I. General Terms & Conditions Advertiser
II. General Terms & Conditions Publisher
I. General Terms & Conditions Advertiser
As of: August 2012
1. Scope and definitions
1.1 The following sections specify the terms and conditions for the marketing of products via the apprupt premium network (hereinafter “apprupt network”) between apprupt GmbH, Speersort 10, 20095 Hamburg (hereinafter “apprupt”) and agencies as well as direct customers (hereinafter “advertisers”) who want to advertise on mobile devices. Advertising material shall appear on mobile websites and/or applications for mobile devices (hereinafter “apps”). The terms and conditions shall apply to all agreements between apprupt and the advertiser on the performance of the contractually ordered services described in more detail below. Individual written agreements between the parties shall, however, prevail over these terms and conditions. The inclusion of general terms and conditions of the advertiser is hereby rejected.
1.2 The GTC shall be based on the following definitions:
• Budget: The cost budget agreed between the advertiser and apprupt for a campaign, on the basis of which the respective campaign is calculated.
• Cost-Per-Click (“CPC”): The agreed compensation per click that apprupt shall be entitled to when the advertising material on the website or in the app of the publisher is clicked. Valid clicks shall be recorded and verified solely on the basis of the apprupt tracking system.
• Cost per thousand (“CPT”) billing (“CPM”): The agreed compensation per display of advertising material, so-called ad impressions (hereinafter “Ais”), that apprupt shall be entitled to when the advertising material on the website or in the app of the publisher is displayed. Valid ad impressions shall be recorded and verified solely on the basis of the apprupt tracking system.
• Campaign: The possibly time-limited services expenditure encompassed by an order of the advertiser.
2.1 Apprupt shall operate the apprupt network under the domain apprupt.com and shall offer the advertiser the option of marketing his products there after successful registration under Section 3. The advertiser shall also be able to register himself, and each of the products to be marketed, on individual websites, partner networks or apps of the apprupt partner (herein “publisher”) in the self-service option pursuant to Section 3.2 or have himself registered by apprupt in the full-service option pursuant to Section 3.3. The advertiser has no right to inclusion in the web presence of a particular publisher. The services shall meet the service description on the apprupt website at the URL “http://www.apprupt.com/blogv2/advertiser/branding-werbeformen/” and “http://www.apprupt.com/advertiser/performance-werbeformen/”.
2.2 When the apprupt network is used, apprupt shall report the clicks (for CPC billing model) or Ais (for CPM pricing model) transmitted over the network and (if possible) the transactions transmitted during the promotion (hereinafter “report”). After the each agreed campaign is over, the advertiser shall receive a transaction report listing all relevant data during the campaign.
2.3 The advertiser shall not be guaranteed any specific advertising success as a result of participating in the services provided by apprupt.
2.4 The parties may, moreover, contractually agree on a fixed number of clicks for a fixed period as a target for CPC campaigns, and similarly agree on a fixed number of Ais for CPM campaigns.
2.5 Where applicable and available, apprupt shall provide read-out of data from the app used for advertising (hereinafter “tracking”). The advertiser must order tracking separately.
2.6 Apprupt shall, where required, purchase additional coverage from third parties as part of the services.
3. Registration / conclusion of the contract
3.1 Legal entities and natural persons shall be entitled to register. Conclusion of the contract with a natural person requires the advertiser to be of legal age and to have unlimited legal capacity. Use may take place through direct contact with the apprupt sales team or by registering as a self-service advertiser.
3.2 Registration as a self-service advertiser
The advertiser shall, when registering, provide truthful, accurate, current and complete information as specified in the registration form. He shall furthermore keep his data in the member’s account up to date and accurate at all times.
3.2.1 Submission of the registration form shall be considered an offer of contract by the advertiser. The contract shall be concluded on acceptance of the registration by apprupt. Should apprupt accept the offer, the advertiser shall receive a confirmation e-mail. The advertiser shall not be entitled to acceptance of the contract. Apprupt reserves the right to refuse the registration without giving any reasons.
3.2.2 The advertiser is aware that he may receive legally effective declarations (such as changes in the terms and conditions or confirmation e-mails) via electronic communication (e.g. by e-mail). These declarations shall be considered as having been received, if they are retrievable under normal circumstances in the e-mail inbox that the advertiser indicated at registration.
