GTC – General Terms and Conditions of Beauty Media Solutions GmbH for the Provision of Media Services and Other Services (as of November 2021)
1. Subject matter and scope
These General Terms and Conditions (“GTC”) apply to all contracts between Beauty Media Solutions GmbH (“BMS”) and the customer (“Advertiser”) for Douglas Marketing Solutions (“DMS”), i.e. media services, campaign management, services for targeted advertising and consulting services, in particular the provision of advertising space on websites and other online media of companies of the Douglas Group and third parties. The Douglas Group includes all companies that are affiliated with BMS within the meaning of §§ 15 et seq. AktG (German Stock Corporation Act).
2.1 „Ad Impression“ means visual contacts of users to online advertising.
2.2 „ClickRate“ means the ratio of Ad Clicks to Ad Impressions or Page Impressions.
2.3 „CPC“ (Cost-per-Click) means the price to be paid by the Advertiser for the click of a User on an Advertising Medium.
2.4 „Media Services“ means the services to be provided by BMS, in particular the provision of media such as advertising space on Online Media, the delivery of Advertising Media or the organization of product tests.
2.5 „Online Media“ means all websites, platforms, apps and other online media on which BMS is to provide Media Services under the Agreement.
2.6 „Page Impressions“ means visits to the website on which online advertising is placed.
2.7 „TKP“ (price per thousand contacts) means the price to be paid by the Advertiser for Media Services that reaches 1.000 users via Ad Impressions.
2.8. „Visits“ are visits by users to an online medium. „Unique User“ “, on the other hand, are specific individual users.
2.9 „Advertising Media“ means content, such as banners, which BMS is to deliver on Online Media.
3. Conclusion of Contracts; Insertion Orders
3.1 Media Services shall be performed on the basis of contracts, usually in the form of insertion orders.
3.2 A contract between BMS and Advertisers is generally concluded by BMS accepting an offer made by the Advertiser based on a proposal by BMS, which is always non-binding, generally in the form of a signed insertion order. The declaration of acceptance by BMS does not have to be received by the Advertiser.
3.3 The conclusion of a contract requires text form.
3.4 If the Advertiser is an agency, the agency acts in its own name and for its own account, i.e. not in the name of its customers. Insofar as the contract does not stipulate for which Advertiser the agency intends to procure the media services, the agency shall be obliged to inform BMS of the name of the Advertiser prior to execution of the contract. Upon request by BMS, the agency shall be obliged to provide proof of its commissioning without delay. The agency shall not be entitled to use Media Services of BMS for an Advertiser other than the agreed Advertiser or the Advertiser named by the agency.
3.5 The Advertiser is not entitled to assign rights under the contract to third parties. Advertisers, with the exception of agencies (pursuant to Section 3.4), are not entitled to allow third parties to use the Media Service for their own or third-party purposes.
4. Execution of contracts
4.1 BMS shall provide the agreed Media Services within the agreed period and/or until the maximum volume specified in the contract has been reached.
4.2 Information in the contract regarding the Media Services, such as the number of Ad Impressions or clicks, quantifies the maximum limit of the services to be remunerated by the Advertiser in the event of provision. BMS is not obligated to provide these services unless the parties have expressly agreed to do so. The extent to which BMS provides the Media Services depends, among other things, on the availability of the advertising space and the effectiveness of the Advertising Media.
4.3 BMS shall not owe delivery of the Advertising Media (i) on a specific Online Medium, at a specific position of an Online Medium or on a specific date or (ii) in the directly visible area of an Online Medium (first screen), unless the Parties have expressly agreed on this. In the event of changes to media formats or their positioning, BMS may replace agreed media formats or positioning with other media formats or positioning with the same overall volume.
4.4 If a contract provides for the delivery of a certain number of Ad Impressions, Page Impressions, ad clicks or product tests within a certain period of time and BMS has not delivered the number in full within this period of time, BMS may allow the online advertising to continue and subsequently deliver the still missing number of Ad Impressions, Page Impressions, ad clicks or product tests. BMS will then coordinate the subsequent delivery deadlines with the Advertiser, taking into account the legitimate interests of both parties. If BMS does not subsequently deliver the missing number within the subsequent delivery period, the Advertiser may reduce the remuneration for the undelivered Ad Impressions, Page Impressions, ad clicks or product tests on a pro rata basis.
4.5 If the contract provides for retargeting measures, BMS shall only be liable for the attempt to reach users who have visited an online offer with an advertising medium played by BMS again with advertising media. BMS shall not be liable for the success of retargeting measures; information in the contract on the success sought in this respect shall not be binding.
