General Terms and Conditions of Artefact Germany GmbH for Advertisers
Last Update June 2020
Artefact Germany GmbH (hereafter "Artefact") operates a platform (hereafter also "Artefact network") as a content operator (together with EASY Marketing GmbH as technical operator) under the domain aaa.artefact.com, which enables suppliers of online goods and services registered with Artefact (hereafter "Advertiser") to advertise products within the framework of programs and to track their conversions. For this purpose, natural persons or legal entities registered with Artefact (hereinafter referred to as "Publishers") provide their advertising environment - e.g. website.
The object of the programs is the provision of media services via the Publishers’ advertising environments by means of advertising material - such as banners or text links - to support the Advertiser in the online distribution of goods and services.
For the purposes of these General Terms and Conditions of Business (hereinafter referred to as "GTC").
Account is the access to the Artefact network as it is provided by Artefact after successful registration and activation or provision of access data.
Call: A Call is a call made voluntarily and consciously by the user to a telephone number assigned to the Advertiser’s program and displayed in the Advertising Environment of the Publisher.
Click: A Click is a voluntarily and consciously executed call of a link to the program of the Advertiser by the user, which leads to the visit of the linked website of the Advertiser. The link must be embedded in the Publisher's Advertising Environment (e.g. the website) released in accordance with the Program Conditions. A later continuation of the User's action (e.g. in the case of a Lead or Sale) can also lead to a payment obligation of the Advertiser towards Artefact as well as towards the Publisher (Post-Click).
Cookie: Cookies are text information which are stored in the browser of a User for a website which the User has visited.
Lead: In the case of a Lead, a valid View, Click or Call is followed by a voluntary and conscious execution of a certain defined action on the website of the Advertiser (qualified action) by the User. Basically, Views (including Post-Views), Clicks (including Post-Clicks) and Calls can lead to a Lead. A Call may already be a Lead. Leads are logged by the system of Artefact, verified by the Advertiser and determined and confirmed by Artefact at its reasonable discretion.
Link is a reference to the Advertiser's website provided by the Advertiser via the Artefact network for use by the Publisher in the Publisher’s Advertising Environment for the Advertiser's program.
Pay-Per-View/Click/Call/Lead/Sale Program: The claim for remuneration within the scope of a Pay-Per-View/Click/Call/Lead/Sale Program is dependent on the conditions regulated in these GTC.
Sale: In the case of a Sale, a valid View, Click or Call is followed by a voluntary and conscious acquisition of a chargeable good or a voluntary and conscious use of a chargeable service by the User. Basically, Views (including Post-Views), Clicks (including Post-Clicks) and Calls can lead to a Sale. Sales are logged by the system of Artefact, verified by the Advertiser and determined and confirmed by Artefact at its reasonable discretion.
User is any natural person or legal entity who accesses the Publisher’s Advertising Environment or the Advertiser’s website and carries out a View, Click, Call, Lead and/or Sale.
View: A View is a call of the Publisher’s Advertising Environment executed by the User, through which advertising material of the Advertiser is displayed according to the Program Conditions. After the call of the Advertising Environment and a Lead or Sale resulting from it even without a Click on the advertising material of the Advertiser, a payment obligation of the Advertiser can be triggered towards Artefact as well as towards the Publisher (Post-View).
Website (of the Advertiser) is the contractual internet offer of the Advertiser (e.g. websites, mobile sites, social profiles, apps etc.) under the exactly stated URL under which the Advertiser sells or advertises goods and/or services online and to which the Link to be used by the Publisher, according to the regulations of the program, refers.
Advertising Environment (of the Publisher): The Advertising Environment is the contractual Internet offer of the Publisher or a third party who acquires the rights to use the Internet offers of a Publisher, e.g. websites, mobile pages, social profiles, apps etc. However, the Advertiser can also expand the Advertising Environment in the Program Conditions (e.g. to include search engine marketing). If the Advertising Environment is a website, this means the Publisher's internet offering under the domains specified and registered by the Publisher with the content checked by the Advertiser. The domains specified in the Publisher's account may be visible to the Advertiser. The person who has administrative access to the program (hereinafter "Program Operator") will proactively review these or its contents at reasonable intervals and, where appropriate, notify the other parties.
