General Terms and Conditions
Effective Date & Last Modified: July 2020
1. General Provisions
1.1 Stylight GmbH, Nymphenburger Strasse 86, 80636 Munich, Germany (hereinafter “Stylight”) owns and operates an online fashion and lifestyle platform including for example the websites www.stylight.de, www.stylight.fr, www.stylight.nl, www.stylight.co.uk, and other sites (hereinafter the “Site”).
1.2 Stylight assists consumers in shopping for products and services offered by third party merchants participating (hereinafter the “Product Listing Partner”) – as Product Listing Partner does with its shop website (hereinafter the “Partner Shop”) – in Stylight’s services. Hereby the Product Listing Partner submits to Stylight certain product data (including, but not limited to, links, product titles and descriptions, product photos, category terms, and other product related text and images) (hereinafter the “Partner Data”), in order to present its products on the Site and to generate clicks by users of the Site which will result in the transfer of users to the Partner Shop (hereinafter the “Product Listing Services”). In addition, Stylight provides Advertising Media (as defined below under Section 3.1.3) on the Site (hereinafter the “Ad Services”, the Product Listing Services and the Ad Services hereinafter together “Services”) to Ad Services Partners (as defined below under Section 3.1.5). Product Listing Partner and Ad Services Partner are hereinafter referred to collectively as “Partner”.
1.3 Stylight offers the Services exclusively on the basis set out in these General Terms and Conditions of Stylight (hereinafter the “T&C”) and the individual terms set out in the Insertion Order and the Advertising Insertion Order (as applicable), which together form the Agreement.
1.4 Stylight reserves the right to amend the Agreement, except for (a) changes to essential contractual elements of the Agreement, such as the agreed remuneration or the scope of the Services, which can only be amended to the extent described under Section 1.7 below, and (b) retroactive changes to terms and conditions if they are not required to respect a legal or regulatory obligation or not beneficial for you.
1.5 Stylight will notify the Partner of any proposed changes of our Terms on a durable medium, e.g. via e-mail (“Notice”). The proposed changes shall not be implemented before the expiry of a notice period of a minimum of 15 days from the Notice (“Notice Period”). The Partner has the right to terminate this Agreement before the expiry of the Notice Period. Such termination shall take effect within 15 days from the receipt of the Notice, unless a shorter period applies to this Agreement.
1.6 The Partner may, either by means of a written statement or a clear affirmative action, waive the Notice Period at any moment from the receipt of the Notice. During the Notice Period, actively submitting new goods or services to the online intermediation services shall be considered clear affirmative action to waive the Notice Period, except in cases where the reasonable and proportionate Notice Period is longer than 15 days because the changes to the T&C require the Partner to make significant technical adjustments to the goods or services. In such cases, the Notice Period shall not be considered automatically waived when the Partner submits new goods and services.
1.7 Stylight reserves the right to reasonably expand, improve or otherwise change the Services where necessary for justified and legitimate business interests, in particular to add further portals or categories for product presentations, to change the existing services or to make improvements if and to the extent that this is necessary for a valid reason which could not be foreseen at the time of conclusion of the Agreement and provided that this change does not shift the relationship between performance and consideration to the disadvantage of the Partner, so the changes are reasonably acceptable for the Partner. A valid reason shall be in particular if new technical developments make a change in performance necessary or if newly enacted or amended statutory or other official requirements or a change in higher court judgements requires a change of the Services. The Provider shall notify the Partner in writing of any changes to the contractually agreed services at least four weeks before they are scheduled to take effect (“Notification of Changes”). In the case of changes which are not exclusively in the Partner’s favor, the Partner shall be entitled to terminate the Agreement in text form (e.g. by e-mail) without observing a period of notice at the time the changes take effect. Changes to the Services shall be deemed to have been approved if the Partner does not object to them by the time they take effect. Stylight shall inform the Partner about this legal consequence in the Notification of Changes.
2. Terms and conditions regarding the provision of Product Listing Services
2.1 Scope of Product Listing Services
2.1.1 Stylight provides the Product Listing Services to the Product Listing Partner to facilitate the integration of Partner Data into the Site database in order to allow users of the Site to access the Partner Data under the market categories agreed with the Product Listing Partner in the Insertion Order (hereinafter “Vertical”). The current Verticals offered by Stylight are “Fashion” (e.g., clothes, shoes, accessories), “Home & Living” (e.g., furniture, lamps, living accessories) and “Beauty” (e.g., cosmetics, cosmetic products). Stylight may create other and/or new Verticals at its sole discretion. Where a user clicks on any Partner Data displayed on the Site, such click will result in a transfer of the user to the respective Partner Shop (hereinafter the “Click”).
