The parties to the agreement are nextpit GmbH, Strelitzer Str. 58, 10115 Berlin (hereinafter referred to as “nextpit”) and a company or entrepreneur according to Section 14 German Civil Code; i.e. a natural or legal person or a non-incorporated firm capable of holding rights acting in their capacity of their commercial or self-employed activity when executing a legal transaction (hereinafter referred to as “Client”).
2.1 These General Terms and Conditions - Marketing (hereinafter referred to as “the T&C”) apply to advertising services of nextpit and in the framework of the nextpit websites and websites and apps of cooperating partners, the nextpit app center and the nextpit AndroidPit app which can be downloaded on to devices running the Google Android operating system (hereinafter referred to as the „Advertising Services“) and partner apps which can be downloaded for iOS and Windows Phone. Advertising Services include, but are not limited to, the following services: making advertising accessible for the public (hereinafter referred to as the „Promotion“) for applications belonging to the Client for mobile devices running the Google Android, iOS, Windows Phone operating system (hereinafter referred to as “Client Apps”), banner advertisements and mobile banners.
2.2 nextpit shall provide the Client with its Advertising Services based exclusively on these T&C and on the so-called Insertion Offer from nextpit. Any differing, opposing or supplementary general terms and conditions of the Client shall only become part of the agreement if nextpit expressly assents to their inclusion. This requirement of assent is valid in all cases, even if nextpit unconditionally provides services which are part of this agreement to the Client while knowledgeable of the Client’s general terms and conditions. Individual terms agreed with the Client, including the Insertion Offer, individual side agreements, supplements and amendments, supersede these Terms and Conditions. The text of the written agreement or the written confirmation of the individual agreements by nextpit with regard to the contents thereof is legally decisive.
2.3 Any legal declarations or notifications made by the Client after the signing of the agreement such as the setting of deadlines or giving notice of termination must always be made in written form to be effective (an email to advertise@nextpit.de is sufficient).
2.4 If any laws or statutory regulations are mentioned in these Terms and Conditions, these are only mentioned to notify the Client thereof and are only mentioned for the sake of clarity. Statutory regulations shall apply without being notified herein, unless they are altered or their validity is specifically excluded in these T&C.
3.1 All offers made by nextpit, in particular the so-called Insertion Offers, are subject to change without notice and non-binding, unless specified otherwise.
3.2 With the return of the signed Insertion Offer, the Client gives nextpit a binding offer to enter into the corresponding agreement with nextpit. An agreement is only concluded if nextpit accepts this offer, either in writing or by email (hereinafter referred to as the “Order Confirmation”). The acceptance of the offer by nextpit must happen within 7 days of nextpit receiving the offer. After this point in time the Client is no longer bound by his/her/its offer.
4.1 nextpit’s obligation to provide the Advertising Service to the Client results from the confirmed Insertion Offer. Unless nextpit expressly states otherwise in the Insertion Offer, the Client has no entitlement to a specific placement of the advertisement or the Client App.
4.2 nextpit may provide partial services so long as this is deemed reasonable for the Client.
4.3 nextpit reserves the right to unilaterally move the deadline for the implementation of an Advertising Service so long as this is deemed reasonable for the Client, if there are legal concerns against the implementation or if nextpit cannot complete the implementation by the agreed date for technical or legal reasons. nextpit shall immediately inform the Client of any delays and respect the known interests of the Client when setting a new delivery date, insofar as this is possible and reasonable for nextpit.
4.4 nextpit reserves the right to decline Advertising Services for competitors of nextpit and affiliated companies of nextpit. If nextpit only learns of these grounds for refusing the offer after the agreement is concluded, or if the Client becomes a competitor to nextpit after the agreement is concluded, nextpit has the right to immediately terminate the contract without notice. nextpit’s demands for payment shall become null and void for Advertising Services not yet rendered. Amounts already paid by the Client are to be refunded in part. Further claims of the Client due to the termination for cause are deemed null and void in this case.
4.5 nextpit has the right to provide Advertising Services for competitors of the Client as well.
4.6 nextpit has the right to forward gross sales figures that are obtained together with the Client to companies that have been contracted by the German Federation of Digital Economy Association (BVDW) or similar organisations to compile market statistics.
4.7 nextpit asserts the right to assign its claims against the Customer to a third party.
5.1 For the term of the Agreement, nextpit shall provide the Client with marketing and advertisement space for the distribution/marketing of the Client Apps by the Client. Furthermore, nextpit shall provide the Client with appropriate storage space on a nextpit server (belonging to either nextpit or a third party engaged with nextpit) for the Client App file for the term of the Agreement, for the purpose of making the Client App available to users for download.
