General Terms and Conditions
General Terms and Conditions of Stailamedia AG
Stailamedia AG, Zurich (hereinafter “Stailamedia”) is an advertising marketer providing services in the field of digital media, in particular the marketing of digital advertising.
1. Subject Matter of the Contract
1.1 Scope of Application
Unless otherwise agreed in writing, these General Terms and Conditions (GTC) apply exclusively to all advertising orders and related services provided by Stailamedia. Any other provisions or agreements, in particular GTC of publishers, shall apply only if expressly and in writing referred to. GTC of contracting partners are expressly excluded, even if they claim exclusive validity.
1.2 Definitions
An “Advertising Order” within the meaning of these GTC is any contract between Stailamedia and an Advertiser on the delivery, broadcast, or placement (hereinafter uniformly “Distribution”) of advertising, sponsorship, or other forms of commercial communication (hereinafter uniformly “Advertising Formats”) on websites and website networks.
An “Advertiser” is either an advertising company or an advertising/media agency (hereinafter “Agency”), provided that it acts in its own name and on its own account.
1.3 Agency Provisions
Advertising orders from Agencies are accepted by Stailamedia only for specifically named Advertisers. Stailamedia is entitled to request a power of attorney from Agencies. An Advertiser represented by an Agency can validly discharge its payment obligation to Stailamedia only by payment to Stailamedia.
1.4 Legal Status
Stailamedia acts in its own name and on its own account. To this end, Stailamedia concludes contracts with publishers in its own name and on its own account.
1.5 Engagement of Third Parties
Stailamedia may at any time engage third parties to perform its contractual obligations.
2. Conclusion of Advertising Orders
2.1 Formation
Quotations/offers from Stailamedia are non-binding. An Advertising Order is concluded when Stailamedia receives the order confirmation signed with legally binding signature by the Advertiser or the Agency.
The Advertising Order is in any case concluded upon Distribution of the Advertising Formats reserved or promised to the Advertiser at Stailamedia. In such cases, the Distribution replaces the Advertiser’s signed order confirmation.
2.2 Reservations
The provisions on price changes in Section 4.2 remain reserved.
2.3 Delivery
The Advertiser is obliged to provide Stailamedia, at its own expense and no later than the deadlines below before the confirmed Distribution date, with the material necessary for the chosen distribution form (placement, broadcast, etc.), in particular advertising assets and creatives, in the format required by Stailamedia:
- 3 working days: for GIF, JPEG, redirect codes or tags
- 3 working days: for Rich Media (HTML, Flash, Shockwave)
- 5 working days: for PR texts and special ad formats
In individual cases, lead times may differ due to specific provisions of the publisher. In such cases, Stailamedia will inform the Advertiser as soon as possible.
2.4 Responsibility for Quality
The Advertiser and/or the Agency is solely responsible for the technical quality and the content design of the materials delivered.
2.5 Right of Refusal
Stailamedia is not obliged to review the materials supplied by the Advertiser and/or the Agency. Stailamedia and the publishers reserve the right, even for legally binding Advertising Orders, to reject materials provided by the Advertiser for legal, moral, discriminatory, or similar reasons. In particular, Stailamedia is entitled to reject materials due to their origin, content, form, or technical quality. Stailamedia will inform the Advertiser of such rejection without delay. In such a case, the Advertiser is obliged to immediately provide a new or amended material. If this replacement material is provided too late to meet the agreed Distribution date, Stailamedia is entitled to the full remuneration as if the Distribution had taken place at the agreed time.
2.6 Rights in Advertising Materials Produced by Stailamedia
If Stailamedia is commissioned by the Advertiser to produce advertising materials, all rights arising therefrom, in particular copyrights in the work, remain with Stailamedia. The Advertiser is granted a non-transferable right of use in the advertising material for advertising purposes, unlimited in time and territory, which is compensated by the price of the advertising material.
3. Distribution
3.1 Principles
A legally concluded Advertising Order obliges Stailamedia to distribute the advertising in accordance with the agreement; the order generally also specifies the Distribution time and place (placement on specific websites, price group, and date), subject to the following provisions.
3.2 Placement on Websites
Booked Advertising Formats are placed by Stailamedia in accordance with the criteria agreed in detail.
3.3 Rebooking by the Advertiser
The Advertiser is entitled to rebook legally valid Advertising Orders if the rebooking request is communicated to Stailamedia in writing or electronically at least 3 working days before the agreed Distribution date, the agreed monetary booking volume is maintained, the Distribution of the rebooked volume is not significantly delayed, and Stailamedia has sufficient free capacity for the desired new Distribution dates and placements.
3.4 Measurement of Performance
Unless expressly and in writing agreed otherwise, only the system used by Stailamedia is authoritative for measuring the services provided by Stailamedia.
3.5 Time and Place of Broadcast / Defects in Distribution
If the agreed broadcast time of the advertising cannot be met due to design reasons of one or more websites, force majeure (including technical disruptions), or other circumstances not attributable to Stailamedia, Stailamedia will move the broadcast to another, if possible equivalent, placement within the intended publishers.
