General Terms and Conditions (GTC)
1 Parties to the contract and applicability
1.1 AdUnit AG is the supplier (Supplier) of the services outlined on adunit.ch. The supplier concludes a contract with the customer for the respectively required services.
1.2 These General Terms and Conditions of Business (GTC) for AdUnit services regulate the legal relationship between the customer (Customer) and the supplier with regard to the AdUnit services and are a component of the contract concluded between the customer and the supplier. The supplier is entitled to amend these GTC at any time. The customer can inspect the GTC current at any given time on adunit.ch.
2 Entry into force and term of the contract, cancellation, termination
2.1 The contract for the supply of AdUnit services enters into force when the supplier confirms the invitation to tender from the customer by e-mail or when the customer confirms the tender from the supplier by e-mail (hereinafter also: award of contract or booking). The contract for the performance of the AdUnit service is concluded for the fixed-term agreed or until the exhaustion of the agreed budget from date of distribution. The supplier may terminate the contract without giving notice at any time for good cause, such as, for example in the case of breach of Point 5.
2.2 A rebooking or cancellation of the booking is possible prior to the date of distribution against compensation in full to the supplier and to any third parties for services al-ready performed. A rebooking must be made at least five working days prior to the first distribution date.
3 Services of the supplier
3.1 The supplier offers the customer the option of regulating its advertising in accordance with the extent of its booking on various channels with-in a campaign. For this purpose the supplier publishes on behalf of the customer advertising contents supplied, e.g. texts, images, logos and other contents (advertising contents) on third-party platforms and, depending on the AdUnit service, on search engines (third-party platforms and search engines are referred to hereinafter as Publisher).
3.2 The contents of the services for the respective campaign are stipulated in the contract between the customer and the supplier. The listed impressions are an estimate and not guaranteed. The quantity varies according to the delivered advertising materials (type and formats).
3.3 The customer is advised that publication of advertising contents on Google and Facebook presupposes in each case that the customer has an existing account with them. Such or similar conditions may be also be demanded by other publishers. At the request and with the assistance of the customer the supplier can assist the customer on a one-off basis in creating a Face-book Fanpage (hereinafter: FBF) and/or a Google My Business Accounts (hereinafter: GBA). If the supplier undertakes to create such an account, the customer shall state the name of its administrator and assign the right by e-mail to the supplier to create the FBF or GBA in his name. Once the FBF or GBA has been created initially by the supplier, the supplier shall transfer the respective administrator rights by e-mail to the administrator designated by the customer. On the transfer of the administrator rights to the customer all the supplier's obligations with regard to the creation of the FBF or GBA are satisfied. Thereafter, the customer shall be responsible for any maintenance and updating of the FBF or GBA. In particular, it is the sole responsibility of the customer to comply with the conditions of use of Facebook or Google. The (successful) creation of a FBF and/or GBA is neither the duty nor the responsibility of the supplier. The supplier may request the customer at any time to do this independently.
3.4 The configuration of the publish-er within the supplier's network may change at any time. In particular, individual publishers may during the term of the contract be exchanged with others, cease to advertise or new ones may be added. However, this does not represent improper performance on the part of the supplier and does not release the customer from its payment obligation.
3.5 In providing its services the supplier applies the customary standards and observes the necessary care. It is entitled to adjust its facilities and technical requirements and to modify its product range at any time without notifying the customer. The customer declares that it is in agreement with such modifications, provided that these do not unreasonably interfere with its entitlement to services.
3.6 On conclusion of the contract the customer shall be given access to a password-protected customer area. The supplier shall specify the type of access protection. It is not obliged to check users' identity data. It is entitled to consider every access using the correct password to be authorised access. Similarly, it is not obliged to take any copy-protection measures. In addition, the customer undertakes to protect its passwords and identification codes from abuse and is liable to the supplier for any loss, which arises to the latter through abuse. If the customer area is abused or the customer fails to pay invoices, the supplier is entitled to block access to the customer area.
4 Advertising contents and publication
4.1 The customer must communicate to the supplier all the information and data necessary for the performance of the service in due and prop-er form.
4.2 By awarding the contract the customer con-firms that he possess all the necessary rights in the advertising contents provided by it to the supplier and has free and unconditional control of them.
4.3 The customer warrants and accepts the sole responsibility that the advertising contents do not breach legal provisions, in particular that they do not contain sexual or pornographic displays or use names or terms, which point to or advertise such contents. The same shall apply to radical, political and other contents and forms, which infringe common decency and generally to compliance with any third-party rights. The customer takes cognisance of the fact that, if applicable, cantonal and foreign law must also be complied with.
