General Terms and Conditions of Opinary GmbH for Advertising Customers
1.1 The Opinary Tool is a digital and interactive advertising tool that achieves user engagement through a combination of survey elements and traditional content advertising. Advertisers can play their individualised Opinary Tool on Opinary’s content networks by booking campaigns.
1.2 These General Terms and Conditions (GTC) apply between Opinary GmbH (Opinary) and its advertisers. Unless otherwise agreed, they take precedence over the contractual terms of the advertisers and other agreements.
Conclusion of contract
2.1 Prior to the conclusion of the contract Opinary sends the advertising client a non-binding offer in which the individually negotiated conditions are stated (campaign). By explicit declaration of the advertiser the advertiser makes an offer to the mentioned conditions, which Opinary accepts by booking confirmation or other declaration (conclusion of contract).
2.2 Opinary executes advertising placements exclusively on the basis of these GTC, which also apply to all future business relations with the contracting partner, even if they are not explicitly agreed upon again. Deviating regulations, especially deviating general terms and conditions of the contracting partner, are only valid if Opinary has confirmed this in writing or by email.
Subject matter of the contract
3.1 Subject matter of the contract is the paid placement of advertisements by Opinary. The placement is carried out by the Opinary Tool. This consists of a voting and an advertising element. Initially only the voting element is displayed. Here the user can click to give his opinion on a certain question/vote. Afterwards, the user can see how other users have positioned themselves on this question. After that, the advertising element (the advertiser’s advertising medium; for example image and/or text, a moving image, a video), is displayed at the poll’s position.
Opinary provides content services (= editorial content; for example the conception and creation of a question for a specific advertising campaign or a specific advertising medium) and the placement and playout of advertising media through the Opinary Tool, depending on the agreed campaign.
3.2 Opinary is connected to various websites through a content network (Publisher or Publisher Network). Opinary books advertising space with the publisher networks on which the advertising media of the advertiser and/or the content services are played out by the Opinary Tool. The respective campaigns are automatically played on the publishers’ websites (placement) by a proprietary algorithm. Opinary does not guarantee a placement of the campaign on a certain website or in a certain context; Opinary can place the individually designed survey of a Publisher before the automatically played survey of an Advertiser.
3.3 Opinary acts as an independent contractor to the Publisher, acting in its own name and for its own account.
3.4 Opinary will place the advertising material with the publishers for the advertiser according to the agreed campaign and ensure the delivery of the advertising material as well as the agreed interactions in the agreed period of time.
Obligations of the advertiser to cooperate
4.1 The advertising client has to provide Opinary with all necessary data, information, content, files and a written confirmation that the campaign is to be carried out as agreed 4 weeks before the start of the campaign. This includes in particular the targeting options as well as information and technical provision (URL parameters / pixels / tracking URL) for the external measurement of data points (tracking).
4.2 The advertiser gives Opinary a final approval at least 3 working days before the agreed start of the advertising placement. The final approval is given in text form. It contains the approval of the design, structure and sequence of the Opinary tool as well as the advertising material. Furthermore, it contains the approval of the target pages used per advertising medium. With his final approval, the advertiser confirms the correct installation of all desired tracking.
4.3 The advertiser shall ensure that the content, tools and advertising media provided by him are functional in the sense of the advertiser. This includes in particular the availability of the target pages, within as well as outside the Opinary advertising space. Furthermore, the advertising client is responsible for ensuring that the tracking measures used are available and usable in accordance with the campaign duration, in particular in the case of an extension of an already existing campaign.
5.1 The placement of the campaign takes place after approval (according to clause 4.2) by the advertising client, starting and ending at the respective agreed time.
5.2 The advertising client has to check the campaign immediately after the first placement and to report any defects in writing to Opinary immediately, but no later than three working days after the placement. If no notice of defect is given to Opinary by the advertising client within this period, the execution of the campaign is considered approved.
5.3 If the approval is delayed, a later placement occurs for other reasons and/or the campaign is paused at the request of the advertising partner, the campaign will continue to run only until the agreed end date. Opinary guarantees the agreed interactions for this shortened campaign duration. Subject to availability, Opinary can also extend the campaign duration backwards by the corresponding period. Alternatively, the advertiser may be granted a credit in the amount of the undelivered interactions, to be redeemed within a period of 6 months from the end date of the original campaign.
5.4 In the case of an insertion and/or placement that is reported as defective in a timely manner, Opinary will promptly remedy the defect. If the defect is not only insignificant, the advertiser and Opinary will jointly try to agree on an appropriate way to remedy the defect, for example by extending the campaign duration or by reducing the payment.
5.5 If the agreed interactions are achieved before the end date, the campaign can be ended up to 2 days earlier.
5.6 The exact date of the placement of a campaign depends on revenue-optimised considerations in individual cases. Therefore, no guarantee is given that the placement will take place exclusively within the agreed time frame of the campaign. Opinary has a right of deferral if a period of time was defined in a campaign and the agreed interactions were not provided in the respective period on the advertising space of the publisher. The duration of the right to postpone is 4 weeks. If the advertiser has no interest in a later performance, for example because the advertising medium relates to a specific campaign or a specific offer, the right to postpone shall not apply. In such a case clause 7.5 of the GTC applies accordingly.
5.7 Opinary can refuse the insertion and/or placement of advertising material for justifiable reasons, for example if the respective advertising material violates the law, the protection of minors or for other similar reasons which make an insertion and/or placement unacceptable.
Cancellation / Termination
6.1 Opinary grants the advertiser the possibility to cancel the campaign free of charge up to 4 weeks before the planned placement.
6.2 In case of a cancellation of the campaign 4 weeks or more before the scheduled placement, Opinary reserves the right to charge the full management and onboarding fee.