In the case of a minor temporal or spatial shift in the Distribution (within the publisher), for example for design or technical reasons of the website, the agreed rate/price remains unchanged.
Stailamedia will inform the Advertiser immediately in the event of significant shifts. Significant shifts are Distribution outside the agreed day or period and Distribution in another publisher. If the Advertiser does not immediately object in writing to the shift of the advertising or to embedding the advertising in another environment (in particular a different website or different parts of a site), this is deemed to constitute consent. If the advertising can neither be advanced nor made up, or in the event of the Advertiser’s objection to the proposed advancement, makeup, or embedding in another environment, the Advertiser is entitled to a refund of the base price pursuant to Section 4.1 of these GTC.
If the agreed Distribution is not performed or is performed incorrectly for reasons attributable to Stailamedia, Stailamedia may, at its discretion, immediately repeat the proper execution of the Advertising Order by providing an equivalent replacement Distribution (remedy). Further claims—particularly rescission, reduction, or damages—are expressly excluded to the extent permitted by law. If the remedy fails for reasons attributable to the publishers or to Stailamedia, the Advertiser may withdraw from the order. The liability provisions of Section 7 apply.
The Advertiser must review the ordered Advertising Formats during Distribution or immediately thereafter and notify any defects in writing no later than 4 days after Distribution; otherwise, the execution of the order shall be deemed approved.
4. Prices
4.1 Base Price
All prices published or offered by Stailamedia on www.stailamedia.com are base prices. The base price is the remuneration for Distribution of the Advertising Format on the websites. The base price does not include additional costs, in particular production costs. Any additional costs will be invoiced separately by Stailamedia and must be paid by the Advertiser. All prices are exclusive of VAT or any other applicable tax at the statutory rate.
4.2 Price Changes
Changes to the prices published or offered on www.stailamedia.com are possible at any time. For legally concluded Advertising Orders, price changes are effective only if announced by Stailamedia at least 10 calendar days before the start of Distribution. In the event of a price increase, the Advertiser has a right of withdrawal. This right must be exercised in writing within 5 working days after receipt of the notification. Absent a contrary notice from the Advertiser, Stailamedia is entitled to execute the Distribution at the new prices.
5. Discounts and Commissions
5.1 Cash Discounts
With express reference to Section 5.4 of these GTC, Stailamedia may grant reductions on the published rates in the form of cash discounts or other benefits.
5.2 Fixed and Group Discounts
Fixed annual closing discounts and group discounts are granted by Stailamedia only if expressly agreed in writing upon conclusion of the contract. If group companies (the decisive date for group affiliation is January 1 of the relevant calendar year) request joint discounting, written confirmation of a shareholding of at least 50% is required.
5.3 Consultancy Commission / Agency Remuneration, Other Agency Compensation
Agencies receive a consultancy commission (agency remuneration) provided they advise their clients or render corresponding services and can prove this. The Advertiser agrees that Stailamedia may compensate Agencies directly for services specifically agreed between Stailamedia and the Agencies that lead to a reduction of effort or minimization of risk at Stailamedia.
5.4 Agency Warranty
Agencies warrant the lawful use of the discounts granted to them. In particular, Agencies warrant that the granting and payment of discounts does not lead to any legal or contractual violation by the Agency. Agencies further warrant that they inform their clients in advance, fully and transparently, about the discounts and that they pass on all discounts to their clients insofar as the contractual customer relationship so provides.
6. Payment Terms
6.1 Invoicing
As a rule, Stailamedia invoices its services after Distribution has taken place. Stailamedia reserves the right to invoice Distributions that extend over one or more month-ends on a monthly basis as of month-end.
6.2 Due Date
All claims of Stailamedia fall due as of the invoice date and must be paid without deductions no later than 20 days after invoicing.
6.3 Rights in the Event of Default and Payment Difficulties
In the event of payment default, Stailamedia is entitled to charge default interest of 5% on the invoice amount. The assertion of further damage is reserved. In the event of the Advertiser’s payment default or known payment difficulties, or in the event of a material deterioration of its financial circumstances, Stailamedia is entitled to make further Distribution dependent on advance payments or security provided by the Advertiser or to withhold Distribution.
7. Warranty and Liability
7.1 Warranty
Stailamedia warrants performance of the Advertising Order to the best possible standard given the prevailing technical conditions. The Advertiser acknowledges that, due to technical conditions (state of the art), completely error-free display of an advertising material cannot be guaranteed.
7.2 Liability
Stailamedia and the publishers shall be liable for any damages in connection with the Advertising Order, regardless of the legal basis, only in cases of intent or gross negligence. Liability for auxiliary persons is limited to intent. Any further liability, in particular liability for slight or ordinary negligence, is excluded.