4.4 The customer takes cognisance of the fact that each publisher shall provide its own conditions of use and data protection statement, as well as advertising guidelines and that it lies within the responsibility of the customer to inform itself of the current provisions and to comply with these.
4.5 The supplier accepts no obligation to check the advertising contents and it expressly disclaims any liability whatsoever in this respect. The customer shall indemnify and hold the supplier harmless from all costs (including the costs of legal defence) and claims from third parties, which may be asserted against the supplier. This liability shall continue to apply beyond the term of the contractual relationship.
4.6 The supplier may at its own discretion and based on standard, factually justified principles refuse or erase at any time advertising contents from the customer by virtue of their nature, origin, their technical form or their quality, if the advertising contents do not correspond to the aforementioned warranties. The publishers shall have the same right. If advertising content is refused or erased, the customer shall have no claim to refund of the payments previously made by it, insofar as these are equivalent to the value of the services already performed by the supplier. To the extent legally admissible, claims for compensation in damages from a customer are excluded. However, in the cases where content is refused, the customer shall have the option, subject to a notice period of at least five working days prior to the first distribution date, to provide new or amended advertising contents, which are not affected by the grounds for the refusal. If, despite the declaration in the first instance of a rejection, an advertising content is published, it remains to the full extent within the mutual contractual obligations.
4.7 The customer is responsible for the timely (i.e. at least five working days prior to the first distribution date) and technically flawless provision of the advertising contents in accordance with the service booked. If advertising contents are not published or distributed or if these are wrongly distributed, because the customer's advertising content was not provided in good time, was defective or incorrect, the customer shall have no claims to a reduction in the price and in this case the customer shall have no claims to compensation.
4.8 The advertising contents are placed in the reproduction in quality usual for online publications and this is dependent, inter alia, on the terminal used.
5 Intellectual property and rights of third parties
5.1 Insofar as the customer neither produces its advertising content itself nor supplies its advertising content in a finished condition, all intellectual and in rem property rights in the advertising contents remain exclusively with the supplier. If the advertising contents delivered by the customer are processed by the supplier or by a third party, this rule shall apply to the processing by the supplier or the third party. The customer grants to the supplier the exclusive, per-manent assignable right in all other advertising contents, free of charge and including the right unconditionally to sub-license them, for their use, reproduction, amendment, adaptation, translation, distribution, publication and presentation.
5.2 At the request of the customer there is the option that the supplier may include illustrations, graphics, photos or other contents from third-party suppliers, which are legally protected, (hereinafter: third-party works) in the advertising content, for example for the case that the customer does not have its own illustrations, graphics or photos. In these cases the customer is obliged to comply with the existing rights of the third-party suppliers and with any restrictions and duties in the third-party works included related to (sub)-licensing in accordance with the relevant conditions of the third-party suppliers. In the case of any infringements the customer indemnifies and holds the supplier harmless.
5.3 The customer declares and expressly warrants that it has complied with the rights of third parties, in particular the right to a company name, copyright and trademark rights. It is aware that as a rule third party rights ex-ist in images, graphics, data, sound documents, programs or parts thereof and declares that it has obtained the requisite rights of use in advance.
5.4 The supplier is not obliged to check the existence of such third-party rights or whether the customer possesses the requisite rights of use. In case of doubt it may demand proof of entitlement from the customer, refuse to accept the documents concerned, demand the removal of elements, which in-fringe the law and failing which, may suspend its services until such time as any breach of the law is remedied. The customer indemnifies and holds the supplier completely harmless from all claims, which third parties make against it.
5.5 The supplier is entitled to publish advertising con-tents and data and information on the advertising contents on third-party sites and/or on the advertisement of its own online offer, as well as to provide them to market research institutes.
6.1 The supplier shall remedy technical malfunctions, which lie within its sphere of influence, within a reasonable period. In particular the supplier issues no guarantee for data in terms of reference or specifications and accepts no responsibility of any kind whatsoever for malfunctions or interruptions. The customer is itself solely responsible for its own necessary technical facilities and for the program (software) or de-vice-related (hardware) protection.
6.2 The supplier issues no guarantee whatsoever for the compatibility of its services with the customer's hardware or software.
