0

Advertiser Terms and Conditions

General Terms and Conditions for Online Advertising via the VIEWSTER website

These General Terms and Conditions (GT&Cs) are valid for all commercial rela-tionships between VIEWSTER AG, Mühle-bachstr. 162, CH-8008 Zürich (“VIEWSTER“) and its advertising clients (“Advertiser“) regarding the provision of online marketing services by VIEWSTER. VIEWSTER’s Advertis-ing Code of Conduct for Advertiser (s. An-nex) is part of these GT&Cs.

  • 1. Conclusion of Individual Contracts
    • 1.1 An individual contract on the provi-sion of online advertising services shall come into being when VIEWSTER accepts a written offer (email is sufficient) submitted by the Advertiser (“Individual Contract“). The specific Individual Contract in question shall contain the respective scope of per-formance and the contractual terms as harmonized with the circumstances of each individual case. If the provisions of an Indi-vidual Contract diverge from those of these GT&Cs, the provisions of the Individual Contract shall take precedence.
    • 1.2 If the Advertiser is an advertising agency or an advertising intermediary not acting in his/her own name, the agency and the advertising intermediary is obliged to specify (and proof) for whom it is placing the advertising.
    • 1.3 General terms and conditions or any other standard contract terms of the Ad-vertiser or third parties shall have no valid-ity, even if VIEWSTER does not object to them expressly in an individual case.
  • 2. Obligations of the Advertiser
    • 2.1 The Advertiser shall supply the con-tractually agreed advertising materials such as videos (“Ad Media“) at his own expense up until such time as is agreed in the Indi-vidual Contract or – if no time is agreed in the Individual Contract – until no later than five working days before the agreed publication date, and in complete and per-fect condition and in accordance with the contractual agreements.
    • 2.2 If the Advertiser does not comply with the agreed date with the result that the Ad Media can be published only with a delay or not at all, this shall not impair VIEWSTER’s claim to the agreed remunera-tion. In cases where it is no longer possible to publish the Ad Media, VIEWSTER must take into account amounts which it saves as a result of its exemption from perfor-mance or which it acquires or culpably fails to acquire as a result of the alternative use of the freed resources.
    • 2.3 The Advertiser guarantees that the transmitted Ad Media do not infringe legal provisions, official prohibitions or any pro-vision of VIEWSTER’s Advertising Code of Conduct for Advertiser (s. Annex) and that the Ad Media is free of any third-party rights (in particular trademark rights, pa-tent rights or copyright) which present an obstacle to use the Ad Media as defined by the Individual Contract and these GT&Cs.
    • 2.4 The Advertiser ensures that the Ad Media is clearly recognizable as advertising. Insofar as the Ad Media is not clearly rec-ognizable as advertising, VIEWSTER shall be entitled to identify the Ad Media as adver-tising, in particular by labeling it with the word “Advertisement” or similar indica-tions to make clear its advertising charac-ter.
    • 2.5 VIEWSTER is not obliged to check the Ad Media or the links referred to by the Ad Media, including the content of those links. Any checks carried out by VIEWSTER shall not release the Advertiser from his responsibility for the Ad Media and/or the links, including the content of those links.
  • 3. Services provided by VIEWSTER
    • 3.1 VIEWSTER will incorporate/embed the Ad Media into the Ad Space of its me-dia player and/or any other part of its web-site (“Ad Space“) in the scope and for the period as agreed in the respective Individ-ual Contract.
    • 3.2 If the parties agree in the Individual Contract upon a maximum number of in-ternet users’ visual contact with the Ad Media (“Ad Impressions“), retrievals of the website on which the Ad Media is placed (“Page impressions“), internet users’ clicks on Ad Media (“Ad Clicks“) or any other in-ternet users’ action such as the purchase of a product, the installation of an application or the registration for a newsletter after an internet users’ clicks on Ad Media (“Lead“), the placement of the Ad Media shall be made only for the respective period. Inso-far as VIEWSTER has assured the Advertiser that it will deliver a particular number of Ad Impressions, Page Impressions and/or Ad Clicks within a particular period and the number thus assured was not delivered in full during this period, VIEWSTER shall be entitled, but not obliged, to carry on plac-ing the online advertising in question and subsequently deliver the still missing num-ber of Ad Impressions, Page Impressions and/or Ad Clicks. The deadlines for such delayed deliveries shall be coordinated with the Advertiser taking the legitimate interests of both parties into account. If the agreed number is not delivered subse-quently within the period allowed for de-layed delivery, the Advertiser shall be enti-tled to reduce the remuneration propor-tionally for the Ad Impressions, Page Im-pressions and/or Ad Clicks that were not delivered.
