1. term and form of the advertising contract
By concluding an advertising contract, Kömedia AG (hereinafter referred to as the Publisher) undertakes to allow one or more advertisements to appear in the designated publication, during which time the Customer must pay the advertising rates. Advertising contracts are always concluded in writing. E-mail, fax and the like are equivalent to the written form and are valid in this respect. In addition to orders, changes to or cancellations of advertisements must also be made in writing.
2. importance of the GTC
The following General Terms and Conditions (GTC) are primarily decisive for the regulation of the contractual relationship. Any individual written agreements shall take precedence over these GTC. On the other hand, these GTC take precedence over any other GTC of the customer. The GTC shall also apply to any agency and/or intermediary commissioned by the customer, whether the agency/intermediary itself (and not an end advertiser) is the customer or whether it acts on behalf of the customer (the latter even if only the customer is expressly mentioned).
3. basis for advertising pricing
The rates according to the current media data (link) apply. The advertising rates are always exclusive of the current VAT rate. Additional services such as the preparation of print documents, advertisement design, text templates, translations, media calculations and evaluations, etc., which go beyond the usual scope (e.g. simple spreading plans, cost calculations, etc.) will be charged at the rates customary in the industry. Advertisements are always calculated on the basis of the published size. The fractional millimetre will be charged in full. The evaluation of the publisher's ad management tool shall be used as the basis for calculating the correct execution of online advertising campaigns and for billing the same. The client has no right to statistical information beyond that which is necessary for billing.
4. rejection of advertisements
The publisher has the right to reject advertisements without giving reasons. No claim for damages can be derived from this. Only advertisements accepted by the publisher are covered by a contract.
5. quantity contracts and repeat orders
Quantity contracts are the purchase of specific volumes of advertisements in size (millimetres or 1/1 page or ½ page etc.) or francs during a specified period. Repeat orders are orders for advertisements which appear unchanged on dates fixed in advance. Quantity contracts and repeat orders are generally only permissible for advertisements of a single customer. In principle, separate contracts and discount agreements must be concluded for advertisements of the same customer from an economic point of view which appear under different names or for the account of different companies (subsidiaries, etc.). Group accounts are reserved and shall be specially agreed; the publisher shall take into account standards customary in the industry. In the absence of any other agreement, the term of volume contracts and repeat orders shall commence at the latest on the date of the first insertion. It is generally 12 months; in the event of a first insertion by the 15th day of a month, this will be counted.
For each volume contract, the customer is entitled to the tariff-based contract discount (cf. the information in the media data). Repeat discounts are granted on orders that contain the number of advertisements (within 12 months) corresponding to the discount conditions. The size may not be changed, texts or subjects only if it is full print material. Discount agreements with customers with annual sales bonuses always end with the calendar year. The discount, which is based on the contract amount specified when the contract is concluded, may also be adjusted during the term of the contract at the customer's request by specifying a new contract amount. In the case of gross contracts, the discount or annual sales premium shall be credited after expiry of the discount agreement. If the volume of advertisements placed exceeds the intended contract amount within a year, the discount will be calculated on the total volume and the customer will be granted a retroactive discount within the framework of the discount provisions. If the volume purchased does not reach the intended closing amount at the end of the term, the customer will receive a subsequent rebate within the framework of the rebate provisions. If the customer terminates the contract due to a change in tariffs (cf. Section 15), the customer shall be entitled to the discount corresponding to the quantity actually purchased in accordance with the discount provisions.
7 Obligations of the customer
Delivered material for printed advertisements as well as online templates must comply with the publisher's technical standards (cf. also media data). Transmission is at the risk of the customer. The information in the media data or the respective editions shall apply to the advertising deadlines. In the case of online placements, the customer undertakes to make the advertisement available to the publisher at the latest on the third working day before the first placement date. The customer grants the publisher the rights of use to the content of the advertisements (in particular to the customer's intellectual property and the like), insofar as this is necessary for the fulfilment of the contract. The customer further permits the publisher to use, host, cache, route, store, reproduce, modify, display, transmit, distribute and the like the advertising material (including all creative content) to the extent necessary for the performance of the contract. In particular, the customer agrees that the publisher may feed the advertisements into its own and third-party online services or otherwise publish them and process them for this purpose. The publisher may charge the full payment due for the agreed or booked advertisements if the advertisement cannot be placed or cannot be placed properly due to circumstances for which the customer is responsible (including, but not limited to, failure to place the advertisement on time, defective or incorrect labelling or subsequent changes). Any additional costs incurred may also be charged to the customer.
