General Terms & Conditions of Deutsche Lufthansa AG
for the use of the online booking tool ambientmedia.lufthansa.com
1. Responsibility / Contractual partners
Deutsche Lufthansa AG – hereinafter referred to as Lufthansa – is exclusively responsible for marketing the Lufthansa media. The contract concerning execution of the advertising order placed by the client shall be concluded on behalf and for account of Lufthansa.
2. Conclusion of the contract
Offers by Lufthansa shall in all cases be made without obligation. The contract shall come into effect when confirmed by Lufthansa in writing. Orders placed verbally, by telephone and electronically, and confirmed in writing by Lufthansa, are deemed to be agreed upon, to the extent that the client does not object in writing within 24 hours of receipt of the booking confirmation (also named order confirmation). All orders shall be exclusively governed by Lufthansa’s General Terms and Conditions (GTC) in force at that time. Separate General Terms and Conditions apply to bookings made via the website LH.com/ media. Application of the client’s General Terms and Conditions is herewith explicitly rejected, unless Lufthansa has explicitly agreed to their validity in writing. This shall also apply even when Lufthansa has unconditionally accepted an order despite being aware of terms and conditions to the contrary.
3. Orders from agencies
Orders from advertising agencies shall only be accepted for precisely designated advertisers (name, full address). Provided that they can offer proof of corresponding services, advertising agencies or intermediaries shall receive an agency fee from Lufthansa equal to 15% of the net order value, i.e. of the net invoiced sum excluding VAT, after deduction of discounts (excluding postage). The agency fee shall be recalculated if the value of an order and/or a discount changes due to an addition or cancellation.
4. Period for completion
The completion period shall be the period between Lufthansa and the client.
5. Lead times, print deadlines
The specified lead times (for example, subject approval, delivery date) serve as guidelines. The specific deadlines may sometimes deviate from the specified guidelines. The deadlines according to the booking confirmation apply. If a deadline indicated in the booking confirmation varies from the specified lead times and the client does not agree to this, it has the right of withdrawal. It must declare the withdrawal in writing within five working days of receipt of the booking confirmation.
An advertising order shall be accepted when confirmed in accordance with No. 2. of the present General Terms and Conditions. The client may cancel an advertising order in writing prior to the booking deadline. In the case of cancellation by the client, the following cancellation costs are incurred; the gradation of these costs is governed by the booking deadline indicated in the order confirmation for the medium in question. In the case of cancellation up to a maximum of 4 weeks before the booking deadline, 50% of the order value is incurred. If Lufthansa receives the cancellation less than 4 weeks before the booking deadline, 70% of the order value is incurred. In case of cancellation after the booking deadline, 100% of the order value is incurred. The client reserves the right to present proof that the costs asserted by Lufthansa were not incurred or were incurred in a significantly smaller amount. In case of partial cancellation by the client, any contract discounts which may have been granted for the remaining advertising order will be recalculated according to the price list in effect as of the time of cancellation. Lufthansa may cancel the advertising order in writing in accordance with No. 7., 16. resp. 18. of these GTC.
7. Rejection of advertising orders
Lufthansa reserves the right to decline advertising orders, including orders which have already been confirmed with legally binding force, as well as individual orders within the framework of an arrangement if they violate the law or official regulations, third party rights, are contrary to public policy, or whose publication is unacceptable to Lufthansa, especially if their reputation may be damaged as a result or if competitive products are advertised. The client shall be informed of such a refusal without delay. The client shall not be obliged to pay for the service ordered in such a case, however cancellation fees have to be paid in accordance with No. 6. of these GTC if the client has caused Lufthansa’s cancellation by his fault. All further claims shall be excluded. If the booked advertising service is rendered despite giving notice of rescission, the client shall also be obliged to pay for the service as originally agreed. The client shall also bear the costs of any changes requested by the client, as well as the costs of any significant changes to the originally agreed execution for which the client is responsible.