2.1.2 Stylight is entitled to provide marketing services or commission third parties respectively, in order to fulfil the marketing objectives of the Product Listing Partner. These marketing services may be placed on the Site or provided in other formats (online and offline), for example via editorial magazines and blogs, in social networks (such as Facebook and Instagram), on the websites of cooperation partners, on the websites of affiliate partners or by integration in search engines (e.g. for Google Shopping) and keyword advertising programs through deep links.
2.1.3 Unless stipulated otherwise in this Agreement, Stylight agrees not to change, alter or create derivative works of Partner Data without the Product Listing Partner’s prior written consent, unless this is necessary for Stylight to provide the Product Listing Services pursuant to this Agreement.
2.1.4 Stylight reserves the right to impose certain restrictions that will be communicated to the Product Listing Partner with conclusion of the Agreement, in particular with regard to file formats, file sizes and quality, products categories, product details (such as but not limited to brand, title, description, prices, deeplink, item_group ID, color and other technical requirements), and is not obligated to integrate and present Partner Data on the Site if the products or their presentation do not fit into the product portfolio supported by Stylight and/or Stylight’s consumer group.
2.1.5 Stylight is under no obligation to provide an uninterrupted or error-free availability of the Site. However, Stylight endeavors to provide the Product Listing Services with only limited downtimes to generally achieve an overall availability of the Product Listing Services of not less than 99.9% of time per calendar month (hereinafter the “Uptime Availability”). Any interruptions of the Product Listing Services due to reasons beyond the reasonable control of Stylight (e.g., events of force majeure) shall not be considered a downtime that will reduce the overall Uptime Availability of the Product Listing Services. In the event Stylight fails in its reasonable endeavors to provide the Product Listing Services with the intended Uptime Availability during a given calendar month, and where as a result of such failure the Product Listing Partner will be under an obligation to pay a Minimum Spend (as defined in Section 2.3.2) for such month (since the number of Clicks generated during this month did not amount to the agreed thresholds), the Product Listing Partner shall be entitled to reduce the Minimum Spend on a pro-rata basis in relation to the respective deviation from the intended Uptime Availability of the Product Listing Services during such month.
2.1.6 In addition to the Products Listing Services, Stylight may, at its sole discretion, provide the Product Listing Partner with access to the Stylight Tool, as defined and further set out in Sections 2.3.5 to 2.3.7.
2.2 Obligations of the Product Listing Partner
2.2.1 The Product Listing Partner is solely liable for the offer, selling and processing of orders in relation to users of its Partner Shop. With regard to orders placed on or via the Partner Shop, and any related website, the contractual relationship is exclusively concluded between the user and the Product Listing Partner, and Stylight is no party to any such contractual relationship.
2.2.2 The Product Listing Partner shall provide Stylight with accurate Partner Data relating to all products available on or via its Partner Shop, provided such products can be integrated into the agreed Verticals of the Site. Notwithstanding the foregoing, the parties may mutually agree that the Product Listing Partner shall only provide an agreed selection of the available Partner Data. Unless agreed otherwise in this Agreement, Product Listing Partner shall provide the Partner Data within five (5) working days after Stylight’s request. In the event Product Listing Partner updates its Partner Data, Product Listing Partner shall immediately provide Stylight with such updated Partner Data. For clarification purposes, Stylight undertakes no liability for any improper implementation of Partner Data that results from or is related to inaccurate, delayed provided and/or outdated Partner Data.
2.2.3 The Product Listing Partner undertakes to operate its Partner Shop and respective website in accordance with all applicable statutory requirements (including but not limited to those under the German Youth Protection Act, the Act against Unfair Competition and applicable data protection laws) and to ensure that the Partner Shop and all Partner Data submitted to Stylight do not violate applicable law or any rights of third parties (e.g., personality or moral rights, name rights, copyrights and neighbouring rights, trademark rights, trade secret, design rights).
