General terms and conditions of GroupM Digital Germany GmbH
As at: 22.3.2019
1. General principles
1.1 GroupM Digital Germany GmbH („GROUPM“) has its head office at Derendorfer Allee 4, D-40476 Düsseldorf and is one of the leading agencies for performance marketing in Europe. GROUPM is a company of the WPP group.
1.2 These General Terms and Conditions of Business of GROUPM („GTC“) shall form part of any contract concluded between GROUPM and the customer, unless the parties agree otherwise.
1.3 Formation of contract shall be subject to the written form. For all other declarations of intent, text form shall suffice, unless these GTC or the contract between the parties stipulates the written form.
2. Services of GROUPM
2.1 GROUPM provides performance marketing services, including search engine optimisation, search engine marketing, affiliate marketing, conversion optimisation and performance display marketing.
2.2 GROUPM reserves the right to amend the services offered at any time and to extend, change or improve them. GROUPM reserves the right to make changes to its services if compelled to do so by a contractual partner or by changes to the statutory regulations or applicable law.
2.3 GROUPM grants the customer the non-exclusive, non-transferable right, revocable at any time, to use the software and other applications, as provided by GROUPM on the basis of the contract, within the terms of the contract formed between GROUPM and the customer. In the event of the termination of the contract between GROUPM and the customer, these rights shall expire, irrespective of the grounds for termination.
3. Obligations of customer
3.1 The fee to be paid by the customer shall be calculated in accordance with and determined by the contract between the customer and GROUPM.
3.2 Any queries relating to the quantity or cost of services provided must be raised in writing immediately on receipt of invoice and sent to the address in the invoice. Objections must be lodged within six weeks of receipt of invoice. Failure to lodge objections within the time allowed shall be deemed to be acceptance. The customer’s statutory rights shall remain unaffected.
3.3 The contractually agreed remuneration must be paid 14 days after the receipt of invoice by the customer.
3.4 The customer guarantees, in the form of an independent promise of guarantee, that it has all the rights necessary for the performance of the contract and that it can transfer these rights to GROUPM as required without infringing any third-party rights. The customer guarantees that it has copyright, in the sense intended by the Copyright Act (UrhG), and other intellectual property rights for the content provided by it and that it is entitled to publish, and to transfer to third parties for publication purposes, to the extent required for the performance of the contract. The customer is solely responsible for accuracy of content and solely liable for any infringement of rights. The customer guarantees that the content provided by it and its use by GROUPM, as well as links to other sites, do not infringe any applicable laws. The customer guarantees not to transfer any content whose promotion or distribution breaches any legal restraint (e.g. in criminal or administrative law), public decency or third-party rights (e.g. personality rights, naming rights, copyright, trademarks, data protection rights or other intellectual property rights). Nor shall the customer distribute any content that promotes war; that is clearly intended to corrupt children or young people; that depicts in a manner offensive to human dignity persons who are dying or who are or have been subject to severe physical or mental suffering, or that depicts actual events, unless there is an overwhelming legitimate interest in such presentation; that offends human dignity in any other way; or infringes the Narcotics Act (BtMG), Medicines Act (AMG) or Weapons Act (WaffG); that ought not to be made public; or that contains any viruses, trojan horses or other similar programmes intended to damage, surreptitiously capture or delete any data or systems.
3.5 In the event of breach of 3.4, the customer shall rectify the breach immediately, reimburse GROUPM for any loss suffered as a result of the breach, indemnify GROUPM from all third-party claims brought as a result of the breach and reimburse all legal defence costs incurred. The restrictions of liability provided for in 4.1 below shall in such cases not apply. In the event of any claim brought against GROUPM as a result of any breach, the customer shall at GROUPM’s request join GROUPM as party to the dispute. In the event of any breach, GROUPM shall be entitled to immediately cease its services and terminate the contract without notice.
4. Liability of GROUPM
4.1 In the event of culpable liability, the parties shall regardless of grounds be liable only for:
a) Death, injury or harm to health deriving from intent or negligence on their part or on the part of their statutory representatives or agents; or
b) Loss deriving from intent or negligence on their part or on the part of their statutory representatives or agents.