4.6 If the contract provides for product tests, BMS shall only be responsible for selecting the testers and sending the test products to them. BMS shall not be liable for the success of product tests, in particular with regard to the number and/or content of the testers’ experience reports; statements in the contract regarding the success sought in this respect shall not be binding.
4.7 BMS shall have a right to shift the agreed delivery date by plus/minus three days. In addition, BMS may shift or cancel an agreed delivery date if an Online Medium on which BMS is to place the Advertising Media is not available on the agreed delivery date or if timely delivery is not possible for technical reasons that lie outside BMS’s area of responsibility.
4.8 BMS may use the services of third parties to fulfill its contractual obligations.
4.9 BMS is not obligated to provide information on BMS as a contractual partner of the Advertiser for the creation or maintenance of data from or on BMS as a service provider or supplier in systems of the Advertiser, in particular enterprise resource systems.
4.10 If the subject matter of a contract is the provision of data on customers of the Douglas Group or third parties for use for advertising purposes, the Advertiser is only entitled to process such data to the extent expressly permitted by the contract. In particular, data provided for a specific campaign must not be used for another campaign. Any use not expressly permitted is prohibited to the Advertiser. BMS is entitled to check the processing of the data by the Advertiser. At the request of BMS, the Advertiser shall provide BMS with comprehensive and accurate information about the scope of processing and shall allow BMS to audit the systems used by the Advertiser to the extent necessary (remotely or on-site) after giving reasonable advance notice, whereby BMS shall give due consideration to confidentiality interests and data protection. BMS may have the audit performed by an auditor bound to secrecy. The Advertiser shall provide the necessary cooperation services and make the systems used accessible to the extent required. If an audit reveals processing of the data in breach of the contract, the Advertiser shall bear the reasonable costs of the audit.
4.12 Information in contracts regarding costs or prices that are not fixed upon conclusion of the contract, in particular costs for advertising spaces that BMS purchases or has purchased in bidding processes, are always non-binding estimates. When executing the contract, BMS shall ensure that the costs or prices are fair market value.
5. Advertising Media
5.1 The Advertiser must provide BMS with the Advertising Media (or AdTags) to be delivered at the latest 5 working days before the agreed start of the campaign, complete, error-free and in accordance with the contractual agreements, at its own expense.
5.2 The Advertiser must provide the Advertising Media free of viruses or other sources of damage.
5.3 If the Advertiser fails to provide the Advertising Media in a timely manner, this shall not relieve the Advertiser of its obligation to pay. Insofar as Advertising Media can therefore no longer be delivered, BMS must, however, offset what BMS saves as a result of the exemption from performance or acquires or culpably refrains from acquiring through other use of advertising space that becomes available.
5.4 The Advertiser grants BMS a non-exclusive, worldwide, sublicensable right to use the content of the Advertising Media made available, unlimited in terms of call-up quantities, limited in time to the term of the contract and limited in terms of content to the purpose of the contract. The granting of rights shall include the necessary copyrights, ancillary copyrights, trademark rights and other rights, in particular the right to reproduce, distribute, transmit, broadcast, make available to the public, extract from a database and retrieve as well as process the Advertising Media, insofar as this is necessary for the performance of the contract. The aforementioned rights are freely transferable to third parties. BMS shall also be entitled to use return channel information (e.g. URL of the website on which the advertising medium was delivered) transmitted to BMS by a demand side platform (“DSP”) used for its own purposes and the purposes of third parties.
5.5 The Advertiser shall ensure and warrant that the Advertising Media provided by it and any websites or other content linked to them
– are free of third-party rights or that it has all necessary copyright, ancillary copyright, trademark and other rights to enable BMS and/or the providers of the Online Media to use the Advertising Media free of third-party rights;
– clearly and unambiguously indicate the advertising character;
– do not contain any content glorifying violence or war (§§130, 131 StGB), pornographic content (§ 184 StGB), content harmful to young people (§§ 4 and 5 JMStV), racist content, content inciting hatred of the people or content contemptuous of humanity (§§ 130, 131 StGB);
– do not contain propaganda material (§ 86 StGB) or symbols of unconstitutional organizations (§ 86a StGB);
– do not incite to commit a crime, incite to racial hatred or promote a terrorist organization (§ 130a StGB);
– are not anti-competitive;
– do not contain any defamatory statements or representations;
– do not contain any other illegal content or content that is generally suitable for damaging the reputation of BMS or another company of the Douglas Group;
5.6 In the event of a breach of the foregoing warranties or obligations, the Advertiser shall indemnify BMS and other companies of the Douglas Group against all claims of third parties, including governmental authorities, asserted by such third parties against BMS and/or other companies of the Douglas Group for use of the Advertising Media in accordance with the contract and the websites or other content linked thereto, and shall bear the costs and expenses (including reasonable legal fees) incurred by BMS and/or other companies of the Douglas Group as a result of such claims of third parties. BMS and/or the other Douglas Group company will not acknowledge such third party claims or enter into a settlement thereof with the third party without the consent of the Advertiser, which consent may only be withheld by the Advertiser for good reason. This indemnification obligation does not apply if the Advertiser is not responsible for the infringement. Possible claims for compensation for further damages remain unaffected.