    • 3.3 VIEWSTER shall be entitled to edit the Ad Media with regard to its format, size and technical properties insofar as VIEW-STER regard this as necessary for the deliv-ery of the Ad Media and reasonable for the Advertiser in consideration of VIEWSTER’s interests. VIEWSTER shall not be obliged to hand over the Ad Media to the customer upon termination of the online advertising or to retain it.
    • 3.4 If technical circumstances prevent publication on the agreed date, provided that VIEWSTER was not responsible for such obstacles arising, VIEWSTER shall be enti-tled to postpone or cancel an agreed date for the publication of the Ad Media.
  • 4. Grant of Rights
    • 4.1 The Advertiser hereby grants VIEW-STER and the affiliates of VIEWSTER for the purposes of this contract and limited to the contractual term agreed in the respec-tive Individual Contract, the non-exclusive, worldwide right to integrate the Ad Media into the agreed Ad Space, to present and publish it there and to make it accessible and transmit it to the general public and closed user groups via fixed and mobile communications networks in places and at times of their choice for the purpose of simultaneous or successive use – also read-ily retrievable – and to reproduce the Ad Media for the above purposes.
    • 4.2 The above grant of rights also refers, in particular, to existing copyrights and ancillary copyrights applicable to the Ad Media, privilege as to one’s own image, rights to bear names and titles, trademark rights and other identification rights.
  • 5. Rejection of Ad Media
    • 5.1 VIEWSTER shall be entitled to either wholly or partly reject and remove (either temporarily or permanently) Ad Media that contains illegal content or any other con-tent that infringes VIEWSTER’s Advertising Code of Conduct for Advertiser (s. Annex).
    • 5.2 If there is reasonable suspicion that the Ad Media provided by the Advertiser contains illegal content or any other con-tent that infringes VIEWSTER’s Advertising Code of Conduct for Advertiser (s. Annex), VIEWSTER shall be entitled to discontinue its publication until the Advertiser suc-ceeds in dispelling the suspicion. A reason-able suspicion in this sense shall apply in particular when such a suspicion has been induced by official proceedings or by a criminal investigation or when there are comprehensible grounds for believing that such proceedings will soon be initiated. The same shall also apply if VIEWSTER is requested by a third party to refrain from any further placement of the Ad Media because it is illegal or infringes third-party rights, provided that the third party’s claim is not clearly, and for VIEWSTER recogniza-bly, unfounded.
    • 5.3 Sections 3.1 and 3.2 shall also apply accordingly if the Ad Media advertise or provide a link to illegal content or any other content that infringes VIEWSTER’s Advertising Code of Conduct for Advertiser (s. Annex).
  • 6. Third Party Claims and Indemnifica-tion
    • 6.1 The Advertiser shall release VIEW-STER and/or affiliates of VIEWSTER from any and all claims asserted by third parties against VIEWSTER because of an infringe-ment (i) of industrial property rights (e.g. patent or trademark rights), copyright or other rights (e.g. privilege as to one’s own image), (ii) legal provisions (e.g. criminal law, youth protection law, unfair competi-tion law) as a result of the use of the Ad Media in conformity with the Individual Contract and/or as a result of the promot-ed subjects (e.g. an Advertiser’s offer or website) or (iii) of VIEWSTER’s Advertising Code of Conduct for Advertiser (s. Annex). In this regard, the Advertiser shall also as-sume the necessary costs incurred by VIEWSTER in defending its rights, including any and all court costs and lawyers’ fees. This does not apply if and to the extent that the Advertiser is not responsible for the violation of rights. The limitations on liability in Section 10 shall not apply for the indemnification obligation. Any com-pensation claims asserted on grounds of loss or damage going beyond this shall re-main unaffected by the indemnification obligation.
    • 6.2 VIEWSTER and/or the affiliate of VIEWSTER undertake not to acknowledge third-party claims without the Advertiser’s consent and not to reach any settlement on the matter in question with the third party. The Advertiser, how-ever, may re-fuse his consent only for good cause.