2.2.4 The Product Listing Partner ensures that its Partner Shop and/or Product Data does not contain false, misleading or objectionable content (including but not limited to content that is obscene, containing excessive advertisements, defamatory, libelous, threatening, violent, hate-oriented, illegal or promoting illegal activities or goods); and furthermore does not contain viruses, worms, spyware, Trojan horses or other harmful, malicious or destructive code.
2.2.5 In the event of a suspected or actual violation of applicable law or third party rights resulting from Stylight’s contractual use of the Partner Data for the purpose of providing the Product Listing Services, the Product Listing Partner undertakes to notify Stylight immediately and to ensure that the respective Partner Data will no longer be submitted to Stylight. This notification shall not affect any rights or potential claims Stylight may have against the Product Listing Partner as a result of such violation of law and/or third party rights arising from Stylight’s contractual use of the Partner Data for the purpose of providing the Product Listing Services. The Product Listing Partner agrees to indemnify and hold harmless Stylight from any costs, claims and/or damages (including reasonable costs of legal defense) resulting from any such violation of law and/or third party rights.
2.2.6 In the event that Stylight receives knowledge that the Partner Shop, any related website and/or the Partner Data violate applicable law or any third party rights, or in the event there is a reasonable suspicion of such violation, Stylight shall be entitled to remove the respective Partner Data from the Site and/or to block access to it. The Product Listing Partner acknowledges and agrees that the blocking of access may apply to the Product Listing Partner’s entire range of products (as presented on the Site) if the violating Partner Data detail cannot be identified and isolated with absolute certainty.
2.2.7 The Product Listing Partner has the opportunity to clarify the facts that led to that decision and is free to demonstrate that the Partner Data provided is legally unobjectionable via the internal complaint-handling process as described below under Section 2.7. As soon as this has been established, Stylight will again grant access to the products on the Site.
2.3 Remuneration and Billing
2.3.1 The remuneration to be paid by the Product Listing Partner for the Product Listing Services is set out in Section I. of the Insertion Order. All prices shall be plus applicable VAT.
2.3.2 The Product Listing Partner shall be billed on a monthly basis. The Product Listing Services will be invoiced on the basis of the number of actual Clicks generated during the respective invoice period in accordance with the amounts agreed in the Insertion Order for the selected Vertical(s), Site(s) and device categories. Where the parties have agreed on a minimum spending for the event that the number of Clicks generated does not amount to the agreed thresholds (hereinafter the “Minimum Spend”), the Product Listing Partner shall pay to Stylight at least the agreed Minimum Spend.
2.3.3 The Product Listing Partner shall not be obliged to pay the Minimum Spend where it can prove that the agreed thresholds have not been achieved due to Stylight’s failure or unjustified refusal to appropriately integrate and present the Partner Data into the agreed Verticals of the Site in accordance with the Agreement. For the avoidance of doubt: This does not affect Stylight’s rights under Section 2.1.4.
2.3.4 Stylight will issue invoices to Product Listing Partner setting forth the number of Clicks generated during the relevant invoice period. The remuneration is due and payable after receipt of the invoice and to be paid within 30 days from receipt of the invoice.
2.3.5 Stylight establishes the number of Clicks for the invoices, in accordance with Sections 2.3.2 to 2.3.4 above, solely by means of its analysis and reporting tool (hereinafter “Stylight Tool”), which receives the relevant data from the Site database. Stylight does not take the results of other web analysis tools into account, such as, e.g., Google Analytics or tools from other affiliate networks, such as e.g. Rakuten, as the calculation parameters may change from tool to tool.
2.3.6 Once the Product Listing Services for the Product Listing Partner are set up and active, the Product Listing Partner shall receive access to the Stylight Tool and may view the number of Clicks established by this tool at any time. Unless Stylight receives an objection from the Product Listing Partner via the internal complaint-handling process (as described below under Section 2.7) after publication of the relevant numbers by the Stylight Tool, such objection to be raised no later than two (2) weeks after receipt of the corresponding invoice, the number of Clicks listed in the Stylight Tool shall be deemed accepted.
2.3.7 If the Product Listing Partner raises an objection in accordance with Section 2.3.6 above, Stylight shall be entitled to obtain an expert opinion of an acknowledged and independent expert selected by Stylight. Such opinion will be binding on both parties. Stylight shall be entitled to suspend provision of the Product Listing Services from the point in time of the objection until receipt of the expert opinion.