5.7 BMS shall not be obligated to check the Advertising Media provided by the Advertiser before or after delivery and shall in particular not be liable for the legality of their content.
5.8 If there is reasonable suspicion that advertising materials provided by the Advertiser, websites linked to them or other content contains illegal content or infringes the rights of third parties, BMS may reject them or interrupt their delivery until a legal clarification has been made or the suspicion can be dispelled in another way. Reasonable suspicion exists in particular if a third party requests BMS or a company of the Douglas Group to refrain from further placement of the advertising, with the claim that the advertising is illegal or infringes the rights of third parties, unless the request is obviously and for BMS recognizably unfounded. BMS will immediately inform the Advertiser of the rejection or interruption, stating the reasons.
5.9 If Advertising Media do not comply with the applicable technical specifications or the agreed design (such as agreed co-branding guidelines) or if they violate any of the above assurances, BMS shall be entitled to reject them or to stop a campaign already in progress.
5.10 BMS may mark the Advertising Media as advertising, e.g. with additions such as “Advertisement”, “Advertising”, “Sponsored” or “Sponsored”, and/or spatially separate them from any editorial content, in particular if the Advertising Media provided by the Advertiser are not sufficiently clearly recognizable as advertising.
5.11 If, in the opinion of BMS, it is necessary for the delivery of the Advertising Media, BMS may edit the Advertising Media with regard to size, format and technical specification, insofar as this is reasonable for the Advertiser, taking into account the interests of BMS. If editing of the content of the Advertising Media is necessary, BMS will obtain the consent of the Advertiser prior to such editing; the Advertiser shall be responsible for any delays in the provision of services that occur as a result.
5.12 During the term of the campaign, the advertiser is obligated to ensure the retrievability of the websites and documents to which the Advertising Media of the campaign link in accordance with the current state of technology. If disruptions occur in the linking for which the Advertiser is responsible, BMS may suspend delivery of the Advertising Media for the duration of the disruption.
5.13 BMS is entitled to temporarily restrict the availability of the websites of companies of the Douglas Group or have it restricted if this is necessary for capacity reasons, due to the security or integrity of the servers or in order to carry out technical measures and this serves the proper or improved provision of the services (maintenance work). In such cases, BMS shall take into account the legitimate interests of the Advertiser, in particular by providing advance information.
5.14 Disruptions or interruptions in the performance of the contract due to technical malfunctions for which BMS is not responsible, connection failure, hardware and software errors, and effects of third parties whose actions cannot be attributed to BMS (such as viruses or denial-of-service attacks) do not establish any rights of the Advertiser.
5.15 BMS is not obligated to create Advertising Media for the Advertiser unless the contract stipulates such an obligation. If BMS is obligated under the contract to create Advertising Media, the Advertiser must pay reasonable compensation based on time and effort, unless the parties have expressly agreed to a different compensation arrangement. Even if BMS creates the Advertising Media, the Advertiser bears exclusive legal responsibility for their content and their legality in accordance with the above provisions.
5.16 If the Advertiser fails to perform its duties to cooperate in whole or in part, the obligation of BMS to perform those services that cannot be performed without the Advertiser’s cooperation or that can be performed only at disproportionate additional expense shall be suspended for the duration of the failure to perform. The Advertiser shall bear any additional expense caused by failure to perform duties of cooperation in accordance with the contractually agreed prices or, insofar as the contract does not contain any express provisions in this regard, on the basis of reasonable hours or daily rates according to expenditure. The Advertiser shall also reimburse BMS for out-of-pocket expenses. BMS’s statutory rights of termination or rescission shall remain unaffected.