  • 7. Remuneration and Tracking Results
    • 7.1 The remuneration to be paid by the Advertiser for VIEWSTER’s services shall ensue from the respective Individual Con-tract, in which the parties in particular have to agree upon the basis on which the remuneration is calculated, e.g.:
      • 1000 Page Impressions or Ad Impres-sions (“Thousand Contact Price” or “TCP”),
      • an Ad Click (“Cost Per Click” or “CPC”) or
      • a Lead (“Cost per Lead” or “CPL”).
    • 7.2 The sole authoritative factor for the counting of the quantity of Ad Impressions, Page Impressions, Ad Clicks or Leads shall be VIEWSTER’s reporting activities. If the Advertiser has counted divergent quanti-ties, these shall not be taken into account if the divergent counts do not demonstra-bly differ by more than 10%. In other cases the parties shall come to an agreement on the counted quantity that is authoritative for the contractual relationship. If the par-ties are unable to agree within twenty days on the definitive quantity counted, they shall have recourse to a neutral, approved and generally accepted arbitration board to resolve the dispute in accordance with its arbitration rules as amended at the time the arbitration proceedings were ini-tiated.
    • 7.3 Unless otherwise agreed in an Indi-vidual Contract, VIEWSTER shall charge the agreed remuneration for the services ren-dered after the promotion in question has come to an end. If the term of the promo-tion is longer than one month, VIEWSTER can charge the agreed remuneration at the end of the respective month. The agreed sum shall be payable on issue of the in-voice and must be transferred without de-ductions to VIEWSTER’s bank account with-in 14 (fourteen) days.
    • 7.4 The Advertiser may set off its own claims against claims by VIEWSTER only if such claims have been recognized by VIEWSTER or by declaratory judgment.
    • 7.5 All agreed prices are strictly net and must be paid plus the statutory rate of VAT.
  • 8. Warranty and Force Majeure
    • 8.1 VIEWSTER does not assume any war-ranty for the secure, interruption-free or error-free operation of its media player or another part of its website.
    • 8.2 The Advertiser shall be obliged to check the online advertising containing the Ad Media without undue delay after its publication and to notify VIEWSTER in writ-ing of any discernible errors without undue delay but no later than one week after the publication. If the Advertiser fails to pro-vide notification in this way, the online advertising shall be regarded as approved in accordance with the respective Individ-ual Contract and these GT&Cs, unless the error was not discernible at the time of the check. If an error in the online adver-tising becomes apparent at a later date, the Advertiser must give notification of it without undue delay upon its discovery, otherwise the online advertising shall be deemed approved even in consideration of this error.
    • 8.3 In cases of force majeure, VIEWSTER shall be released from its obligation to render its services. All unforeseen events and events having impact on the perfor-mance of the Individual Contract or these GT&Cs for which neither of the parties is responsible shall be deemed force majeure. Such events shall include without limitation lawful means of industrial action, also in third-party companies, official measures taken by authorities, the failure of communication networks and gateways of other operators, disruptions in the area of network sellers, other technical mal-functions, including when such circum-stances occur in the area of subcontractors, sub-suppliers or their subcontractors, or operators of subnodal data processors. No entitlements shall result for Advertisers from any failures for which VIEWSTER is not responsible.
  • 9. Limitation of Liability
    • 9.1 Except if essential contractual obliga-tions (meaning such obligations the fulfill-ment of which makes the due performance of the agreement possible in the first place, on the compliance with which the other party may normally rely and the breach of which jeopardizes the achieve-ment of the contractual purpose) are vio-lated, VIEWSTER shall be liable for damages only if and to the extent that VIEWSTER, its legal representatives, senior executives or other vicarious agents are culpable of hav-ing acted intentionally or with gross negli-gence. Should essential contractual obliga-tions be violated, VIEWSTER shall be liable for any culpable conduct of its legal repre-sentatives, senior executives or other vi-carious agents.
