. The settlement discount is granted subject to payment of all previous invoices.
A.11.2.] Bank charges will be borne by the client. Checks are only accepted by SevenOne Media as conditional payment. Payment on the part of the client shall only be deemed settled where the amount in question has cleared and is at the disposal of SevenOne Media.
A.11.3.] All advertising orders submitted by agencies receive a 15% reduction [AC] on invoice amount, subject to verification of agency status as long as the agency is billed directly; the reduction is applied before VAT tax, after trade allowances and before discounts. In the event of changes to discounts through credit entries or contra entries, the agency commission will be recalculated; which may in turn give rise to an additional charge or amount paid out.
A.11.4.] In the event of default in payment, SevenOne Media is entitled to refrain from rendering further performance. A right to refuse performance shall also exist in all cases where the financial position of the client deteriorates significantly. The right to claims for payment, including for services not yet rendered, remains without prejudice therefrom. SevenOne Media is entitled to charge interest on overdue accounts at 10 percent above the base-lending rate. The right to assert claims for further loss remains expressly reserved. The right of the client to furnish evidence of a lesser degree of loss due to default remains without prejudice therefrom.
A.11.5.] Any rights to offset will only be available to the client where its counterclaims are judicially non-appealable, uncontested or have been recognized by SevenOne Media. Furthermore, the client is only entitled to assert a right to refuse performance to the extent that its counterclaim is founded on the same contractual relationship and is judicially non-appealable, uncontested or has been recognized by SevenOne Media.
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A.12. Production and material |
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A.12.1.] Wheresoever the contracting parties have agreed that production of the relevant service [for example, advertising measure/commercial] is to be effected by SevenOne Media, a wholly owned affiliated group company of SevenOne Media, or by a third party appointed by SevenOne Media, SevenOne Media or the relevant wholly owned affiliated group company of SevenOne Media will retain title to all intellectual property rights pertaining to the service.
A.12.2.] The client will provide SevenOne Media with the appropriate footage, image and text material as well as, where necessary, the sound material and music required for the production and/or placement or broadcast, free of charge and not later than two calendar weeks prior to the scheduled placement or broadcast. In the event of a delay in the submission of or subsequent changes to the relevant material, no responsibility will be accepted for ensuring an orderly and due placement or broadcast. The client bears responsibility in terms of transmission of the material. In line with prior agreement, SevenOne Media will edit and, if necessary, animate the material as required.
Where SevenOne Media, a wholly affiliated SevenOne Media group company or a third party appointed by SevenOne Media assumes production of a service, the relevant agreed fee will be invoiced separately or itemized separately in the invoice. The relevant fee shall be due for payment in full immediately following invoicing. Clause A.10 does not apply.
Within the scope of effecting production, the completed work will be submitted to the client for the purpose of acceptance. Insofar as the client wishes for changes to be made with respect to the completed work, a correction phase is included in the fee. Further changes will be implemented according to separate calculation of cost to the client, provided the result of the completed work is not defective.
A.12.3.] SevenOne Media reserves the right to reject services [for example, commercials] or co-operation content [particularly material] provided by the client and/or prematurely discontinue broadcasting where substantial reason for such exists. Rejection or premature discontinuance will occur in all cases where the service provided infringes valid law and, in particular, where it infringes any applicable state media authority [Landesmedienanstalten] advertising directives or standards of common decency. Attention is hereby explicitly drawn to the fact that SevenOne Media will only examine services and co-operation content with regard to obvious infringements of the law. In remainder, SevenOne Media is also entitled to reject services or co-operation content on the basis of its origin, content, form, technical quality or for other contextual reason [for example, excessive repetition, incompatibility with a specific television station]. SevenOne Media is to notify the client of the reason for rejection without delay. In the event of rejection, the client is immediately obliged to provide new services or content that avoid any such reasons for rejection. Irrespective of any delay in providing or failure to provide new services or content, SevenOne Media will nevertheless retain the right to payment as if performance had been effected in accordance with agreement. Where performance is rendered by SevenOne Media despite any initial declaration of rejection, all original obligations incumbent upon the client to effect payment will remain without prejudice.
A.12.4.] Where the advertising measure is not publicly released or where the placement or broadcast is prematurely discontinued for reasons occasioned by the client, particularly as a result of late submission of documentation or material to SevenOne Media or defective or incorrect marking of such, SevenOne Media will nevertheless be entitled to charge the client the due fee for the agreed performance.
A.12.5.] The obligation to store material [particularly layout proposals and details etc.] will cease upon expiry of the relevant period of performance. SevenOne Media will return the material to the client at risk and cost to the latter, wheresoever the client submits a written request for such to SevenOne Media within 10 days following expiry of the period of performance. In absence of this, SevenOne Media may destroy the material. SevenOne Media is entitled to retain the material until payment has been effected in full. In the event of damage or loss of material during storage thereof, SevenOne Media will only bear responsibility within the scope of clause A.5 above.
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A.13. Right of use |
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A.13.1.] With the exception of GEMA Repertoire TV broadcasting rights, the client hereby guarantees that it holds title to all necessary rights pertaining to the contractual use of services and content provided on its part [for example, image and text material, music] and, in particular, that it is availed of all necessary copyrights, trademark rights, ancillary copyrights, personal rights and other rights and, for the purposes of fulfilling the contract, is capable of assigning such rights to SevenOne Media, temporally, geographically and contextually, to the extent necessary for execution of the order.
The television and online rights of use are assigned without geographical restriction in all cases, and authorize broadcast or placement by means of all known technical procedures and all known forms of television and Internet provision.
A.13.2.] The client hereby extends to SevenOne Media all copyrights, ancillary copyrights and other rights necessary to permit use of the transferred content in respect of the object of the contract; particularly the right to edit, duplicate, disseminate, broadcast [especially free TV, pay TV, pay-per-view], effect retrieval from a databank and call up, temporally, geographically and contextually, to the extent necessary for performance of contract, and also, in particular, the right to transfer the aforementioned rights to third parties commissioned with effecting placement or broadcast. At first request, the client will fully indemnify SevenOne Media and/or the relevant television station against all third-party claims; namely, through the payment of a monetary sum and compensation of any further damage. The client is obliged to support SevenOne Media in all good faith with information and documentation for the purpose of legal defense vis-à-vis third parties.
A.13.3.] SevenOne Media and/or the relevant third party will retain all copyrights, ancillary copyrights and other rights to advertising measures [for example, layouts etc.] effected by SevenOne Media and/or the appointed third party. Use of such advertising measures by the client outside the scope of the respective co-operation project is subject to prior approval by SevenOne Media [license]; where required, against payment of an individually negotiated licensing fee.
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1] Communication via the advertising media of print, TV, radio, placard, cinema and Internet
[classical campaigns]. 2] Convergent campaigns network new and traditional forms of media by means of a formal
and thematic central theme, in consideration of the benefits of the respectively employed
media. By nature of the fact that they offer the recipient new appeal in the form of individual
value added, target groups are actively directed from one media to another. Note: within the
market, the terms convergent and cross-media are used synonymously to some extent.
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In case of any discrepancy between the English and the German version, the German version shall prevail.
Changes and misprints reserved.
Status: January 2009. |
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Special conditions for TV services
STC 7.1M [100 KB, PDF]
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