All prices are exclusive of any value added tax (VAT), withholding tax, import turnover tax, sales or turnover taxes. The client shall pay any and all applicable value added, sales and use taxes, (except Lufthansa income and corporate taxes in Germany) due under or in connection with this Agreement. In the event that the client is obliged by law to withhold any taxes, fees or duties, the client shall pay such additional amounts as are required to ensure that the net amount received by Lufthansa, i.e. the amount after deduction or withholding of any such taxes, fees or duties, is equal to the amounts payable by the client to Lufthansa had no such deduction or withholding been required.
9. Basic price of inflight entertainment / Lounge Screens
The basic price of inflight entertainment and display on Lounge Screens shall constitute the fee for broadcasting the television commercial and does not include any production costs or other costs. Such costs shall be invoiced as soon as they are incurred (e.g. due to the nature of the provided advertisement material) and shall in all cases be borne by the client. The prices quoted in the price list are based on the specified length in seconds. If the actual broadcast length differs from the agreed broadcast length, the actual broadcast length shall serve as the basis for calculation and Lufthansa must agree to the changed length in seconds in such a case.
10. Placement / Complaints
Lufthansa explicitly reserves the right to make changes at short notice (e.g. by changing to a different time or by changing the placement). The client shall be informed beforehand where possible. Advertisements which are not immediately identifiable as such on account of their design shall be identified by adding the word “Advertisement”. Proofs and logs shall only be supplied if explicitly requested before the booking period. The booked advertising spots shall be placed by Lufthansa within the agreed price group, subject to changes in accordance with No. 12. of these General Terms and Conditions. Price groups are shown in the valid Lufthansa programme structure applicable when the order is confirmed. Lufthansa cannot warrant that other advertising slots are not offered and broadcast in addition to those shown in the programme structure. If an advertising spot cannot be broadcast on schedule due to technical faults, Acts of God or other circumstances beyond Lufthansa’s control, it shall be moved to a reasonable alternative slot. In the event of major shifts, the client shall be informed accordingly by Lufthansa without delay.
Except in the case of hidden defects, all complaints must be filed within an exclusive period of one month of receiving the invoice. For a non-material deviation no claims can be made. For all claims based on defects the period of limitation shall be one year beginning with the publishing of the respective advertisement material.
12. Changes in price
The price list may be changed at any time. However, changes in price shall only be effective for orders which have been agreed and confirmed if the changes have been announced by Lufthansa at least one month before coming into force. The client shall be entitled to rescind the order if prices rise. This right of rescission shall be exercised in writing addressed to Lufthansa within five working days of receiving the notification.
13. Terms of payment / set-off
Unless contractually agreed otherwise, the advertising orders placed shall be invoiced per month in advance. Unless agreed otherwise, invoices will be transmitted to the client electronically and are to be settled within the payment deadline stipulated on the invoice. In the case of new business relations, Lufthansa reserves the right to demand payment in advance. Payment shall be exclusively remitted to the accounts specified by Lufthansa in the invoice. Bank charges shall be borne by the client. Cheques and bills shall only be accepted in lieu of performance. If payments are in arrears, Lufthansa shall be entitled to postpone execution of the order without creating any entitlement to compensation for the client. The client shall be liable for the loss incurred on account of the default. Such loss shall include interest on the sum defaulted at a rate defined by law (Section 288 of the German Civil Code (BGB)). Lufthansa explicitly reserves the right to claim further damages based on default. Lufthansa shall be entitled to rescind the contract in accordance with statutory regulations if payments are in arrears. All resultant losses shall be borne by the client. The right to set-off is limited to undisputed claims or claims affirmed by legally binding judgements.