6.3 In case of a cancellation at short notice from two weeks before the agreed placement, or after the campaign has already been placed and is online, Opinary reserves the right to withhold up to 80% of the payment for the interactions reserved for the Publishers, unless Opinary manages to use the quotas for other advertising placements at short notice. In this case the claim will be reduced accordingly.
6.4 Opinary GmbH states that clients who have booked a subscription to the product “Opinary OnSite” can cancel their subscription by sending an e-mail to email@example.com latest 5 working days before the next payment. However, Opinary GmbH retains the right to charge the client a pro-rata payment for services that have already been provided before the cancellation of the subscription. The client shall not be entitled to a refund of any fees already paid to Opinary GmbH. Opinary GmbH reserves the right to terminate or suspend the subscription at any time without notice, in case of a breach of the terms and conditions by the client, or if the client uses the product in a way that could harm the reputation or business of Opinary GmbH. Opinary GmbH also reserves the right to modify or discontinue the product at any time, without notice, and shall not be liable to the client or any third party for any modification, suspension, or discontinuance of the product.Calculation and payment of the remuneration
7.1 The amount of the remuneration is generally determined by the agreement of the respective campaign and usually includes a management fee (support, conceptual advice, etc.), an onboarding fee (creation of the technical prerequisites for new customers) and the remuneration for the agreed interactions (cf. item 7.2). Optionally, further additional services can be booked.
7.2 The remuneration component based on interactions is calculated as follows:
An interaction on CPE basis (“Cost per Engagement”) exists if the visitor of a website gives his opinion in a survey of a campaign by clicking on the Opinary Tool.
An interaction on CPC basis (“Cost per Click”) is when the visitor of a website clicks on the advertisement displayed after voting in the Opinary Tool.
An interaction on a CPCV basis (“Cost per completed view”) occurs if the advertisement is played in the form of a video and this is viewed in full.
7.3 The basis for the calculation of the payment according to 7.2 are exclusively the interactions measured and reported by Opinary.
7.4 The interactions guaranteed in the campaign are not unique engagements. This means that Opinary does not guarantee a person difference for each interaction achieved.
7.5 A deviation of less than 1.5% of the agreed interactions is irrelevant. If the agreed interactions are under-delivered by more than 1.5 % (under-delivery), the advertiser will receive a claim for subsequent delivery as soon as possible or, if this is not possible in time, a claim for reduction of the corresponding amount. The advertising client shall not incur any costs for over-delivery.
7.6 The respective invoice shall become due for payment upon issuance of the invoice in electronic form. Objections to invoice amounts must be notified within 14 days. Otherwise, the respective invoice shall be deemed approved.
Invoicing shall be monthly, whereby the 1st invoice of a campaign shall include the agreed onboarding and management fee.
Rights to content / liability
8.1 The advertiser retains the rights to the advertising material and other content supplied by him.
8.2 The advertising client explicitly grants Opinary the right of use to use, play and place the advertising material within the framework of the campaigns. This includes in particular the brands shown in the advertising media, important catchwords or other elements which are due to the brand and design development of the advertising client. For this purpose the advertising client grants Opinary a non-transferable, royalty-free, spatially and temporally unrestricted, simple licence to use his trademarks and company logos as well as advertising content. The licence includes in particular the right to make these publicly available in online media, such as the internet, or to reproduce and distribute them offline.
8.3 Opinary retains the rights to the editorial content, especially to the surveys, unless otherwise agreed.
8.4 The advertising client is responsible for the advertising content provided to Opinary, both technically and in terms of content. The advertiser guarantees that the advertising content does not violate applicable law, that you have the necessary rights to the advertising content to fulfil this contract and that third party rights, especially copyrights or industrial property rights, do not conflict with their use. The advertising client indemnifies Opinary as well as the publisher from all third party claims asserted against them on first demand, as far as these result from a violation of third party rights, legal provisions or obligations from these GTC. The indemnity also includes a reasonable legal defence, including court costs and lawyers’ fees.
8.5 The advertising customer guarantees that the advertising content transmitted by you does not, in particular, glorify violence, war, eroticism, pornography, incitement of the people, contempt for humanity or content objected to by the German Advertising Council or contain symbols of unconstitutional organisations. This also includes pages to which the advertising media refer, for example by means of links.
8.6 As an advertiser, you guarantee that advertising content transmitted by you does not refer to pages (e.g. through links) whose content violates the above paragraphs.
Changes to these GTC
9.1 Opinary may amend these GTC if organisational developments and/or changes in legal developments require it, the amendments are reasonable, the content of the contract and the purpose of the contract remain essentially the same.
9.2 The amended GTC will be sent to the advertiser by email at least two weeks before they come into effect. The new GTC will be considered accepted if the advertiser does not object to the validity of the new GTC within two weeks. Opinary will explicitly inform the advertiser in the change email about the importance of this two week period, the right to object and the legal consequences of silence. If the advertiser objects to the changed conditions within the aforementioned period, the advertiser as well as Opinary is entitled to terminate the contract without notice.
Final Provisions, Place of Jurisdiction and Applicable Law
10.1 All amendments, supplements, collateral agreements, in particular also information and promises of employees involved in the contractual relationship as well as third parties engaged by Opinary regarding these GTC and/or the separately concluded contracts require the written form. The written form requirement also applies to the amendment or cancellation of this written form requirement.
10.2 Insofar as a written form requirement has been agreed in these GTC, this is also observed in the case of declarations by post, fax and e-mail.
10.3 For all claims arising from the business relationship the place of jurisdiction is the location of Opinary’s place of business, if the advertiser is a merchant, a legal entity under public law or a special fund under public law. Opinary is however entitled to assert its claims also at the general place of jurisdiction. The law of the Federal Republic of Germany applies exclusively.