Terms & Conditions
„advanced STORE Performance Package“
1st July 2016
advanced Store GmbH („advanced STORE”) and the advertiser („Customer“ or „Advertiser“) cooperate in online marketing activities with the joint aim to generate new customers and transactions in view of products and services offered by the Advertiser as well as in view of branding, reach and traffic (views or clicks).
These Terms&Conditions („T&Cs“) shall be the basis for the services rendered by advanced STORE hereunder and, together with the respective insertion order („IO“), shall form the contractual obligations of both parties (“Agreement”). In case of inconsistencies between these T&Cs and the stipulations determined in an IO, the latter shall prevail.
1 Object of the Agreement:
1.1 The Customer hosts its own websites as well as Facebook Pages (as the case may be), which are either specified in particular in the IO or may be agreed upon in any other form between the parties, as being subject to the Agreement; the Advertiser distributes and sells products and/or services via these websites/pages. Further Websites or any other sales channels (e.g. in other social media channels) can be added at any time by simple notification (e.g. via email).
1.2 advanced STORE offers services to the Customer in view of the administration and optimization of its online marketing activities, including social media („advanced STORE Performance Package“) as well as serves as interface and facilitator to additional service providers.
„Tracking pixel“ means a piece of information, that are included into the source code of websites and that are identified by advanced STORE or the respective service provider and used for measurement of certain advertising.
„Ad media“ are electronic advertising materials that can be embedded on websites or Facebook pages etc. (e.g. banners).
„Landing pages“ are websites of the Customer, to which an End User is directed via an ad media.
„Customer“ means the company or the Advertiser as stipulated in the IO.
„Lead“ means the conduct of a predefined action (e.g. newsletter, insertion of an address/data, registration etc.) on the website of the Customer after an End User has been directed to the Customer´s landing page.
„Sale“ means the conduct of a transaction on the website of the Customer after an End User has been directed to the Customer´s landing page.
„User“ or „End User“ means the Internet user who is directed via an ad media to the Landing page of the Customer.
3 Services of advanced STORE:
3.1 advanced STORE renders services for the Customer that are further specified in the IO (summarized referred to as „Support“).
3.2 Under no means, advanced STORE will be contracting party with any third party provider, service provider, facebook or any other social media provider in connection with this agreement (herein jointly referred to as “Partners”); but solely shall act as authorised agent of the Customer. The Customer grants proxy and authorization to advanced STORE, in order to enter into and agree to contracts with Partners. The Customer is aware that usually terms and conditions stipulated by the Partner shall apply and must be accepted and that such terms and conditions apply in view of and for and against the Customer then. In particular, the ad media of the Customer shall comply with the terms and conditions set forth by such Partner and right of use be granted in accordance with the respective purpose of the respective relationship with the Partner. Should the Customer not wish to accept the relevant terms and conditions of a respective Partner, he can notify advanced STORE at any time and the respective marketing activity will be excluded or terminated as the case may be.
3.3 advanced STORE provides the Support in regard to the Partners listed in the order form. Unless Partners are listed separately in the order form, advanced STORE provides the Support with such Partners, with the best chances of success for each promotional activity, as considered from the advanced STORE’s own point of view. Advanced STORE may accept new or exclude certain Partners at any time. At any time, the Customer may request from advanced STORE a complete list of the current Partners that advanced STORE cooperates with. A continuous control of the websites and / or Facebook pages etc. after inclusion of advertising media shall not be owed.
3.4 advanced STORE undertakes either (a) to use only advertising material provided by the Customer among the Partners and leaving it unchanged or (b) to create the advertising material in coordination with the Customer and to use it after being authorised to do so (without any formal requirements) by the Customer.
4 Collaborative Obligations of the Customer
4.1 Usually, the Customer delivers the coordinated advertising materials to advanced STORE. The advertising materials shall correspond with the current state of online services and offerings of the Customer. In the event that the materials shall be created by advanced STORE, the parties will agree on a coordination and release mode without any formal requirements or in case of information from the customer, advanced STORE will not use disputed advertising materials by the Customer or will end use within a reasonable timeframe.