2.3.8 Payments have to be made exclusively to the following bank account (or to the account details as indicated on the invoice):
Stadtsparkasse München; IBAN: DE28 7015 0000 1001 4508 48; BIC: SSKMDEMMXXX
2.4 Grant of Rights of Use, Indemnification
2.4.1 With regard to the Partner Data provided to Stylight under this Agreement, the Product Listing Partner grants to Stylight for the duration of the Agreement the non-exclusive (but without limitation as to territory), transferable, and sublicensable rights to use the Partner Data – in whole or in part – with regard to all known and unknown forms of use for the following purposes:
18.104.22.168 to perform the Product Listing Services under this Agreement; in particular, Stylight shall be entitled to modify, copy, distribute, make publicly available, broadcast and/or publicly communicate the Partner Data for performing the Product Listing Services under the Agreement, including as necessary to integrate, display and publish the Partner Data on the Site, other websites of Stylight as well as all other online advertising platforms used by Stylight;
22.214.171.124 to advertise Stylight’s Product Listing Services, the Site and the Partner Data; in particular, Stylight shall be entitled to use the Partner Data and the content comprised in the data for any form of advertising for Stylight’s Product Listing Services, the Site and/or the Partner Data, in unchanged or modified form (without changing the content of the Partner Data), in own and third party online platforms, at paid placement providers (e.g. Google, Yahoo), on social media platforms (e.g. Facebook, Twitter), on posters, in brochures, ads, in picture/film or sound carriers, advertising spots, advertising banners, online ads, demo versions, multimedia shows, test versions or other media ad serving for advertising purposes. Only Stylight and its affiliated companies shall be entitled to any receipts resulting from the advertising. Prospective customers generated by the advertising may be directed to the Stylight Product Listing Services on the Site or immediately to the product URL provided as part of the Partner Data;
126.96.36.199 to use the Partner Data and its elements for market research purposes; in particular, Stylight shall be entitled to modify, copy, distribute, make publicly available, and/or otherwise use the Partner Data, and to provide it to market research studies for their purposes;
188.8.131.52 to the extent necessary for the above purposes, Stylight shall be entitled to adapt, alter and otherwise modify the Partner Data (without changing the content of the Partner Data) and to archive, copy and store the Partner Data on any medium or database.
2.4.2 The grant of rights according to Section 2.4.1 above shall allow Stylight to exercise the rights by itself or have the rights exercised by third party contractors acting on behalf of Stylight.
2.4.3 For the avoidance of doubt: The grant of rights under this Section 2.4 does not affect the right of Product Listing Partner to continue to freely dispose of the Partner Data, provided that the rights granted to Stylight under this Section 2.4 remain unaffected. In particular, the Product Listing Partner remains entitled to grant respective non-exclusive rights regarding the Partner Data to any other business partners.
2.4.4 In case of a violation of applicable law or third party rights resulting from Stylight’s use (in accordance with the Agreement) of the Partner Data provided to Stylight, the Product Listing Partner shall be fully liable towards Stylight and agrees to indemnify and hold harmless Stylight from and against all claims, costs and/or damages (including reasonable costs of legal defense) in relation to any such violation of law or third party rights.
2.5 Term and Termination
2.5.1 Unless otherwise agreed by the parties in the Insertion Order, the Agreement shall run for an indefinite term and continue until terminated by either party giving four (4) weeks prior written notice to terminate to the other party. The relevant notice period shall commence on the date of receipt of such written notice.
2.5.2 In case the Product Listing Partner has terminated the agreement by giving four (4) weeks prior written notice to terminate to Stylight, the Product Listing Partner will not drop product count or make any other changes to the product spending during the remaining duration of the agreement.
2.5.3 The right of both parties to terminate the Agreement in writing for good cause remains unaffected. Good cause for termination shall exist, in particular, if:
184.108.40.206 the behaviour of the Product Listing Partner jeopardizes existing contractual relationships with other Product Listing Partners of Stylight;
220.127.116.11 the Product Listing Partner is in default of payment of the remuneration under this Agreement for two consecutive invoice periods; or
18.104.22.168 the Partner Data violates applicable law or third party rights.
