General Terms and Conditions - MasterTag /Publisher
- 2 May 2011 -
With its "MasterTag" solution, ZANOX.de AG (hereinafter "zanox" or "Company“) provides a management application pertaining to third-party supplier cooperation via the Performance Advertising Network ("zanox Network) operated and managed by the Company with which Advertisers registered with zanox can manage third-party applications via the zanox network, MasterTag is available to Publishers and developers of third-party applications (hereinafter referred to uniformly as “Publishers”) registered with zanox or all other zanox group companies for the provision of third-party applications in accordance with these MasterTag T&C/P.
1 Object of Contract
1.1 zanox provides the Advertisers with the “MasterTag” solution (the “MT Solution”) in accordance with the “General Terms and Conditions MasterTag/Advertiser” ("MasterTag T&C/A"). The MT Solution consists of a central interface that integrates further applications ("MT Applications") on a website operated by the Advertiser ("Advertiser Website"). Above all, the MT Solution offers Advertisers the possibility of incorporating a so-called "Script Container" (the "MT Script Container") on their own website so as to incorporate, illustrate and use MT applications of zanox (“MT zanox Applications”) or of the Publisher (“MT Third-Party Applications”) via the MT Script Container and to make available any data collected via the MT Application ("MT ApplicationData") to the provider of an MT Application ("MT Provider") and/or to other third parties associated with the Advertiser by contract.
1.2 In connection with the MT Solution, zanox offers Publishers the possibility
1.2.1 of offering Advertisers, in accordance with the General Terms and Conditions for the zanox Application Store (“ApplicationStore T&C”), MT Third Party Applications via the zanox Application Store, of concluding corresponding contracts with Advertisers and, on the basis of such a contract, enabling the respective Advertisers to use MT Third Party Applications and
1.2.2 on the basis of these MasterTag T&C/P, to make use of the zanox services described herein and provided on behalf of the Advertiser.
1.3 On the basis of these MasterTag T&C/P, zanox will forward exclusively any MT application data collected via the MT Third Party Application to the Advertiser, the Publisher and further third parties selected by the Advertiser. In contrast, the offer of an MT Third Party Application by the Publisher, the conclusion of corresponding contracts with Advertisers and the enabling of use of an MT Third Party Application are based exclusively on the ApplicationStore T&C. In case of doubt, the ApplicationStore T&C shall take preference over these MasterTag T&C-P.
2 zanox Services
2.1 zanox will
2.1.1 provide the Advertiser with the MT Solution and the MT Third Party Application(s) activated for an Advertiser in accordance with the ApplicationStore T&C with an average availability of at least 99.8 % per month. As regards the provision of the activated MT Third Party Applications, the availability at zanox presupposes that the respective Publisher provides his MT Third Party Application taking account of the availability agreed in the ApplicationStore T&C. Due to the realization of necessary maintenance work or improvements, it may occur on occasion that individual functions are temporarily unavailable because they are either undergoing maintenance or are being improved. Insofar as actually possible and, in particular, is economically and legally reasonable and the adverse effects are not insignificant, zanox shall do its utmost to immediately resolve any faults or downtimes.
2.1.2 transmit the MT ApplicationData selected by the Advertiser in the respective MT Third Party Application to the Publisher within the framework of the above-mentioned availability and description of services of the respective Third Party Application.
2.2 zanox shall endeavour to achieve constant further development of the MT Solution. In the course of such development, zanox may enhance, expand or slightly modify the MT Solution and/or its functionalities. zanox may enhance the range of functions of the MT Solution, slightly change it, or improve it. zanox particularly reserves the right to alter a service when such a change is customary in the industry or made necessary by changes of the law or court rulings. As a matter of course, zanox will properly take into account the interests of the Publisher.
2.3 zanox reserves the right to delegate a part or all of the rendering of the service to affiliated enterprises, third party service providers or vicarious agents.
2.4 Furthermore, zanox may offer Publisher training courses relating to the setup and use of the MT Solution and the MT Applications. Provided that zanox does not make such training courses or respective documents freely available via the zanox Network, the provision of training services shall be subject to a separate agreement and may be invoiced separately.
3 Publisher’s Services and Obligations to Cooperate
3.1 With its MT Solution, zanox provides a technical solution for independent use by the Publisher. Given this background, the Publisher is obliged to refrain from technical interference of any kind regarding the zanox Network, the MT Solution and the MT Applications. Technical interference is defined, in particular, as hacking attempts, i.e. attempts to breach, circumvent or override in any other way the safety mechanisms of the zanox Network, the MT Solution and/or another MT Application, the use of automatic data reading programs, the use and/or dissemination of viruses, worms, Trojans, the use of brute force attacks and/or the use of other links, programmes or procedures that may damage the zanox Network (including the entire hardware and software employed to operate the zanox Network) or individual components of the zanox Network.
3.2 Given this background, the Publisher guarantees in particular,
3.2.1 not to violate the rights of third parties (especially copyrights, trademark rights, personal rights or other similar rights) through the offer, the provision and use of his 3 MT Third Party Application(s) by the respective Advertisers and not to infringe other legal requirements (in particular under competition law and data protection law).