14. Printing documents / Broadcast material
All advertising media shall be approved by Lufthansa. Unless agreed otherwise, the client shall obtain Lufthansa’s approval of the corresponding advertising media in accordance with the dates stipulated in the order confirmation, prior to the deadline for the submission of documents for printing. The client shall be obliged to inform Lufthansa in writing and without delay should any circumstances preventing compliance with the stipulated deadline arise or become known. The client shall be responsible for ensuring punctual delivery, including the delivery of faultless documents for printing, to the office designated by Lufthansa. A master shall be supplied for each advertising medium if several advertisements are to be published with the same motif. The client is obliged to make the material required for broadcasting the advertising spots for movies or TV series available to Lufthansa prior to broadcasting, in accordance with the dates stipulated in the booking confirmation. The copies to be broadcast must be of the quality expected by Lufthansa. Separate broadcasting material (a Digital Betacam SP) in the required quantities shall be supplied for each motif. The broadcasting material shall be stored by the applicable service-provider on behalf of Lufthansa and shall only be returned to the client on request. If a motif for a commercial is not used for more than one year, Lufthansa shall be entitled to destroy the documents and broadcast material provided for this purpose free of charge. The agreed broadcasting time shall be invoiced if spots are not broadcast or are broadcast incorrectly because documents, text or copies have not been provided in good time, are defective or have been incorrectly labelled. The client shall not be entitled to claim damages in such a case. The risk when sending documents and material for broadcasting shall rest with the client. The client warrants that he will settle the GEMA accounts.
15. Quantities / Residual stocks
Quantities for advertising media (e.g. refreshing tissues, Business Class chocolate) may vary due to fluctuations in the number of passengers and cannot be limited in terms of time; surplus quantities shall be distributed. The circulation figures quoted for information brochures, flyers and/or postcards are merely guideline values; if a run or part-run is not distributed during the advertising period despite Lufthansa’s reasonable effort, this shall not entitle the client to claim any reduction in the agreed fee.
16. Responsibility of the client in terms of media, competition and copyright law / Indemnification
In relations with Lufthansa, the client shall bear sole responsibility for the advertising spot as regards media law, competition law and other content. If Lufthansa’s service is impaired by third-party rights or violation of law the client is obliged to dispel the infringement of third party rights resp. the violation of law. Until then Lufthansa may suspend and hold back its service and especially not publish or stop publishing advertisements and recall print media. If the client does not succeed to dispel the infringement within a reasonable grace period set by Lufthansa, Lufthansa is entitled to rescind the contract. No. 6. of these GTC applies accordingly. In addition the client shall indemnify and hold harmless Lufthansa from all third-party claims and will bear Lufthansa’s legal costs. Lufthansa will inform the client without undue delay, if such third-party claims are brought forward and will not settle or acknowledge such claims without the client’s consent.
The liability of Lufthansa in all contractual relationships specified in these General Terms and Conditions (including their respective vicarious agents) shall be unlimited in cases of wilful intent or gross negligence, as well as in warranty cases. Liability shall also be unlimited in the case of death, bodily injury and damage to health due to minor negligence. If essential contractual obligations are breached through minor negligence, liability shall be limited to the resultant property damage and financial losses in the amount of the foreseeable, typically incurred loss. An essential contractual obligation shall be defined as one which must be discharged in order to make due execution of the contract possible in the first place, and which the contractual partners may normally expect to be discharged. Where permitted by law, all further liability for damages shall be excluded, except in the case of claims based on product liability law.
The client shall obey the applicable anti-corruption law. He ensures not to offer, promise or provide employees of Lufhansa or any of his / her related persons any unlawful advantages. The same applies for employees of the client as well as employees of its agents and third parties acting on the client’s behalf. If Lufthansa realizes that the client does not observe one of the above mentioned standards, Lufthansa reserves the right to rescind the contract with the client. No. 6. of these GTC applies accordingly.
All personal data and data in connection with this contract – regardless of form (written, oral, other) – (Confidential Information) will be kept confidential by the parties even if they are not marked as confidential. This does not apply for Confidential Information which is publicly known, explicitly intended for publication, legally obtained by a third party not in breach of any obligation to confidentiality or with the consent of the other party / the party who disclosed the Confidential Information respectively. Lufthansa may share Confidential Information with affiliates in the sense of Section 15 of the German Stock Exchange Act (Aktiengesetz). Both parties shall keep Confidential Information confidential for a period of 5 years after the termination of the contract.
20. Concluding provisions
Amendments and supplements to the contract, including subsidiary agreements and amendment of these clauses, shall only be valid if set out in writing. German law shall be applicable excluding the CISG as well as the German collision of law norms. If any of the provisions of these General Terms and Conditions prove to be or become invalid, this shall not affect the remaining parts of the contract. The place of jurisdiction in business relations with business people, legal entities under public law and public-law special funds shall be at Frankfurt, Main.