1.1 Tageszeiten Marketing GmbH ("Abend") markets events on Facebook, Instagram and other advertising platforms. For this purpose, Abend uses content that the customer makes available to it ("advertising material"). These evening services are hereinafter collectively referred to as the "Marketing Services".
1.2 These general terms and conditions ("GTC") apply to all current and future business relationships between Abend and its customers.
1.3 These terms and conditions are only applicable if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
1.4 The customer's general terms and conditions only apply if Abend expressly acknowledges them in writing or in text form (e.g. by email). This reservation also applies if Abend provides services without reservation with knowledge of the general business relationships of the customer.
2 conclusion of contract
2.1 A contract between Abend and the customer is concluded when the customer enters the desired campaign data in the login area of the Abend website. Abend submits a corresponding offer in the login area, which the customer accepts by pressing the button "(booking amount) € booking" ("order").
2.2 The scope of services, remuneration and other contractual conditions for the respective campaign result from the specific order. Insofar as regulations of such an order differ from those of the present General Terms and Conditions, the regulations of the order take precedence.
3 Provision of advertising material and other forms of cooperation by the customer
3.1 In the evening, the customer provides the agreed advertising material, any tracking pixels for the advertising material and all other information, content, documents and explanations on the agreed dates. Unless otherwise agreed in the order, the customer delivers the advertising material, the target URLs and other information required for the integration of the advertising material electronically in the evening at the latest one week before the agreed start of the campaign.
3.2 The customer's advertising material must comply with the Facebook specifications for the respective advertising material.
3.3 Insofar as the customer's advertising material contains links, the customer is obliged to maintain the respective target URLs to which these advertising materials link for the campaign period agreed in the order (and any necessary subsequent delivery and catch-up times) so that they can be used for these periods are continuously available in accordance with the state of the art.
3.4 If the customer discovers any disruptions in the linking of the advertising material, he will inform Abend of this immediately.
3.5 If the customer does not meet his obligations to cooperate or does not do so in good time, Abend is not responsible for any resulting delays, poor performance or the impossibility of providing its marketing services. Abend is entitled to interrupt the provision of the marketing services concerned until the customer has given the necessary cooperation. Abend points out to the customer if the customer does not fulfill an obligation to cooperate as agreed.
4 Customer Responsibility for Promotional Material and URLs
4.1 The customer ensures that all content and advertising statements of the advertising material comply with the current Facebook advertising guidelines. The current advertising guidelines of Facebook can be found at:
4.2 The customer must check the advertising material provided by him (including the content and advertising messages they contain) as well as the content displayed on the target URLs (all together the "advertising material") for their legality and compatibility with morality. He assumes sole responsibility for their legality and compatibility with good morals. Checking the advertising material for legality, compatibility with good morals and compatibility with Facebook's advertising guidelines is not one of Abend's tasks.
4.3 The customer guarantees Abend that the advertising material and its contractual use by Abend is not illegal or immoral, in particular neither
is harmful to minors, insulting, defamatory, racist, glorifying violence or otherwise constituting a criminal offense or calling for it, nor
violates applicable press or media regulations, nor
Third party rights (e.g. trademark, copyright, patent or design rights, rights to one's own image, naming rights, title rights) violated or linked to content that violates such third party rights, nor
includes or links to pornographic or erotic content, nor
violates the law against unfair competition or other statutory provisions applicable to the advertising of the respective events of the customer.
4.4 Insofar as the respective campaign is aimed at users based outside Germany (i.e. the customer's advertising material is to be integrated into Facebook pages that are addressed to users in another country), the customer guarantees Abend that his advertising material will also be based on the any applicable provisions of the law of that other state or those other states is not unlawful.
4.5 The customer ensures that no illegal or immoral services or illegal or immoral goods are offered, carried out or advertised on the target URLs specified by him and that such activities are not called or instructed (e.g. instructions for hacking software and hardware, illegal download offers for films, music, software, illegal gambling or betting, etc.). The websites, offers and services that can be reached under these target URLs must comply with the requirements of the Telemedia Act, in particular with the imprint obligation and the data protection regulations.
5 Rejection of advertising material
5.1 Abend is entitled to reject advertising material from the customer that does not meet the agreed specifications. In this case, the customer provides new advertising material that meets the specifications.