4.2 The Customer is obligated to inform advanced STORE of changes to the advertised offerings or to outdated advertising materials or to offerings, and possibly to provide new advertising materials.
4.3 On the landing pages, the Customer will install the tracking pixel provided by advanced STORE, so that the generated leads and sales can be assigned correctly.
Should the Customer forget or remove the integration of tracking pixels, the Customer is obligated to pay an appropriate compensation equal to the amount of the damage to advanced STORE and possibly to the affected Partners. The amount of compensation for damage to Partners and advanced STORE can either (a) be estimated by advanced STORE using the average of sales achieved over the last three preceding months and be charged as a flat fee or b) be demonstrated using actual tracking figures that the Customer is informed of by advanced STORE.
4.4 If the Customer has already set up an account with a Partner, the Customer permits advanced STORE access or arranges access for advanced STORE at the relevant Partner.
4.5 The Customer will not place content on or make associations with the websites named on the order form or on other websites integrated into the Support, Facebook pages or other social media pages and will not provide links for accessing contents that will violate statutory regulations of the countries of which inhabitants are addressed by the content. This applies particularly to all contents which violate the rights of third parties, e.g. copyright law, law relating to the use of name or trademark law, which pose a threat to state security, glorify violence, are of a pornographic nature, are liable to corrupt the young or promote legal or illegal drugs or weapons or may not be made available to the public or all inputs, which contain viruses or other similar programs, that are capable of damaging data or systems. The Customer makes advanced STORE exempt from the claims of third parties including the costs required for a legal defence, if such claims are raised against advanced STORE by third parties due to aforementioned unauthorized material.
5 Rights of Use
5.1 The Customer guarantees advanced STORE that it owns all intellectual property rights of the advertising materials provided by it for the intended advertising purposes and that it is entitled to grant advanced STORE, Partners and any others involved the rights of use necessary for use as stipulated in the agreement. The Customer further guarantees that its advertising material does not violate applicable law or self obligations of the industry.
5.2 Under this agreement, the Customer grants advanced STORE as well as the Partners and any others parties involved for the duration of implementing different advertising materials a temporally restricted, non-exclusive right for advertising as stipulated in the agreement to use and to include in environments of advertising labels, names, logos, trademarks, advertising media etc. made available by the Customer or by informal release.
Further use of labels, names, logos, trademarks, advertising media etc. has to be agreed with the Customer.
5.3 The Customer makes advanced STORE exempt from all claims of Partners or third parties including the costs required for a legal defence, if advanced STORE subject to claims in view of deficient, incomplete, contradictory and/or illegal advertising materials.
6 Remuneration of advanced STORE
6.1 Within the advanced STORE Performance Package, advanced STORE shall receive remuneration for the services described in more detail in the order form, as, from case to case, being determined in the order form.
6.2 Said remuneration to which advanced STORE is entitled is due for payment within 10 days after the invoice is submitted by advanced STORE.
7 Additional Services – Consulting
As the case may be and from time to time, additional services that are not included in the advanced STORE Performance Package may be required by the Customer (“Consulting Services”). A separate fee, the „Consulting Service Fee“, shall be paid for all Consulting Services. The Customer is notified in advance, if the services are separate Consulting Services.
8 Reporting, Presentation and Invoicing with Partners
8.1 advanced STORE shall provide the Customer with a Performance Reporting by email at regular intervals. The parties will agree upon the individual and detailed content of such Performance Reporting (e.g. „Key Performance Indicators/KPIs“, such as views, clicks, sales, leads, costs, changes to the earlier period) in a separate informal agreement.
