In these Terms, the following expressions shall, unless the context otherwise requires, have the following meaning:
2.1 Validity and conditions of the IO
a. From time to time, the Buyer may negotiate IO under which 4MN will deliver Ads provided by the Buyer to be displayed on the Website(s) for the benefit of the Buyer and in accordance with these Terms.
c. Acceptance of the IO and these Terms will be made upon the execution and return of the IO by the Advertiser himself or the Agency placing the order. 4MN shall receive at least 72 (seventy two) hours before the Campaign Start Date as specified in the IO unless otherwise agreed upon in the IO.
d. Each IO shall specify the identity of the Advertiser for whom the campaign is executed and billed; (ii) the identity of the Agency placing the OI on behalf of the Advertiser, in case it is not directly the Advertiser himself; (iii) the type and name of the product(s) and/or service(s) to be promoted (if available); (iiii) the type(s) and amount(s) of inventory to be delivered (e.g., Impressions, clicks or other desired actions) (the "Deliverables"); (iv) the price(s) for such Deliverables; (e) the maximum amount of money to be spent pursuant to the IO (if applicable), (v) the Campaign Start Date and Campaign End date; (vi) Ad Placement requirements; other items that may be included are, but are not limited to: reporting requirements such as Impressions or other performance criteria, Ad Placement requirement, any special Ad delivery scheduling and/or specifications concerning ownership of data collected.
e. The IO signed by the Buyer is strictly personal and cannot be assigned, even partially to a Third Party without 4MN express and prior approval. Unless otherwise agreed in the IO, 4MN does not give under these Terms, any exclusivity to the Advertiser or Agency and does not guarantee that a competitor of the Advertiser will not be present in an adjacent advertising placement during the Campaign Window.
f. The IO gives 4MN the right to market, reproduce, display, transmit and perform the Ads on the Website(s) and use Advertiser's name and its trademarks on advertising and promotional activities to its actual or potential clients. The IO gives 4MN's users the right to access the Ads together with any content or material linked to the Ads.
2.2 Inventory availability
4MN will make commercially reasonable efforts to notify the Buyer within three (3) business days of receipt of an IO executed by the Buyer if the specified Deliverable(s) is not available.
2.3 Revisions or modifications of IO
a. By the Buyer: Revisions or modifications required by the Buyer to the originally accepted IO will not be binding to 4MN unless accepted in writing by 4MN. Any revision or modification requested by the Buyer shall be addressed to 4MN at least 24 business hours before the earlier of (a) the Campaign Start Date or (b) the display of the first Ad Impression by 4MN, unless otherwise agreed upon in the IO. Any revision or modification required by the Buyer after such 24 hours will be subject to a 10 % increase of the total price before-tax for every concerned message, the total price still being owed to 4MN.
b. By 4MN: 4MN will use commercially reasonable efforts to provide the Buyer at least 5 business days prior notification of any material changes to the Website(s) that would change the target audience or significantly affect the size or placement of the Ads specified in the affected IO. Should such a modification occur with or without notice, as Buyer�s sole remedy for change or notice, Buyer may immediately cancel the remainder of the IO without penalty within the 5-day notice period. If 4MN has failed to provide such notification, Buyer may cancel the remainder of the
IO within 30 days of such modification, and in such case shall not be charged for any affected Ads delivered after such modification.
2.3 Third Party's ad servers ("Third Party Ad Servers")
This Section is applicable if Third Party Ad Server is used during the Campaign Window. In this case, 4MN will track delivery through its ad server and the Buyer may also track delivery through its proprietary or subcontracted Third Party Ad Server. The Buyer may not substitute the Third Party Ad Server specified in the IO without 4MN's consent. The Buyer and 4MN agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers, or if such is not available, provide weekly placement-level activity reports to each other. The traffic or impressions reports provided to the Buyer from 4MN (and not the ones provided by the Third Party Ad Server) shall control with respect to all of 4MN's obligations under these Terms and related IO.