5.2 If there is a reasonable suspicion that the advertising material provided by the customer contains illegal or immoral content, in particular infringes the rights of third parties, Abend has the right to reject this advertising material or to interrupt the campaign in question until the suspicion has been dispelled. A justified suspicion in this sense exists in particular if such a suspicion is indicated by an official or judicial procedure or by a criminal investigation or there are indications that such a procedure is being initiated. The same also applies if Abend or Facebook is asked by a third party to refrain from further placing the advertising material, unless the third party's claim is obviously unfounded. Abend will immediately notify the customer of the rejection or blocking of the advertising material, stating the reasons. The evening's remuneration claims remain unaffected by such an interruption or rejection.
5.3 Facebook reserves the right to reject advertising material and campaigns at its own discretion. Evening does not affect such a decision. If a campaign is rejected by Facebook, Abend informs the customer immediately and tries to find out the reasons for the rejection. As far as possible, Abend submits a proposal to change the campaign or the advertising material in coordination with the customer Facebook. If the rejection remains, both parties are entitled to withdraw from the affected part of the campaign. With regard to the rest of the campaign, the order remains in principle. Section 323 (5) BGB remains unaffected.
6 Placement and delivery of advertising
6.1 Evening integrates the agreed advertising material of the customer for the agreed campaign duration on Facebook. If no campaign duration has been agreed, the advertising material will be integrated until the agreed target volume of the campaign has been reached. Deadlines and dates for the campaigns are only binding if they have been agreed as binding in the order.
6.2 Abend selects the pages and content on Facebook at its reasonable discretion, taking into account the campaign goal communicated by the customer. Unless otherwise agreed in the order, Abend does not owe any specific advertising material placements or the delivery of a specific number of AdClicks or AdViews on a specific placement.
6.3 If the delivered advertising material is not clearly recognizable as advertising for the user, Abend is entitled, but not obliged, to label the advertising material in a suitable form as advertising.
7.1 Abend records AdViews (number of times the customer's advertising material is called up from the AdServer) and AdClicks (number of times a user has called up a hyperlink integrated in the content of the customer's advertising material, which leads to the customer's linked target URL) via its own ad server.
7.2 Only the reporting from Abend is decisive for the counting and billing of the volumes of AdViews and AdClicks delivered to the customer. Deviating figures, which the customer may have counted with another AdServer, are not taken into account. This does not apply if the counts by the customer and by Abend demonstrably differ by more than 10%. In this case, the parties will agree on the counting quantity that is relevant for the campaign. In this case, the customer grants Abend or an expert commissioned by Abend, who is bound to secrecy, access to the relevant metrics, advertising campaign measurements and data on the AdServer used by him in order to clarify the deviations.
8 Postponements or failure of campaigns
8.1 If a period has been agreed for a campaign and the agreed period is not possible for reasons for which Abend is not responsible, e.g. reasons that are the responsibility of third parties who are not vicarious agents of Abend (e.g. Facebook, network operators), Abend informs the customer immediately. Evening catches up with the campaign in the next possible period, unless this is unreasonable for the customer due to his campaign goal or for other reasons. If it is not possible to catch up on the campaign within a month before or after the agreed campaign period (e.g. due to lack of availability of the booked content) or if it is unreasonable, the customer can either transfer the campaign to other pages suggested by Abend (if available) or from the person concerned Withdraw the order with immediate reimbursement of the remuneration already paid for this. This also applies in the event that the catch-up cannot be reasonably expected.
8.2 If it is not possible to catch up on the campaign within one month before or after the agreed campaign period, Abend can withdraw from the order and immediately reimburse the customer for the remuneration already paid for this. In this case, the customer only has further claims if Abend is responsible for the impossibility.
9 Granting of rights
9.1 The customer grants Abend the non-exclusive, non-transferable and worldwide right to publish the advertising material for the agreed campaign period (as well as subsequent delivery and catch-up periods) via Facebook and Facebook members via fixed and mobile communication networks in places and at the times of their choice for the purpose of use at the same time or successively - on request or as a push - to make accessible, to transmit, to send and to reproduce the advertising material for the above purposes. For this purpose, Abend is entitled to grant Facebook sub-licenses to the rights of use granted to the extent required.