7 Prices, invoicing and payment conditions
7.1 The customer is liable to pay and shall pay the contractually agreed price within 30 days of issue of invoice by the supplier without any deductions. As a rule invoices are issued monthly. The first invoice shall be issued immediately after the conclusion of the contract, irrespective of the delivery of the said advertising contents by the customer or of their distribution. Fees and prices al-ready paid shall not be refunded and fees and prices already incurred shall not be waived. No WIR checks shall be undertaken. The supplier is entitled to collect the sum owed via a telecommunication bill of a telecoms provider e.g. Swisscom (Schweiz) AG or via other partners.
7.2 If the payment deadline pursuant to Point 7.1 is exceeded, default of payment automatically applies. In the case of default of payment legal interest on arrears of 5% p.a. pursuant to Article 104 Swiss Code of Obligations is payable. Moreover, the supplier shall be entitled to demand dunning costs for covering the costs incurred to some extent. The open invoiced amount plus any dunning charges and interest can be assigned or sold to third parties for the purpose of debt-collection. The supplier shall charge the cost of assignment of CHF 75.– to the customer on assigning the debt to the debt-collection agency.
7.3 The supplier is entitled to require advance payments from the customer, prior to performing its services. Ad-vance payment can be made by credit card or, in exceptional cases, by invoice. Ir-respective of this, in the event of non-payment, the Provider may discontinue its services without prior notification until all amounts owed have been received by the Provider. In every case the rights due by law to the supplier remain reserved.
7.4 For credit card payments, a reservation will be made on the credit card at the time of booking. The actual charge will be made on the start of the order.
7.5 Should errors occur in the performance, the customer is not entitled to refuse to pay. In every case offset is permissible only where the claim asserted for offset by the customer is not disputed by the supplier or is recognised by declaratory judgement (res judicata). Further or other claims by the customer are excluded.
7.6 The agreed net price is deemed to be a fixed price. In each case the statutory Value Added Tax, any other taxes, dues or fees are not included in the net prices and are charged separately.
7.7 The supplier may adjust the prices for the services at any time. These changes shall come into effect for the customer with the next ex-tension of the contract and shall be notified to the customer in advance.
8 Liability and limitation of liability
8.1 The supplier is solely liable to the customer for the performance of the services in accordance with the con-tract.
8.2 The supplier accepts liability solely in the case of culpable intent and gross negligence. Otherwise liability is excluded to the extent admissible in law. In particular, liability for any influence on the advertising campaign by third parties (e.g. click fraud), indirect and consequential loss, for cases of force majeure and strikes, for technical malfunctions, which lie within the sphere of responsibility of other companies and/or network operators, and for auxiliary personnel is excluded. Insofar as liability is accepted by the supplier, this is in all cases restricted according to the amount to the loss proved, however to the maximum of the contractual sum.
8.3 In the case of defective delivery of advertising contents and complaints made in good time, which are attributable to the supplier, the customer may claim subsequent improvement (replacement or subsequent delivery), only if the sense and advertising impact has been impaired by the defective delivery.
8.4 The advertising contents are neither stored nor returned; however, they may be archived by the supplier for a determined period. However, the supplier issues no warranty for this. Similarly, the supplier is not liable for unlawful actions by users with regard to the customer (e.g. unauthorised copying of contents and the like).
8.5 The customer is liable to the supplier for all penalties, which the latter incurs due to the breach of contractual provisions, and it releases the latter from all claims by third parties, which are asserted against it by virtue of alleged breach of intellectual property rights or other rights. The customer is aware that unlawful actions can also occur through purely technical programming cross references (e.g. links). The customer is therefore entitled to set up only those links, in which it can exclude breaches of the criminal law and of the rights of third parties. The supplier shall notify the customer within a reasonable period of any claims asserted.
8.6 As a matter of principle the supplier is entitled in accordance with the law to provide address and personal identities of the customer. The customer is obliged to notify the supplier of any changes to its address, the internal contact person or its e-mail address. The supplier shall not be liable for incorrect delivery.
9 Data protection
9.2 The suppliers may send the customer information on other products or services of the supplier (e.g. in the form of a newsletter or in a letter). If the customer no longer wishes to receive such notifications from the supplier, it may at any time unsubscribe by e-mail to firstname.lastname@example.org, by letter or by telephone to the contact details stated on adunit.ch.
9.3 The customer is obligated to comply with the requirements of the applicable data protection law. He must ensure he is authorised to commission the provider and to transmit the personal data related personal data to the provider. He is particularly obligated to obtain any necessary consents and to comply with all duties to inform. The customer shall fully indemnify the provider of all third party claims asserted against the provider within the context of contracted processing of personal data.