a. Except otherwise expressly agreed by 4MN, the Ad Placements on the Website(s) are subject to the sole discretion of 4MN.
b. 4MN must comply with the IO, including all Ad Placement restrictions, requirements to create a reasonably balanced delivery schedule, and provide within the scope of the IO, an Ad to the Website specified on the IO when such Website is called up by an Internet user. Any exceptions must be approved by the Buyer in writing. 4MN will submit or otherwise make electronically accessible to the Buyer within three (3) business days of acceptance of an IO the technical specifications. Changes to the technical specifications of the already purchased Ads after that three business days period will allow the Buyer to suspend delivery of the affected Ads for a reasonable time in order to either send revised artwork, copy, or active URLs ("Advertising Materials"); (ii) request that 4MN resizes the Ads at 4MN�s cost and with final creative approval of the Buyer, within a reasonable time period to fulfil the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within 5 business days, immediately cancel the remainder of the IO for the affected Ads without penalty for both parties.
d. Ad delivery shall comply with editorial guidelines stated on the IO (if any). As Buyer's sole remedy for a violation of the foregoing sentence: Ads that run in violation of such editorial guidelines, if 4MN is notified of such violation within 30 days of the violation, shall be non-billable; and (ii) after the Buyer notifies 4MN that specific Ads are in violation of such editorial guidelines, 4MN will make commercially reasonable efforts to correct within 24 hours such violation. In the event that such correction materially and adversely impacts such IO, the parties will negotiate in good faith mutually agreed changes to such IO to address such impacts. In the event that the parties cannot reach agreement on such changes within five business days from the implementation of such correction, the Buyer or 4MN may, upon the conclusion of such 5 business day period, immediately cancel such IO, without penalty for both parties.
a. The IO shall be invoiced by 4MN to the Buyer on a monthly basis. For CPM and CPC campaigns, the invoices will be based on the actual Ads delivery. For fixed price campaigns, the amount of the invoices will be prorated according to the number of days the campaign was active during a given month.
b. Invoices will be sent to: Advertiser's or Agency's (when applicable) billing address as set forth in the IO and must include information reasonably specified by Agency (when applicable) or Advertiser's name, and any number or other identifiable reference
4.2 Payment Date
a. The Buyer will make payment in Euros within 30 days from the date of invoice, or as otherwise stated in the invoice, of all amounts and any applicable taxes, collectively ("Fees").
b. 4MN reserve the right to charge interest on all sums which remain outstanding after the Payment Due Date at a rate of 3.75% per month or the maximum permitted by law, whichever is lower ("Penalties").
c. The payment is deemed to be done only at the effective collection of Fees by 4MN.
d. 4MN may notify the Buyer that it has not received payment in such thirty-day period and whether it intends to seek payment directly from the Buyer pursuant to section 4.3, and may do so 5 business days after providing such notice.
4.3 Payment Liability
a. When the Advertiser is the Buyer, Advertiser is liable for payments of Fees in the terms set forth in Section 4.2. In the event of non-payment of Fees by the Advertiser on the Payment Due Date, 4MN reserves the right to apply the penalties set forth is Section 4.2 (b) until the full payment of the Fees by the Advertiser and (b) refer to Third Party collections to seek and collect the payment of Fees and Penalties and (c) to withhold further IO pending receipt of Fees.
b. When the Agency is the Buyer, the Agency is liable for payments of Fees in the terms set forth in Section 4.2. In the event of non-payment of Fees, prior to referring such non-payment of Fees for third party collections, 4MN reserves the right to seek and collect payment of Fees directly from the Advertiser, as Agency�s disclosed principal(s), for payment of outstanding Fees. If the outstanding balance is still not satisfied, 4MN reserves the right to apply the penalties set forth is Section 4.2 (b) until the full payment of the Fees and (b) refer to Third Party collections to seek the payment of Fees and Penalties and (c) to withhold further IO pending receipt of Fees. In no event, such collections procedure shall relieve the Agency of liability for the debt.
c. In both cases set forth in Section 4.2 (a) and (b), Advertiser and Agency agree to pay all collection fees including attorneys' fees and court costs incurred to effect collection
4MN must, within 3 business days of the Campaign Start Date on the IO, provide confirmation to Agency, either electronically or in writing, stating whether the components of the IO have begun delivery.