5.2 The Client alone shall be responsible for the distribution and marketing of the Client App. The Client shall be the sole contractual party of the user purchasing the Client App, with regard to both the purchase and use of the Client App. The Client shall release nextpit from all claims of the user in connection with the marketing, purchase and use of the Client App, including the costs of any necessary legal defence. This shall not apply if the Client is in no way culpable.
5.3 If the Parties have agreed on a “cost-per-download” payment model for the promotion of Client Apps by nextpit, the agreed payment shall be due when the Client App is downloaded by a user via the nextpit server. If the Parties have agreed to a “cost-per-installation” payment model, the payment is due for every (first) installation of the Client App that was downloaded by a user via the nextpit server.
5.4 If the Parties agree on a certain quantity of units of the Client App to be acquired by users (for free or for payment) via the nextpit server (hereinafter referred to as the “Client App Quota”) over a defined time period (hereinafter referred to as the “Period of Reference”) as a reference point for the contract volume when promoting the Client App, then the agreed quantity value shall be deemed a realistic yet non-binding quantity of saleable units of the Client App in the Period of Reference. The Client App Quota serves as the basis for the calculation of the total fees payable by the Client to nextpit for the Advertisement Service in the Period of Reference. nextpit does not, therefore, guarantee that the Client App Quota can actually be sold in the Period of Reference through the agreed promotion campaign.
6.1 The Client shall fully provide nextpit - punctually, or at least 3 days before commencement of the contractual performance by nextpit, unless agreed otherwise - with all material to be used by nextpit as part of the Advertising Service - including the Client Apps and all content to which links in the material lead (hereinafter referred to as ‘Material’) - in a defect-free condition suitable for use in accordance with this Agreement, unless and insofar as there is not a more specific agreement. If the Client should fail to deliver the Material on time or to take any other collaborative actions necessary for nextpit to render the performance, nextpit shall be released from its affected duty to provide services and shall, in this case, have a claim to the corresponding contractual remuneration.
6.2 nextpit shall be entitled to reject Material from the Client if it fails to meet the technical specifications. The Client shall then have the opportunity to provide nextpit with appropriately improved Material. Insofar as nextpit does not receive Material meeting the specifications at least 3 days before commencement of the contractual performance, Section 6.1 of this Agreement shall apply accordingly.
6.3 The Client shall assure and guarantee that its Material meets the criteria of the nextpit content policy, available at www.nextpit.com/terms/content-policy.
6.4 The Client shall assure and guarantee that its Material is free of viruses, malware, spyware, Trojan horses and other similar programs, that its Material will not gain unauthorised access to services or data belonging to third parties, and that its Material will in no way threaten or damage the condition or operation of the data network, equipment, devices or other property of nextpit, of users coming into contact with the intended Material of nextpit or other third parties.
6.5 The Client shall assure and guarantee that its Material is not in violation of any rights of third parties and that it adheres to any applicable statutory provisions in the countries in which the Material is used, distributed or otherwise rendered accessible.
6.6 The Client shall assure and guarantee that the Client will adhere to the applicable legal data privacy provisions in connection with the contractual advertisement and marketing/distribution of the Client Apps and the use and application of the Client Apps by third parties.
6.7 The Client shall assure and guarantee that the Client Apps correspond to any product descriptions. Furthermore, the Client shall be responsible for both the correct representation/provision of information and content within the context of its Material and for the provision of information necessary in connection with the Material, in particular in connection with the purchase and use of the Client Apps.
6.8 Insofar as the Client hosts third-party content as part of its Material, in particular as part of the Client Apps, the Client shall maintain suitable procedures and guidelines for the removal of content infringing upon this Agreement, particularly the nextpit content policy, statutory provisions or the rights of third parties, insofar as the Client is obliged to do so under the applicable statutory provisions.
6.9 The Client shall represent and guarantee that its Material is not of a pornographic, racist or defamatory nature and that it does not glorify violence or encourage criminal activity.
6.10 The Client shall bear sole responsibility for its Material. Should the Client breach any of its obligations under sections 6.1 to 6.9 of this Agreement, the Client shall be liable to nextpit for all damage occurring to nextpit as a result of these breaches of duty, and shall release nextpit from all third-party claims - including the costs of any necessary legal defence - in connection with such a breach of duty. This shall not apply if the Client is not responsible for the breach of duty.
6.11 Furthermore, the Client shall be liable to nextpit for all damage arising to nextpit as a result of another breach by the Client against these General Terms and Conditions, and shall release nextpit from all third-party claims - including the costs of any necessary legal defence - in connection with such a breach of its duties. This shall not apply if the Client is not responsible for the breach of duty.