5.17 In the case of product tests, the above provisions on advertising media shall apply accordingly to the test products. The Advertiser shall deliver the test products to a warehouse specified by BMS in a timely manner and at its own expense in accordance with the specifications of BMS and shall in particular observe the receiving policy of the respective warehouse. BMS will provide the Advertiser with this receiving policy” upon request.
6.1 The Advertiser may cancel a contract free of charge until 30 days before the start of delivery. The start of delivery is deemed to be the day on which the service agreed in the contract is to be provided for the first time in accordance with the agreement; in the case of product tests, the start of delivery is deemed to be the day on which potential testers are first approached about possible participation in the test.
6.2 In the event of cancellation between the 29th and incl. 3rd day before the start of delivery, the cancellation fee shall be 30% of the net order value. Thereafter, cancellation or termination of the contract is only possible against payment of the full net order value.
6.3 Any cancellation must be made in text form.
7. Consideration, terms of payment, settlement
7.1 The Advertiser shall pay BMS the consideration agreed in the contract.
7.2 BMS reserves the right to change prices. From the conclusion of the contract, price changes shall only be effective if BMS announces them at least one month before the planned delivery of the advertising media. In the event of a price increase, the Advertiser shall be entitled to terminate the contract within 14 days of receipt of the notice of the price increase. This Section 7.2 shall not apply to costs or prices that are not fixed when the contract is concluded, in particular costs for advertising spaces that BMS purchases in bidding processes and can therefore only estimate when the contract is concluded. Information on such costs or prices are always non-binding estimates. In such cases, BMS shall invoice the actual costs or prices.
7.3 The reporting of BMS, in particular the Ad Impressions, Page Impressions, ad clicks or click rates determined by BMS (through the BMS AdServer) or a service provider commissioned by BMS or other agreed parameters shall be exclusively decisive for the proof of performance and the calculation of the consideration. Deviating Ad Impressions, Page Impressions, ad clicks, click rates or other parameters determined by the Advertiser or third parties shall not be taken into account. This also applies accordingly to retargeting measures; these are calculated on the basis of the successful renewed advertising approaches by users. BMS’s reporting shall be deemed approved if the Advertiser does not object to it within 14 days of receipt. BMS will inform the Advertiser of the significance of this deadline at the beginning of the period. BMS may transmit the reporting electronically or make it available online, e.g. via a portal.
7.4 Unless the contract expressly provides otherwise, the Advertiser is obligated to make an advance payment and the payment must be received by BMS no later than three days before the agreed start of the campaign. If an advance payment is not received by BMS in time, BMS may postpone the campaign or deliver it with a corresponding delay. The timely receipt of the payment is not a condition for the execution of the campaign. BMS is free to decide whether to carry out the campaign if the remuneration has not yet been received by BMS; the Advertiser is also obligated to pay the remuneration if BMS carries out the campaign in whole or in part even though the payment has not yet been received by BMS.
7.5 BMS shall send invoices to the Advertiser by mail or in electronic form.
7.6 Unless the contract expressly provides otherwise, invoice amounts are due upon receipt of the invoice and payable within 14 days without deduction.
7.7 All prices are subject to value added tax at the applicable rate.
8. Term, Termination
8.1 Contracts shall become effective upon conclusion and shall end upon provision of the contractual service by BMS. Premature ordinary termination shall be excluded.
8.2 The right to extraordinary termination shall remain unaffected. Notice of termination must be given in writing.
9.1 BMS shall only be liable for damages, except in the case of breach of essential contractual obligations, if and to the extent that BMS, its legal representatives, executive employees or other vicarious agents acted with intent or gross negligence. In the event of a breach of essential contractual obligations, BMS shall be liable for any culpable conduct on the part of BMS, its legal representatives, executive employees or other vicarious agents. Material contractual obligations are obligations the fulfillment of which makes the proper execution of the contract possible in the first place and the observance of which the contractual partner regularly relies on or may rely on.
9.2 Except in the case of intent or gross negligence on the part of BMS, its legal representatives, executive employees or other vicarious agents, the liability of BMS shall be limited in amount to the damage foreseeable at the time of conclusion of the contract, which typically arises in transactions of this type.
9.3 The aforementioned exclusions and limitations of liability shall not apply in the event of the assumption of express guarantees by BMS, for claims under the Product Liability Act, due to fraudulent concealment of defects and for damages arising from injury to life, limb or health as well as in the event of other mandatory statutory provisions.
10. Data protection
10.1 The Advertiser shall ensure that the relevant data protection laws are observed.
10.2 The Advertiser is not entitled to use counting pixels or similar technologies in the delivery of the Advertising Media, unless the contract expressly permits this. The same applies to flash cookies and similar technologies.