The above granting of rights includes in particular the right to use the advertising material:
including all digital and analog transmission and retrieval technologies, in particular via cable, radio, fixed and mobile satellite networks, terrestrial methods and microwaves of all methods;
including playback, downloading and storage on any receiving devices of the users (such as personal computers, tablets, televisions, set-top boxes, (hard disk) video recorders, mobile phones and smart phones); as
in the electronic databases of Abend and its sub-licensees (ie the right to record the provided advertising material in a machine-readable manner and to save it electronically in the databases and to make it accessible to users there).
The above granting of rights relates in particular to existing copyrights and ancillary copyrights to the advertising material, rights to one's own image as well as name, title, brand and other trademark rights.
9.2 In addition, the customer grants Abend a simple, temporally and spatially unlimited right to
to collect, save, process, link with data from other customers and use the customer's campaign data logged and anonymized by Abend for their own business purposes, in particular for the creation of performance statistics, for the analysis, control and improvement of their services, for prevention and clarification of abuse as well as to advertise the services of Abend to third parties, and
to integrate the advertising material in the evening's marketing material (e.g. as screenshots in presentations, in promotional videos, etc.) and to use them as part of this marketing material to advertise the evening's services.
10 Rights Guarantees and Indemnification
10.1 The customer guarantees Abend that he is the owner of the rights granted in Section 9. The customer also guarantees that the granted rights of use are not encumbered with rights of third parties that would impair their contractual exercise and that the contractual exercise of these rights of use does not infringe the rights of third parties.
10.2 The customer also guarantees to Abend that he is the owner of the domain rights for the target URLs and is authorized to advertise the target URLs.
10.3 Upon first request, the customer shall indemnify Abend from all civil, public and criminal law claims by third parties (as far as legally permissible and possible) that these third parties may have as a result of a culpable breach of the customer's obligations in accordance with clauses 3 and 4 or as a result of non-compliance with the guarantees of the customer in accordance with Sections 4.3, 10.1 and 10.2. This indemnification entitlement also includes the costs of the necessary legal defense of the person to be released against such claims, including attorney fees up to a maximum of the statutory fees in accordance with the Attorney Remuneration Act. Abend informs the customer immediately if third parties assert such claims against them.
11.1 The remuneration to be paid by the customer results from the respective order. The agreed remuneration does not include the license remuneration to be paid to collecting societies such as GEMA for the online access to the advertising material for the use of works and services protected by copyright.
11.2 Unless otherwise agreed in the order, Abend will invoice the agreed remuneration immediately after the order has been completed. Upon receipt of the invoice, the agreed amount of money is due and must be transferred to the account specified in the invoice without any deductions within two weeks.
11.3 All agreed prices are strictly net and are to be paid plus sales tax at the applicable statutory rate, insofar as this is incurred in accordance with the applicable regulations.
11.4 The customer is only entitled to offset against a payment claim from Abend and to withhold payments from Abend if his counterclaim has been legally established, is undisputed by Abend or has been recognized.
12.1 Evening sends the customer an invoice (reporting) within one month of the end of the respective campaign, which also shows the recorded number of AdViews or AdClicks of the respective advertising placements of the campaign.
12.2 Evening bills are deemed to have been approved by the customer if the customer does not object to the respective billing in writing within one month of receipt, stating reasons.
13 Inadequate marketing services
13.1 The customer is obliged to check the advertising campaign immediately after the start of the campaign and to notify recognizable defects in writing or by email immediately, but no later than one week after the start of the campaign. If the customer fails to provide this notification, the marketing services with regard to such recognizable defects are deemed to have been approved in accordance with the contract. The customer must report any defects that are not recognizable during such an inspection immediately (but no later than two working days) after their discovery in writing or by e-mail in the evening. If the customer fails to provide this notification, the marketing services are deemed to have been approved in accordance with the contract, also with regard to such hidden defects. It is sufficient to send the notification in good time. This section 13.1 does not apply if Abend fraudulently concealed a defect.