3.2.3 The advertiser shall receive a user account once registration has been successfully completed. This account shall include all the advertiser’s data specified at the time of registration, in particular any information required for using the apprupt network and processing payment transactions. The user account shall not be transferable.
3.2.4 The advertiser must ensure that use of the apprupt network via his own user account is possible for him alone. This shall include in particular the responsibility to keep the password confidential. The advertiser shall be responsible for all of his own activities as well as third-party activities via his user account.
3.3 Use after contacting the sales team
Unless expressly agreed otherwise, all products (e.g., service packages) that apprupt makes known to advertisers shall be understood only as an invitation to make an offer (so-called “invitatio ad offerendum”). The advertiser may make offers through direct contact with the apprupt sales team (http://www.apprupt.com/kontakt/). A contract shall become effective only
• upon written confirmation of order by apprupt (e-mail and fax shall be considered to be in writing), or
• upon conclusion of a written contract, or
• upon successful registration in publishers’ websites or apps of the products to be marketed.
Agreements made verbally or by telephone shall become effective only upon confirmation in writing (e-mail and fax shall be considered to be in writing).
4.1 Apprupt shall receive compensation from the advertiser for valid clicks (CPC) or Ais (CPM) transmitted over the apprupt network, as calculated on the basis of reports pursuant to Section 2.2, in the contractually agreed amount. The tracking of apprupt shall alone be relevant to the question of whether and/or how many clicks or Ais or downloads have been transmitted as well as the resulting compensation calculation. Use of the advertiser’s own tracking system shall be allowed, but its analysis shall not be relevant for the compensation.
4.2 The invoice shall be issued by apprupt at the beginning of the month for the previous month based on the number of clicks or Ais. Should the campaign finish before the end of the month, the invoice shall be prepared without delay.
4.3 The advertiser shall, unless otherwise agreed, transfer, within ten days of receipt of invoice, the amount specified on the bill to the bank account specified by apprupt. Should the advertiser default on his obligation to make timely payment, apprupt may charge interest for default, in accordance with § 288 para 2 BGB (German Civil Code), at eight percentage points above the base rate. Further rights of apprupt shall remain unaffected.
4.4 If agreed, an agency commission in the agreed amount shall be granted to the agency in the event of agency bookings for proven agency activity and billing. Advertising agencies and advertising agents shall, in their offers, contracts and bills with respect to their customers, adhere to the prices agreed with apprupt.
4.5 Costs incurred for an individually agreed creation of additional advertising material and/or landing pages as well as for other agreed services shall not be included in the compensation pursuant to Section 4.1 and shall be calculated separately.
4.6 Advertisers in the self-service mode shall pay in advance, in accordance with a separate agreement, by transferring an amount (which shall be credited to the advertiser) to a bank account or PayPal account designated by apprupt. The services received shall be deducted from this credit note in accordance with the provisions of this Section 4.
5. Granting of rights
5.1 The advertiser shall, as part of this contract, make available to apprupt the advertising content for marketing his products. Advertising content may possibly be protected for the advertiser by copyright law, art copyright law, trademark law or other trademark rights (“protected content “).
5.2 The advertiser shall grant apprupt the non-transferable, non-exclusive right (limited to the duration of the contract) to reproduce the protected content for the purposes of this contract. The advertiser shall furthermore grant apprupt the transferable, worldwide, non-exclusive right (limited to the duration of the contract) to make the protected content available to the public via the Internet. If, after termination of the contract, third parties hold available protected content in cache memories, this storage shall no longer be attributed to apprupt.
5.3 The advertiser shall grant apprupt the simple, spatially unrestricted, non-transferable right to use the logos, images and descriptions of the products he has uploaded via the apprupt network as a reference for the purpose of market presence in on- and off-line media.
The advertiser shall guarantee that the products promoted on publishers’ websites and apps via the apprupt network as well as the protected content do not violate applicable law, in particular criminal law, copyrights, trademark and other labelling rights or personal rights or morality, and that he has the necessary rights to the products and the protected content.
7. Duration and termination
7.1 The agreement between apprupt and the advertiser shall in each case be concluded for the agreed duration of the campaign. If, during an ongoing campaign, the advertiser agrees to an additional booking with apprupt, the campaign shall be extended by the length of the agreed additional booking period.