10.3 If the contract permits the Advertiser to use tracking pixels, flash cookies or similar or comparable technologies and the Advertiser is able, based on the content of the delivered Advertising Media, to assign an affinity or information relevant to the delivery of individualized advertising (e.g., gender, affinity for cosmetics) to individual users, the Advertiser is not permitted to make such an assignment. If BMS has information that the Advertiser is in violation of this prohibition, BMS may check compliance with the prohibition by means of suitable measures or have such measures checked, and the Advertiser must make this possible. If BMS becomes aware of trade secrets of Advertiser during such review, Advertiser may request that the review be conducted by an independent third party, and Advertiser shall bear the cost of the independent third party if a violation has occurred.
10.4 The Advertiser shall ensure that websites linked via the Advertising Medium meet the requirements of data protection law, in particular that they have a data protection statement that meets the legal requirements.
10.5 If the subject matter of a contract is the provision or use of data on customers of the Douglas Group or third parties for advertising purposes, BMS shall ensure that this is permissible under data protection law.
11.1 During the term of the Agreement and for three years thereafter, the parties undertake to keep secret all documents, information and data which they have received from the respective other party concerning its affairs, as well as which have been made accessible to them or have come to their knowledge as a result of the cooperation (“Confidential Information”) and to use them exclusively for the performance of the Agreement. The content of the contract shall also be treated confidentially. Each party is obliged to consult with the other party if doubts should arise as to whether specific documents, information or data are to be treated confidentially. In order to keep the Confidential Information confidential, the receiving party shall exercise at least the same care and take such protective measures as it takes to protect its own confidential information of the same kind, but at least the care customary in the course of trade.
11.2 The confidentiality obligation shall not apply to information (i) which is or becomes public knowledge without this being due to a breach of contract by a party, (ii) which was demonstrably known to the receiving party at the time of disclosure, (iii) of which the receiving party proves that it received such information from a third party after the conclusion of this Agreement without any obligation of confidentiality, provided that such third party has not breached any obligation of confidentiality vis-à-vis the disclosing party by disclosing the information, or (iv) the disclosure of which is subject to a mandatory legal or regulatory obligation or an obligation exists due to a legally binding court decision.
11.3 If the Advertiser is an agency, BMS shall be entitled to also forward a booking confirmation to the corresponding advertising customer of the agency.
11.4 BMS is entitled to refer to the cooperation with the Advertiser in the context of its own advertising, also by depicting the brands or logos of the Advertiser.
12.1 These GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Advertiser shall only become part of the contract if and to the extent that BMS has expressly consented to their validity in text form. This consent requirement shall apply in any case, for example even if BMS accepts or executes the Advertiser’s order without reservation in the knowledge of the Advertiser’s general terms and conditions.
12.2 Individual agreements made in individual cases between BMS and the Advertiser (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC. Subject to proof to the contrary, the content of such agreements shall be governed by a contract in text form or a confirmation by BMS in text form.
12.3 The Advertiser may only set off claims confirmed by final judgment against claims of BMS.
12.4 BMS may at any time transfer its rights and obligations under this contract in whole (transfer of contract) or in part to a company of the Douglas Group. If a contract transfer impairs legitimate interests of the Advertiser, the Advertiser may terminate the contract without notice with effect from the effective date of the transfer.
12.5 Serious events, such as in particular force majeure, labor disputes, riots, warlike or terrorist conflicts, which entail unforeseeable consequences for the performance of services, shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect, even if they should be in default. An automatic termination of the contract is not connected with this. The contracting parties are obligated to notify each other of such an impediment and to adjust their obligations to the changed circumstances in good faith.
12.6 All claims of the Advertiser against BMS arising from the contract shall become statute-barred after the expiration of one year, beginning with the end of the calendar year in which the claim arose and the Advertiser became aware of the circumstances giving rise to the claim or should have become aware without gross negligence. This shall not apply in the event of liability on the part of BMS due to intent. Section 199 (2) to (5) German Civil Code shall remain unaffected.
12.7 These GTC and the contractual relationship between BMS and Advertisers shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
12.8 If the Advertiser is a merchant as defined in the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising from the contractual relationship is Düsseldorf. The same shall apply if the Advertiser has no general place of jurisdiction in Germany. However, BMS shall also be entitled in all cases to bring an action in accordance with an overriding individual agreement or at the Advertiser’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.