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A.1. Contracting parties and object of the contract |
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SevenOne Media GmbH [hereinafter referred to as “SevenOne Media”] is an affiliated company of ProSiebenSat.1 Media AG and markets advertising slots and forms of advertising on the ProSieben, Sat.1, kabeleins, N24 and 9Live TV stations, [hereafter referred to as “TV stations”] plus their Internet and teletext offerings and mobile services. These services are marketed in the company’s own name and, in accordance with internal Rules, on behalf of each TV station and/or of the ProSiebenSat.1 Media AG affiliate, SevenOne Intermedia GmbH [hereinafter referred to as “SIM”]. SevenOne Media’s other contracting party can be either an agency or a direct advertiser [“direct client”].
Where an “other contracting party” is mentioned hereinafter, these terms apply, irrespective of whether an agency or direct client is party to the contract. Where terms only apply to an agency or direct client, this terminology will be used instead of “other contracting party”. SevenOne Media and the other contracting party will collectively be described as the “parties”, whilst either SevenOne Media or the other contracting party can be described as a “party”. The term “agency client” shall be used where the contractual relationship between the agency and the advertiser is being referred to.
Subject matter of the contract is the range of reciprocal services provided by the parties, as defined in the contract.
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A.2. Scope of application |
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A.2.1. SevenOne Media’s Standard Terms of Business [hereinafter referred to as “STB”] govern the contractual relationship between SevenOne Media and its other contracting parties.
A.2.2. Unless agreed otherwise in writing, only SevenOne Media’s STB apply to any contractual relationship. Divergences from these STB and verbal agreements are only effective, if confirmed in writing by SevenOne Media. Any change to this requirement of written form is only effective, if confirmed in writing. The other contracting party’s standard terms of business are herewith expressly excluded. This also applies if the other contracting party’s terms have not been expressly objected to and/or SevenOne Media has performed the contract without objection.
A.2.3. The other contracting party shall be notified of any changes to these STB by e-mail or by fax. They shall be deemed to have been accepted, if the other contracting party does not notify SevenOne Media in writing of its objection within one month of notification of the changes.
A.2.4. To the extent that the stipulations of these standard terms and the specific terms therein are contradictory, the specific terms of these STB apply in cases of doubt.
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A.3. Conclusion of the contract |
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A.3.1. Offers made by SevenOne Media are subject to confirmation, i.e. non-binding and subject to the availability of the services offered.
A.3.2. The contract is only concluded upon written acknowledgement by SevenOne Media of the other contracting party’s acceptance of the offer or upon provision of the service by SevenOne Media. The contract is valid if it includes the content as confirmed by SevenOne Media, provided the other contracting party has not objected in writing to the contents of the contract within three working days after receipt.
A.3.3. Where agencies make bookings or place orders, the advertiser must be named and full details be supplied [name, full address, plus any other details that SevenOne Media may require in individual cases]. SevenOne Media is entitled to request evidence that the agency has been mandated to act for the advertiser. In such cases the agency is also the other contracting party. The purchase order year is the calendar year. The agency shall be invoiced in such cases. In the event that the agency is the other contracting party, it shall assign all pecuniary claims to receivables against its client arising from the advertising contract to SevenOne Media upon conclusion of that contract. SevenOne Media herewith accepts this assignment [assignment by way of security]. It is entitled to reveal this information to the agency’s client, if the receivable is not paid within one month after falling due.
A.3.4. In the case of agency bookings, SevenOne Media reserves the right, also to forward booking confirmations to the agency’s client.
A.3.5. The pooling of several advertisers in one commercial or in one advertising format [so-called tie-in advertising] requires the express written consent of SevenOne Media. Advertisers must be named. SevenOne Media is entitled to charge a tie-in supplement in the amount of 20% [twenty percent], where two advertisers are involved and in the amount of 30% [thirty percent], where three or more advertisers are involved. This stipulation does not apply to group affiliates. Group affiliates are companies as defined in § 15 of the German Companies Act [AktG].
A.3.6. To the extent that programming structures/schedules, price categories and pricelists of the above-mentioned TV stations and/or of SevenOne Media are referred to in the STB, the former are a component part of the STB. The other contracting party confirms receipt of these documents prior to conclusion of the contract.
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A.4. Warranty |
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A.4.1. The other contracting party shall send a written statement to SevenOne Media, no later than 12 [twelve] working days after the contractually agreed service has been provided, either confirming in essence that the advertisement was broadcast/the service was provided as contractually agreed [“acceptance”] or informing SevenOne Media why the service was not acceptable or was incomplete. Should any such statement not be submitted to SevenOne Media within this deadline, the service shall be deemed to be accepted.