In the event that, during the agreed period, the number of clicks possibly agreed to as a target pursuant to Section 2.4 is not reached, apprupt shall be entitled to subsequent delivery, i.e. the duration of a campaign shall be extended until the agreed target has been reached, but no longer than the campaign period originally agreed.
7.2 The parties shall also be entitled to properly terminate the agreement up to four (4) calendar weeks prior to the agreed start of the respective campaign without entitlement to compensation (this shall not affect compensation for additional services). In the event that the advertiser terminates the agreement before the agreed start of the campaign, but later than four weeks before the respective start, the advertiser shall pay apprupt the following prorated lump-sum compensation:
• Up to 4 weeks before the start of the campaign, 0% of the agreed budget
• Up to 3 weeks before the start of the campaign, 25% of the agreed budget
• Up to 2 weeks before the start of the campaign, 50% of the agreed budget
• Up to 1 week before the start of the campaign, 75% of the agreed budget
• Up to 3 working days before the start of the campaign, 80% of the agreed budget
• Less than 3 working days before the start of the campaign, 100% of the agreed budget
Compensation for additional services shall remain hereby unaffected.
7.3 The right of both parties to premature extraordinary termination shall remain unaffected. The notice of termination must be in writing.
7.3.1 Apprupt shall be entitled to extraordinary termination of the agreement for good cause, if the performance of services owed by apprupt is made impossible for reasons of force majeure, or due to the occurrence of unpredictable obstacles that cannot be overcome at reasonable cost and are not attributable to apprupt. Any payments made in advance shall be refunded in this case. There shall be no right to extraordinary termination for cases in which apprupt has culpably caused the impediment to performance.
8. Liability and indemnification obligation
8.1 Apprupt shall endeavour continuously to develop the services offered. Individual components may be improved, expanded or altered by apprupt as part of this further development. Due to implementation of this necessary maintenance work and of improvements, individual functions may become temporarily unavailable. Apprupt shall remedy disturbances or failures without delay, provided that this is in fact possible and is in particular reasonable for economic and legal reasons and provided that the impairments are not merely negligible.
8.2 Apprupt shall not be liable for damages or other disturbances based on the faultiness or incompatibility of software or hardware used by advertisers, nor for any damages that result from the Internet‘s lack of availability or flawless functionality. Nor shall apprupt be liable in the case of force majeure and/or for services that are rendered by third parties that are not vicarious agents; apprupt shall specifically not be liable for ensuring that these services of publishers are constantly available without interruption, are free from defects and are secure.
8.3 Should apprupt be held liable by a third party due to an advertiser’s breach of contractually assumed obligations, the advertiser shall indemnify apprupt from all third-party claims and resulting damages.
9. Protection of information
10. Final provisions
10.1 Apprupt shall reserve the right to make reasonable changes to the terms and conditions at any time. Changes shall be communicated in a timely manner in every case. Should the advertiser fail to object to changes within an appropriate period set by apprupt, the advertiser’s conduct shall be deemed as a declaration of the acceptance of the changed terms and conditions. Should the advertiser object to a change, apprupt shall have the right to terminate the contractual relationship.
10.2 Should individual provisions of the terms and conditions be wholly or partially invalid or contain a loophole, the effectiveness of the remaining provisions or parts of such provisions shall remain unaffected. The relevant sections shall be replaced by a provision which comes as close as possible to the economic intentions of the parties.
10.3 The law of the Federal Republic of Germany shall apply exclusively.
10.4 Collateral agreements shall only be effective in writing.
10.5 The place of jurisdiction for all obligations or disputes arising from the contract shall be Hamburg.
II. General Terms & Conditions Publisher
As of: August 2012
1.1 The following sections specify the terms and conditions for the marketing of advertising space via the apprupt premium network between apprupt GmbH, Speersort 10, 20095 Hamburg (hereinafter “apprupt”) and the contractual party that apprupt charges with the marketing of advertising space on its mobile Internet sites (hereinafter “publisher”) operated for display on mobile devices (hereinafter “websites”) or applications (hereinafter “apps”). Individual, ancillary or partially amended written agreements between the parties shall, however, prevail over these terms and conditions. The inclusion of general terms and conditions of the publisher is hereby rejected insofar as they differ from these terms and conditions.