7.1 The fees payable for the Advertising Services rendered by nextpit shall be confirmed by nextpit along with the VAT as indicated in the Insertion Offer.
7.2 Insofar as the Parties have agreed to remuneration for the Advertising Services based on a “cost per download“ billing system (hereinafter referred to as “CPD”), payment shall be due whenever the Client App and/or other Material is downloaded by a user via the nextpit server. If the parties have agreed to “cost per installation” billing (hereinafter referred to as “CPI”), then payment shall be due upon the (first) installation of the Client App or other Material that was downloaded by a user via the nextpit server. The respective downloads and/or installations that are relevant for billing shall be logged by the server and form the basis for the billing. The Client has the opportunity to present his/her/its own data to nextpit, within 14 days after receiving the nextpit’s billing, with proof of downloads and/or installations relevant to billing for assessment. nextpit is, however, not obliged to accept this data.
7.3 Insofar as the Parties agree on payment for Advertising Services supplied by nextpit on the basis of a “cost per click” billing system, payment shall be due for each and every click by the user on the displayed advertisements. If payment according to the “cost per mille” billing system has been agreed upon, then payment shall be due whenever a user is shown the advertisement in question. The respective contacts relevant for billing shall be logged by nextpit via Google’s "DFP" advertising server technology and shall form the basis for billing. The Client has the opportunity to present his/her/its own data to nextpit, within 14 days after receiving the nextpit’s billing, with proof of contacts relevant to billing for assessment. However, nextpit is not obliged to accept this data.
7.4 Insofar as a Client App Quota was agreed upon for the duration of a Period of Reference for the Promotion of Client Apps in accordance with Section 5.4 of these Terms and Conditions, and this quota of Client Apps is exhausted before the ending of the Period of Reference i.e. the respective quantity of Client Apps was downloaded via the nextpit server when using the CPD billing system or were installed by users via the nextpit server in accordance with the CPI billing system, then for every additional download or installation of beyond the agreed quota of the respective Client App there shall be no further remuneration. Should the number of downloads/installations specified in the Client App Quota not be exhausted, then only the fees according to the CPD or CPI billing systems are payable.
7.5 With regard to the remuneration payable by the Client, nextpit shall create a monthly bill listing the relevant data (clicks/downloads/impressions/installations). The Client shall receive this bill in writing by mail within 10 days of expiry of each billing month. At the request of the Client, the bill can be sent by e-mail. The Client shall be obliged to transfer the remuneration amount specified in each bill to nextpit within 30 days of the billing date. After these 30 days and without requiring warning from nextpit, the Client shall be considered in default of payment. Should the Client default on payment of the remuneration, nextpit shall be entitled to charge interest at a rate of 8% (eight per cent) above the applicable basic rate in the meaning of Article 247 paragraph 1 of the German Civil Code (BGB). Furthermore, in the event of default, nextpit shall be entitled to suspend execution of current contracts until the state of default is remedied, and to require payment of the agreed remuneration in advance for all future contracts.
7.6 The Client is only permitted to offset with counter-claims that are uncontested or determined without further legal recourse.
7.7 Clients who contract nextpit's Advertising Services for the first time shall undertake to pay 50% of the fees according to Section 7.1 to nextpit when the agreement is signed, and in any case before the agreed start of the requested Advertising Service.
7.8 In the event that electronic money transfers from the Client are cancelled, nextpit shall charge a processing fee of €10 - in addition to the bank fee incurred per chargeback. The Client shall be entitled to provide evidence of lower incurred costs.
7.9 In cases of reasonable doubt - otherwise once per year - concerning the numbers presented by the Client in accordance with section 7.2 and 7.3 of this Agreement, nextpit shall be entitled to have the books and documents of the Client significant to these numbers audited during normal business hours by a third party bound to professional secrecy. Such an audit is to be announced 5 working days in advance. nextpit shall bear the costs of such an audit unless the audit reveals deviations of greater than 3% to the detriment of nextpit. In this case, the costs shall be borne by the Client. nextpit shall retain this right for 5 calendar years after the expiry of the term of this Agreement.
The availability of the nextpit servers and services - especially the marketed advertising spaces - shall be at least 99% each year, excluding planned times of unavailability (for the purposes of maintenance, system upkeep, data protection and other work). The following time periods shall also count towards available use (availability):
9.1 For the term of this Agreement, the Client shall assign the non-exclusive rights - not restricted by content or territory - to the Material for the execution of the contractual Advertising Services. nextpit shall have the right to grant these rights to third parties (sublicenses) insofar as necessary for providing the contracted services.