A.4.2. If contractual obligations cannot be complied with at all, on time or in a proper manner, due to force majeure, SevenOne Media shall in this respect be exempt from its obligation to perform for the duration of the force majeure. “Force majeure” refers only to those events, over the causes of which SevenOne Media has no control.
A.4.3. If a contractually agreed service is not provided at all, on time or properly for programming reasons and/or for reasons, for which SevenOne Media is responsible, it shall meet its contractual obligations by means of subsequent performance at its own discretion, subject to availability. SevenOne Media shall decide on the form of subsequent performance at its own equitable discretion. In the event that subsequent performance fails, the other contracting party can claim a reduction in price commensurate with the degree of underperformance.
A.4.4. The rights described in subparagraphs [2] and [3] lapse 12 [twelve] months from the date the other contracting party became aware of non-contract-compliant performance or non-performance.
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A.5. Liability on the part of SevenOne Media |
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A.5.1. Under the terms of this contract and on the merits of the specific case, SevenOne Media is liable for losses incurred by the other contracting party, - which were caused by the wilful actions or gross negligence of SevenOne Media or its legal representatives or senior vicarious agents; - which occurred due to the breach of an obligation by SevenOne Media, which is of vital importance to the attainment of the contract’s objective [cardinal obligations]; - if these claims are asserted on the basis of the German Product Liability Act; - if in the case of purchase contracts or contracts for services, SevenOne Media has given a guarantee for the quality of or fraudulently misrepresented the item in question; - as a result of injury to life, body or health, which relate to the breach of an obligation by SevenOne Media or one of its legal representatives or vicarious agents.
A.5.2. SevenOne Media is liable in full for damage caused by wilful actions or gross negligence or by injury to life, body or health. Furthermore in the event of default, any damages in respect of foreseeable losses that are typical for this type of contract are limited to 5% [five percent] of the order value. Liability in accordance with product liability laws remains unaffected.
A.5.3. To the extent that SevenOne Media is only liable in the amount of typically foreseeable losses as per subparagraph A.5.2, there is no liability for indirect losses, consequential losses or loss of profit.
A.5.4. In cases other than those described in subparagraphs A.5.1 and A.5.2, SevenOne Media is not liable – irrespective of legal grounds.
A.5.5. To the extent that SevenOne Media is not liable, this also applies to the personal liability of employees, associates, representatives and agents of SevenOne Media.
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A.7. Withdrawal |
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A.7.1. SevenOne Media and the other contracting party are entitled to withdraw from any order up to six calendar weeks prior to the broadcast date, if there is good cause for withdrawal.
A.7.2. SevenOne Media can withdraw from an order at any time, if it is prevented from providing contractually agreed services on the grounds of force majeure or if there are unforeseeable impediments, which can only be overcome at unreasonable expense and effort, and for which SevenOne Media is not responsible, e.g. programming changes or actions taken or directives issued by authorities or other official organisations. In such cases the contracting party is not entitled to assert any claims. SevenOne Media has no right of withdrawal in cases, where it culpably caused the impediment to performance.
A.7.3. The other contracting party may not withdraw from any contract, the subject of which is either the broadcast of a promotional film lasting longer than 89 seconds or format sponsorship [incl. trailer sponsorship] and title sponsorship.
A.7.4. Should SevenOne Media exceptionally consent to the other contracting party’s requests to withdraw after the deadline of six calendar weeks prior to the broadcast date [campaign kick-off], it shall do so solely against payment by the other contracting party of a cancellation fee, set at its own equitable discretion. However payment of a cancellation fee does not entitle the other contracting party to a right to cancel.
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A.8. Termination without notice |
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A.8.1. Both parties are entitled to terminate this contract with immediate effect, if there is good cause. Good cause, which entitles SevenOne Media to terminate without notice, exists in particular if: - the other contracting party goes bankrupt, in particular if a bankruptcy lawsuit has been filed or instituted against its assets or if the institution of bankruptcy proceedings has been rejected on grounds of a lack of assets; - the other contracting party decides to wind up its business or actually ceases trading; - a warning was issued to and/or an injunction was obtained against one and/or both parties and/or a ProSiebenSat.1 Media AG group company, as a result of providing a contractually agreed service; - the other contracting party contravenes the prior consent caveat in accordance with paragraphs C.7 and D.8. - actions taken or directives issued by authorities or other official organisations constitute an obstacle to provision of contractually agreed services by SevenOne Media; - SevenOne Media reasonably suspects and the other contracting party cannot disprove that the latter or the offerings and /or collaborative content provided by it contravene legal requirements, in particular of the German Criminal Code and the “National Agreement on the Media-Related Protection of Children and Young People” or valid advertising guidelines; reasonable suspicion exists as soon as SevenOne Media has factual evidence that legal requirements have been contravened, in particular as soon as investigation proceedings have been instituted against the other contracting party or once the other contracting party has been requested to respond by the federal state media authority responsible.