    • 9.2 With the exception of intentional or grossly negligent conduct of legal repre-sentatives, senior executives or other vi-carious agents, the liability of VIEWSTER shall be limited in amount to damages typ-ically foreseeable at the time the agree-ment is concluded.
    • 9.3 The exclusions of liability referred to above shall not apply in the event of spe-cific guarantees having been made by VIEWSTER or in the event of damages re-sulting from injury to life, limb or health or the violation of mandatory statutory regu-lations.
  • 10. Communication and Confidentiality
    • 10.1 The Parties shall present any and all advertising, press releases and other publi-cations concerning the other Party for the purpose of prior written coordination. They shall be permitted only with the prior written approval of the other Party.
    • 10.2 The Parties undertake to hold in con-fidence all confidential information re-ceived by one Party (“Recipient“) from the other Party (“Disclosing Party“) or infor-mation that becomes known in connection with the performance of an Individual Con-tract or these GT&Cs, not to disclose such information to third parties and to use such information only for the purposes of the Individual Contracts. In particular, such information is to be considered confiden-tial that concerns the content, perfor-mance and handling of Individual Contracts and these GT&Cs, such as customer and product data, technical data, such as com-puter programs and interfaces, and finan-cial data, such as sales, margins and pur-chase conditions.
    • 10.3 Exempt from the provision in Clause 10.2 above shall be that information for which the Recipient can prove that (a) the Recipient received such information after the closing date of this agreement from a third party without any obligation to main-tain secrecy, provided that such third party did not for its part breach through the dis-closure of the information any obligation existing vis-à-vis the Disclosing Party to maintain confidentiality; (b) such infor-mation was previously known to the Recip-ient upon the closing date of this agree-ment or that such information was already public knowledge at such point in time; or (c) such information became public knowledge after the closing date of this agreement without any breach by the Re-cipient of the obligations contained in this Clause 10. This Clause 10 likewise does not apply to information that has to be dis-closed based on compulsory provisions of law, non-appealable court decisions or ad-ministrative orders. As permitted by law, the Party obligated to disclosure the in-formation shall be obligated to inform the other Party in advance or without delay of the disclosure and to endeavor not to dis-close the information to the general public and to conclude a corresponding confiden-tiality agreement.
    • 10.4 VIEWSTER shall be entitled to trans-fer confidential information to companies affiliated with VIEWSTER for the purpose of performing this agreement.
    • 10.5 The above confidentiality obligations shall continue to apply even after the expi-ration or termination of this agreement for three additional years.
  • 11. Applicable Law, Jurisdiction
    • 11.1 The Individual Contracts and these GT&Cs shall be, in its application and in-terpretation, governed exclusively by the laws of Switzerland. The United Nations Convention on Contracts for the Interna-tional Sale of Goods of 11 April 1998 shall not apply.
    • 11.2 Zürich (Switzerland) is agreed upon as place of jurisdiction for any and all claims arising from or due to Individual Contracts, these GT&Cs and the advertising via the VIEWSTER website.
  • 12. Miscellaneous
    • 12.1 Any additions and amendments to this GT&Cs must be in written form to be valid. This shall also apply to any waiver of this written form requirement. The parties agree that signed declarations sent by fax or scan via e-mail shall also satisfy the writ-ten form requirement. Unless otherwise agreed, all other notifications within the scope of the implementation of this con-tract can be sent by e-mail. Verbal agree-ments and communication by telephone, on the other hand, shall not be sufficient.
    • 12.2 VIEWSTER shall be entitled to either wholly or partly transfer the rights and du-ties under the Individual Contracts and these GT&Cs to companies affiliated with VIEWSTER. If the Advertiser’s legitimate interests are impaired by such a transfer, the Advertiser can cancel this contract without notice as of the date when the transfer comes into effect.
    • 12.3 Any invalidity of individual provisions of GT&Cs shall not affect the validity of the remaining provisions. Such invalid provi-sions shall be replaced primarily by legally valid provisions that come as close as pos-sible in economic terms to the invalid pro-visions. The same shall apply to any lacunae.