3.2.2 before offering an MT Third Party Application, to check himself whether the functionalities provided to the Advertiser through the third-party application are permissible on the basis of applicable legal regulations and to implement, offer and provide exclusively legally admissible functionalities through the MT Third Party Application.
3.2.3 to offer the Advertiser the possibility via the MT Third Party Application of informing the end user, where required, of the use of the respective MT Third Party Application and of his right to object against the collection of personal/impersonal user data in the manner prescribed by law or required by industry´s self-regulation.
3.2.4 to offer the Advertiser – via the respective third-party application – solely the possibility of collecting impersonal data on end users and, for this purpose, in particular (a) to offer and provide the respective third-party MT Application such that no personal user data is collected or such that personal user data is not made available for transfer by zanox where the collection of personal user data from the Advertiser is admissible and (b) to offer and provide the respective MT application such that information on validated profiles including user data is deleted after a maximum of 30 days of inactivity and information on non-validated profiles including user data is deleted after a maximum of 30 days of inactivity and a maximum of ten user transactions are recorded per end user on the Advertiser’s website.
3.2.5 to collect, process or use exclusively the MT application data provided by the Advertiser via zanox in a legally admissible scope and - without prejudice to the obligation in point 3.1 not to collect any further MT application data and/or other information concerning end customers of the Advertiser or third parties, and not to transfer any MT application data to other third parties.
3.2.6 to inform zanox without delay if the Publisher is of the opinion that performance of the above obligations to cooperate is either entirely or partially impossible or that the offer, provision or use of the MT Third Party Application by Advertisers infringes legal requirements or requirements of the industry´s self-regulations despite fulfilment of the above obligations to cooperate.
3.3 The Publisher is obliged to impose the obligations to cooperate pursuant to this paragraph 3 on all third parties associated with it by contract or collaborating with it in any other form in connection with the MT Third Party Application.
3.4 Upon zanox’ notification (written or text form), the Publisher shall provide further cooperative services to an appropriate extent if and inasmuch as these are required to ensure the lawful use of the MT Solution and/or an MT Third Party Application respectively the use in line with requirements of the industry´s self-regulations.
4.1 At present, Publishers registered with zanox shall receive the services under paragraph 2 of these MasterTag T&C/A without separate compensation.
4.2 Separate compensation may be charged for the provision of MT Applications by zanox and MT Third Party Providers in accordance with the respective MT Application Terms.
5 Data Protection and Data Security
5.1 In connection with the provision of the services specified in paragraph 2.1, zanox shall collect, process and/or utilize MT ApplicationData exclusively
5.1.1 for the Advertiser and
5.1.2 to the extent required to provide the services specified under paragraph 2.1., MT application data shall not be collected, processed or used for own purposes beyond the provision of the services under the contract, in particular it shall not be modified or transmitted. Neither zanox nor the Publisher shall acquire any rights to the MT ApplicationData and, to the exclusion of any rights of withholding, are under obligation to deliver the MT ApplicationData upon the Advertiser’s request if and inasmuch as zanox is obligated to retain the respective MT ApplicationData (1) due to the ongoing clarification of legal or factual issues between zanox, the Publisher, the Advertisers and/or third parties or (2) due to a legal data retention requirement in particular pursuant to the accounting requirements under Sections 145 to 147 AO (German Fiscal Code) and the data retention periods under Section 257 HGB (German Commercial Code).
5.2 Irrespective of the contractual exclusion of the processing of personal data (in particular due to the Publisher’s obligations to cooperate according to the above paragraph 3.), zanox has taken appropriate data protection and data security measures. In specific, zanox has
5.2.1 appointed an internal data protection officer,
5.2.2 obliged all persons engaged with the provision of services in connection with the MT Solution to observe data secrecy as well as the trade and business secrets of zanox’ contractual partners,
5.2.3 established the technical and organizational measures relating to MT ApplicationData security in the form of a data security concept,
5.2.4 concluded a respective contractual agreement with the affiliated companies, third party service providers or vicarious agents commissioned by the Company in accordance with paragraph 2.3 on the basis of which such commissioned companies, third party service providers or vicarious agents are obligated to protect MT ApplicationData to the same extent as zanox itself.
6 Term and Termination
6.1 The contract has a twelve month period of validity. It shall be automatically extended by another six months unless one of the contractual parties terminates the contract in text form three months in advance of the end of the term.
6.2 Both contractual parties reserve the right to terminate the contract without notice for good cause. Good cause is given in particular when
6.2.1 one of the contractual parties effectively and/or sustainably violates its contractual obligations;
6.2.2 the respective other party is liquidated, its business operation or essential aspects/assets of its operations are sold or liquidated, it becomes insolvent and/or is placed under sequestration or undergoes similar significant changes to its financial position, its capacity to act or its business organization or if insolvency proceedings have been opened against its assets, if such an application is dismissed for insufficiency of assets or if the court orders a temporary securing of assets
7 Liability and Exemption in the Case of Publisher’s Breach of Contract
7.1 Compliance with these MasterTag T&C/P is of great significance for the operation of the zanox Network and the provision of the MT Application. Aside from the termination of the contract, zanox reserves the right to take further legal action in the case of significant breaches of contract.
