QualityZoom GmbH
Halbgasse 25/3-4
1070 Vienna
Austria
Commercial Registry No. FN 322512 h

(hereinafter referred to as „QualityZoom“)



GENERAL TERMS AND CONDITIONS
for the use of advertising space on the website www.qualityzoom.com and its other domains.



1. Scope of Application, Definitions


1.1 These General Terms and Conditions apply to all contracts regarding the production, online advertising, publication and distribution of advertising content (advertising space) of an advertiser on any and all web pages belonging to QualityZoom’s domains (www.qualityzoom.com and its sub-domains). Only entrepreneurs may advertise on QualityZoom’s advertising space.


1.2 Any General Terms and Conditions of the advertisers are hereby expressly declared to be null and void. No other General Terms and Conditions shall be applicable even if they are referred to in documents or representations made by either one of the respective contracting party. Provisions which deviate from the present General Terms and Conditions shall only be considered to be binding if they were agreed upon in writing. A contract shall not be concluded if it contains provisions other than those set forth in the present General Terms and Conditions, or if the deviations were not agreed to by QualityZoom in written. The advertiser hereby agrees to the underlying General Terms and Conditions without reservation.


1.3 “Advertisers” are entrepreneurs, who seek to disseminate advertisements regarding their products via the internet on QualityZoom’s advertising space.


1.4 ”Advertising space” in terms of these General Terms and Conditions is any graphical or written depiction of advertising content of an advertiser, regardless of whether it is in form of a picture, written text, or a combination of pictures and text, in form of a banner advertisement, a button or a link (on a webpage linking data in the world wide web, within or outside QualityZoom).



2. Offer and Conclusion of Contract


The prices of advertising on QualityZoom’s advertising space are solely based on QualityZoom’s currently valid price lists. Concluding a contract requires a written confirmation of the order by QualityZoom. The advertiser is under obligation to provide QualityZoom with the following information upon order confirmation: the exact name or the name of the company, the Commercial Registry number, the legal form of the company, the exact address and/or the person of contact for QualityZoom, including that person’s power of representation. QualityZoom is entitled to reject any offer without giving reasons.



3. Advertisers’ Duties


3.1 The advertiser shall submit all materials required to perform the advertising order, especially the electronic file which must comply with QualityZoom’s standard formats, and all other materials necessary for the release of the advertisement, in a timely manner before the agreed release date of the advertisement, at the latest, however, three working days prior to that date. At a later point than three working days prior to release of the advertisement, changes, especially in size, format, features and placement of the advertisement, are only possible in coordination with QualityZoom. This also applies to any changes – for purposes of overall optimization of a campaign – to advertisements which were already released.


3.2 The advertiser bears the risk of any errors which may occur in connection with the transmission of the advertising material intended to be released, especially the risk of loss of any data, data carriers, photographs or any other documents. QualityZoom is entitled, but not obligated, to store the material received and to adapt it, insofar as it is necessary in order to release the advertisement in accordance with the order agreed upon. Any remaining documents shall be sent to the advertiser only at request, and the advertiser shall bear all costs thus incurred, along with the risk of loss.



4. Requirements Regarding the Content of the Advertisement


4.1 The advertiser hereby guarantees that the content of the advertisement(s) and any links contained therein do not violate any legal provisions, especially regarding press law, competition law, criminal law or other legal provisions, particularly in terms of National Socialism, or which are in violation of common decency or contra bonos mores or which contain radical political contents.


4.2 The advertiser hereby guarantees to be the rightful owner of any copyrights, trademarks, ancillary copyrights, personal rights and other licenses, which are required in relation to the advertisement, and particularly with regard to the materials sent to QualityZoom (e.g. texts, photographs, images, files, audio files, video footage etc.).


