Terms and Conditions
adRom Media Marketing GmbH
1. Subject of the Contract
The service provider is adRom Media Marketing GmbH (subsequently referred to as adRom) at Lustenauerstrasse66 in 6850 Dornbirn, Austria or their respective successor if the company name or address should change. adRom and its partner companies rent out permission addresses software for e-mail newsletters, market online advertisement spaces and generate leads. There are further products offered in digital online marketing and digital dialogue marketing, which will subsequently be referred to as services. You can contact adRom at any time and request a list of all available services. The recipient of the services is the client (subsequently referred to as client).
2. Applicability, Offers and Conclusion of Contract
- These terms and conditions apply to all services rendered by adRom in connection with the subject of the contract and with the contract about the media services mentioned in no. 1.
- The terms and conditions of the client are voided by the applicability of these terms and conditions. We explicitly object to the application of the client’s terms and conditions. This objection needs no repeating in any case. It also is not necessary to explicitly refer to these terms and conditions for subsequent deals – they will apply to these automatically.
- Statements by adRom about the services shall only be regarded as independent guarantees within the legal meaning if they are provided in writing and marked as “independent guarantees”.
All offers made by adRom are non-binding. All agreements between adRom and the client need to be made in writing, including an amendment to this clause.
3. Implementation of the Contract
- The client has to convey all data, information and material which is necessary for a proper implementation and service at least 5 working days before the beginning of the contractually agreed work. If the provided advertisement material seems to be of no or of limited use (implementation/mailing) after having been inspected by adRom for content and technical details, adRom retains the right to improve the content and technical aspects of said information and material and to make adjustments, of course only insofar as the client can reasonably be expected to accept this and insofar as adRom believes that it serves a better presentation or an optimized performance. adRom also retains the right to decline certain advertisement material and will provide reasons. The client must then provide re-designed advertisement material to adRom which will take into account the reason for the rejection. The loss of time and profit caused thereby is not part of the responsibility of adRom, but must be borne by the client and may have to be reimbursed.
- adRom will be authorized by the client to exercise the rights which are necessary to implement the contractual services and receives the guarantee that the client is the owner of such rights or holds the right towards the owner of such rights to transfer such rights to adRom.
- adRom also receives the guarantee that the contractually agreed service to be provided does not violate any laws or third-party rights. The client has the sole responsibility for the content of the advertisement if it was provided by the client, in particular regarding press laws, competition laws and laws for the protection of minors. The same applies to the legal conformity of the products and services which are being advertised. The client’s advertisement material must in no case contain sexual or pornographic depictions, show indications, terms or names of sexual or pornographic programmes or advertise with sexual or pornographic content or content which is harmful to minors, or be for an activity which requires a permission. It is not the responsibility of adRom to evaluate the legal permissibility of the client’s requests.
- Client shall indemnify adRom against all losses, damages and liabilities, as well as legal expenses (including adequate lawyer’s fees) caused by the client’s violation of laws or these terms and conditions, immediately and upon adRom’s request. The same applies to expenses which are necessary to fend of charges and claims of third parties or competent supervisory authorities.
- It is the client’s responsibility to check whether the services rendered by adRom are in line with the contractual obligations. This has to occur within 48 hours from their first use. Any objections have to be brought to adRom’s attention in writing. The rendered service is regarded as in line with the contractual obligations if the client fails to issue such a written notice.
4. Rights to Templates/Creatives
The client receives a limited right of use to the e-mail and other templates created by adRom for the client. This right of use is a simple and non-transferable right which is limited to the term of the relevant contract and to the use within the scope of the services organised by adRom.
5. Services provided by adRom
- After each service provided under the contract, there will be a report issued for the client.
- adRom may but doesn’t have to exceed the contractually agreed contact volume. Of course only the agreed amount of contacts will be invoiced.
- If the client violates laws or obligations under these terms and conditions, adRom has no obligation to provide the agreed services.
- adRom also has no obligation to provide the services if circumstances occur which are beyond adRom’s control or which are based on force majeure. The obligation to provide the services is only suspended for the time of the events.
- adRom may hire sub-contractors without any effect on the contractual obligations towards the client.
- The information provided by the client for the purpose of rendering the contractual services may be deleted and destroyed by adRom after completion of the contract. It is the client’s own responsibility to adhere to the statutory requirements on record-keeping, including those postulated by commercial and tax law.
6. Lead Generation
adRom collects profile data with the explicit consent of the users to use and transfer their personal data for advertisement or contractually agreed purposes. Consent is obtained in a defined proceeding. Exclusivity of a collected address for one client will only be guaranteed if it has been explicitly contractually agreed. If no exclusive collection of addresses has been agreed, adRom may generate the consent for several clients simultaneously. If the client orders leads for which no prior consent for the use by the client has been obtained, the client bears the legal data-protection risk and the business risk for those leads.
If the contract does not specify a certain way of transmission for the generated leads, adRom will grant online access with the possibility to download the leads. The data and the profiles may only be used for the contractually agreed purpose. The client is not permitted to use the leads for third parties without consent.