2. Participation in the Artefact network
After agreeing on the validity of these GTC the Advertiser is given the opportunity to participate in the Artefact network. For this purpose, the Advertiser is provided with access data for the Artefact network by Artefact. Access is granted to the Advertiser for an indefinite period of time.
3. Subject matter of the contract
3.1 Subject of these GTC are services within the scope of the use of the Artefact network.
3.2 Artefact offers the Advertiser the possibility to operate programs via the Artefact network. Within the framework of these programs Publishers provide the Advertisers with Advertising Environments. The Advertiser needs these to promote the online distribution of his goods and services. Artefact enables the Advertiser to operate and monitor Pay-Per-Click/View/Call/Lead/Sale programs or a combination of the aforementioned program types via the Artefact network. For his services the Publisher receives a performance-related remuneration from the Advertiser. The settlement of this remuneration is performed by Artefact via the Artefact network for the respective Advertiser.
3.3 Another component of the Artefact network is the logging of the Views, Clicks, Calls, Leads and/or Sales carried out by the Users on the website of the Advertiser by means of a tracking procedure for which Artefact provides the Advertiser with tracking codes for installation (hereinafter "Tracking"). The Tracking for the respective program can be viewed by the Advertiser in the Artefact network.
3.4 The specific terms and conditions of the program, such as information about the type and remuneration of the service to be provided by the Publishers within the framework of the respective program are determined by specific terms and conditions of participation for the program (hereinafter "Program Conditions"). These Program Conditions are created by the Advertiser, if necessary with the support of Artefact, and made available to the Publishers via the Artefact network. The Advertiser as well as Artefact are entitled to terminate the participation of a Publisher in a running program at any time with immediate effect in text form. The termination has no effect on already acquired claims for remuneration of the Publisher.
3.5 Within the Artefact network Artefact only acts as a technical provider. Contractual relationships with the Publishers about their participation in the programs of the Advertiser are therefore exclusively concluded with the Advertiser. This also applies if Artefact, in addition to the technical offer of the Artefact network, also acts as Program Operator for the Advertiser. Artefact only supports the initiation and execution of the contract, but in any case, as the provider of the Artefact network does not become a contractual partner of the Advertiser and/or the respective Publisher. A liability of Artefact for the Publishers, especially for any action or omission of the Publishers, is excluded.
4. Scope and provision of services
4.1 The Advertiser has no claim against Artefact for the provision of services by Artefact. However, if Artefact provides services within the Artefact network, the Advertiser must remunerate Artefact for these services.
4.2 Artefact and easy Marketing are entitled but not obliged to continuously develop the Artefact network at their own discretion and adapt it to legal and technical developments.
4.3 Media services to support the Advertiser in the online sale of goods and services are provided within the Artefact network exclusively by the Publishers and not by Artefact. The Publishers will act in the interest of the Advertiser with regard to the type, extent and design of the advertising for the Advertiser's program and not in fulfilment of an obligation incumbent upon Artefact towards the Advertiser. The Advertiser reserves the right to specify the range of obligations of the Publishers in more detail in the separate Program Conditions and to determine additional obligations of the Publishers towards the Advertiser. In this respect the Publishers do not act as vicarious agents for Artefact.
4.4 Artefact is entitled to transfer its own service provision or parts thereof to third party service providers or vicarious agents to be independently handled.
5. Rights and Duties of the Advertiser
5.1 The Advertiser is obliged to Artefact, as well as to the Publishers, to give complete and correct information about all data required by Artefact as well as information about the offered programs. If the Advertiser is the Program Operator, he is obliged to keep the data and all information concerning his programs always up to date. If Artefact is the Program Operator, the Advertiser is obliged to inform Artefact of all data and information in good time so that Artefact can keep the data and all information concerning the programs of the Advertisers always up to date.