8. fulfilment: general, design
The place of performance for both contracting parties is St. Gallen. The publisher is authorised to engage auxiliary persons, subcontractors and the like for the fulfilment of the contract. Advertisements must be clearly recognizable as such by readers and must be distinguishable from the editorial section in design and type. The publisher reserves the right to make an additional designation by means of a heading "Advertisement", "Advertisement", "Advertisement" or "Publireportage", the customer declares his agreement to this. The customer agrees that the advertisements printed by the publisher, fed to online services or otherwise published are not freely available to third parties. The customer transfers to the publisher the right (but not the obligation) to prohibit any exploitation and processing of these advertisements by unauthorized third parties by the appropriate means. Print material without specification is considered as disposable material. This may be destroyed after a period of 3 months from the last date of publication. The only exception is print material of a permanent nature, which must be expressly marked as "permanent" by the customer on the order to the publisher. The return of print material subject to mandatory return shall be effected within 3 months after completion of the order. In the case of paper copies, reimbursement cannot be guaranteed due to the possibility of damage during the printing process.
9. in particular postponements, placement requests and regulations
For technical reasons, the publisher reserves the right to move advertisements that are scheduled for specific dates, but are not subject to a deadline, forward or backward by one issue. If an advertisement that is not fixed for a specific date appears in another issue, payment may not be refused for this reason, nor may warranty claims or claims for damages be made. Placement requests from the customer will only be accepted on a non-binding basis. A placement surcharge will be levied for advertisements with fixed placement specifications, provided these are accepted in writing by the publisher. Exclusion of competition is possible at the special request of the customer and will be charged additionally. If, for technical reasons, the advertisement appears in a position other than that prescribed or requested, payment may not be refused for this reason, nor may warranty claims or claims for damages be made. However, a placement surcharge will no longer be levied in this case. After conclusion of the contract, rebookings are only possible until the tenth (in the case of online placements, the third) working day before the placement in question at the latest. A request for rebooking must be sent to the publisher in writing before the expiry of the aforementioned deadlines (date of receipt by the publisher). Even in the event of rebooking within the deadline, all additional costs incurred by the publisher as a result shall be owed.
10. compliance with the standards and rights of third parties
Subject to any mandatory legal provisions to the contrary, the customer shall bear sole responsibility for ensuring that an advertisement complies with the applicable legal provisions, third-party rights and any relevant industry association rules. The customer alone shall bear responsibility in the event of an infringement of third-party standards and rights. If a third party asserts claims against the publisher on the basis of the content of the advertisement, namely on the basis of (alleged) infringement of competition law, intellectual property law, personal rights or data protection law, the customer undertakes to indemnify the publisher against all obligations. The indemnification includes, in particular, the assumption of any guarantees, compensation items and the like, as well as all costs and expenses in connection with an out-of-court or judicial dispute (procedural and party costs). At the Publisher's request, the Customer shall either join the proceedings or conduct them in place of the Publisher (Art. 79 of the Swiss Code of Civil Procedure [ZPO]). Claims for damages by the Publisher and the Publisher's right to withdraw from the contract or terminate the contract (cf. Section 14) remain reserved.
11. data protection
12. terms of payment
The invoice is sent electronically in PDF format with the corresponding page receipt to the e-mail address provided by the client. If required, a physical invoice can be sent at a charge. Invoices from the publisher are payable net within 30 days of the invoice date. The publisher is entitled to demand advance payments. A customer represented by an agency, intermediary or similar can only release himself from his payment obligation to the publisher by making payment to the publisher. If an agency or intermediary is a customer, the publisher shall also have the right, in the event of default, to contact the end advertiser directly if an extension period has not been used (see section 3 below) and to inform them of the agency's/intermediary's payment arrears. The agency/brokerage may not assert any warranty claims, claims for damages or other claims against the publisher if end advertisers conclude advertising contracts directly with the publisher. All advertising prices are net, i.e. without deduction of a discount. In the event of termination of the contract due to default in payment, all discount entitlements or other preferential conditions, in particular commission payments, shall lapse on all unpaid invoices. Any commission or other bonus payments made may be reclaimed. A subsequent invoice will be issued for these rebates. If invoices are not paid net within 30 days, interest on arrears of at least 5 percent may be charged, subject to further claims for damages (cf. Art. 104 et seq. of the Swiss Code of Obligations [OR]). A reminder is not required. Further consequences of default are governed by Art. 107 et seq. OR APPLY. If, at the time of default, further advertisements are still the subject of the contractual relationship, the Publisher shall also be entitled, if payment is not made even after a single period of grace, to terminate individual or all advertising contracts with the Customer without notice (cf. Section 14). In the event of default, the Publisher shall also be entitled to refrain from placing any further advertisements that may have been booked. All measures necessary for the collection of outstanding payments, in particular also the costs of involving third parties, shall be borne by the defaulting customer.
