"Advertising order" in the sense of the following general terms of business is the contract for the publication of one or more adverts of an advertiser or other marketer in a printed publication for the purpose of circulation.
Unless otherwise stated, adverts should be released for publication within one year of the contractual signing. If the right to release individual adverts is included as part of the contract, the order should be processed within one year from the appearance of the first adverts where the first adverts are released and published within the timeframe stated in clause 1. The discounts shown on the advert price list are only given for advertisers' adverts which appear in a brochure within a year. The timescale begins on the date of appearance of the first advert, unless a different start date has been agreed in writing upon signing of the contract. The size of discount is based on volume. If, within a year, fewer adverts are taken than originally agreed, the publisher shall be entitled to re-calculate the discount based on the difference between the actual and guaranteed number taken.
Upon contractual signing, the client shall be entitled to release adverts in addition to the volume stated in the order within the agreed timeframe or that stated in clause 2.
If the contract is not fulfilled for reasons that are not the fault of the publisher, the client, without prejudice to any other legal obligations, shall compensate the publisher with the difference between the guaranteed discount and the discount corresponding to the actual volume. If the non-fulfilment by the publisher is attributable to force majeure, the client shall not be entitled to compensation.
In the calculation of advert volumes, text millimetre lines are converted according to price into advert millimetres.
Orders for adverts and other marketing material to be published specifically and exclusively in specific issues, specific publications or in specific places in the publication must reach the publisher in sufficient time for the client to be able to be informed before the advert deadline of whether the order can be executed in the requested manner. Categorised adverts are printed under the relevant category without this requiring express agreement.
Orders for adverts and third-party inserts to be published specifically and exclusively in specific issues, specific publications or in specific places in the publication must reach the publisher in sufficient time for the client to be able to be informed before the advert deadline of whether the order can be executed in the requested manner.
Text component adverts are adverts which adjoin the text and not other adverts for at least three pages. Adverts that are not recognisable as adverts because of their editorial layout are clearly marked with the word "Advert" by the publisher.
The advertising customer is responsible for making sure that the printed documents made available by the publisher do not infringe the rights of third parties. He declares that he possesses all necessary rights of use and exploitation for the placing and publication of the print documents provided by him and is authorised to do this. In case an advertisement is produced by the publisher, the customer also declares that he has all the rights required for the production of the advertisement. If these rights are infringed, the customer is liable in every case.
The publisher reserves the right to reject advert orders, including individual adverts under a contract or orders for inserts on grounds of content, origin or technical format under its own standard, factually justified principles, if their content contravenes legal or regulatory stipulations or their publication is unacceptable for the publisher. This applies to orders submitted to branch offices, receiving offices or representatives. Orders for inserts are only binding for the publisher once the insert template has been submitted and approved. Inserts which, due to the format or appearance, may appear to the reader to be part of the newspaper or magazine, or which contain third-party adverts, shall not be accepted. Rejection of an order shall be communicated to the client without delay.
The client shall be responsible for prompt delivery of the advert text and accurate printing data and inserts. The publisher shall request replacement for recognisable inaccuracies or damaged printing data without delay. The publisher guarantees print quality normal to that of the title concerned within the scope of the possibilities of the printing data.
The client shall be entitled to a reduction in payment or corrected replacement advert in cases of fully or partly illegible, incorrect or incomplete printing of adverts, but only to the extent that the purpose of the advert is affected. Should the publisher allow the timeframe given to it to elapse or the replacement advert still be incorrect, the client shall be entitled to a reduction in payment or cancellation of contract. Compensation claims from positive breaches, faults upon contractual signing or non-permitted acts are excluded. This also applies to contracts concluded by telephone. Compensation claims from impossibility of provision or delay are limited to compensation for foreseeable damage and to the fee due for the advert or insert concerned. This does not apply to intent or gross negligence on the part of the publisher, its legal representatives and its fulfilment agents. The publisher's liability for damage due to the lack of assured features remains unaffected. In sales transactions, the publisher will also not be responsible for gross negligence on the part of the fulfilment agents; in other cases, liability of salespeople for gross negligence is limited, according to the circumstances, to foreseeable damage up to the amount of the advertising fee concerned. Except in the case of defects that are not obvious, claims must be made within four weeks of submission of invoice and receipt.
