blogfoster GmbH Terms and Conditions ADVERTISER
1.1 blogfoster GmbH, Friedrichstraße 187, 10117 Berlin, HRB 153622B, Register Court: Amtsgericht Charlottenburg (hereinafter referred to as "eqolot") is the operator of various Internet platforms and services under the brand name eqolot. The following General Terms and Conditions (hereinafter referred to as "Advertiser GTC") constitute conclusive rules for the provision of services and other cooperation between eqolot and the Advertisers (hereinafter jointly referred to as "Parties"). The Advertiser GTC apply to all declarations of intent in connection with the use of eqolot and legal transactions or actions similar to legal transactions vis-à-vis or by the Advertisers. The provision of the agreed services shall be exclusively subject to the following conditions.
1.2 eqolot creates services for other companies, legal entities under public law or special funds under public law (hereinafter "Advertisers") within the scope of the publication of online advertising (e.g. banner, content, video & affiliate advertising formats, sponsored content, etc.).
1.3 The Advertiser Terms and Conditions of eqolot shall apply exclusively. Conflicting as well as supplementary terms and conditions of the Advertiser shall not become part of the contract - except in the case of eqolot's written consent - even if eqolot should execute a contract or provide a service without expressly objecting to such terms and conditions.
1.4 The offer of eqolot to Advertisers is not directed to consumers in the sense of § 13 BGB (German Civil Code).
2 Conclusion of the contract, term and termination
2.1 The contractual relationship between the parties shall come into existence with the transmission of one or more order forms previously provided by eqolot and signed by the Advertiser only with the adjustments provided for therein and otherwise unchanged (hereinafter "Service Order"). Employees of eqolot are not authorized to make legally binding commitments beyond the service order; this is the exclusive responsibility of the authorized representative bodies. Modified offers are considered new offers by the Advertiser and require acceptance by eqolot in order to be effective. Such offers by the Advertiser are without obligation for eqolot and are subject to change.
2.2 eqolot reserves the right to engage subcontractors to implement individual or all contractually agreed obligations.
2.3 In the event of essential changes in its environment (company name, address, legal form, VAT ID, etc.), the Advertiser shall immediately notify eqolot thereof. If the provision of the service(s) is impeded by this change to such an extent that the enforceability of contractually agreed claims by eqolot is no longer or only partially guaranteed, payments of the remuneration may be demanded in advance. In the event of transfer in the form of assignment of rights and obligations arising from a contract with eqolot to another third party, prior written consent must be obtained from eqolot. All publications and/or other contents in the sense of press law provided by the Advertiser and used for further processing are not to be checked by eqolot for correctness and require approval by the Advertiser. The responsibility for this lies solely with the Advertiser.
2.4 All conditions and prices agreed upon upon conclusion of the respective service order shall apply for the entire campaign or contract term. Unless otherwise expressly agreed in writing between the parties, the term of the contractual relationship and the modalities of termination of the contract shall be governed exclusively by the respective service order. Termination of the contract must always be made in writing (§ 126 BGB), failure to comply will result in invalidity according to § 125 BGB. The right to extraordinary termination for good cause remains unaffected. For service orders already in progress, eqolot reserves the right to terminate them without giving reasons. The notification of this to the Advertiser must be made in writing.
2.5 If special agreements have been made between the parties for certain additional services to be provided by eqolot (e.g. certain events, legal audits), the scope of services and the costs thereof shall result from the respective service order.
3 Placement of Sponsored Content on Internet Blogs and Social Media Profiles
3.1 The eqolot software offers the Advertiser the targeted placement of online advertising, especially on Internet blogs as well as on other social media channels. eqolot has a large number of bloggers and influencers (hereinafter "Publishers") who operate blogs and social media sites of all kinds and provide eqolot with advertising space. eqolot selects suitable blogs as advertising space for the Advertiser and coordinates the execution and implementation of these campaigns to the extent previously agreed with the Advertiser. For this purpose, the advertising budget and the volume scope are specified in detail in the respective service order.
