General Terms and Conditions of Publicitas Digital
1 Scope
1.1 Publicitas Digital is the unit of Publicitas AG based in Lausanne which specialises in the development and sale of digital products together with the sales organisation of Publicitas in Switzerland and the companies abroad (hereinafter referred to as Publicitas).
1.2 Publicitas markets and sells advertising space on various digital platforms (e.g. web, mobile, tablet, screens, hereinafter referred to as platform) of various domestic and foreign media brands (hereinafter referred to as media providers).
1.3 These general terms and conditions (hereinafter referred to as the GTC) govern the contractual relationship between the advertising customer (hereinafter referred to as the customer) and Publicitas.They are an integral part of any contract between the customer and Publicitas.
1.4 The contracts relate in particular to the activation of digital advertising material using IAB standard and special advertising formats, animated images and videos (hereinafter referred to as advertising material) for a definite period, including or excluding consultancy, creation of the advertising material or the creation of a layout.
1.5 Publicitas’s services are provided solely in accordance with these GTC or any individual agreements in writing with Publicitas.The customer’s general terms and conditions do not apply, even where the customer claims that only its general terms and conditions apply.
2 Conclusion of contract
2.1 The contract between the customer and Publicitas is concluded
• when the customer accepts the GTC and confirms or sends the online booking,
• when Publicitas receives the signed order (completed advertising material including meta data, text and any picture files) from the advertising customer for activation,
• when Publicitas agrees in writing to the creation of advertising material with the advertising customer
• or registers a credit balance for the advertising customer for use of a Publicitas tool.
2.2 Advertising, media, PR, DM and web agencies (hereinafter referred to as agencies) act on behalf of and for the account of the customer.Publicitas only accepts orders from agencies for named customers.Publicitas is entitled to request from agencies proof of the authority to act granted by the customer.A customer represented by an agency can only discharge its payment obligation towards Publicitas by payment to Publicitas.
3 Tariffs, prices
3.1 The current tariffs set by the media provider or where applicable Publicitas apply.For any services performed by Publicitas, Publicitas’s pricelists apply.
3.2 Costs for extraordinary expenditure such as express services, frequent alterations and third-party services such as translations shall be invoiced additionally.
3.3 Changes to tariffs and prices come into effect immediately. The customer has the right to withdraw from the current contract within two weeks of the announcement of the change. The services performed to this date or bookings which have already been made with third parties and cannot be cancelled have to be compensated by the customer. Any volume discounts shall be reduced in accordance with the volume actually purchased up until the time of the withdrawal from the contract.
3.4 Agencies are obliged to adhere to the tariffs with their customers.
3.5 The evaluation by the ad management tool provides the basis of calculation for the correct implementation of campaigns and for the billing of these.However, the customer does not have the right to know which platform generates which number of impressions or clicks on his advertising material.
4 Volume agreement, volume discounts, price reductions
4.1 Media providers may grant volume discounts for the purchase of defined activation volumes for a definite period (volume agreement).If the agreed activation volume in this period is exceeded and as a result a higher discount level is reached, these may also be applied in accordance with the media provider’s terms and conditions.Unsolicited additional volumes for which Publicitas does not charge the customer cannot count towards a volume agreement though.
4.2 Volume agreements can only be made by an individual customer.As a rule a separate volume agreement applies for each platform.
4.3 Publicitas may grant an agency commission to agencies or other brokers of advertising orders, provided they a consultancy service to their contract partners or provide proof of such services.
4.4 Publicitas may remunerate agencies and other brokers of advertising orders for services which result in a reduction in costs for Publicitas.This remuneration is based on a separate agreement, which also governs the conditions.
4.5 The agencies and other brokers of advertising orders assure Publicitas that they will use all kinds of discounts in accordance with the law.They assure in particular that they shall inform their customers in full and transparently of the discounts and that they shall pass on the discounts to their customers in full, unless the respective customer explicitly foregoes this right.
5 Delivery of the file or the tag
5.1 The customer is obliged to provide Publicitas with the files or tag required for the activation in the form requested by Publicitas no later than five working days before the initial activation.
5.2 The files or tag are transmitted at the customer’s risk.Publicitas does not accept liability for the loss or damage of data.
5.3 Files used may be archived by Publicitas for a defined period of time.However, Publicitas offers no guarantee for this.
6 Changes to advertising material, withdrawal from the contract
6.1 In the event of changes to the advertising material or layout or withdrawal from the contract by the customer less than five working days before the initial activation of the advertising material, the originally agreed price shall be owed in full. In the event of changes or withdrawal that are advised earlier, at least the costs for the services performed to date by Publicitas shall be owed.
6.2 A change or withdrawal request must always be sent in writing (letter or fax) or electronically (e-mail) stating the reasons to p-digital@publicitas.com.
7 Early cancellation of the contract by Publicitas
7.1 If a platform stops appearing or activating the customer’s advertising material during the term of the contract, in particular during a planned campaign or layout, Publicitas may withdraw from the contract relating to this platform with immediate effect and without obligation to pay compensation.
Publicitas is also fully entitled to withdraw if the customer, despite having received a warning, breaches the GTC or does not meet its payment obligations.
7.2 Withdrawal by Publicitas does not absolve the customer from the obligation of paying for the advertising material that has been activated and the services already performed.
8 Rights of the media provider
8.1 The media provider and Publicitas and entitled, without stating reasons, to demand changes to the advertising material or to reject it completely.This right shall remain even if the advertising material has already been activated.Publicitas shall inform the customer of the rejection immediately.
8.2 In the event of a rejection, the customer shall have the opportunity to provide immediately new or amended advertising material to which the reasons for the rejection do not apply.Further rights of the customer are expressly excluded.