Stailamedia accepts no liability for indirect damages, including lost sales or profit or other consequential damages. In any event, liability is limited to such damages as Stailamedia could reasonably have foreseen at the time of contract conclusion.
In all cases of rejection, postponement, re-placement, early termination, or non-Distribution of legally valid Advertising Orders, any claim by the Advertiser is limited to reimbursement of the base price pursuant to Section 4.1. Further claims are expressly excluded.
8. Advertiser’s Liability and Legal Warranty; Indemnification
8.1 Liability
The Advertiser or the Agency, if acting in its own name and on its own account, is liable to Stailamedia for damages culpably caused by defectiveness, delay, or non-fulfilment of its obligations in connection with the delivery and Distribution of advertising materials or other contractual obligations.
If Distribution cannot be carried out due to circumstances attributable to the Advertiser—particularly because documents or advertising materials are not provided to Stailamedia in good time, are faulty, incorrectly labeled, or in an incorrect format—Stailamedia is entitled to invoice the Advertiser for the remuneration owed for the advertising service under the Advertising Order by analogy with the provisions on the contractual penalty (Section 9.2). The Advertiser has no claims for compensation. The Advertiser bears the risk and costs of transmitting the advertising materials.
8.2 Legal Warranty
The Advertiser is responsible for and warrants that it holds all rights required for the Distribution of the Advertising Formats in the relevant publishers, in particular copyrights and trademark rights, and grants Stailamedia, upon conclusion of the Advertising Order, the usage and editing rights necessary to fulfill the Advertising Order.
The Advertiser and/or the Agency, if acting in its own name and on its own account, is responsible for and warrants that the advertising materials, formats, and contents, whether directly or indirectly (i.e., in particular via links to further content and platforms), do not infringe third-party rights, in particular copyrights, name, personality, or trademark rights, nor other industrial property rights, or violate competition law (UCA, PBV) and other provisions (such as lottery, casino, criminal, therapeutic products, alcohol, food law, etc.) and principles (such as the principles of the Swiss Fairness Commission).
8.3 Indemnification
If Stailamedia and/or a publisher is claimed against by third parties due to the Distribution of an Advertising Format, in particular due to its content, on copyright, competition law, or other grounds, the Advertiser shall indemnify Stailamedia and/or the publisher from all resulting claims upon first request. The Advertiser or the Agency undertakes in such cases to reimburse Stailamedia and/or the publisher for all costs (including damages paid) arising from the conduct of the proceedings. In this context, Stailamedia undertakes to conclude any out-of-court settlement with a third party only with the prior consent of the Advertiser or the Agency.
9. Withdrawal Options
9.1 Stailamedia
Stailamedia may withdraw immediately from legally accepted Advertising Orders if unforeseeable and/or non-attributable changes to the content of the websites or their discontinuation occur, in particular as a result of measures by supervisory authorities or in other cases where execution of the orders becomes impossible or unreasonable.
Stailamedia may also withdraw up to 10 days before the start of Distribution if a competitive constellation arises between the Advertiser and a partner of a publisher. In such cases, any claims by the Advertiser are excluded.
9.2 Advertiser; Contractual Penalty
In individual justified cases, Stailamedia may, at its discretion, grant the Advertiser a right of withdrawal up to 10 calendar days before the start of Distribution of the Advertising Format. A withdrawal request must in any case be addressed to Stailamedia in writing or by e-mail. The withdrawal is effective only when and as soon as Stailamedia has expressly agreed to it in writing or by e-mail. Within the last 10 calendar days before the start of Distribution, withdrawal by the Advertiser is possible only against a percentage compensation (contractual penalty) measured against the net value of the respective Advertising Order:
- Between 10 and 4 calendar days: 50%
- Less than 4 calendar days: 100%
- After start: 100%
The amounts are exclusive of VAT; the payment terms pursuant to Section 6 of the GTC apply.
10. Further Provisions
10.1 Data Usage
Without Stailamedia’s consent, the Advertiser is prohibited from setting cookies that are not exclusively necessary for the technical delivery mechanics of the ad server used to ensure delivery of the advertising materials via the ad server. When processing personal data of end customers, the Advertiser complies with the applicable Swiss data protection regulations (Federal Act on Data Protection and Ordinance, FADP and OFADP).
11. Final Provisions
11.1 Applicable Law
These GTC and all Advertising Orders or other transactions concluded with Stailamedia are governed exclusively by Swiss law, to the exclusion of the provisions on private international law.
11.2 Place of Jurisdiction
Subject to statutory remedies, the Commercial Court of the Canton of Zurich has exclusive jurisdiction for all disputes arising from these GTC and the Advertising Orders or other transactions underlying them.
11.3 Written Form
All amendments, supplements, side agreements, and the rescission of these GTC must be in writing.
11.4 Amendments to the GTC
Stailamedia is entitled to amend its GTC at any time. Amendments to the GTC will be published on the website www.stailamedia.com 10 working days before they come into force. Advertisers with ongoing contracts will be informed of such changes in advance