13. incorrect/absent appearance
The publisher shall endeavour to publish the advertisements in the best possible way in accordance with the respective customary technical standard. The customer is aware that, given the state of the art, it is not possible to provide system availability and error-free publication at all times. The publisher does not guarantee availability or freedom from errors, defects or malfunctions. Furthermore, in the case of online advertisements, no specific number of insertions (impressions), publications, conversions or clicks on an advertising medium can be guaranteed. Except in cases of gross negligence or intent, all warranties and liability on the part of the publisher are excluded. The limitation of liability to gross negligence and intent also applies to the use of auxiliary persons or subcontractors. There shall be no warranty and liability claims in the case of printed advertisements or online templates which or whose material does not comply with the technical standards of the respective medium. The same applies in the event of errors in the transmission of advertising orders. In the case of chromatic colours for printed advertisements, we reserve the right to a reasonable tolerance (according to IFRA standards) of the colour nuance. No liability can be accepted for translation errors from foreign-language originals. Complaints must be made within 10 days of publication of the advertisement. After expiry of this period, the publisher's performance shall be deemed to have been approved. In the event of faulty publication which substantially impairs the sense or effect of an advertisement, or in the event of omitted publication, compensation will be made in the form of advertising space up to the size of the faulty or omitted advertisement. If publication no longer makes sense (e.g. in the case of advertising for a single event which has since passed), the customer may alternatively demand reimbursement of the payment already made by him for this advertisement in question. Further claims for damages are excluded to the extent permitted by law (cf. also Sections 4 and 9). The notification of defects or the disputing of one or more items of the invoice shall not release the customer from the obligation to pay the invoice amounts within the deadlines specified in Section 12.
14 Early termination of contract
If the print or online medium ceases to appear during the term of the contract, or if there are important reasons that make it unreasonable to expect the contract to be fulfilled (for example: force majeure; important technical reasons for whose occurrence the publisher is not responsible; non-compliance with legal regulations, essential contractual obligations or non-granting of necessary rights of use by the customer [Section 7 (3)]), the publisher may withdraw from the contract or terminate it without notice without any warranty or compensation obligation or other consequences for damages. The publisher reserves the right to claim damages from the customer insofar as the reason for termination is attributable to the customer. However, the customer is not released from the obligation to pay for the advertisements already published. In the event of premature termination of the contract by the publisher, insofar as the reason for termination is not attributable to the customer, the discount entitlements shall remain in force on the basis of the originally stipulated contract amount. If the reason for termination is attributable to the customer, discount entitlements or other preferential benefits shall lapse on all invoices not yet paid at the time of termination (cf. also Section 12).
15 Amendments to the General Terms and Conditions, severability clause, further details
The publisher is entitled to amend these GTC, the tariffs and any other general provisions at any time. The amended provisions shall also apply to current contracts, unless otherwise specified. However, the customer has the right to withdraw from the contract within 10 days of written notification of the new conditions. In this case, he shall only be entitled to the discount that corresponds to the quantity actually purchased in accordance with the previous discount provisions. Should one or more provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of all other provisions or agreements. Instead of the invalid provision, a provision shall apply which comes as close as possible to the meaning and purpose of the invalid provision in a legally permissible manner. The customer waives the right to set-off against any counterclaims.
16 Jurisdiction, applicable law
The place of jurisdiction for both parties is exclusively St.Gallen. Swiss law shall apply, in particular the provisions of the Swiss Code of Obligations (OR). Further reference norms as well as the UN Convention on Contracts for the International Sale of Goods are excluded.
17. entry into force
These GTC come into force as of 01.10.2017.
Adjusted September 2018.