4MN shall make reporting available at least once monthly, either electronically or in writing, unless otherwise specified in the IO. Reports must be broken out by day and summarized by creative execution, Ad Placement, and other variables defined in the IO, for example, impressions and/or clicks. Once 4MN has provided the online or electronic report, it agrees that Agency and Advertiser are entitled to reasonably rely on it, subject to receipt of 4MN's invoice for such period.
Either party may terminate an IO at any time if the other party is in material breach of its obligations hereunder that is not cured within 10 days after written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if the Buyer commits a violation of the same Policy (as defined below), where such Policy had been provided by 4MN to Buyer, on two separate occasions after having received timely notice of each such breach, even if such breach has been cured by the Buyer, then 4MN may terminate the IO associated with such breach upon written notice. If the Buyer does not cure a violation of a Policy within the applicable five days cure period after written notice, where such Policy had been provided by 4MN to the Buyer, then 4MN may terminate the IO associated with such breach upon written notice.
a. 4MN shall monitor delivery of the Ads, and shall notify the Buyer either electronically or in writing as soon as possible (and no later than two weeks before Campaign End Date unless the length of the campaign is less than two weeks) if 4MN believes that an under-delivery is likely. In the case of a probable or actual under-delivery, the parties may arrange for makegood consistent with these Terms.
b. In the event that actual Deliverables for any campaign fall below guaranteed levels, as set forth in the IO, and/or if there is an omission of any Ads (placement or creative unit), Buyer and 4MN will make an effort to agree upon the conditions of a makegood flight either in the IO or at the time of the shortfall. If no makegood can be agreed upon, Buyer may execute a credit equal to the value of the under delivered portion of the contract IO for which it was charged. In the event that Agency or Advertiser has made a cash prepayment to 4MN, specifically for the campaign IO for which under-delivery applies, then if Agency and/or Advertiser is reasonably current on all amounts owed to 4MN under any other agreement for such Advertiser, Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event shall 4MN provide a makegood or extend any Ad beyond the period set forth in the IO without prior written consent of Agency.
a. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes. In the event that 4MN suffers such a delay or default, 4MN shall make reasonable efforts within five business days to recommend a substitute transmission for the Ads or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to the Buyer, 4MN shall allow Buyer a pro rata reduction in the space, time and/or program charges hereunder in the amount of money assigned to the space, time and/or program charges at time of purchase.
b. If Agency's ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency's reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency shall make every reasonable effort to make payments on a timely basis to 4MN, but any delays caused by such condition shall be excused for the duration of such condition. Subject to the foregoing, such excuse for delay shall not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
c. To the extent that a force majeure has continued for 5 business days, 4MN or Agency has the right to cancel the remainder of the IO without penalty.
a. It is Advertiser's or Agency's (when applicable) obligation to submit Advertising Materials in accordance with 4MN's then existing advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with 4MN's public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Website(s) on which the Ads are to appear), other advertising policies, and material due dates) (collectively "Policies") in accordance with Section 2.1.c. 4MN's sole remedy for a breach of this provision is set forth in paragraphs (b and c) below, Section 6.(c), and Section 10.(b and, c when applicable). If Advertising Materials are late, Advertiser or Agency if applicable is still responsible for the media purchased pursuant to IO.