5.2 The Advertiser is obliged to make all links and advertising material necessary for participation in a program available to Artefact or the Publishers for retrieval. The links and advertising material must be suitable for the intended use by the Publishers. Artefact may use them in the Advertising Environment of the Publishers.
5.3 If the Advertiser agrees to make his product data available to Artefact for the purpose of advertising by the Publishers, the Advertiser undertakes to make the product data available to Artefact in a suitable form (in a suitable form in this sense means that Artefact can download the product data file) and to update it regularly. The cycle of updating will be agreed in text form between Artefact and the Advertiser. Furthermore, he assures that all mandatory fields will be completed and filled in and that the legal regulations concerning product information and product advertising are observed.
5.4 The Advertiser is entitled to change the remuneration for all programs in favour of Artefact and/or in favour of the Publishers, for example by means of temporary bonuses, at any time. The change is made by notification of the changed remuneration in the Artefact network for the respective program and becomes effective at 0.00 o'clock on the second day after publication in the Artefact network.
5.5 If the Advertiser intends to make other, especially permanent changes to a running program, Artefact as well as the Publishers participating in the program are to be informed of the exact changes four (4) weeks before the changes come into effect. The information must be in text form.
5.6 The Advertiser undertakes to design his website and advertising material in such a way that the rights of third parties, including copyright, are not infringed. Furthermore, the Advertiser undertakes not to violate applicable law, in particular data protection laws. The Advertiser may use personal data and confidential information, including those of the Publishers, which become known to him exclusively for the purpose of processing the respective contract and for its respective duration.
5.7 The Advertiser is obliged to provide his businesslike offer with a provider identification. The Advertiser is obliged to design his website in accordance with statutory regulations on consumer protection.
5.8 Depictions of violence, sexually explicit or pornographic content or discriminatory statements or representations regarding race, sex, religion, nationality, disability, sexual orientation or age are not permitted on the website of the Advertiser and/or in connection with the participation in programs of the Advertisers. The design of the website must not be capable of damaging the reputation or the appreciation of the goods or services, the brand or the business operations of Artefact. The Advertiser undertakes to provide all necessary cooperation in case of information to be provided to authorities.
5.9 The supervision of the advertising activities of the Publishers and if applicable their sub-publishers, in particular the information provided by the Publishers in the context of their application for the programs and the advertising spaces made available by the Publishers as well as their environment is the responsibility of the respective Program Operator.
6. Tracking and verification
6.1 Artefact provides the Advertiser with tracking codes to record Views, Clicks, Calls, Leads or Aales by a User on the website of the Advertiser. The Advertiser undertakes to install these tracking codes correctly and completely according to the specifications of Artefact so that the Tracking functions properly. If a website or application optimised for mobile devices is available, the Advertiser is obliged to provide it with the Artefact tracking technology for a functioning Tracking as well.
6.2 The Advertiser shall, within the scope of his technical possibilities, ensure that his website (including all entries in search engines, directories or link lists of third parties) is designed and presented in such a way that valid Views, valid Clicks, valid Calls, valid Leads or valid Sales are generated by the Users on the website of the Advertiser and are fully logged by means of suitable tracking procedures. The logging must be guaranteed with and without cookies.
6.3 In the event that the Advertiser additionally uses his own tracking system, only the Artefact Tracking is always decisive for the obligation to pay remuneration to Artefact as well as to the Publishers.
6.4 If the Advertiser implements tracking switches, the Advertiser guarantees that the Tracking of Artefact is not influenced by this. The Advertiser undertakes to disclose his tracking procedures, in particular the function of the tracking switches used and the attribution procedures applied, to Artefact within 5 days of the conclusion of the contract unless a different time period has been agreed.