A.8.2. The other contracting party must pay for services provided by SevenOne Media prior to any notice of termination being served, according to the scope of services provided. Furthermore any payment made up to this point shall not be refunded.
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A.9. Pricing |
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A.9.1. The prices for TV bookings, effective upon contract conclusion, are based on each TV station’s scheduling data. In this respect details of the times stated for each price category should be regarded as target times, which may also be subject to significant rescheduling. Prices for non-TV bookings, effective upon contract conclusion, are based on versions of SevenOne Media pricelists valid at the time of order acknowledgement. SevenOne Media therefore also reserves the right to adjust its prices, even for agreed orders, if this data changes. Price changes relating to agreed and confirmed orders become effective upon appropriate notification. In the event of a price increase, the other contracting party is entitled to terminate the contract with immediate effect or reschedule broadcasts of TV advertising, irrespective of the deadlines [less than ten working days prior to broadcast] required by B.2.3. SevenOne Media must be notified in writing of such termination within a period of three working days after the other contracting party has received notification about the price increase.
A.9.2. Irrespective of the above-mentioned stipulations, SevenOne Media reserves the right to apply special prices, also at short notice, as a result of current modifications to the range of services. Should any agreed period of performance start before such special pricing is applied, the other contracting party will be notified of this immediately. The other contracting party must confirm to SevenOne Media immediately whether it wishes to adhere to performance of the agreed services at the scheduled time and pay the special rates. Otherwise the service that SevenOne Media has agreed to provide will be broadcast during the next available time slot within the same section/environment, as originally booked.
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A.10. Discounts |
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A.10.1. Discounts listed in the relevant pricelist [current version in each case] are given on gross media volume [MB1] booked by agency clients or direct clients of SevenOne Media for forms of advertising supplied within a calendar year. In the case of teletext bookings, the discount is calculated on the basis of the gross media volume booked at the time of invoicing, and in the case of all other types of media it is calculated on the basis of invoiced gross media volume. Discounts are factored into invoices accordingly. Where bookings are made for the TV station - 9Live, no additional discounts exceeding the specific contractually agreed terms will be given.
A.10.2. For the purposes of giving discounts, a number of advertisers will be regarded as a group, if these are affiliated companies as defined in § 15 of the German Companies Act [AktG]. Proof of affiliation must be submitted to SevenOne Media no later than 30 June in any calendar year.
A.10.3. In all cases group discounts are subject to express written confirmation by SevenOne Media upon contract conclusion. Group status as at 1 January in any calendar year is definitive. Termination of group affiliation must be notified immediately, whereupon group discounts will no longer apply once the month, during which group affiliation was terminated, has ended.
A.10.4. To the extent it is so obligated, the other contracting party, where it is an agency, shall disclose to its clients all discounts and early payment discounts received and pass these on as applicable. Furthermore the other contracting party shall not disclose to third parties any information about the services provided by SevenOne Media. This also applies once the contractual relationship with SevenOne Media has ended.
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A.11. Payment terms |
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A.11.1. As far as conventional bookings1 [definition] are concerned, these are invoiced separately on behalf of each individual TV station at the beginning of the performance period. As far as convergent bookings2 [definition] are concerned, these are invoiced on behalf of SevenOne Intermedia no later than the end of the first month of the performance period. Payment in discharge of any debt should be made to the account indicated on the SevenOne Media invoice. SevenOne Media reserves the right to require payment in advance. Payment is due immediately, without deduction, upon receipt of the invoice. Default will be deemed to have occurred 30 [thirty] days following the due date and receipt of the invoice. Where payment of an advance invoice is received by the 15th day of the month of performance, SevenOne Media will give an early payment discount of 2% [2 percent]; in all other cases the early payment discount period is ten calendar days. The early payment discount is given, subject to all previous invoices having been paid.
A.11.2. Bank charges are for the account of the other contracting party. Cheques are only accepted by SevenOne Media as conditional payment. Payment by the other contracting party shall only be deemed to have been made once SevenOne Media has use of funds.