2.6.1 Stylight’s Product Listing Services may be ranked according to various factors and may be subject to user settings during a search. Ranking criteria may include the amount of remuneration paid by the Product Listing Partners, the popularity of the product among users, quality and completeness of the product information provided by the Product Listing Partner, expected clickout generated sales and budget goals.
2.6.2 The weighting of these criteria is carried out in the order in which they are listed in the above Section 2.6.1, whereby the criteria regarding a remuneration paid by the Product Listing Partner and popularity of the product with users are of particular importance for the placement of the Partner Data in the ranking.
2.6.3 Reasons for the weighting are in particular economic efficiency of the Product Listing Services as well as promoting the quality and attractiveness of the presentation of the content for the benefit of the user.
2.7 Internal complaint-handling system
2.7.1 Stylight has an internal system for handling Product Listing Partner’s complaints free of charge, which Product Listing Partner can access by contacting their personal Partner Manager as specified in the Insertion Order or [email protected].
2.7.2 Stylight shall examine and process all complaints received via the internal complaint-handling system within a reasonable time frame, taking into account the importance and complexity of the complaint in question. Stylight will then inform the Products Listing Partner of the outcome of the internal complaint-handling system.
2.7.3 A complaint may be submitted to Stylight for the following issues:
a) Presumed non-compliance with the EU-Regulation 2019/1150 (Platform-to-Business Regulation) affecting the Product Listing Partner
b) Technical problems directly related to the provision of the Services affecting the Product Listing Partner
c) Measures or conduct of Stylight directly related to the provision of the Services and affecting the Product Listing Partner
d) any other reason or behaviour subject to the internal complaint-handling system as explicitly referenced in this Agreement
2.7.4 If a Product Listing Partner contacts its respective Partner Manager with a complaint, the Partner Manager will deal with the complaint directly via the communication method chosen by the Product Listing Partner when launching the complaint. If a Product Listing Partner contacts the general internal complaint-handling contact address as provided in Section 2.7.1, the complaint will be forwarded to the competent Partner Manager who will then proceed as described in this Section 2.7.4.
2.8.1 In order to reach an out-of-court settlement of disputes with regard to Product Listing Services, which could not be resolved by the means of the internal complaint-handling system as described above in Section 2.7, Stylight is willing to cooperate with the following mediators:
- Bundesverband Informationswirtschaft, Telekommunikation und neue Medien e. V. (www.bitkom.org)
- Bundesverband Onlinehandel e.V. (https://bvoh.de/verband/p2b-verordnung-mediation-onlinehandel/)
2.8.2 Stylight and the Product Listing Partner shall participate in good faith in all attempts at mediation undertaken pursuant to this Section 2.8.
2.8.3 Any attempt to reach an agreement through mediation on the settlement of a dispute in accordance with these provisions shall not affect Stylight’s right or Product Listing Partner’s right to initiate judicial proceedings at any time before, during or after the mediation process.
2.8.4 If requested by the Product Listing Partner, before entering into or during mediation, Stylight shall make available to Product Listing Partner information on the functioning and effectiveness of mediation related to Stylight’s activities. The Product Listing Partner can request such information via contacting their personal Partner Manager as specified in the Insertion Order or [email protected].
2.9 Data Access
2.12 Notwithstanding potential exceptions regarding personal data based on and as described in the above Section 2.11, Stylight will retain access to the Partner Data after the expiration of the Agreement.
2.13 After the expiration of the Agreement, the Product Listing Partner will not have access to any data provided or generated in connection with the use of the Services.
3. Terms and Conditions regarding the provision of Ad Services
3.1 Definitions and contractual conditions
3.1.1 “Advertising objective” within the meaning of these T&C is the agreement about the placement of one or more advertising objective(s) in information and communication services, especially the internet, with the aim of distribution via Stylight.
3.1.2 “Advertising Efforts” are all services offered by Stylight concerning “Advertising Media” as well as any other services.
3.1.3 “Advertising Media” can be one or more of the following elements: a picture and/or text; tone sequences and/or moving images (e.g. banner, video) a sensitive screen, which, after a click on it, creates the connection to further data, which have been provided by the Ad Services Partner via an online address. These data are within the sphere of the Ad Services Partner (e.g. a link).
3.1.4 Advertising Media, which cannot be recognized as such because of their design, will be clearly indicated as advertisement.