8.3 The media provider is free to change its range of advertising at any time, to make price changes or to remove them in full or in part from its range.
9 Customer’s liability for content and quality
9.1 The customer is responsible for the content (including links and the content of the linked sites and objects) and the quality of the advertising material.It must assure independently that this content complies with the law, common decency and the regulations of the advised media provider and respects the relevant laws, conventions and industry rules.
The customer acknowledges that where advertising material is activated on websites outside of the EU, the national law of the country concerned is relevant.
9.2 The customer indemnifies Publicitas, its executive bodies and ancillary staff against all claims of third parties relating to the content of its advertising material to the extent permitted by law.It shall assume the costs relating to an (out-of-court or in-court) dispute and shall join an action if requested by Publicitas.
9.3 Publicitas may invoice the customer in full for the amount owed for agreed and bindingly-booked advertising space if the advertising space cannot be activated for reasons for which the customer is responsible. This applies in particular if the advertising material is not provided to Publicitas on time, contains errors, is incorrectly labelled or has been subsequently amended. In these cases Publicitas does not any accept responsibility for the advertising material being duly activated. The customer may also be invoiced for any additional costs incurred by Publicitas or the media provider.
9.4 Publicitas does not accept any responsibility for the suitability or appropriateness of advertising material created for the customer for certain platforms.
10 Inadequate activation of advertising material
10.1 The customer recognises that the activation of advertising material may be delayed, interrupted or even stopped at the discretion of the media provider for technical reasons or force majeure.Publicitas shall not assume any liability for these events.
10.2 If a customer finds fault with the activation of advertising material, it must notify Publicitas within five calendar days of the initial activation.
10.3 If the meaning or the effect of the advertising material is significantly impaired due to a breach of duty for which Publicitas is responsible or if such advertising material has not been activated for several days or has not been activated at all due to a breach of duty for which Publicitas is responsible, Publicitas shall waive the costs agreed for the activation concerned or arrange for an extension or further activation of the advertising material in the agreed manner.
10.4 All further claims by the customer relating to the activation of advertising material are excluded.In particular Publicitas does not accept any responsibility for any loss of business for the customer associated with the inadequate or non-activation of the advertising material.
11 Invoicing, payment terms
11.1 Invoices are issued depending on the advertising service when the contract is concluded, monthly or at the end of the advertising campaign.
For the activation of small or special online advertising, Publicitas may demand payment in advance.
11.2 Publicitas’s invoices are due for payment without the deduction of any discount within 30 days of the invoice date printed on the invoice.
11.3 After the payment deadline has passed, the customer shall without further warning be in default and have to pay default interest of 5%.
11.4 The cost for warnings may be invoiced at no less than CHF 30 per warning.
11.5 In the event of default, prosecution, moratorium on debt enforcement or insolvency, any discounts or brokerage commission shall no longer apply.
12 Intellectual property, know-how
12.1 The customer confirms that it is the owner of all necessary rights (e.g. copyrights and trademark rights) of advertising material it has sent.The customer grants Publicitas and the media operators the rights of use required to complete the order.
12.2 The customer recognises the intellectual property rights, in particular copyrights, of Publicitas for all of the advertising material it has created itself with an individual character. Provided that the customer meets its contractual obligations to Publicitas, it shall be allowed to use the intellectual property for its original intended purpose for an unlimited period of time.
12.3 Publicitas is entitled to use and evaluate know-how (such as ideas, concepts, processes, aggregated data and analyses), which it acquires in fulfilling the contract alone or together with the customer, independently from the customer.
13 Data protection
13.1 If the customer’s private data or the private data of its employees or representative is made available or accessible to Publicitas while fulfilling the contract, it may use this for the purpose of performing its contracted services and may make it available to third parties such as subcontractors to the extent it deems reasonable.Publicitas shall in such cases take the customary precautions in order to ensure an appropriate level of data protection.
13.2 The customer assures that it complies with the Swiss Data Protection Act in respect of the technology it uses and its collection and processing of data.
14 Publicitas’s liability
14.1 Publicitas's liability is, so far as is legally permitted, excluded.Publicitas shall only be liable for any damages, for whatever legal reason, in the event of wilful intent or gross negligence.The liability of ancillary staff is excluded.
14.2 In particular Publicitas shall not be liable for the consequential losses (e.g. loss of profit and the like) of the customer, its business partners or other third parties.
14.3 Publicitas’s liability is in any case limited to the remuneration paid by the customer under the contract concerned during the 12 months prior to the event causing the liability.
14.4 Publicitas endeavours to technically eliminate manipulations of platforms by automated, sham or fraudulent means or by repeated manual clicking for the purpose of artificially inflating impressions or the number of clicks.However, it provides no guarantee here.
15 Amendments to the GTC
15.1 Publicitas may amend the GTC at any time.Amendments to the AGB are published seven calendar days before they come into effect on the Publicitas’s website at www.publicitas.ch/digital.Customers with current contracts shall in this event be informed of the new GTC.
16 Salvatorius clause
16.1 If one or more provisions in these GTC should be or become ineffective, in cases of doubt this shall not affect the effectiveness of any of the other provisions or agreements.The ineffective provisions shall be replaced by a legally admissible provision which is as close as possible to the economic meaning and purpose of the ineffective provision.
17 Applicable law, place of jurisdiction
17.1 Only Swiss substantive law shall apply to contracts between the customer and Publicitas, unless mandatory legal provisions declare that another law is applicable.Referral to other standards and the UN Convention on the International Sale of Goods are excluded
These general terms and conditions come into effect on 1 December 2011.