Samples are only provided where specifically requested. The client shall be responsible for the correctness of the returned samples. The publisher shall observe all error corrections made known to it within the period specified upon sending the sample. Should the client fail to return a sample sent on time by the publisher within the specified period, approval for print shall be deemed to have been given.
Unless any specific sizing requirements have been given, the amount to be charged shall be calculated based on the print size that is normal for the type of advert.
Should the client fail to pay in advance, the invoice shall be sent immediately or within a maximum of fourteen days after publication of the advert. The invoice must be paid within the period given in the price list, starting from the date of receipt of invoice, unless a different payment period has been agreed in individual cases.
In the event of a delay or deferral in payment, interest and recovery costs shall be added to the amount due. In the case of payment delay, the publisher may withhold further publication under the order concerned until payment is made and demand advance payments for the remaining adverts. Where there is established doubt over the client's ability to pay, the publisher shall be entitled, even during the term of an advertising contract, to make the publication of further adverts dependent on the prepayment of the sum due and the settlement of outstanding invoices, regardless of the payment terms originally agreed.
The publisher shall provide, upon request, an advert record along with the invoice. According to the type and scope of advertising contract, advert extracts, record pages or full record numbers will be provided. If a record can no longer be created, it will be replaced with a legally binding certification from the publisher of the publication and distribution of the advert.
The client shall bear the costs of the production of ordered printed documents and of considerable changes arising or requested by the client to the specifications originally agreed.
In the event of reduction in circulation, a price reduction may be claimed for contracts for a series of adverts if, in the overall average of the insertion year of the first advert, the average circulation stated in the price list or stated any other way or, if a circulation figure is not given, the average number of issues sold (for trade magazines, where appropriate, the average actual distribution) in the previous calendar year is not exceeded. A reduction in circulation is only deemed as a deficiency eligible for a price reduction if it amounts to
20% for circulation of up to 50,000 copies
15% for circulation of up to 100,000 copies
10% for circulation of up to 500,000 copies
15% for circulation of up to 500,000 copies.
In addition, claims to price reduction are excluded upon contractual signing if the publisher has given the client sufficient notice of the reduction in circulation for the client to be able to cancel the contract before publication of the adverts.
With numeric displays, the publisher shall exercise the same care as a proper professional in the safekeeping and prompt issuing of offers. Registered and urgent mail relating to numeric displays is only sent through the normal postal channel. Entries in numeric displays are stored for four weeks. Mail not collected within this period is destroyed. The publisher shall return valuable documents without being obliged to do so. The publisher reserves the right, in the interest and for the protection of the client, to open incoming offers in order to eliminate misuse of the numeric service for investigation purposes. The publisher is not obliged to pass on business promotions and mediation offers.
Print documents are only sent to the client if specifically requested. The obligation of safekeeping ends three months after expiry of contract.
In dealings with its business partners, Ernst & Sohn stores data for the purpose of processing in automated procedures.
The place of fulfilment is the publishers' domicile. In dealings with traders, and legal entities under public law, or with special assets under public law, the place of jurisdiction for legal proceedings shall be the domicile of the publisher. Where claims of the publisher are not validated in enforcement proceedings, the place of jurisdiction for non-traders shall be determined in accordance with their domicile. If the place of domicile or usual place of residence of the client at the time of the raising of proceedings is unknown or the client has relocated its domicile or usual residence since the contractual signing to somewhere outside the geographical scope of the law, the domicile of the publisher shall be agreed as the place of jurisdiction.