13.2 In the case of inadequate marketing services, Abend is initially entitled to supplementary performance in the form of making up for the campaign affected by the defect within a reasonable period of time. If the defect-free recovery fails within a reasonable period, the customer can choose to reduce the remuneration in accordance with the defect or to withdraw from the order in whole or in part or to terminate it.
13.3 In the event of defects or other poor or non-performance of services provided by Facebook, Abend assigns the customer its claims against Facebook due to the service complained about. Abend can demand that the customer first assert these claims directly against Facebook, if necessary also in court. However, the customer is not obliged to assert these claims against Facebook in court if this is unreasonable for him (in particular if such a judicial assertion has no prospect of success due to the circumstances of the respective case). If the customer fails to use Facebook for reasons for which the customer is not responsible, the customer can assert his claims in accordance with the statutory provisions, taking into account these terms and conditions, in each case step by step against reclassification of the claims against Facebook, directly towards evening .
13.4 Insofar as Abend is liable for damage in accordance with Section 14 or has fraudulently concealed a defect, these claims for damages and defects shall become statute-barred in accordance with the statutory statute of limitations. All other claims for defects and other claims due to other poor or non-performance become statute-barred within one year from the start of the statutory limitation period.
13.5 Claims of the customer due to defects and other poor or non-performance do not exist if and to the extent that these defects, poor or non-performance are due to the culpable breach of the customer's duty to cooperate, to express instructions or requirements of the customer, to inadequate supplies by the customer or to a Use of the marketing services by the customer are contrary to Facebook's advertising guidelines.
14.1 In the following cases, Abend's liability is limited to the damage that was foreseeable when the contract was concluded and typically occurs in this type of business:
in the case of a culpable breach of cardinal obligations, provided that this is not caused by gross negligence or intent, as well as
in the case of grossly negligent breach of other obligations by employees or vicarious agents of Abend who are not their legal representatives or executive employees.
14.2 Except in the case of willful misconduct or gross negligence on the part of Abend, its legal representatives, executives or other vicarious agents, Abend's liability for all damage is also limited per damaging event to the amount of the remuneration that the customer Abend pays for the campaign affected by the damage was obliged.
14.3 All of the above exclusions and limitations of liability do not apply to claims under the Product Liability Act, in the event of willful intent, fraudulent concealment of defects and for damage resulting from injury to life, limb or health.
15.1 Ordinary termination of an order is not possible. The right of each party to terminate an order for an important reason (and, if applicable, without notice) remains unaffected. Abend is particularly entitled to terminate the contract without notice if
the customer does not make due payments within two weeks of receiving the reminder despite a reminder,
if the advertising material provided by the customer is unlawful, violates common decency or violates the rights of third parties and the customer does not immediately provide evening with legal and decent advertising material after a reminder, or
an application is made to open insolvency proceedings against the customer's assets and such an application has not been rejected as unfounded by the competent court within six weeks.
15.2 In the event of termination, the customer only pays for those services that Abend had already provided when the termination was received or that were firmly booked on Facebook. The total remuneration is to be reduced proportionately accordingly
All mutual claims arising from or in connection with an order expire if they are not asserted in writing against the other contracting party within three months of the due date.
17 Customer reference
Abend is entitled to name the customer as a customer to third parties.
18 written form
Changes, additions and the termination of an order must be made in writing to be legally effective. The parties must also waive the written form in writing. The parties agree that the written form requirement is met if the relevant written and signed declarations of the parties are scanned and sent as a PDF by email to the email addresses provided by the parties for this purpose.
19 place of jurisdiction
The exclusive place of jurisdiction for all disputes arising from or in connection with this contractual relationship, also with regard to its effectiveness, termination and termination, is Berlin.
20 Choice of law
The present terms and conditions as well as all orders concluded between Abend and the customer are exclusively subject to the law of the Federal Republic of Germany. The application of the UN sales law (Convention on the International Sale of Goods - CISG) is excluded.
Notes on data processing
We attach great importance to the protection of the privacy of our users. The processing of all data that is made available to us takes place exclusively in strict compliance with the General Data Protection Regulation (EU GDPR) as well as all other data protection laws or provisions of a data protection nature applicable in the member states of the EU. This applies in particular to the processing of personal data. Further information is contained in the data protection declaration, which is available at https://abend.net/datenschutz.