6.5 The Advertiser is obliged to inform Artefact and the Publishers about tracking changes two (2) months before the change comes into effect and to coordinate these with Artefact. Should the Advertiser without prior information and agreement with Artefact change the tracking procedure (among other things also the tracking hierarchy) so that the logging no longer functions correctly (tracking failure or other malfunction), the remuneration to Artefact as well as to the Publishers for this period is determined according to point 8.6.
6.6 With Pay-Per-View, Pay-Per-Click, Pay-Per-Call programs the Views, Clicks or Calls are logged on the basis of the Tracking and their validity is determined and confirmed by Artefact at its reasonable discretion.
6.7 The Advertiser is obliged to send Artefact on a monthly basis all data recorded by the Advertiser himself which according to Artefact is necessary for a comparison of the Leads and/or Sales logged via the Tracking with the Leads and/or Sales actually executed. The data matching in the context of the comparison carried out by the Program Operator is considered as verified by the Advertiser. If the Advertiser does not send the data within a validation period to be agreed separately between the Parties, all the Leads and/or Sales logged via the Tracking shall be deemed verified.
6.8 The Advertiser will provide information on the Leads and/or Sales verified and not verified by him and with regard to his corresponding objections at the request of Artefact. In addition, the Advertiser grants Artefact the right to check the data sent by the Advertiser with regard to completeness and correctness of content. This proof can be provided by presenting suitable documents, customer records and/or log files. In this respect, Artefact is also entitled to have the information of the Advertiser checked by an auditor who is obliged to maintain secrecy by inspecting the relevant business documents at the Advertiser's premises during normal business hours. The costs for this are to be borne by Artefact in case of deviations (with regard to the Leads or Sales verified by the Advertiser in relation to the actual Leads or Sales) of less than 2.5 %, otherwise by the Advertiser.
7. Rights and Obligations of Artefact
7.1 The Publisher may place any number of Links and/or associated advertiser material to the Advertiser's website at any point in its Advertising Environment. However, Artefact is obliged to require the Publisher to change the placement of the Link and/or the advertising material at the request of the Advertiser if the placement affects the reputation or the appreciation of the goods or services, the brand or the business operations of the Advertiser.
7.2 Artefact has the right to temporarily suspend or stop a program if the Advertiser does not fulfil his obligations from and in connection with these general terms and conditions, such as the obligations for Tracking and switch changes.
8.1 The Advertiser pays Artefact a performance-related fee for the services rendered. The amount of the remuneration is agreed upon between the Parties and is determined by the remuneration to be paid by the Advertiser to the Publisher for his services. If agreed with the Advertiser, Artefact is also entitled to charge a one-time set-up fee for setting up a program as well as other fees if necessary.
8.2 The success of a service (and thus the obligation to pay remuneration) is determined by the respective Program Conditions. The obligation to pay remuneration may be triggered by a Call, Click, Lead, Sale or View, for example. A combination of these events may also trigger the obligation to pay remuneration.
8.3 A remuneration obligation of the Advertiser towards Artefact as well as towards the Publisher only arises if the respective event triggering the remuneration is to be regarded as valid in the sense of these GTC and the Program Conditions. Clicks which are not generated by Link and/or to the website of the Advertiser are not valid. Clicks, Views and Calls that are automatically generated by technical devices (e.g. click generators) or initiated by force or deception are not valid. Repeated Clicks, Views and Calls of the same User or Clicks, Views and Calls that follow each other in short succession - e.g. clicks on different links - are also not valid. Clicks, Views and Calls for which the User receives remuneration from the Publisher are also not valid. Clicks that are connected with a compulsion to take action, such as sending an SMS message, participating in a competition or using the Click in a paid e-mail system, are also generally inadmissible without the prior written consent of Artefact or permission in the Program Conditions. In the absence of such consent or explicit permission, Clicks, Views and Calls generated in this way are not valid.
8.4 In the case of Pay-Per-Sale programs with a remuneration based on a percentage the remuneration to Artefact as well as to the Publishers is calculated according to the net sales value of the goods or services (i.e. excluding auxiliary services and VAT).