8.2 The creation of special reports or presentations is not part of the reporting services of advanced STORE.
8.3 The Customer shall bear all costs incurred by the relevant Partner or others involved, e.g. commissions, and is obliged to always provide accounts with Partners with the necessary budget, if the Partners in question require such budgets for providing their services. In the event advanced STORE pays such costs in advance, advanced STORE will request these from the Customer either separately or with a forthcoming billing.
9 Term and Termination
9.1 The term of the respective agreement is determined by the agreement in the order form, e.g. an agreement on a specific campaign goal, e.g. (a) a defined term in days, weeks or months or similar; (b) a defined budget target or (c) a defined number of generated actions (leads, sales, clicks, views). A termination by mutual agreement is possible at any time.
Both parties reserve the right to terminate the contract without notice for good cause.
9.2 The notification on termination may be declared in text form (e.g. email).
9.3 Upon the termination of this agreement and the termination of technical work steps regarding integrated advertising materials (if necessary), the right to use the name, the logo and the trademarks of the other by each party lapses.
10.1 The parties are obliged to keep secret all company or business information and knowledge of the other party to the agreement that is made accessible in connection with this agreement and that has been indicated as confidential or in other circumstances that are recognizable as business, financial or other company secrets and not to pass on unauthorized to third parties, unless authorized under this agreement. Additionally, the parties may not use such confidential information for purposes outside this agreement.
10.2 The parties will ensure that their employees, representatives or subcontractors are obliged to uphold confidentiality respectively.
10.3 This confidentiality agreement shall survive the end of this agreement and shall apply even after termination for an indefinite period.
11 Liability of advanced STORE and Limitation of Liability
11.1 advanced STORE shall not be liable for downtimes or availability of websites and/or Facebook pages etc. of Partners and other related parties and information or content on such sites, nor for damages or other failures that may arise or have arisen due to defects or incompatibility of software or hardware of the Customer or such websites of the Partners, nor for damages due to lack of availability or defect free functionality of the Internet itself and neither explicity nor implied guarantees or represents such characteristics or functionality.
11.2 Apart from the aforementioned, regardless of the legal grounds, advanced STORE shall be held liable only under the following circumstances:
11.2.1 if one of its legal representatives, executives or other agents/subcontractors has acted intentionally or grossly negligently;
11.2.2 in the event of any culpable breach of an essential contractual obligation, delayed performance or the impossibility of performance, in each case based on the respective merits. The definition “essential contractual duty” describes a material duty, the fulfillment of which is an essential prerequisite for the due implementation of the agreement, and that is a duty on whose fulfillment the respective other party can rely on as a general rule.
11.3 advanced STORE´s liability for financial or damages to property shall be limited to the amount of the typically foreseeable loss. These limitations of liability shall not apply in case of mandatory statutory liability, in particular liability pursuant to product liability law, liability for an explicit guarantee, and liability for culpable injury to life, limb or health.
12 Final Provisions
12.1 No other or side agreements do exist. advanced STORE reserves the right to amend less material provisions under these terms and condition at any time without providing reasons unless such amendment would lead to a revision of the overall agreement structure. For the purposes of this clause, in particular, any such provisions that refer to the nature and scope of contractual services, the term or termination of the contractual relationship shall be regarded as material provisions. Notification regarding the amended terms shall be sent by email no later than two weeks before they become effective. Should the Customer not object to the validity of the amended terms and conditions within four weeks of receiving the email in text form (e.g. by email), the amended terms shall be deemed accepted. advanced STORE will send a separate notification detailing the right to object as well as the significance of the four week period. Should the Customer object to the validity of the new (amended) terms and conditions, advanced STORE´s amendment request shall be considered rejected. In this case, the agreement shall be continued in its previous form. advanced STORE´s right to terminate the contractual relationship shall remain unaffected.
12.2 Should any individual provision of these terms and conditions be regarded as invalid, as a whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision will be deemed replaced by that 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.
12.3 This agreement is construed under the laws of Germany. Exclusive place of jurisdiction is Berlin.