4.3 QualityZoom is entitled, but not obligated, to examine the advertisement(s) content-wise and to remove any (part of the) content which constitutes a breach of the above guarantees. QualityZoom is also entitled to examine any links; the advertiser is under obligation not to exchange a link without notifying QualityZoom thereof. In this case, the advertiser shall not be entitled to claim damages/compensation vis-á-vis QualityZoom, on the contrary, the advertiser shall be obligated to pay the fee originally agreed upon. In such a case, the advertiser shall be entitled to have the advertisement which was removed, replaced by an advertisement which complies with the above guarantees, provided the new advertising material is made available to QualityZoom pursuant to provision 3. of the present General Terms and Conditions.


4.4 The advertiser is liable vis-á-vis QualityZoom to ensure that the guarantees made by him pursuant to provisions 4.1 and 4.2 are in fact fulfilled by him at the time the contract is concluded, as well as during the entire term of the contract. The advertiser shall hold harmless and indemnify QualityZoom regarding any claims brought against QualityZoom by third parties, which arise due to a breach of the above guarantees by the advertiser and in connection with the execution of an advertising order, in particular with regard to all necessary and adequate costs which arise in connection with any such claims.



5. Placement of Advertisement


5.1 The parties shall mutually agree on where the advertisement is to be placed. If an agreement cannot be reached in this regard, or if no particular placement preference is expressed, QualityZoom is entitled to determine – in due consideration of the advertiser’s interests – the placement of the advertisement on QualityZoom. Advertisements shall exclusively be placed in areas which are enumerated on the currently valid price list.


5.2 Umbrella advertising or collective advertising, i.e. joint advertisement by a number of advertisers, requires QualityZoom’s express prior consent.



6. Guarantee and Liability on Part of QualityZoom


6.1 In the event that QualityZoom is not able to release the stipulated amount of advertisements within the stipulated period of time, as originally agreed upon with the advertiser, QualityZoom is entitled and obligated to release the outstanding advertisements subsequent to this respective order, or subsequent to a new advertising order by the advertiser, within an adequate period of time and at the discretion of QualityZoom.


6.2 QualityZoom guarantees the correct and complete depiction of the advertisement on QualityZoom, in accordance with the respective current technical standard. If this is not the case, and if the insufficiency of the depiction is not due to a defect in the advertising material submitted by the advertiser, but if it is rather to be accounted for by QualityZoom, then QualityZoom is entitled to remedy the defect by way of correction, addition of a missing part, or exchange, at QualityZoom’s own expense. If a remedy fails to repair the defect during an adequate period of time, then the advertiser shall be obligated to set a new period to repair the defect, before he may resort to declaring a reduction in price, or to declaring the contract to be rescinded, pursuant to the statutory provisions, or to asking for a substitute advertisement in the extent of the faulty advertisement. In this case, QualityZoom is entitled to release a substitute advertisement subsequent to the respective advertising order, or subsequent to a new, already existing order which has been effectively ordered by the advertiser, at QualityZoom’s discretion and within an adequate period of time. The advertiser shall not be entitled to assert any claims other than the aforementioned.


6.3 The advertiser shall be obligated to review the advertisement and to give notice of any defects in written form within three working days, failing which shall result in forfeiture of all rights.


6.4 QualityZoom shall only be held liable for damages due to defective performance of contract regarding the use of QualityZoom’s advertising space by the advertiser, due to gross negligence or intent. Liability shall, however, be limited to the total amount of the fees due for the respective advertising space by the advertiser. QualityZoom shall not be held liable for consequential loss or lost profit.


6.5 QualityZoom shall not be liable for impossibility of performance or complete or partial shortfall of an advertisement due to force majeure, system failure etc.


6.6 With regard to interactive advertisements, the count of views shall solely be evaluated by the access data program employed by QualityZoom’s ad-server. This evaluation shall be provided to the advertiser along with the invoice and at QualityZoom’s expense.


6.7 QualityZoom shall not be held liable for a lack of positive impact of the advertisement.



7. Fees and Payment Conditions


7.1 The prices and additional charges as enumerated in QualityZoom’s respective price lists, valid at the time an advertising order is accepted, shall solely be applicable; all prices and additional charges are subject to unilateral modification by QualityZoom.