With the transfer of the data to the client, the client assumes all responsibility for adhering to data-protection laws. The client may use the data without limitations. Exceptions apply to data which have been provided to marketers whose business is the trade and the transfer of leads and profiles. Such clients may only use the data for their own purposes but may not replicate them. Replication includes so-called sponsoring campaigns where consent is requested “for more than one client at the same time” in a sweepstake or a poll.
adRom has the right to insert control addresses into the transferred leads. If the improper use within the meaning of these terms and conditions of at least one data set will be discovered, the client shall pay adRom liquidated damages at an amount determined by adRom at their discretion, but at least five times the invoice amount of the relevant job or double the amount of the expenses for generating the provided leads. Expenses for generating the leads include the costs incurred by generating these leads and by generating new leads of the same quality, also at a later point in time if a court case will cause a delay and the costs for re-generating leads will change considerably.
7. Payment Terms
- Payments are due without any deductions and immediately upon receipt of invoice. The applicable VAT rate will be added to all price. In the case of late payment, adRom may charge statutory default interest. adRom retains the right to charge further damages or losses.
- The client may only offset the invoice with valid counter-claims or counter-claims recognized by adRom as to their basis and their amount. The client may only use the right to retention if the relevant claims are based on the same contractual relationship.
- adRom has the right to offset payments by the client against older debts first, regardless of the client’s instructions. Of course the client will be informed about this. If interest and costs have accumulated, adRom may offset the payments first against the costs, then against the interest and finally against the main claim.
- If the client is late with the payment or if there is an application for a bankruptcy proceeding concerning the client, adRom may refuse all further services and may invoice all services already rendered. In this situation, adRom may make the provision of further services, including those already agreed upon, dependent on the payment of all existing orders. This has no effect on claims for payment and claims for further damages.
8. Liability and Warranty
- Insofar as provided by law, adRom is liable without limitation for damages that result from bodily injury, the loss of life or the loss of health which were caused by adRom or its legal representative or its auxiliary agent intentionally or negligently.
- For other losses, adRom is only liable as follows: adRom is liable without limitation for losses which were caused by adRom or its legal representative or its auxiliary agent intentionally or with gross negligence, as well as for losses which pertain to a guarantee given by adRom. Limiting damages to the typical and foreseeable amount, adRom is also liable for such losses which are based on the slightly negligent violation of essential contractual obligations. For other cases of slight negligence, liability is waived.
- adRom limits the liability for the loss of data to the typical expenses for recovery which would have been caused if back-ups had been made regularly and in accordance with the risk. This has no effect on the liability in accordance with the products liability law.
- All claims for damages against adRom are subject to a limitation period of one year after the beginning of the general statutory prescription.
- The same applies to the personal liability of employees, agents, sub-contractors and other staff as far as liability has been waived.
- The client is entitled to proper supplementary performance if the services were provided in an unsatisfactory way which had a substantial effect on the purpose of the services. adRom retains the right to choose the kind of supplementary performance. This applies in particular if adRom did not provide the service (in full) due to technical difficulties. The client may only reduce the agreed payment if the services cannot be repeated of the client cannot be expected to accept this solution. The client may impose a reasonable deadline for adRom to repeat the services. If the services won’t be repeated within the deadline, the client may request a refund of the pro-rata fees for the services not provided.
- adRom is entitled to the full fee if a service has not been provided at all or not in a satisfactory way because the client provided the necessary information or material incompletely, late or in an unsatisfactory way or in any other way failed to cooperate, unless adRom culpably failed to use freed-up resources until the day which had been planned for the relevant job in another way.
- All liability is waived for the functionability of telephone lines, of the internet, for power outages and for failures of servers which are not under adRom’s control.
9. Confidentiality and Data Protection
- The client is hereby informed of the fact that adRom applies data-protection laws by storing its data in machine-readable form and uses them in automated ways for the purposes of the contract. The client agrees to this data storage. Insofar as it is necessary, adRom may make the data accessible to third parties insofar as adRom avails itself of the services of third parties for the provision of services.
- The parties shall keep strict confidentiality regarding the content of the offer/contract and other confidential information. The content of the contract and other information may only b disclosed to third parties if there is a legal requirement. Information is not considered confidential if the client or adRom can show that they already knew them before the negotiation for the contract or which have become public knowledge before or after the conclusion of the contract without the client’s or adRom’s contribution.
- adRom may use sub-contractors. Doing so has no effect on adRom’s obligations towards the client. adRom may destroy information which was necessary for the completion of the job once it has been completed.
10. Final Clauses
- Feldkirch is the place of performance and the venue of exclusive jurisdiction for all disagreements arising out of or in connection with the contract.
- The governing law shall be Austrian law, excluding the CISG agreement.
- If some clauses of this contract turn out to be fully or partially invalid or impracticable, the remaining clauses of this contract remain in force. Invalid or impracticable clauses shall be replaced by valid and practicable clauses which comply with the intent and purpose of the contract and which are economically as close as possible to the invalid or impracticable clauses.
Rankweil, 2 June 2008
adRom Media Marketing