T&Cs

Subject of the contract

  1. Pepperos Media GmbH (in the following called Pepperos) markets advertising space on its websites and in its email based services and direct mailings to business users.
  2. A contract is formed between Pepperos and the Client subject to the Terms and Conditions herewith. Involvement of an agency is on a Third Party basis and does not affect the contractual relationship between Pepperos and the Client.
  3. Pepperos is entitled to appoint subcontractors.

Applicability of the terms and conditions

  1. These terms and conditions apply to all advertising and email based services provided by Pepperos in connection with the contract governing media services. The client terms and conditions do not apply. The validity of client terms and conditions is herewith controverted and this contradiction does not need to be repeated by Pepperos even if the client terms and conditions, or a related notice, are submitted hereafter.
  2. These terms and conditions are valid for all subsequent business between Pepperos and the client and no additional express inclusion of these terms and conditions is necessary to affirm this.
  3. Should clauses of these terms and conditions be invalid or unworkable, this will not affect the validity of the rest of the contract. The ineffective clause will be replaced by a provision that comes closest to the economic and legal sense of the unworkable regulation. The same applies to any loopholes that may occur and require closure.

Contract

  1. All offers are subject to confirmation by Pepperos. All agreements between Pepperos and the client must be concluded in writing. A signed order of Pepperos is sufficient.
  2. Oral agreements and contract changes are first effective with a written confirmation. Explanations in text form which are made through electronic media such as email, internet broadcast etc are valid written forms.

Duties of the client

  1. At least 5 working days before the start of the contractual service, the client is obliged to send Pepperos all information and materials necessary for the proper execution of the service. If the advertising materials provided is assessed as unsuited or partially unsuited (due to presentability issues or higher than average unsubscribe rates or bad performance/conversion) for the contractual service (implementation/mailing) by Pepperos, Pepperos is entitled to make either contextual or technical changes or corrections to the materials as long as these changes/corrections will optimize the presentability or performance/conversion. Alternatively, Pepperos has the right to return the materials based on stated reasons. In this case the client immediately shall provide Pepperos with materials changed according to the reasons stated for returning the material. All costs, charges and lost profits due to delayed or failed cooperation from the client are to be reimbursed.
  2. The client confirms that carrying out the service in accordance with the contract will not violate legal provisions or the rights of third parties. In particular, the client is solely responsible for the legal compliance of the content of the advertising materials provided/specified by the client, and for the legal compliance of the service or product advertised for. In particular, the client will ensure that there are no sexual or pornographic representations in the advertising material, that no names or terms are used that indicate sexual or pornographic programs or promote content with sexual or pornographic elements or elements that may be harmful to youth, and that the client has attained all required legal authorization from the appropriate governmental agencies for the service or product advertised for. Pepperos is not obliged to check orders for legal compliance.
  3. The client grants Pepperos the appropriate rights to execute the contractual service and guarantees to be either the owner of these rights or have the authorization to grant these rights to Pepperos.
  4. Upon first request, the client will indemnify Pepperos in respect of all losses, damages and costs including the costs of legal action against Pepperos (including fees for legal representation) arising from a breach of law or breach of these terms and conditions by the client, to the extent that expenses are incurred in defending against claims by third parties, including claims by the appropriate supervisory authorities.
  5. Within 48 hours of the initial service provision, the client is obliged to check if the service is provided in accordance with the contract, and to inform Pepperos in writing of any complaints. If the client does not make such an announcement within this time or in this way, then the service carried out is considered to be in accordance with the contract.

Rejection of orders

  1. Pepperos reserves the right not to perform certain services even if they relate to existing contractual relationships for justifiable reasons (such as legal, ethical or moral ones). In the case where services cannot be performed by Pepperos for these reasons, the client will be informed immediately.
  2. If non-performance of services is for the reasons stated in clause 5.1 then the agreed amount still has to be paid to Pepperos unless the released advertising spaces can be re-booked, in which case the client will be entitled to a refund limited to the amount of any payment already made for this service. If Pepperos culpably fails to dispose of released advertising spaces in time, then the client will be entitled to a refund limited to the amount of any payment already made for this service. Additional claims are excluded.