3.2 After the conclusion of the respective service order, the parties will agree on a schedule in joint consultation that maps the steps for the use of the budget in terms of time.
3.3 The selection of the Publishers shall be exclusively at the discretion of eqolot. The one-time setup fee remains unaffected by repayment claims of any kind and arises in full in any case.
4 Rights to the data and work results
4.1 The data and information provided by the Advertiser (images, texts, specifications for the advertising materials) are and remain the exclusive property of the Advertiser. eqolot shall receive the simple, transferable rights of use necessary for the creation and implementation of the campaign for the duration of the respective campaign. After termination of the contract, eqolot shall return or delete all data and information provided by the Advertiser upon the Advertiser's written request or, insofar as they are not subject to legal/tax retention obligations and confirm the deletion in writing, if applicable.
4.2 Insofar as eqolot designs, edits or adapts advertising materials for the Advertiser, these work results shall - in the absence of any other agreement - only be used by the Advertiser within the eqolot advertising program. For this purpose, the Advertiser shall be granted a simple right of use to the work results. However, the work results are not to be handed over to the Advertiser at any time.
4.3 Only eqolot is entitled to the rights to the statistical evaluations and the associated data. The Advertiser shall receive the evaluations/data only for the purpose of tracking/checking the campaign and providing proof of proper billing. The concrete design and the degree of detail of these evaluations are exclusively incumbent on eqolot against the background of the protection of the personal rights of the Influencers. If settlements are undisputed, the Advertiser shall delete the provided verification data upon eqolot's request and confirm its deletion in writing.
5 Regulations regarding the Advertiser's advertising content ("Content")
5.1 The advertiser is fully and solely responsible to eqolot and third parties for the content (content and specifications for the advertising media) provided by him. The Advertiser undertakes to comply with all legal regulations. In relation to eqolot, this is third-party content, which eqolot in no way adopts as its own.
5.2 The Advertiser warrants that it has all rights to the content provided by it as well as all other information and simultaneously grants eqolot as well as the Publishers all rights necessary for the implementation of the campaigns with regard to the use of this content. This expressly includes the right for eqolot to forward Content to Publishers for briefing on the respective campaign. The Advertiser is aware that publishers may thereby receive information that is not yet publicly known. eqolot will work to ensure that publishers handle this information confidentially, but assumes no liability for this in relation to the Advertiser.
5.3 The Advertiser shall refrain from making pornographic, inhuman, racist, trademark- or copyright-infringing or other illegal content the subject of its advertising material orders to eqolot. This also applies to the content linked to the advertising material. eqolot does not owe any legal review of the content provided by the Advertiser. eqolot may, at its own free discretion, change, block or remove content provided or request the Advertiser to do so with regard to the linked content, which the Advertiser must then do immediately.
5.4 The posted content must be recognizably designed as commercial content. If necessary, eqolot may, at its own discretion, mark the advertising materials as such with the word "Advertisement" or "Advertising". The advertising material may not contain any misleading, exaggerated or unverifiable claims. This includes, in particular, inaccurate claims about prices, discounts, free offers and the availability of services or products. The advertisements may also not contain excessive emphasis and repetition, exaggerated capitalization or repeated punctuation (such as "cheap!!!" or "buy, buy, buy").
5.5 In the case of linked target pages, there may be no restriction of browser functions, such as so-called "mousetrapping", or the visitor may be surprised with another unexpected, automatic function (e.g. redirection to another advertising medium or page).
6 Data protection, non-competition clause and naming of references
6.1 The Advertiser undertakes to comply with all relevant data protection regulations and shall, upon request, provide eqolot with the name of a responsible contact person for information and measures relevant to data protection.
6.2 The Advertiser undertakes to use the personal data received from eqolot only to enable the implementation of the campaigns and for other purposes expressly determined by eqolot (e.g. to verify proper billing). As soon as the data is no longer required, it shall be deleted by the Advertiser without being requested to do so and proof of its deletion shall be provided to eqolot upon request.