b. 4MN reserves the right within its discretion to reject or remove from its Website(s) any Ads where the Advertising Materials or the site to which the Ad is linked do not comply with its Policies, or that in 4MN�s sole reasonable judgment, do not comply with any applicable law including privacy and intellectual property law, local and international advertising regulations or other judicial or administrative orders. In addition, 4MN reserves the right within its discretion to reject or remove from its Website any Ads where the Advertising Materials or the site to which the Ad is linked are or may tend to bring disparagement, ridicule, or scorn upon 4MN or any of its Affiliates. In this case, 4MN will make commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency or Advertiser.
c. If Advertising Materials provided by Buyer are damaged, not to 4MN's specifications, or otherwise unacceptable, 4MN will use commercially reasonable efforts to notify the Buyer within two business days of its receipt of such Advertising Materials.
d. 4MN will not edit or modify the submitted Ads in any way, including, but without limitation, resizing the Ad, without Buyer's approval. 4MN shall use all such Ads in strict compliance with these Terms and any written instructions provided by Agency.
e. Agency and Advertiser will not use the 4MN's trade name, trademarks, logos or Ads in a public announcement (including, but not limited to, through any press release) regarding the existence or content of these Terms or an IO without 4MN's prior written approval.
a. Advertiser agrees to defend, indemnify and hold harmless 4MN, its Affiliates and their respective directors, officers, employees and agents from any and all losses incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of Advertiser's breach of Section 12, violation of Policies (to the extent the applicable terms of such Policies have been provided to Agency at least ten days prior to the violation giving rise to the claim), or the content or subject matter of any Ad or Advertising Materials to the extent used by 4MN in accordance with these Terms and Conditions or an IO, including but not limited allegations that such content or subject matter violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action.
b. Agency represents and warrants that it has the authority as agent to Advertiser to bind Advertiser to these Terms and each IO. Agency agrees to defend, indemnify and hold harmless 4MN its Affiliates and their respective directors, officers, employees and agents from any and all losses incurred as a result of Agency's alleged breach of the foregoing sentence.
Excluding the Advertiser's and Agency's obligations under Section 10 or damages that result from a breach of Section 12 or intentional misconduct by the Advertiser or the Agency in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages.
a. Any marked confidential information and proprietary data provided by one party, including the Ad description, and the pricing of the Ad, set forth in the IO, shall be deemed "Confidential Information" of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
b. For purposes of this Section, Agency and Advertiser shall be considered one party. Notwithstanding anything contained herein to the contrary, the term "Confidential Information" shall not include information which: was previously known to a party; (ii) was or becomes generally available to the public through no fault of the receiving party ("Recipient"); (iii) was rightfully in Recipient�s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party ("Discloser"); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under these Terms; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
e. At any time, Agency, Advertiser and 4MN will comply with, all applicable local and international law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under these Terms.
a. 4MN represents and warrants that 4MN has all necessary permits, licenses, and clearances to sell the inventory represented in the IO subject to the conditions of these Terms, including any applicable Policies. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in their Ads and Advertising Materials.
b. Neither Agency nor Advertiser may resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without 4MN's prior written approval will be null and void. All terms and provisions of these Terms and each IO will be binding upon and inure to the benefit of 4MN and the Buyer hereto and their respective permitted transferees, successors and assigns.
c. These Terms and the related IO constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
d. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO shall prevail. All IOs shall be governed by the laws of Germany, 4MN and Agency (on behalf of itself and not Advertiser) agree that any claims, legal proceeding or litigation arising in connection with the IO (including these Terms and Conditions) will be brought solely in German courts, and the parties consent to the jurisdiction of such courts. No modification of these Terms and Conditions or any IO shall be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.
e. All notices to 4MN and Agency shall be sent to the contact as noted in the IO with a copy to the Legal Department. All notices to Advertiser shall be sent to the address specified on the IO.
f. Sections 4, 7, 10, 11, 12 and 13 shall survive termination or expiration of this Agreement and Section 5 shall survive for 30 days after the termination or expiration of these Terms. In addition, each party shall return or destroy the other party's Confidential Information and remove Advertising Materials and Ad Tags.
Last updated in August 2017 four media network GmbH