Annex: VIEWSTER Advertising Code of Conduct for Advertiser

VIEWSTER AG, Mühlebachstr. 162, CH-8008 Zürich (“VIEWSTER“) provides services that allows advertisers (“Advertisers“) to pre-sent advertising media (esp. videos) in a unique format and appearance (“Ad Me-dia“) via its website or applications by in-corporating or embedding the Ad Media into VIEWSTER’s website, esp. into VIEW-STER’s media player (“VIEWSTER Ad Space“).

  • 1. Ad Media
    • 1.1 Advertiser shall provide their Ad Me-dia to VIEWSTER in an appropriate data format. The Ad Media shall be suitable for the agreed purposes and of low-maintenance. Ideally, the Ad Media only has to be set up once and then remain val-id and functional without any further maintenance.
    • 1.2 VIEWSTER is not responsible for checking the Ad Media provided by the Advertiser. Instead, the Advertiser guaran-tee that the Ad Media complies with this Code of Conduct and does not pose any legal risk for VIEWSTER.
  • 2. Unacceptable Ad Media
    Certain contents are fundamentally forbid-den in the Ad Media. This applies in partic-ular to the following content:

    • 2.1 Illegal content
      As a fundamental rule, all content that is illegal under Swiss law is forbidden. In par-ticular, content that infringes the prohibi-tion of unfair advertisement; e.g. the pro-hibition of misleading or disguising adver-tisement shall be forbidden.
      Advertisers that are operating internation-ally must also observe the terms of the statutory requirements of the following countries:

      • Country, where the registered office of the Advertiser is located,
      • Country of the advertising target group (depending on the nationality of the target group)
    • 2.2 Ad Media which must not be made acces-sible to young people under the age of 18 is explicitly forbidden. This applies irre-spective of the existence of any other ac-cess restrictions on the basis of the users’ nationality or age.
    • 2.3 Other forbidden content
      • Sexually suggestive texts, images, videos or other content
      • Content depicting or promoting prostitution (direct solicitation or implied)
      • Content depicting or promoting vio-lence, including harming or killing humans or animals
      • Content depicting or promoting vio-lent or sexual assault
      • Content receiving a significant amount of negative user feedback or is otherwise deemed to violate social common sense or VIEWSTER’s brand image
      • Content implying to insult, harass, threaten, demean or impersonate others
      • Content promoting violence or advo-cating against an individual, organiza-tion or particular group (in particular groups identified by their age, color, national origin, race, religion, politi-cal party, sex, sexual orientation, language or handicap).
    • 2.4 Forbidden objects of the advertisement
      Ad Media that promotes any type of illegal activity or any infringement of other’s legal rights is prohibited.
      Furthermore, Ad Media that contains ad-vertisement for one of the following ob-jects is forbidden:

      • Abortion
      • Illicit drugs or drug paraphernalia and miracle cures
      • Firearms or ammunition
      • Counterfeits or imitation goods
      • Multilevel marketing/selling
      • Gambling in countries where it is not permitted by law
    • 2.5 Advertisement for VIEWSTER’s competitors
      Ad Media that contains advertisement for VIEWSTER’s competitors is forbidden. Espe-cially Ad Media that contains advertise-ment for one of the following video on demand platforms is forbidden:

      • Crackle
      • Hulu
      • Viki
      • Myvideo

      At its sole discretion, VIEWSTER may allow in writing Ad Media that contains adver-tisement for one of VIEWSTER’s competi-tors.