6.3 For files stored on the server of eqolot, eqolot reserves the right to further use them for individual own purposes. eqolot reserves the right to use anonymized results of completed marketing campaigns for the creation of market standards in industries. If, in individual cases, it should be possible to draw conclusions about individual Advertisers, eqolot will always coordinate this with the Advertiser beforehand.
6.4 During the current business relationship or within a period of 6 months after termination of the business relationship, the Advertiser is prohibited from contacting Publishers acquired through the cooperation with eqolot directly or through third parties and/or from cooperating directly with these Publishers.
6.5 During and after the execution of the contractual relationship with the Advertiser, eqolot is entitled to use, publish and/or name the Advertiser's company name, logo and industry for advertising and reference purposes within the scope of customer and reference lists to customers or interested parties. Personal data of employees of the Advertiser will not be mentioned.
7 Remuneration and terms of payment
7.1 All prices are subject to the applicable statutory value-added tax, unless the Advertiser is exempt from paying value-added tax, which the Advertiser must inform eqolot of prior to invoicing and prove in a suitable form in cases of doubt. Invoices are due and payable within 10 calendar days of receipt. In the event that the Advertiser is more than 6 weeks in arrears with its payment obligation, eqolot shall be entitled, without further reminder, to assert the one-time setup fee owed under the service order (Section 3.3) even if the setup of the campaign could not be completed due to lack of cooperation on the part of the Advertiser. Should the Advertiser be in default of payment of three or more outstanding invoices, installments or contributions, all contractually outstanding fees may be demanded and debited in advance by eqolot. Furthermore, eqolot reserves the right to choose to suspend the contract with immediate effect until all outstanding invoices have been paid or to terminate the contract with immediate effect in the event of a default in payment of three or more invoices, installments or contributions.
7.2 The prices and conditions agreed upon at the time of conclusion of the respective service order shall apply exclusively. Billing shall be based on the billing model requested by the Advertiser and stipulated in the service order.
7.3 eqolot may already invoice the contractually agreed remuneration for the advertising space in advance at the beginning of the service provision, i.e. when the campaign is set up in the eqolot software. In the event of a contractually agreed monthly payment, the billing shall take place on a monthly basis and shall include a monthly fee to be paid at the beginning of each month.
7.4 The Advertiser may only offset an undisputed or legally established claim. The Advertiser is entitled to a right of retention or the defense of non-performance of the contract only within the respective contractual relationship.
7.5 These Terms and Conditions / Agreement and the rights resulting therefrom are not transferable or assignable without the prior written permission of the non-assigning contracting party. However, all rights and claims (including all claims) arising under these Terms and Conditions / Agreements may be assigned or transferred by either Party (the "Assignor") without the prior written consent of the other Party if such assignment or transfer is (a) to a person or entity acquiring all of the substantial assets or business interest of the Assignor or its business enterprise by sale, merger or otherwise; (b) to an Affiliate of the assignor; or (c) in connection with any borrowing, real or unreal factoring, or other financial transaction entered into or proposed to be entered into by the assignor.
8 Written form and deadlines
8.1 Amendments and supplements to the contracts between eqolot and the Advertiser as well as all declarations relevant to the contract for the exercise of design rights, in particular notices of termination, reminders or setting of deadlines, must be made in writing. The written form requirement stipulated here and in other places in these Advertiser Terms and Conditions can also be complied with by fax or by correspondence. § However, Section 127 (2) and (3) BGB shall not apply in all other respects.
8.2 Contractual guarantees and promises, in particular if they go beyond the scope of these Advertiser GTC, require express written confirmation by eqolot.
8.3 Deadlines of the Advertiser stipulated by law or contract must be at least ten working days. If the fruitless expiration of a set deadline is intended to entitle the Advertiser to dissolve the contract (e.g., through rescission, termination, or damages in lieu of performance) or to reduce the remuneration, the Advertiser must threaten these consequences of the fruitless expiration of the deadline in writing together with the setting of the deadline. eqolot may, after expiration of a deadline set in accordance with sentence 2, demand that the Advertiser exercise its rights resulting from the expiration of the deadline within 14 days after receipt of the demand.