2.1 Apprupt shall provide the publisher with a solution for the integration of advertising space into the publisher’s apps or websites (hereinafter “apprupt integration”) and with technical documentation. The apprupt integration can be implemented both natively, by using the software development kit (hereinafter “apprupt SDK”) developed by apprupt, as well as through connection to a third-party solution already integrated into the publisher’s app or website, such as via an adserver connection. The publisher shall, if needed, receive further support in implementing the apprupt integration.
2.2 In order to be able to use the services of apprupt, registration pursuant to Section 3 shall be required, including the acceptance of the delivery and payment conditions, and the present general terms and conditions, as well as the provision of all necessary data such as a valid e-mail address, address, password and bank account details (hereinafter “access data”).
2.3 As part of the marketing of advertising space resulting from the apprupt integration, apprupt shall be entitled, in its own name and at its own expense, to conclude and process orders about advertising placements with advertisers. Apprupt shall be free to set prices and formulate terms and conditions with respect to advertisers.
2.4 Apprupt is entitled to determine the content of advertising material delivered to the advertising spaces as part of the apprupt integration. The publisher moreover agrees that unused advertising spaces shall be filled with free offers (so-called “freeriders”).
2.5 To comply with the contract, apprupt shall, if needed, be entitled to engage third parties and to provide partial services.
3. Registration, conclusion of the contract
3.1 Submission of the registration form shall be considered as an offer of contract from the publisher. The contract shall be concluded upon acceptance of the registration by apprupt. Should apprupt accept the offer, the publisher shall receive a confirmation e-mail. The publisher shall not be entitled to acceptance of the contract. Apprupt reserves the right to refuse the registration without giving any reasons.
3.2 By registering, or in cases where the publisher is a legal entity, as the acting agent of same, the publisher confirms he is a natural person at least 18 years of age and having full legal capacity.
3.3 The publisher shall receive a user account once registration has been successfully completed. This account shall include all the publisher’s data specified at the time of registration, in particular any information required for using the apprupt network and processing payment transactions. The user account shall not be transferable.
4. Rights and obligations of the publisher
4.1 The publisher shall, when registering, provide truthful, accurate, current and complete information as specified in the registration form. He shall furthermore keep his data in the member’s account up to date and accurate at all times.
4.2 The publisher must ensure that use of the service via his own user account is possible for him alone. This shall in particular include the responsibility to keep the password confidential. The publisher shall be responsible for all of his own activities and for third-party activities via his user account.
4.3 The publisher is responsible for the technical execution of the apprupt integration. Apprupt shall only ensure the fully functional and error-free display of the advertising formats marketed by apprupt when the apprupt SDK is being used. The quality and functionality of the advertising material shall not be subject to any restrictions by the publisher.
5. Granting of usage rights
5.1 Apprupt shall grant the publisher the non-exclusive, non-transferable usage rights to the applications of the apprupt integration, limited to worldwide use in the apprupt integration and to the duration of the contract. The usage rights granted shall exclude the right to copy and distribute the applications. The same applies for all copyright and/or commercially protected content (in particular logos and graphics) of the applications.
5.2 Apprupt shall be entitled to use the publisher as a reference for press releases and PR measures, while respecting the trademark or other industrial property rights of the publisher. This shall also include usage as a reference on the apprupt website or sales presentation (such as the use of the trademark, logo or other industrial property rights for communication and/or in the header of a landing page) and the use of screen shots of the app or website.
The publisher shall guarantee that all contents of his website is free of third-party rights, that he is entitled to use the content and that the content violates no applicable law.
7. Revenues, revenue sharing and costs
7.1 The publisher shall receive a share of 50% of the net revenues obtained by apprupt via the apprupt integration less all discounts, plus statutory value-added tax (hereinafter “revenue share”).
7.2 The revenue share shall be calculated from the net revenues of each advertiser and passed on to the publisher as a credit note plus value-added tax. The publisher is aware that only revenues generated via the apprupt integration shall be taken into account.