A.11.3. Subject to verification of agency status and where the agency is invoiced directly, a discount [AC] in the amount of 15% [15 percent] on the net invoice total, i.e. on the invoice total not including VAT, after deduction of discounts but before early payment discounts, is given on all advertising orders placed by that agency, provided the granting of AC and early payment discounts is not precluded.
1 Communication using the advertising media - print, TV, radio, placards, cinema and Internet [conventional campaigns].
2 Convergent campaigns interlink new and traditional forms of media, using a formal, topical leitmotif, and factor in the benefits of each medium employed. By offering recipients new appeal in the form of individual value added, target groups are actively guided from one medium to the next. N.B.: the terms convergence and cross-media are to some extent used synonymously in the market.
Where a discount is changed due to additional bookings or cancellation, the agency commission is recalculated. If necessary an additional charge or payment may be made.
A.11.4. In the event of default, SevenOne Media is entitled to refrain from further performance. A right to refuse performance also exists in all cases where the financial circumstances of the other contracting party deteriorate significantly. If the other contracting party is an agency, this right also applies if the financial circumstances of the agency’s client deteriorate significantly. Pecuniary claims, including for services not yet provided, nevertheless remain unaffected. SevenOne Media is entitled to charge default interest in the amount of 10 percentage points above the base rate. The right to assert a claim for further damages remains expressly reserved. The right of the other contracting party to furnish evidence of a lesser degree of loss, due to default, remains unaffected.
A.11.5. The other contracting party only has rights to offset, if its counterclaims have been legally established, are undisputed or acknowledged by SevenOne Media. Furthermore it is only entitled to assert a lien to the extent that its counterclaim relates to the same contractual relationship and has been legally established, is undisputed or acknowledged by SevenOne Media.
A.11.6. To the extent that variable remuneration has been agreed, SevenOne Media or its representatives have the right, within reason, to inspect the other contracting party’s accounts and documentation relating to the collaborative venture, including EDP documents and inventory, at any time during normal business hours and to request copies or print-outs for auditing purposes. The documents to be submitted by the other contracting party include those relating to the other contracting party’s goods or services not covered by the contract. Audit costs are for the account of the other contracting party, if there is a difference of more than 3% [three percent] for the account of SevenOne Media. At the request of the other contracting party, the audit can be performed by an expert to be appointed and obliged by SevenOne Media to maintain professional confidentiality. Costs incurred by such an audit are for the account of the other contracting party. Once this contract has expired the other contracting party will retain the above-mentioned accounts and documents for a minimum period of 2 [two] years and make these available for the above-mentioned audit purposes.
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A.12. Production and material |
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A.12.1. Where the parties have agreed that production of the relevant service [e.g. communication event/ commercial] is to be handled by SevenOne Media or an affiliate of SevenOne Media or a third party commissioned by SevenOne Media, SevenOne Media or the SevenOne Media affiliate shall retain all intellectual property rights to the service.
A.12.2. The other contracting party shall provide SevenOne Media with appropriate footage, image and text material and, where appropriate, sound material and music for production and/or placement or broadcast purposes free of charge and definitely no later than two calendar weeks prior to the scheduled placement or broadcast. In the event of a delay in submission or of subsequent modifications, no responsibility will be accepted for ensuring proper placement or broadcast. The other contracting party shall bear any risk when forwarding the material. SevenOne Media will edit and, if necessary, animate the material by prior agreement.
If SevenOne Media or a SevenOne Media affiliate or a third party commissioned by SevenOne Media has responsibility for producing a service, the agreed fee will be invoiced separately or itemised separately on the invoice. The fee is due for payment in full immediately after invoicing. Paragraph A.10 does not apply. As part of the production process, any output will be submitted to the other contracting party for approval. Insofar as the other contracting party wishes the output to be modified, a correction phase has been included in the fee. Further modifications can be made in accordance with separate pricing for the account of the other contracting party, unless the output is flawed.
A.12.3. SevenOne Media reserves the right to reject commissions [e.g. commercials] or collaborative content [especially material] provided by the other contracting party and/or prematurely cancel the broadcast, if there is an objective reason for doing so. Rejection or premature cancellation will always occur if the commission provided by the other contracting party contravenes the law of the land, and in particular where it contravenes any applicable federal state media authority advertising guidelines or standards of common decency. Attention is expressly drawn to the fact that SevenOne Media will only examine commissions or collaborative content in respect of obvious infringements of the law. Furthermore SevenOne Media is also entitled to reject commissions or collaborative content on the basis of its origin, content, form, technical quality or for other content reasons [e.g. excessive repetition, incompatibility with a specific TV station]. SevenOne Media must notify the other contracting party of the rejection and the reasons for it without delay. In the event of rejection, the other contracting party is obliged to immediately provide new commissions or collaborative content that do not give cause for rejection. Should the new commissions or content be provided late or not at all, SevenOne Media nevertheless retains the entitlement to payment, as if it had performed in accordance with the contract. If SevenOne Media performs despite an initial rejection, the original payment obligations of the other contracting party continue to apply.