3.1.5 “Ad Services Partner” of Stylight is the immediate contract partner, i.e. either an Agency or an advertiser who concludes advertising contracts directly with Stylight.
3.1.6 “Agency or Agencies” are placement agencies, which conclude advertising contracts in their own name and on their own expense. The Agency is responsible for the contractual relationship with the advertiser, especially regarding pricing, invoicing and other conditions. There is no contractual relationship between the advertiser and Stylight.
3.1.7 Should the Agency act as representative for the advertiser, Agency must inform about the representation in writing at the latest with the placement of advertising objects, by naming the advertising Ad Services Partner. If this information is withheld, the contract shall be deemed concluded for and against the Agency.
3.2 Conclusion and Completion of Contract
3.2.1 A binding conclusion of contract occurs as a matter of principle by written confirmation (also via email) of the Advertising Insertion Order, by Stylight. The conclusion of the contract may either contain the publication of one Advertising Media or of several Advertising Media.
3.2.2 A campaign is deemed to be completed when the booked Ad Impressions (as specified in the Advertising Insertion Order) have been reached at all placements. The booked Ad Impressions must be delivered within the time frame of the campaign. A daily and regular delivery will not be guaranteed.
3.3 Delivery and storage of advertising media
3.3.1 Ad Services Partner is obliged to deliver complete, faultless and suitable Advertising Media until three (3) working days before placement at the latest. In case of special formats and rich media formats the term for delivery is five (5) working days. Deviations must be agreed upon with Stylight immediately and in writing or via e-mail.
3.3.2 Costs arising from a change of the Advertising Media which has been requested by Ad Services Partner or for which Ad Services Partner is responsible must be borne by Ad Services Partner.
3.3.3 Stylight’s obligation to keep the Advertising Media ends 3 months after the last distribution.
3.4 Retention of rejection
3.4.1 Stylight reserves the right to reject or block advertising orders, including single orders within the frame of a conclusion, insofar as their content, according to Stylight’s best judgement, violates the law or regulatory provisions, or if their content was rejected by the “Deutsche Werberat” in an appeals procedure, or if the publication is for factual justified reasons unacceptable for Stylight due to the content, the origin or the technical form.
3.4.2 Furthermore, Stylight has the right to recall already published Advertising Media due to the reasons named above, if Ad Services Partner changes contents or data of the Advertising Media retroactively.
3.5 Warranty of Ad Services Partner
3.5.1 Ad Services Partner warrants and guarantees that he has all the necessary rights for the placement of the Advertising Media and that the Advertising Media do not infringe effective laws (especially the German Youth Protection Act (JuSchG), the German Criminal Act (StGB), the German Act against Unfair Competition (UWG) and applicable data protection laws). Furthermore, Advertising Media may not contain pornographic contents, or contents which glorify violence or war or contents which infringe personal rights. Ad Services Partner indemnifies Stylight by assumption of the costs necessary for legal defense from all third party claims which may arise because of infringement of legal provisions by Ad Services Partner. Ad Services Partner is obliged to support Stylight in good faith with information and documentation by legal defense against third parties.
3.5.2 Ad Services Partner transfers and/or grants, as applicable, to Stylight all non-exclusive usage, ancillary copyrights and any other rights with regard to the Advertising Media, especially for reproduction, distribution, transmission, broadcast, accessibility, adaptation, extraction from a data bank and for demand, at times and places with any contents necessary for performing the Advertising Insertion Order and the respective Ad Services. These rights will be transferred and/or granted, as applicable, in all cases without regional limitation and Ad Services Partner grants the rights for placement with all known technical means as well as all known forms of online media.
3.5.3 For the avoidance of doubt: The grant of rights under this Section 3.5.2 does not affect the right of Ad Services Partner to continue to freely dispose of the Advertising Media, provided that the rights granted to Stylight under this Section 3.5.2 remain unaffected. In particular, the Ad Services Partner remains entitled to grant respective non-exclusive rights regarding the Advertising Media to any other business partners.
3.5.4 If Ad Services Partner uses a system of a third party for the placement of Advertising Media in the online offers of Stylight, he will ensure that the system operator will comply with this agreement.
3.5.5 Ad Services Partner will use software of the highest technical standard, with the intention that the transmitted or installed Advertising Media is free from harmful code, such as viruses, trojans etc. Section 2.2.2 shall apply vice versa to the delivery of Advertising Media.