9.4 Supplied the provider processes personal data for the customer, the customer remains the sole controller as defined by data protection law in the relationship with the provider and is responsible for the lawful collection, processing and use of this personal data in compliance with the legal provisions. Furthermore:
9.4.1 The provider processes the personal data supplied by the customer for the purpose of processing during the term of the contract to provide the contracted services and stores and processes this personal data on its systems on the customer’s behalf for this purpose.
9.4.2 Notwithstanding compulsory legal provisions, the provider shall solely process the personal data for the purpose of implementation of contract, and only for the purposes and documented instruction of the customer. The customer instructions primarily arise from the contract and how the customer uses the services of the provider.
9.4.3 The provider shall ensure that all persons authorised to process data are committed to confidentiality unless subject to appropriate confidentiality by law.
9.4.4 The provider shall implement technical and organisational measures to protect the personal data which comply with the requirements of the Swiss Federal Data Protection Act and Article 32 of the EU General Data Protection Regulation (GDPR).
9.4.5 Where reasonably possible, the provider shall take suitable technical and organisational measures to support the customer in meeting the duty to inform the data subject as required by the applicable data protection law and to respond to inquiries from the customer regarding the rights of the data subject.
9.4.6 The provider shall promptly notify the customer if it believes an instruction of the customer with respect to processing the personal data may infringe upon the applicable data protection law.
9.4.7 The provider shall support the customer with respect to its duties under the applicable data protection law, for example Article 32 to 36 GDPR or the respective provisions of the Swiss Federal Data Protection Act. The provider shall promptly notify the customer of a data breach in the area for which the provider is responsible.
9.4.8 The provider shall supply the customer with all information reasonably necessary for the customer to appropriately document the provider’s compliance with the provisions of this item 9.4. Where this is required under applicable data protection law and the information supplied by the provider alone is insufficient, the provider shall authorise the customer to the extent required by law to allow the customer or an auditor approved by the customer and obligated to confidentiality to perform inspections at the expense of the customer. These inspections must not interfere with the normal operations of the provider and the respective sub-processor. They shall be conducted by appointment during regular business hours and shall not jeopardise the protection of secrets and personal data of the provider’s other customers.
9.4.9 The provider may outsource processing of personal data to third parties (‘sub-processor’), particularly for the purpose of operating, developing and maintenance of the provider’s IT infrastructure used to provide services. The customer hereby agrees to this outsourcing. An updated list of the sub-processors used by the provider is available at adunit.ch.
9.4.10 The provider is authorised to bill the customer for any costs and expenses arising from providing services according to item 9.4.5, 9.4.7 and 9.4.8 so long as the provider notified the customer of this beforehand.
9.4.11 At the customer’s request or at the latest upon expiration of the contract, the provider shall erase the personal data unless the provider is required by law to retain said. In the event erasure involves disproportionate expenses (e.g. backups), the provider may instead block the personal data. Personal data stored by the provider beyond the expiration of contract shall continue to be stored confidential according OT the provisions of item 9. The provider shall be entitled to use data - including after the end of the contract - in anonymous form for error analysis and to improve the functionality of the software or for benchmarking.
10 Final clauses
10.1 Collateral agreements, amendments of contractual agreements and additional agreements are valid only if they have been agreed in writing or - in the case of an electronic relationship to the customer - on successful confirmation by the supplier by means of e-mail (with the exception of amendments to the GTC, cf. Point 1.2).
10.2 The supplier is entitled to assign one or more rights and duties arising from the contract or the contractual relationship as a whole to a third party. Assignment by the customer is excluded.
10.3 Amendments to the legal relationships of the customer shall have no effect on the validity of the contract. If the customer ceases to trade, the supplier shall be entitled immediately to invoice the residual value under the contract in the form of a final invoice.
10.4 Any invalidity in any of the foregoing provisions of the contract shall not affect the validity of the remaining provisions of the contract. The contractual relationship between the par-ties is governed by Swiss law. The application of the substantive norms of the conflict of laws and the provisions of the Vienna Sale of Goods Convention (United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11.04.1980) is excluded.
10.5 The Court of juris-diction is Zurich. The supplier is also entitled to sue the customer at its Court of jurisdiction. Mandatory Courts of jurisdiction remain reserved.
AdUnit AG, March 2019