A.12.4. SevenOne Media may invoice the other contracting party for the fee due in respect of agreed performance, if the communication event is not publicly released or placement or broadcast is prematurely cancelled on grounds for which the other contracting party is responsible, particularly as a result of the late or incorrectly/inaccurately labelled submission of documents or material to SevenOne Media.
A.12.5. The obligation to retain material [particularly layout proposals and details etc.] ceases upon expiry of the relevant performance period. SevenOne Media shall return the material to the other contracting party at the risk and for the account of the latter, if it submits a written request to SevenOne Media within 10 days following expiry of the performance period. Otherwise SevenOne Media is entitled to destroy the material. SevenOne Media is also entitled to retain the material until payment has been made in full.
SevenOne Media is only liable within the scope of paragraph A.5 for damage to the material whilst in storage or loss of the material.
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A.13. Rights of use |
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A.13.1. The other contracting party warrants that it holds title to all the necessary rights pertaining to the contractual use of commissions or content provided by it [e.g. image and text material, music], with the exception of GEMA Repertoire TV broadcasting rights, and in particular that it holds all the necessary copyrights, trademark rights, ancillary copyrights, personal and other rights and is in a position, in temporal, geographical and content terms, to assign these rights to SevenOne Media for the purposes of contract fulfilment, to the extent required to enable the commission to be completed. TV and online rights of use must be assigned in all cases without geographical restriction and authorise broadcast or placement, using all known technical procedures and all known forms of television and the Internet.
A.13.2. The other contracting party shall grant SevenOne Media all the copyrights, ancillary copyrights and other rights to the temporal, geographical and contents extent necessary for the contract-compliant use of the submitted content, in particular the right to edit, duplicate, disseminate, broadcast [particularly on free TV, pay TV, pay per view], plus database retrieval and call-up rights to the extent required for the contract to be performed, in particular also the right to assign the above-mentioned rights to third parties, who have been commissioned to handle placement or broadcasting. Upon first request, the other contracting party shall indemnify SevenOne Media and/or the relevant TV station against all third-party claims in full, namely by paying a sum of money and shall make good any further damage. The other contracting partner is obliged to support SevenOne Media in good faith, by providing information and documentation to assist with the latter’s legal defence against third parties.
A.13.3. SevenOne Media and or the relevant third party shall retain all copyrights, ancillary copyrights and other rights to communication events [e.g. layouts etc.] generated by SevenOne Media and/or the commissioned third party. Use of such communication events by the other contracting party outside the scope of the relevant collaborative project is subject to prior approval by SevenOne Media [licence], if necessary against payment of a licence fee to be specifically negotiated.
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A.14. Confidentiality |
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A.14.1. Except as stipulated in A.14.3, the parties undertake to treat all the information and data received from the other counterparty in connection with performance of the contract in strict confidence and to deny third parties access thereto. This applies in particular to pricelists and contracts. This obligation also applies after termination of the contract.
A.14.2. Third parties, within the meaning of this paragraph of the STB, do not include affiliates of SevenOne Media.
A.14.3. When acting as the other contracting party, agencies warrant that they will inform their clients that the business relationship between SevenOne Media and the relevant agency may include other services than just procuring advertising slots on behalf of their clients, and that SevenOne Media may give the agency discounts and early payment discounts related to these other services. The agency shall disclose to its clients all fees, discounts and early payment discounts received as required and pass these on as applicable.
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A.15. Concluding terms |
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A.15.1. The law of the Federal Republic of Germany applies. The terms of the UN Convention on Contracts for the International Sale of Goods do not apply. Munich is the agreed sole place of jurisdiction for any disputes arising from this contractual relationship; SevenOne Media is however entitled to institute legal proceedings at any other place of jurisdiction.
A.15.2. Should one or more terms in these STB be or become void, this does not affect the validity of all the other terms or agreements. The parties shall replace the void term with an alternative that comes closest to matching the business intent of the void term. The same applies if there are loopholes in the contract.
A.15.3. Alterations and amendments to this contract, including alterations to this paragraph, must be in written form. Any notice of termination or withdrawal must be in writing. Written form, as used here, is defined in § 126 [1] and [2] of the German Civil Code [BGB]. However transmission by fax also complies with this requirement of written form.
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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 [311 KB, PDF]
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