In the event of breach of a cardinal contractual obligation based on simple negligence, liability shall be limited to typically foreseeable loss. Liability is limited to 100% of the annual value of the order (remuneration excluding thirdparty services).
4.2 The aforementioned liability restrictions shall not apply in cases of compulsory statutory liability, especially under the Product Liability Act (ProdHaftG).
4.3 Regardless of any earlier statutory deadlines, any claims brought against GROUPM under the contract must be brought within one year of the claim arising. Deviating compulsory statutory deadlines shall remain unaffected.
5.1 GROUPM shall provide its contractual services in a manner that essentially conforms to agreed specifications. In the event of defects, the customer shall immediately inform GROUPM in writing, stating precisely the nature of the problem and providing any information necessary for its rectification. GROUPM offers no guarantee with regard to specific features or characteristics.
5.2 In the event of demonstrable essential defect, GROUPM shall by way of subsequent performance either provide new, defect-free service or remedy the defect, the choice to be at GROUPM’s discretion. During this period no reduction of fee and no withdrawal shall be permitted. Claims for compensation for costs incurred by the customer itself for rectification, or by any third party engaged by the customer, are hereby excluded. Should subsequent performance ultimately fail, the customer shall be entitled to a reduction in the fee or to withdraw.
5.3 Compensation or reimbursement of fruitless expenditure due to defect shall be paid by GROUPM solely within the limits specified under 4. Other than the rights expressly stated under 5.2, the customer shall have no rights due to defects.
5.4 Guarantee in the event of defect shall, except in cases of intent, expire one year after receipt of contractual services. The guarantee shall not apply if the customer cannot demonstrate any defect as required under 5.1.
6. Contract duration and termination
6.1 The duration of the contract shall be specified in the contract or by way of separate agreement between the customer and GROUPM.
6.2 Following expiry of the minimum contract duration provided for in the contract and any agreed automatic extension, termination in writing shall be possible at any time subject to four weeks‘ notice to month’s end. The relevant date for adherence to deadline shall be the date of receipt of declaration.
6.3 Both GROUPM and the customer shall be entitled to immediate termination for cause. Cause shall especially exist for GROUPM if the customer’s behaviour jeopardises GROUPM’s contractual relations with its partners, if the customer is in arrears with payment for two consecutive months, or if the customer becomes insolvent, or if insolvency proceedings are initiated against the assets of either of the parties or declined for want of assets (whereby inability to pay, cessation of payment or cessation of commercial activity, regardless of cause, shall be deemed equivalent to insolvency), or if the customer breaches essential provisions of these GTC.
7. Force majeure
Where contractual obligations cannot, due to force majeure (e.g. war or civil unrest, natural disaster or fire, epidemic or quarantine, government action or similar circumstances) be met or met in time or otherwise not contractually complied with, the party affected shall be exempt from the obligation concerned to the extent of the effect of the force majeure. In the event of force majeure, the party affected shall immediately notify the other.
8. Consent to use of credit reference agencies
The customer hereby agrees that GROUPM shall provide selected credit reference agencies with data relating to contractual non-compliance (e.g. termination due to payment arrears, summons for default in the event of undisputed claim, or enforcement procedures).
9. Confidentiality and data protection
9.1 The parties shall in their dealings with third parties maintain confidentiality with regards to the content of the contract and all related information, documents and data that are not in the public domain and shall not make them available to third parties. Third parties in this sense are non-affiliated companies in the sense intended by §§ 15 ff. Stock Corporation Act (AktG) as well as professional advisers to the parties who are bound by confidentiality by agreement, professional conduct rules or statute and who are involved in the formation, examination or performance of the contract on behalf of either party. This especially applies to auditors, tax advisors, lawyers and corporate consultants. The parties shall take all appropriate measures to ensure they comply with the obligations imposed under this provision. This shall also apply for a period of two years after end of contract.
9.2 The obligation shall not apply
9.2.1 where the disclosure of information is required for the purposes of contractual performance;
9.2.2 where the contract allows disclosure or one of the parties expressly allows the other party to disclose;
9.2.3 to information that is already in the public domain, except where the information concerned is addressees;
9.2.4 to information independently processed without the use of the other party’s confidential information;
9.2.5 where the party concerned is obliged on statutory grounds or under court or official order to disclose the information;
9.2.6. insofar as confidentiality by either party would undermine its rights. The party relying on any of these exceptions shall bear the burden of proof.