7.3 Should discounts in accordance with Section 7.1 be calculated or be realised at the end of the year based on achieved annual sales, apprupt reserves the right to retain a share of the monthly net revenue on the basis of estimates by apprupt. At the beginning of the following year, the publisher shall receive an end-of-year settlement and possibly an additional credit note for the event that excessive shares are retained.
7.4 Apprupt shall, by the 15th of the following month, provide the publisher with a detailed monthly report on the net revenues obtained via the apprupt integration. Apprupt shall use this to prepare a credit note for the publisher. The revenue share shall fall due for payment and be transferred accordingly by apprupt no later than 40 working days after preparation of the credit note (which always takes place on the 15th of the following month), but not before receipt of the advertiser’s payment. The resulting revenue share shall be transferred to the bank account specified in the publisher’s access data.
8. Duration and termination
The contract shall have an indefinite duration. The publisher shall be entitled to terminate the contractual relationship with a notice period of six weeks to the end of the month without giving any reasons. Apprupt shall be entitled to terminate the contractual relationship without notice and without giving any reasons. Termination must be declared in writing. The right to terminate for good cause remains unaffected.
9. Liability and support
9.1 Apprupt shall continuously improve and further develop the apprupt integration. The resulting maintenance work may temporarily lead to faults and errors. Apprupt shall endeavour to remedy any faults and errors as far and as quickly as is possible and reasonable for economic and legal reasons.
9.2 Apprupt shall not be liable for the success of the apprupt integration in terms of minimum sales pursuant to Section 7.2. Nor shall apprupt be liable for any services (especially network management) provided by any third parties not acting as vicarious agents of apprupt.
9.3 Apprupt shall moreover only be liable:
9.3.1. for gross negligence and gross organisational fault, unlimited in case of intent,
9.3.2 for damages due to injury to a person irrespective of the type of fault, and
9.3.3 for breach of substantial contractual obligations and serious violations of duty limited to the foreseeable damage typical for the contract.
9.3.4 The liability limitations shall also apply mutatis mutandis to the employees and vicarious agents of apprupt. The liability limitations shall not apply to personal injury and liability under the Product Liability Act.
9.4 In the event of a hindrance caused by force majeure, a strike, any other form of work stoppage, a lockout, power failure, a loss of electronic systems and any comparable serious event, making restoration of the service impossible, the parties shall be released from their obligations. No claims for damages may be made in such cases. This, however, shall not affect the obligation of each party to inform the other immediately as soon as such an event becomes foreseeable or has occurred and to work together, making all reasonable efforts to resolve the issue.
9.5 The parties shall immediately inform one another of interferences by third parties that become known to them during the execution of the contract, and to support one another in the defence against such interferences.
10. Data protection
Apprupt assures you that your information is used solely for the purpose of the publisher service. Apprupt shall keep your data strictly confidential and shall not share this information with any third parties without your consent.
During the course of the contract and even after it has terminated, the parties agree to maintain absolute confidentiality about all operational and business matters that have become known to them as part of this contract, in particular commercial documents, reports, sales figures, prices and other insights into business processes and the content of this contract. The parties shall disclose knowledge and confidential information of the other party to employees and contractors only insofar as they require such information to perform their obligations owed under the contract and insofar as they too have previously been obliged to maintain confidentiality. The party that receives confidential information from the other party shall undertake to treat such information with at least with the same care as their own confidential information.
12. Final provisions
12.1 Declarations (such as changes in the terms and conditions, confirmation e-mails) may be sent to the publisher electronically (e.g. by e-mail). These declarations shall be considered as having been received, if they are retrievable under normal circumstances in the e-mail inbox that the publisher has indicated.
12.2 Apprupt reserves the right to make changes to the general terms and conditions at any time. In this case, the publisher shall be informed beforehand of these changes by e-mail and advised of his right to object. If the publisher fails to object within a reasonable period specified by apprupt, the amended general terms and conditions shall be deemed accepted. Should the publisher object to a change, apprupt may terminate the contractual relationship.
12.3 Should individual sections of the general terms and conditions be invalid (in whole or in part) or contain loopholes, all other constituent parts shall remain unaffected. The relevant sections shall be replaced by a provision that comes as close as possible to the economic intentions of the parties.
12.4 The law of the Federal Republic of Germany shall apply.
12.5 The place of jurisdiction for all obligations or disputes arising from the contract is Hamburg.