8.5 In the event of a Tracking failure or other malfunction the Advertiser is obliged to pay as remuneration to both Artefact and the Publishers the average daily turnover of the last three (3) months for each commenced day for the period of the Tracking failure or the period of the other malfunction.
9. Accounting and payment
9.1 At the beginning of each calendar month Artefact settles the account for the remuneration to be paid by the Advertiser both to the Publishers and to Artefact for the previous calendar month and invoices these to the Advertiser. Invoices can be issued in electronic form.
9.2 All valid and verified Calls, Clicks, Leads, Sales or Views recorded by the Tracking at the time of invoicing will be taken into account as subject to payment in accordance with the Program Conditions.
9.3 The remuneration is due and payable without deductions within fourteen (14) days of invoicing.
9.4 The remuneration and all other amounts due are net amounts, unless expressly agreed otherwise in writing. The applicable statutory value added tax will be invoiced and paid in addition to the remuneration. Artefact will show the amount and the level of VAT separately on the invoice.
9.5 In case of a delay in payment Artefact reserves the right to claim both reminder fees and default interest at the statutory rate as well as to stop the respective programs.
9.6 The Advertiser has a right of set-off or retention only in the case of counterclaims that have been legally established or are undisputed.
10. Termination of Contract and Deactivation of the account
10.1 Artefact and the Advertiser may terminate the participation of the Advertiser in the Artefact network with a notice period of three (3) months in text form. The termination has no effect on the duration of the programs. The termination will therefore become effective at the earliest at the point in time when the last program of the Advertiser has ended as agreed.
10.2 The right of the Parties to extraordinary termination for good cause remains unaffected.
10.3 In case of termination of the participation in the Artefact network the access to the Artefact network will be deactivated.
11. Legal relationship with the Publishers
11.1 Contracts for the provision of services to support the Advertiser in the online distribution of goods and services are concluded exclusively between the Advertiser and the Publishers in accordance with section 3 of these GTCs. Artefact itself is not a party to the contract.
11.2 As far as a Publisher does not fulfil his obligations towards the Advertiser, the Advertiser has to assert all claims resulting from this, in particular claims for information, omission and damages, exclusively towards the Publisher. There is no claim against Artefact in this respect.
11.3 The Publishers have committed themselves to Artefact also with effect in favour of the Advertiser:
- to design and present their Advertising Environment including all entries in search engines, directories or link lists of third parties in such a way that exclusively valid Views, valid Clicks, valid Leads or valid Sales are generated by Users for the Advertiser;
- not to modify the HTML code or banners provided by the Advertiser and to use the advertising material provided only in the Publisher's Advertising Environment;
- to use the advertising material only in connection with the participation in a program;
- to use the names, protected brands and trademarks, the company or logos of a third party - in particular of the Advertiser - only if the Publisher has the consent of the rights holder;
- to design their Advertising Environment in such a way that the rights of third parties, including copyrights, are not violated and not to violate applicable law, in particular data protection laws;
- to send e-mails with advertising for Artefact or the programs only after prior written approval by Artefact and in compliance with the legal requirements and current jurisdiction;
- to design their Advertising Environment in accordance with legal provisions for consumer protection;
- to refrain from depictions of violence, sexually explicit or pornographic contents or discriminating statements or depictions regarding race, sex, religion, nationality, disability, sexual orientation or age in the Advertising Environment of the Publisher and/or in connection with the participation in programs;
- not to damage the reputation or the esteem of the goods or services, the brand or the business operations of the Advertiser - also by the placing of the hyperlinks.
11.4 If a Publisher does not fulfil the obligations to the Advertiser in accordance with Clause 11.3, the Advertiser is entitled and obliged to assert all resulting claims against the Publisher.
12. Defects, Limitations of Liability and Indemnifications
12.1 Defects and malfunctions of the Artefact network are to be reported to Artefact immediately, at the latest within two (2) weeks of knowledge, in writing or by e-mail.