9.2 The concession of rights under section 9.1 includes in particular, but is not limited to, the following rights:
The non-exclusive sublicensable rights to the Material, unrestricted by content and territory
9.3 For the term of this Agreement, the Client shall assign nextpit the non-exclusive sublicensable rights, unrestricted by territory and content, to the use of the brands, corporate logos and other symbols of the Client, as well as the brands and other symbols of the Client (hereinafter referred to collectively as ‘Client Signs’) with which the Client Apps are branded, for the purposes of advertising and depiction of the Client Apps.
9.4 The Client hereby agrees to the sublicensing of the rights under sections 9.1 to 9.3 for the purpose of the rendering the contractual services by nextpit. In addition, the parties agree that the Client shall not be required to provide additional consent for each individual case of sublicensing.
10.1 The Client shall ensure and guarantee:
10.2 With regard to Section 10.1, the Customer shall indemnify nextpit against all third-party claims - including the costs of legal defense - in connection with the contractual use of the materials and the contractual use of the Customer's trademarks. This does not apply if the customer is not responsible for the infringement.
10.3 Insofar as the Material is not obviously identifiable as advertisements within the context of the contractual use, nextpit shall be entitled, at its own discretion, to designate the advertisements as such.
11.1 In cases of intentional and grossly negligent breach of duty, nextpit shall be liable - regardless of legal basis - in accordance with the statutory provisions.
11.2 In cases of ordinary negligence of its bodies, legal representatives, employees or other vicarious agents, nextpit shall only be liable for damage arising from the breach of a major contractual duty. Major contractual duties are duties which must be fulfilled in order to enable proper execution of the Agreement, and on adherence to which the party to the Agreement can, and normally does, rely. Should major contractual duties be breached, the liability to pay damages of nextpit shall be restricted to typically occurring damage, foreseeable at the conclusion of the Agreement.
11.3 The limitation of liability under section 11.2 shall not apply if the damage is injury to life, limb or health, if claims are brought from the German Product Liability Act (Produkthaftungsgesetz), if a defect was maliciously concealed or if a quality guarantee was provided.
11.4 The exclusions and restrictions of liability above shall apply to an equal extent in favour of the bodies, legal representatives, employees and other vicarious agents of nextpit.
12.1 Although nextpit is not obliged to inspect or monitor the Material of the Client, nextpit reserves the right to interrupt or terminate the Advertising Service if nextpit becomes aware that the Material is in violation of statutory provisions, the rights of third parties or the requirements of sections 6.1 - 6.9 of this Agreement, or if the advertisements are the subject of a complaint by the German Advertising Standards Council or a similar institution - it shall be sufficient for nextpit to have reasonable suspicion or if a third party brings a relevant claim.
12.2 nextpit shall immediately inform the client of any interruption/termination in accordance with section 12.1. The parties shall then agree upon potential changes to the Material. Any additional costs arising from the changes shall be borne by the Client. In the event of premature interruption or termination in accordance with section 12.1, nextpit shall always have a claim to contractual remuneration on the basis of the full Client App Quota.
13.1 The term of the agreement results from the Insertion Offer confirmed by nextpit.
13.2 The right to terminate for cause in accordance with the statutory provisions remains unaffected. Both parties are therefore entitled to immediately terminate this Agreement in the presence of cause. In particular, a party shall have cause if facts exist which would make it unreasonable for the terminating party to continue the Agreement, with consideration for all circumstances in the individual case and weighing the interests of the parties to the Agreement.
This shall especially be the case if:
13.3 After conclusion of the Agreement, the client may cancel its commissioned Advertising Services as follows (terminate the Agreement):
These payments shall mature upon cancellation and shall be payable by the Client within 10 days. Cancellation by the client must take place in writing. Upon receipt of the cancellation notice, nextpit shall immediately cease rendering the Advertising Services.
14.1 These Terms and Conditions as well as the entire legal relationship between nextpit and the Client are exclusively subject to the laws of the Federal Republic of Germany under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
14.2 Berlin is agreed as the place of jurisdiction if the Client is a business person according to German law, does not have a general place of jurisdiction in Germany or if the Client moves his/her/its residence or regular abode outside of the jurisdiction of this law or if the Client’s residence or regular abode is unknown at commencement of legal action.
14.3 The customer shall bear all fees, charges and expenses incurred in connection with any legal proceedings successfully brought against him outside of Germany.
14.4 If a provision or clause in this agreement is or becomes partially or wholly ineffective, the rest of the provisions and clauses in this agreement shall remain unaffected.
Berlin, 20.8.2012
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