3.6 Warranty of Stylight
Stylight warrants a rendition of the Advertising Media, as best as possible, which matches the respective current technical standard. However, Ad Services Partner is aware of the fact that, due to current technical standards, it is not possible to create a faultless program. In particular, there is no fault in the presentation of the advertising media, if the impairment is caused by using an unsuitable presentation software and/or hardware (e.g. browser), by a disturbance within the communication network of other operators, by proxies (buffer store), or by failure of the ad server, which lasts no longer than 24 hours (in one go or added up) within 30 days after the start of the agreed upon placement. If the failure of the ad server lasts over an extensive period of time, and if the booking is time-dependent, Ad Services Partner’s duty of payment is dispensed for the duration of the failure. Further claims are excluded.
3.7 Rights and obligations of Ad Services Partner
3.7.1 If the rendition quality of the Advertising Media does not match the agreed upon performance or quality Ad Services Partner has the right of a substitute advertisement which is free of fault by prolongation of the publishing time or an immediate substitute placement in a comparative surrounding, but only to such extent as the purpose of the Advertising Media was diminished. Ad Services Partner must set a reasonable time limit for Stylight for such substitute placement.
3.7.2 If there are flaws in the Advertising Media provided by the Ad Services Partner that are not obvious or evident, Ad Services Partner has no claims in case of a distribution of such flawed Advertising Media or flawed distribution. The same applies for flaws in repeated advertisement orders, if Ad Services Partner does not point out the flaw before the publication of any subsequent advertisement order.
3.7.3 Ad Services Partner is obliged to examine the advertising measures immediately after first release for defaults and to give information about the fault immediately in written form. In case of open defaults this notice must be made within five working days after first placement, in case of hidden faults the same period of time applies after discovery of the fault.
3.7.4 Warranty claims become time-barred within 12 months.
3.8 Default through Stylight
If the realization of an order fails due to reasons for which Stylight cannot be hold responsible, in particular because of a computer down-time, force majeure, strike, due to legal provisions, disturbances for which third parties can be hold responsible (i.e. other providers), network operators or service providers or similar reasons, the realization of the order will be performed later, if possible. If the later realization happens within a moderate or reasonable period of time after the settling of the disturbance, Stylight’s claim for remuneration continues to persist. In case of a considerable delay, Ad Services Partner will be informed thereof.
3.9 Payment terms
3.9.1 The applicable remuneration for the advertising order between Stylight and Ad Services Partner results from the confirmation of the Advertising Insertion Order.
3.9.2 The billing of campaigns is carried out on the basis of the reporting of the ad server, which is used by Stylight at the respective point of time. The basis for the billing are Ad Impressions.
3.9.3 The invoice will be issued on the publishing date of the advertisement. The invoice is due and payable after receipt of the invoice and to must paid within thirty (30) days from receipt of the invoice., Payments have to be made exclusively to the following bank account (or to the account details as indicated on the invoice, as applicable):
Stylight GmbH, Stadtsparkasse München, IBAN: DE28 7015 0000 1001 4508 48; BIC: SSKMDEMMXXX
3.10 Termination of Ad Services
3.10.1 Terminations must be made in text form (email is sufficient). Advertising Insertion Orders can be cancelled until two (2) weeks before the booking starts, ongoing bookings can be cancelled two (2) weeks before the end of the month.
3.10.2 If Partner cancels until one (1) week before the campaign starts, fifty percent (50 %) net of the campaign value as specified in the Advertising Insertion Order will be charged. If the order is cancelled up to three (3) days before the campaign start, cancellation fees of eighty percent (80 %) net of the campaign value as specified in the Advertising Insertion Order will be charged. If the order is cancelled three (3) days or less before the campaign start, one hundred percent (100 %) net of the campaign value as specified in the Advertising Insertion Order will be charged. The Partner has the right to proof that the damage has either not occurred at all or is substantially less than the applicable lump sums as provided in this Section 3.10.2.