12.2 Artefact is not responsible for the content of websites of third parties, for damage or other disturbances that are based on the defectiveness or incompatibility of software or hardware of the participants or for damage that has arisen due to the lack of availability or the faultless functioning of the internet.
12.3 Artefact is only liable for intent and gross negligence. Deviating from this, Artefact is liable in the case of simple negligence for damages resulting from a breach of material contractual obligations, a so-called cardinal obligation (obligation the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely on); in this case, however, the liability is limited to the replacement of the foreseeable, typically occurring damage and an amount of maximum € 5,000 per case of damage.
12.4 Liability for indirect and unforeseeable damages, loss of profit, missed savings, loss of data and pecuniary loss due to third-party claims is excluded in the case of simple negligence.
12.5 The above exclusions and limitations of liability also apply in the case of breaches of obligations by or in favour of representatives of Artefact, executive employees and other persons whose fault Artefact is responsible for according to legal regulations.
12.6 The limitations of this Section 12 shall not apply with respect to claims arising from the German Product Liability Act, if Artefact has expressly assumed a guarantee or has fraudulently concealed a defect, nor do they apply to the liability for damages from injury to life, body or health.
12.7 The Advertiser indemnifies and holds harmless Artefact and the Publishers from all claims for damages, liability claims, warnings, cease-and-desist declarations of third parties and other claims as well as any costs and expenses in connection with these which have been caused by a causal behaviour (also omission) of the Advertiser. This applies in particular in the event of an infringement of copyright, trademark, competition and data protection rights or third party rights.
13.1 The Parties agree to keep strictly confidential all operational, technical and other business information and knowledge of the other party which is made accessible to them in connection with this contract and which is designated as confidential or which is recognisable as a business or trade secret of a party according to other circumstances, for an unlimited period of time and also after the end of the contract and - unless required to achieve the purpose of the contract - not to record it, disclose it or use it in any other way.
13.2 The Parties shall ensure by appropriate contractual agreements with their employees and agents working for them that they, too, shall refrain for an unlimited period from any own use or unauthorized recording of such confidential information as well as of business and trade secrets. Each Party is obliged to consult with the other party to the contract if any doubts should arise as to whether or not information is to be treated as confidential in a specific individual case. In case of doubt, information shall be treated as confidential.
14. Right of Modification
Artefact will offer changes to these GTCs to the Advertiser in text form at the latest six (6) weeks before the intended date of their entry into force. If the Advertiser does not object in due form or time, the amended terms and conditions will come into force at the intended time. The objection is only in due form and time if the objection is made in text form and is received by Artefact within four (4) weeks after receipt of the notification. Artefact will point out to the Advertiser the possibility of an objection, its form and deadline and the legal consequences of an objection not made in due form or time.
15. Scope of application
15.1 Deliveries, services, offers and contracts between Artefact and the Advertiser within the Artefact network are always based on these GTCs. Conflicting terms and conditions of the Advertiser are therefore invalid unless their validity has been expressly agreed in writing between Artefact and the Advertiser.
Possible counter-confirmations of the Advertiser with reference to his terms and conditions are hereby contradicted.
15.2 Unless otherwise agreed between Artefact and the Advertiser, collateral agreements, modifications or amendments require the written form to be effective. The annulment of this written form requirement must also be made in writing to be effective.
15.3 Artefact's employees are not entitled to make changes to these terms and conditions.
16. Place of jurisdiction, choice of law and severability clause
16.1 The place of jurisdiction for all disputes arising from these GTCs, including actions on bills of exchange and cheques, is Hamburg.
16.2 German law shall apply under exclusion of the UN Convention on the International Sale of Goods (CISG).
16.3 Should one or more provisions of these GTC be or become invalid, the validity of the remaining provisions shall not be affected. The invalid provisions shall be replaced by an appropriate provision which comes closest to what the Parties to the contract intended.