Delivery of services by Pepperos

  1. Pepperos is not obligated to deliver the contracted service if the client is in breach of any legal provisions or infringes any obligations held within these terms and conditions.
  2. The service is fulfilled by sending the agreed volume in the contract. The client will then receive a report after the contractually agreed service has been provided.
  3. Should the non-performance of contractual services be attributable to force majeure or other circumstances beyond Pepperos’s control, Pepperos shall not be required to fulfill the contract for the duration of these events.

Payment conditions

  1. The client must pay for the placement of advertising at the rate detailed on the price list at the time of concluding the contract. In case of cancellation after the order the client must pay 70% of the contract price as a cancellation fee.
  2. All remuneration is subject to the legal applicable VAT. Payments are due immediately after invoicing, with no deductions.
  3. If the client is in payment arrears or if an application is made to open bankruptcy proceedings against it, then Pepperos can withhold further services and submit an invoice for all services already provided. In this case, Pepperos is entitled to make any commitment to further services subject to the pre-payment of all existing orders, even if they have already been contractually agreed. This does not affect pecuniary claims and the enforcement of further claims for damages.
  4. Pepperos is entitled to charge interest according to legally regulated amounts if a delay in payment occurs. The claim to other damages ramains unaffected.

Compensation and Offsetting sums owed

  1. The Client can offset claims arising from this contract only against undisputed or legally determined claims arising from this contract.
  2. The client can only submit a claim to offset sums owed to Pepperos if the respective claims are based on the same contract.

Defects liability

  1. If the service is not carried out perfectly and its purpose is significantly affected, the client can claim for it to be repeated perfectly. This applies particularly in cases where Pepperos has not carried out the service, or carried it out only in part, due to technical malfunctions. A claim for a reduction in remuneration may only be made if a repetition is not possible or is not reasonable for the client. The client can set a suitable period for the repetition. If the repetition is not performed within this period, then the client can demand a repayment of remuneration to the extent that the service was not carried out properly.
  2. If a service is not provided, or provided imperfectly, due to the client not providing the required information or materials, or providing incomplete, late or incorrect materials or cooperation, the entire remuneration has to be paid by the client.
  3. After the contract has been fulfilled, Pepepros is entitled to destroy any information or materials supplied by the client for the execution of the service.

Liability

  1. Pepperos assumes, within legal terms, unlimited liability for damages caused by injury to life, body or health that were caused by intentional or grossly negligent behaviour on the part of Pepperos or a legal representative or agent of Pepperos.
  2. For other damages, Pepperos assumes liability, within legal terms, as follows: Pepperos assumes unlimited liability for damages caused by intentional or grossly negligent behaviour on the part of Pepperos or a legal representative or agent of Pepperos, and for damages that fall within the scope of protection governed by a Pepperos guarantee or warranty. Pepperos assumes limited liability for the reimbursement of predictable damages caused by a slightly negligent breach of an essential contractual obligation. For other instances of slight negligence Pepperos assumes no liability.
  3. If liability is excluded, then the personal liability of employees, representatives, sub-contractors and other employees is also excluded.

Confidentiality

  1. The Client is hereby notified that Pepperos stores the Client's data in machine-readable form and processes such data electronically for contractual purposes. The Client hereby agrees to such storage. To the extent that Pepperos uses any third parties for the performance of services, Pepperos shall be entitled to make the relevant data available to such third parties if and when required.
  2. The content of this agreement and any other confidential information must be treated as strictly confidential by the parties and may only be disclosed to any third parties where this is mandated by law. Information that was demonstrably known to the Client and/or Pepperos at the commencement of their contract negotiations or that entered into the public domain either before or after conclusion of the contract, without wrongful act on the part of the Client or Pepperos, are not deemed to be confidential information.

Miscellaneous

  1. Exclusive court of jurisdiction for all disputes resulting from or in connection with services carried out is Nürnberg.
  2. Place of fulfillment is Nürnberg.
  3. German law applies, without possibility of recourse to the UN Law on the International Sale of Goods.