7.2 In the event that the Publisher violates the provisions contained within these MasterTag T&C/P, in particular his obligations pursuant to paragraph 3, and zanox is subsequently held liable by a third party (e.g. an author, an end user or an authority) because of such breach of contract, the Publisher shall be obligated to indemnify zanox, upon zanox’ first request, against all costs and expenses incurred by zanox as a consequence of the breach of contract. This includes in particular the payment of damages or repayment of expenses to third parties based on court orders or settlements, lawyer or court costs associated with the defence against third party claims and any other damage arising to zanox.
7.3 Notwithstanding the aforementioned, the Publisher shall be liable in accordance with relevant legal requirements.
8 Liability and Limitation of Liability
8.1 zanox is not responsible for the content of third party websites, damage or other disruption arising due to the Publisher’s faulty or incompatible software or hardware or for damage arising due to deficient availability or functioning of the internet.
8.2 In all other respects, regardless of the legal grounds, liability arises exclusively
8.2.1 if one of its legal representatives, executives or other vicarious agents has acted with intent or gross negligence,
8.2.2 in the event of any culpable breach of an essential contractual duty, delayed performance or the impossibility of performance, in each case based on the respective merits. The expression "essential contractual duty" describes a duty in the abstract, the fulfilment of which is an essential pre-requisite for the due implementation of the agreement, and that is a duty on whose fulfilment the respective other party can rely as a general rule.
8.3 In the event of liability pursuant to paragraph 8.2.2, this shall be limited, for financial loss and damage to property, to the amount of the typically foreseeable loss.
8.4 The above limitations of liability do not apply to cases of mandatory statutory liability, in particular liability under product liability law, liability for a guarantee that has been assumed, and liability for culpable injury to life, limb or health.
9 Amendment of the MasterTag T&C/P
9.1 zanox reserves the right to amend less material provisions under these MasterTag T&C/P at any time without providing reasons unless such amendment would lead to a revision of the overall contract structure. Notification regarding the amended terms shall be sent by e-mail no later than two weeks before they become effective. Should the Publisher not object to the validity of the amended MasterTag T&C/P within four weeks of receiving the e-mail in text form, the amended terms shall be deemed accepted. zanox will send a separate notification detailing the right to object as well as the significance of the four week period.
9.2 Should the Publisher object to the validity of the new (amended) MasterTag T&C/P, zanox’ amendment request shall be considered rejected. In this case, the contract shall be continued in its previous form. The parties’ right to terminate their participation in the Zanox Network shall remain unaffected thereby. A separate notification regarding this termination option shall be produced.
10 Final Provisions
10.1 Utilization of the zanox Network and the MT Solution requires the use of certain technical systems such as terminal devices, software programmes, transmission paths, telecommunications services and other services provided by third parties that may lead to the incurrence of further costs by the Publisher. zanox does not provide such terminal devices, software programmes, transmission paths, telecommunications services or other services and therefore shall not assume any liability for such services provided by third parties.
10.2 zanox is hereby authorized to use the trade names of the Publisher (including the brands of the goods or services of the Publisher marketed through zanox) as a reference within the context of its own customer acquisition, particularly in the framework of customer reference lists.
10.3 The contract concluded on the basis of these MasterTag T&C/P represents the parties’ entire agreement and understanding with respect to the object of the contract and shall replace all oral or written agreements or understandings entered into by the parties with respect to the object of the contract. Any other general terms and conditions of the parties shall explicitly not apply.
10.4 Rights and obligations arising from these MasterTag T&C/P and the contracts concluded on their basis may not be transferred without zanox’ prior approval.
10.5 These MasterTag T&C/P and the contracts concluded on their basis do not establish a company in relation to third parties and therefore do not authorize either of the parties to make any legally binding declarations on behalf of both parties together, or on behalf of the respective other party, nor do they authorize them to place the respective other party under any obligation or to represent it in any other way.
10.6 These MasterTag T&C/P and the contractual relationship between zanox and the Publisher shall be governed exclusively by the laws of the Federal Republic of Germany, to 7 the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
10.7 The place of jurisdiction is Berlin provided the Publisher is a merchant within the meaning of the German Commercial Code (HGB), does not permanently reside in Germany, has relocated its permanent residence abroad after the present General Terms and Conditions have entered into force or the Publisher’s domicile or usual place of residence are not known at the time at which a suit is filed with the courts.
10.8 Should individual provisions of these MasterTag T&C/P be entirely or partially invalid, the validity of the remaining provisions shall remain unaffected. The invalid provision will be deemed replaced by a provision that is legally effective and comes closest, in the usual understanding, to the economic intent and purpose of the invalid provision. The same shall apply to any unintentional omission.
10.9 The Publisher is aware that these MasterTag T&C/P are originally drafted in German. The German version can be handed out upon request of the Publisher. The Publisher is aware and agrees that in case of any inconsistencies between the German and the English version the German version shall always prevail.