9.3 Following the end of the contract either party may, and following written request by the other party shall, immediately destroy all information and documents in its possession, including in machine readable format, all software and all other objects and materials, including copies and post-manufactured items, including in electronic form, and shall provide the other party with written confirmation that it has done so. This shall not apply insofar as the receiving party is under statutory obligation of retention that cannot be delegated to a third party or insofar as the information and documents concerned are required as evidence in an existing or imminent dispute. Not covered by obligation of deletion is information saved automatically during the backing-up of data security systems and to which there is no systematic access and data covered by an ongoing right of use (such as that provided for under 10.2). Otherwise there shall be no right of retention.
9.4 The parties agree to be bound by all data protection provisions.
9.5 Should the customer’s data as provided truthfully and completely on contract formation change, the customer shall immediately notify GROUPM of the changes.
10. Online usage data
10.1 GROUPM reserves the right to collect and store from the customer’s website and the websites of third parties anonymised data on users of the digital media campaigns devised by GROUPM for the customer („Media Data“).
10.2 GROUPM and companies affiliated to it in the sense intended by §§ 15 ff. AktG shall be entitled to ongoing use of the Media Data for the purposes of compiling aggregate statistics, metrics and general trend data in order to improve and optimise campaigns for the customer and for other customers.
10.3 In using the Media Data, GROUPM and companies affiliated to it in the sense intended by §§ 15 ff. AktG shall not identify the customer to any third party.
10.4 The customer shall be responsible for ensuring that its website is compliant with data protection law and contains an appropriate data protection statement.
11. Performance marketing
GROUPM shall bear the costs and risk of providing performance marketing services. The contractually agreed remuneration is therefore total remuneration (less any taxes due) and therefore includes a supplement for risk and optimisation. Costs and discounts of any kind associated with the provision of performance marketing services will not be passed on to the customer. The remuneration for a single unit (e.g. CpC, CpL, CpX) is binding, regardless of the actual cost or discounts accruing to GROUPM, so that neither the customer nor GROUPM may request an adjustment of the remuneration based on changed costs and/or discounts. The customer shall have no right to know how the remuneration is calculated.
12. Promotional material and press releases
Neither party shall without the prior written consent of the other make any public statements or provide any other information relating to the contract or the information it contains. This restriction shall also apply to informational and promotional material.
13. Closing provisions
13.1 The contract formed between GROUPM and the customer, and its performance, shall be subject solely to the law of Germany, with the exception of UN Convention on the International Sale of Goods of 11.4.1980.
13.2 The jurisdiction for all disputes under the contract shall insofar as permitted under statute be Munich (Landgericht München I).
13.3 Insofar as the written form is stipulated for the contract, all agreements between the parties shall require the written form. This shall also apply to amendments and addenda and the rescission of this written form provision itself.
13.4 The GTC applicable at the time of contract formation shall apply. Deviating terms of the customer shall not apply. GROUPM reserves the right to alter its GTC at any time with future effect, in which case the customer is to be notified in writing of the proposed change. The changes shall be deemed accepted if the customer does not object in writing and this consequence shall be emphasised by GROUPM at the time it provides notice of change. Any written objection must be received by GROUPM within six weeks of notification of change. Should such objection be submitted, the contract shall continue without
the proposed changes. The parties‘ right to terminate the contract shall remain unaffected.
13.5 GROUPM reserves the right to transfer all rights and obligations under this contract to a company affiliated with GROUPM in the sense intended by §§ 15 ff. AktG.
13.6 The customer may offset claims by GROUPM only against uncontested or legally established claims. The right to withhold payment may be exercised by the supplier only if the claims in question are based on the same contractual relationship.
13.7 Severability clause. Should any of the provisions of the contract between GROUPM and the supplier be or become wholly or partly invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. In place of the invalid or unenforceable provision the parties shall agree a provision that legally and actually comes as close as possible to the commercial intention of the invalid or unenforceable provision. In the event of a gap in provisions that cannot be remedied via interpretation of the existing provisions, the gap shall be deemed remedied by the provision that, had it originally been included, comes as close as possible to the commercial interests of the parties.