  • 3. Online shops and other websites of Advertisers; esp.: landing pages
    • 3.1 Legal admissibility
      The Advertiser guarantees that the offered goods and services and the forms of mar-keting do not pose any legal risk for VIEW-STER. He shall make explicit references to any special circumstances such as inadmis-sibility of advertising and/or of marketing his goods or services in certain target mar-kets. VIEWSTER is not responsible for checking the legal admissibility of the goods and/or services provided by the Ad-vertiser or the form of marketing the goods/services.
    • 3.2 Cookies
      In some countries, certain obligations exist to inform visitors of websites about cook-ies. In some countries, consent may be required, too. Thus, every Advertiser is solely responsible for the fulfillment of those obligations. On the one hand, an Ad-vertiser may be obliged to inform users about cookies that are used, including such placed by third parties. This obligation to provide information may also include in-formation on the purpose of the cookie and how the user may prevent cookies be-ing placed on his or her device. On the other hand, it may further be necessary that users must give his or her consent to the use of cookies on the Advertiser’s web-site, before a cookie is placed, either by the Advertiser or a third party. Where it is required to receive a user´s consent for the use of cookies (including third party cookies), such consent must include cook-ies placed by third parties.
    • 3.3 Up-to-dateness
      Advertisers guarantee that the offers pro-moted via the Ad Media are available at all times during the promotion. For the dura-tion of the promotion, they are obliged to perform effective maintenance of the URLs to which the Ad Media is intended to be linked or which are promoted by the Ad Media. In particular, Advertisers shall en-sure that promoted websites can be ac-cessed in accordance with the state of the art for the duration of the placement peri-od.
    • 3.4 Distracting order methods
      If the parties agree upon a performance-based compensation in terms of a commis-sion for each customer that VIEWSTER bro-kers to the Advertiser, the commission should be paid for all products that can be purchased via the shop by end customers. Since the concept of performance-based compensation for advertising services de-pends on customers concluding transac-tions in a manner that allows tracking, Ad-vertisers shall prevent customers from be-ing redirected to their offer via the Ad Media and then offering alternative order-ing options that do not allow tracking. In-stead the commission should be paid to VIEWSTER for all products that can be pur-chased via the shop by end customers. Al-lowing orders to be made by telephone or similar means should be avoided in particu-lar.
    • 3.5 Optimizing the website / online shop
      After a potential customer has been redi-rected to the Advertiser’s landing page via the Ad Media, it is the Advertiser’s task to turn this potential customer into a buyer. How effective a website is at doing this is reflected in the conversion rate, which is an important quality benchmark. The Ad-vertisers should therefore design their ad-vertised online shops or websites to en-sure the highest possible rate of conver-sion, in particular by

      • reducing and clarifying the steps re-quired to place an order
      • only ask for customer details that are absolutely necessary/demanded by law
      • display the shipping and payment methods in a transparent manner
      • avoid distracting links during an or-der process
  • 4. Unacceptable activities
    • 4.1 Spyware / Malware
      Ad Media and Advertisers’ online shops and websites must not contain software which installs itself without a corresponding user request, which performs undesired or harmful functions, and/or which runs com-pletely unnoticed in the background, is forbidden. This includes in particular func-tions which:

      • send personal data of the user to the manufacturer of the software (call home) or to third parties without the knowledge or consent of the user,
      • manipulate or delete data and files,
      • circumvent or impair security soft-ware and other security devices (firewalls, anti-virus software etc.),
      • hinder or prevent de-installation of the software or
      • make it possible to cause damage or to pursue criminal objectives in an-other way.
    • 4.2 Lead / sale fraud
      It is forbidden to manipulate the tracking information in any way, especially for the purpose of simulating a lower number of tracked transactions.
  • 5. Transparency and communication
    Transparency and communication are of decisive importance for the success of the advertisement. To increase the success, the Advertiser should provide the follow-ing information to VIEWSTER.

    • 5.1 Cross-channel marketing
      It is recommended that Advertisers inform VIEWSTER in advance of any cross-channel marketing measures such as print or TV campaigns to enable VIEWSTER to optimize its campaigns.
    • 5.2 Eligibility requirements
      Advertisers shall indicate in their program-specific requirements which advertising forms are permitted or not permitted and the criteria for the respective decision.