7.2 The prices are exclusive of any incidental expenses (e.g. cash outlays), the statutory value added tax (VAT) and any advertising duties.


7.3 Each payment agreed upon shall be due immediately after it has been invoiced. QualityZoom shall have the right to refuse performance as long and insofar as the payment has not been made as previously agreed. When first concluding a contract with a new advertiser, QualityZoom reserves the right to require an advance payment. In case of delay of payment, the advertiser shall be liable to pay interest on the payment due in the amount of 8% above the basic rate of interest. The right to claim any additional interest shall remain unaffected.


7.4 The advertiser shall only be entitled to setting off against a claim by QualityZoom, to retention or reduction of payments, if the right to do so has been acknowledged by QualityZoom, or when a court decision to that effect has been granted.


7.5 In the event that an advertiser is in arrears with making payments for more than 30 days despite having been sent a payment reminder by QualityZoom, QualityZoom shall be entitled to ask for immediate payment of all (deferred) payments due by that advertiser or to ask for payment of the instalments. Apart from that, QualityZoom shall be entitled to discontinue all activity regarding the respective advertising order, and to cancel the respective contract and any other contract with this particular advertiser immediately, without having to observe a period of notice or issuing another payment notice. The same applies to cases where the advertiser has discontinued his payments, or if circumstances become known which give reason to question the creditworthiness of the advertiser, leading to the assumption that QualityZoom’s claims may be at risk.


7.6 The costs of payment notices, as well as the costs incurred in connection with the collection of payments, which are of a necessary nature and do not appear to have no prospect of success from an a priori perspective (e.g. by an attorney or a collecting agency), shall be borne by the advertiser, even at a pre-trial stage.



8. Premature Termination of Contract


8.1 The contract may be terminated with immediate effect by either contracting party at any time before expiry of the contract.


8.2 In case of termination of contract by the advertiser, all payment claims on the part of QualityZoom in connection with already existing advertising orders shall remain unaffected, whereby services already performed by QualityZoom – especially with regard to the actual time span of advertising – shall be due and payable to their full extent, and 50% of the originally agreed upon price shall be due and payable for the services not rendered so far. All claims for damages and any other claims on the part of QualityZoom shall remain unaffected thereof.



9. Confidentiality

The contracting parties shall be bound to secrecy regarding all data and information which becomes known to them in connection with the execution of a contract or with regard to information they receive from QualityZoom. The parties agree to observe confidentiality and to ensure that no information is made available to third parties. This obligation shall have effect beyond the end of the contractual relationship.



10. Place of Performance, Forum, Governing Law


10.1 Place of performance shall be the respective corporate seat of QualityZoom.

10.2 All disputes arising in connection with contracts regarding advertisements on QualityZoom’s advertsing space, including the stage before conclusion of a contract and beyond the end of the duration of a contract, shall be subject – insofar permissible – to the exclusive jurisdiction of the competent commercial court in Vienna, Austria.


10.3 The parties hereby agree that Austrian law shall govern exclusively, with the exception of the Austrian Private International Law (conflict of laws) and the UN Sales Convention.



11. Miscellaneous


11.1 If any provision is held to be invalid, or in case any issue has not been contractually settled (i.e. a gap in the contract), this shall not affect the remaining provisions. The invalid or missing provision shall be replaced or amended by a provision which amounts to the same effect in economic terms and comes as close as possible to what the parties would have agreed on, had they been aware of the ineffectiveness or the gap.


11.2 All essential representations made in connection with the contract (acceptance of offer, termination etc.), and subsequent deviations from any contractual provision, including the modification of this provision, require written form in order to be effective.


11.3 The contracting parties hereby waive the right to rescind the respective contract, in particular on the ground of error, deceit, coercion, usury or laesio enormis (i.e. when performance is worth only half of the value of the consideration).