9.1 eqolot shall be liable without limitation (i) in the event of intent or gross negligence, (ii) for fraudulently concealed defects, (iii) for injury to life, limb or health, (iv) in accordance with the provisions of the Product Liability Act and/or (v) to the extent of a guarantee assumed by eqolot.
9.2 In the context of the provision of services subject to remuneration for the Advertiser, eqolot shall also be liable in the event of slight negligence, but only in the event of a breach of an obligation that is essential for achieving the purpose of the contract and only to the extent that the damage is foreseeable and typical according to the nature of the business in question, whereby the liability shall be limited to a maximum of € 5,000 for each individual case of damage and € 10,000 for the entire contractual relationship.
9.3 Any further liability of eqolot does not exist.
9.4 The above limitation of liability shall also apply to the personal liability of eqolot's employees, vicarious agents, representatives and bodies.
9.5 The objection of contributory negligence on the part of the Advertiser (e.g. in the case of release by the Advertiser despite errors recognizable by the Advertiser, omitted or insufficient testing of a work result, insufficient or irregular data backup, insufficient IT security) shall remain unaffected by this.
9.6 The Advertiser shall be liable for the content of his order or the data and content provided in accordance with the specifications in clause 5. The Advertiser shall immediately indemnify eqolot in full upon first request against all legal claims, in particular claims under competition law, copyright law, trademark law, design law, data protection law and personal rights of third parties, as well as against all costs incurred in connection with claims by third parties due to the Content, insofar as eqolot is not responsible for these legal infringements. This includes, if applicable, reasonable legal costs. eqolot shall inform the Advertiser immediately of such a claim. The Advertiser shall support eqolot to the best of its ability in defending itself against the claim.
9.7 The above provisions shall also apply accordingly to eqolot's liability for material defects and defects of title, damage caused by delay and with regard to the reimbursement of futile expenses.
10 Obligations of the Advertiser to cooperate
10.1 The Advertiser shall provide the documents and information required for the performance of the services. Specifications of eqolot are to be followed.
10.2 The Advertiser shall name its responsible contact person at the time of contract initiation, who shall coordinate the Advertiser's cooperation and make the necessary decisions in a legally binding manner or be able to bring them about immediately.
10.3 The Advertiser shall carry out regular data backups and IT protection measures in accordance with the current state of the art. eqolot may assume that all data with which employees of eqolot come into contact have previously been otherwise secured by the Advertiser.
10.4 Further obligations to cooperate on the part of the Advertiser result from the respective service order as well as from any additional agreements made between the parties as well as the general traffic and due diligence obligations.
10.5 In the event of a breach of the duties of cooperation/provision, the Advertiser shall bear the risk of damage. eqolot shall not be responsible for checking whether the Advertiser complies with its duties of cooperation.
10.6 The Advertiser shall bear the disadvantages and additional costs arising from a breach of its duties to cooperate.
11 Final provisions
11.1 The law of the Federal Republic of Germany shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict-of-law provisions of private international law.
11.2 The place of performance shall be Berlin. Berlin is agreed as the place of jurisdiction for all disputes arising from and in connection with the contractual services, whereby eqolot may also choose the Advertiser's general place of jurisdiction in the event of legal disputes.
11.3 eqolot reserves the right to amend these Terms and Conditions from time to time. For this purpose, eqolot shall send the new version to the Advertiser in advance. The new version shall become the subject matter of the contract if the Advertiser does not object to the new version within four weeks of receipt and eqolot has informed the Advertiser of the right to object, the deadline and the legal consequences of not exercising the right to object when sending the new Terms and Conditions.
11.4 Should any provision of these Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions. The same shall apply to loopholes. The invalid provision shall be replaced by what the parties would have lawfully agreed had they been aware of the invalidity of the invalid provision.