4. Liability of Stylight
4.1 Stylight shall be liable without limitation for damages caused by wilful intent or gross negligence.
4.2 Stylight shall further be liable for damages caused by slight negligence [einfache Fahrlässigkeit] which are due to a material breach of duty, which endangers the achievement of the objective of the Agreement with the Partner, or to a failure to comply with duties, the very discharge of which is an essential prerequisite for the proper performance of the Agreement and on the observance of which the Partner may rely. In these cases, the liability of Stylight shall be limited to the damage which can be typically foreseen for such type of agreements. Any further liability of Stylight in cases of slight negligence is excluded.
4.3 The above limitations of liability shall apply to all claims for damages, irrespective of their legal cause, except for claims for damages in the event of (i) an injury to life, body or health, (ii) an explicit assumption of a guarantee (in which case the liability terms and limitation period under the guarantee, if any, shall apply), and (iii) a violation of the Product Liability Act [Produkthaftungsgesetz].
4.4 To the extent that the liability of Stylight is excluded or limited, this also applies for the personal liability of its employees, statutory representatives [gesetzliche Vertreter] and agents [Erfüllungsgehilfen].
5. Set-Off, Right of Retention, Assignment
5.1 The parties may only set-off claims against counterclaims that are uncontested or have been finally confirmed by a res judicata judgement.
5.2 The parties may exercise a right of retention [Zurückbehaltungsrecht] only if the counterclaims are based on the same contractual relationship.
5.3 The Partner shall not be entitled to assign and transfer the rights and obligations under this Agreement in full or in part without the prior consent of Stylight, such consent not be unreasonably withheld.
5.4 Stylight shall be entitled to assign and transfer the rights and obligations under this Agreement in full or in part to any third party.
6. Confidentiality; Press Releases
6.1 Except as provided in Section 6.3, each party shall treat this Agreement as confidential.
6.2 Except as provided in Section 6.3, the parties shall treat as confidential all information, particularly technical and business information, whether written or oral, of the other party they received in the course of this Agreement, or which they otherwise obtained in the course of the cooperation under this Agreement (the “Confidential Information”) and shall use such Confidential Information only for the purpose of this Agreement, shall give access only to its employees who need to have access, and shall not pass it on to third parties, except that the Confidential Information may be disclosed by the parties to their affiliates, provided that such affiliates will enter into or are already subject to similar confidentiality obligations, and shall protect it against unauthorized use by third parties.
6.3 No confidentiality obligation shall apply to information and documents:
6.3.1 which are already known to, or in the possession of the receiving party prior to receipt of any Confidential Information;
6.3.2 which are legally received by a party from a third party without any confidentiality obligation;
6.3.3 which are in the public domain or enter the public domain through no wrongful act of the receiving party; or
6.3.4 which can be proven by the receiving party to have been developed independently of Confidential Information received from the other party.
6.4 The parties shall impose the same obligations on their affiliates and their affiliates’ employees, who obtain knowledge of Confidential Information, unless those employees are already bound to the same degree by their contracts of employment to maintain confidentiality.
6.5 The party providing Confidential Information shall remain the vested holder of such information. Nothing contained in this Agreement shall be construed as granting or conferring any patent rights or licenses, either expressly or by implication, unless otherwise provided in this Agreement.
6.6 Neither party may make any initial public statement regarding the relationship contemplated by this Agreement without the other party’s prior written approval.
7.1 This Agreement is subject to the laws of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
7.2 If the Partner does not have a general place of jurisdiction in Germany or in another EU member state, or if the Partner is a trader [Kaufmann] or if the Partner has moved its permanent residence abroad after this Agreement has come into effect, or if the place of residence of the Partner or its usual place of abode is not known at the time the action is brought, the exclusive place of jurisdiction for all disputes arising from this Agreement shall be Stylight’s registered office.
7.3 The exclusive place of jurisdiction for all disputes arising out of or in connection with the Agreement shall be Munich, Germany.
7.4 Subject to Section 1.4 to 1.7, any amendments or additions to the Agreement must be made in writing or in text form (e.g., email) to be effective. This shall also apply to any waiver of this form requirement.
7.5 Should any provision of this Agreement be or become invalid or unenforceable in whole or in part, the remaining provisions of this Agreement shall remain unaffected. The parties will agree on a provision to replace the invalid or unenforceable provision that from a legal and factual point of view comes as close as possible to the economic purpose of the invalid or unenforceable provision. The above shall apply accordingly in case of any gaps in this Agreement.
Nymphenburger Strasse 86
80636 Munich, Germany