General Terms & Conditions of Deutsche Lufthansa AG
for the use of the online booking tool ambientmedia.lufthansa.com
As of: 01. September 2016
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. General terms, use of the booking tool, receipt of declarations, terminating use
For the execution of advertising orders, Lufthansa uses the online booking tool, ambientmedia.lufthansa.com – hereafter referred to as the booking tool – for which the following terms apply. Only entrepreneurs and companies that are fully legally competent and legally responsible within the meaning of § 14 of the BGB [Bürgerliches Gesetzbuch [German Civil Code]] are authorised to use it and to make bookings.
Use of the booking tool requires the client to register in order to create a user account, whereby said client is obliged to provide correct, current and complete entries in accordance with the specifications of the registration form and to always keep this information up-to-date for the duration of the registration. Within the scope of cooperation, Lufthansa is authorised to process or allow the entrusted personal data to be processed by third parties in compliance with data protection rules, which are made available separately for viewing in the booking tool.
Provided the client is an agency, Lufthansa is entitled to demand client documents that provide evidence of commercial activity.
The client is aware that it can receive binding declarations electronically [for example, via a mailbox set up in the booking tool or via email]. These shall be considered received if they can be called up in the client’s mailbox or email inbox under normal circumstances. In addition, by registering, the client gives consent authorising Lufthansa to send general or personalised offers to the client for the duration of the use agreement via the booking tool.
After registering, the client receives a personal user account for the booking tool. To use the account, the user ID as well as an associated password chosen during registration must be entered.
Registration and use of the booking tool itself is free of charge. Lufthansa does not guarantee permanent availability of the booking tool accordingly.
The client is entitled to terminate the use agreement at any time without giving a reason by deleting its user account or by written notice of cancellation. Lufthansa may terminate the user agreement by giving two weeks’ notice without giving a reason. In the case of a material breach of obligations under the use agreement and/or for concluded advertising contracts, Lufthansa is authorised to extraordinarily terminate the user account with immediate effect if the client, despite previous warning, does not remedy this within a reasonable timeframe. The warning is not required if the breach is so notably severe that it would not be reasonable for Lufthansa to adhere to the contract or a warning would not conceivably promise success.
Advertising contracts already concluded remain unaffected by the termination of a usage relationship if, on the part of Lufthansa, a notice of termination was not expressly issued in this regard.
3. General obligations of the client when using the booking tool
Use of the booking tool is only permitted by the client itself. The client is obliged to keep user account access data [user ID, password], confidential from third parties. The client accepts responsibility in this respect for all activities carried out via the user account on the booking tool.
Clients must set up their systems and programmes so that neither the security, the integrity nor the availability of the systems, which Lufthansa has set up for the provision of the booking tool and services associated with this, are compromised. Lufthansa is authorised to take necessary measures to ensure the system integrity of the systems put in place.
In the event of misuse of the booking tool by the client, Lufthansa is entitled to terminate the user agreement without notice and to permanently disable and delete the user account. In this case, any claims for compensation on the part of the client, also including services not yet rendered, as well as claims for restitution for services already rendered are excluded.
4. Conclusion of contracts
The client can make a non-binding request in the booking tool regarding the booking of Lufthansa’s advertising space, indicating any special requirements. If changes or clarification of the requested services are necessary, these can be coordinated with Lufthansa via the booking tool or by other means. Additional services shall be agreed individually between the client and Lufthansa, and the client invoiced separately.
For the effective conclusion of a contract, the client submits to Lufthansa a binding offer to conclude a contract with Lufthansa via the booking tool. The offer may not be revoked and is valid for ten working days [all weekdays excluding Saturday, Sunday and bank holidays in Hesse] from submission. The client is obliged to include in the offer the advertising material, particularly the specific content of the advertisement, and to send it within the time period specified under section 15 of these T&Cs. After submission of its offer, the client receives confirmation of receipt via email, which details receipt of the offer and its particulars. This confirmation of receipt does not represent any form of acceptance on the part of Lufthansa.
The contract comes into being by Lufthansa sending a separate email to the client, in which the client’s submitted offer is accepted in the form of a booking confirmation [also called order confirmation]. The scope indicated in the booking confirmation insofar the client does not object in writing within 24 hours of receipt is relevant for the contract. The applicable T&Cs of Lufthansa apply exclusively to all contracts. The validity of T&Cs from the client is hereby expressly excluded unless Lufthansa has expressly consented to their validity.
Offers from Lufthansa are always non-binding.
5. 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, advertis¬ing 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.
6. Period for completion
The completion period shall be the period between Lufthansa and the client.
7. 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, he or she 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. 4.2.2 of the present General Terms and Conditions. The client may cancel an advertising order in writing prior to the booking deadline. In case of cancellation by the client, the following cancella¬tion costs are incurred; the gradation of these costs is governed by the booking deadline indicated in the order confirmation for the respective medium. In 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 as¬serted 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 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 [rescission] if they violate the law or official regulations, are contrary to public policy, contradict the principles of Lufthansa [e.g. those published on lufthansa.com] on account of their content, origin or technical form, or whose publication is unacceptable to Lufthansa, especially if their reputation may be damaged as a result. The same shall also apply if the Lufthansa media do not comply with the current CI guide¬lines of Deutsche Lufthansa AG [the CI guidelines as most recently amended will be made available to the client on request]. In addition, Lufthansa reserves the right to withdraw individual Lufthansa media from the programme at its discretion and also to cancel orders, even if they have been confirmed with legally binding force, if necessitated by a decision of the Lufthansa product management or marketing. The client shall be informed of such a refusal without delay. The client shall not be obliged to pay for the ordered service in such a case. All further claims shall explicitly 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. Manufacturing or preparatory costs which have already been incurred and any entitlement to commissions shall be borne by the client. 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. Client shall pay any and all applicable value added tax, sales and use taxes, [except Lufthansa income and corporate taxes in Germany] due under or in connection with this Agreement. In the event that client is obliged by law to withhold any taxes, fees or duties, 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 with¬holding of any such taxes, fees or duties, is equal to the amounts payable by client to Lufthansa had no such deduction or withholding been required.
11. Basic price of inflight entertainment
The basic price of inflight entertainment 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 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.
Lufthansa explicitly reserves the right to make changes at short notice [e.g. change to a different time or change 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. Except in the case of hidden defects, all complaints must be filed within an exclusive period of one month of receiving the invoice. The booked advertising spots shall be placed by Lufthansa within the agreed price group, subject to changes in accordance with No. 13 of these General Terms and Conditions. Price groups are shown in the valid Lufthansa programme. Lufthansa accepts no guarantee that additional commercial breaks will not be offered and broadcast alongside those in the programme schedule. If the commercials cannot be broadcast on time due to technical disruptions, force majeure or other circumstances not under Lufthansa’s control, broadcasting of the commercial will be moved to another appropriate broadcast time. If this is shifted substantially, the client will be notified about this immediately at the discretion of Lufthansa.
13. 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.
14. Terms of payment
Unless contractually agreed otherwise, the advertising orders placed shall be invoiced per month in advance. Invoices must be paid within the specified term of payment. They shall be payable without deduction not more than five working days after receiving the invoice. In the case of new business relations, Lufthansa reserves the right to demand payment in advance. Payment shall exclusively be 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 defaulted sum at a rate four percent above the applicable basic interest rate [Section 247 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.
15. 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 at least five working days before the deadline for submission of printing documents. The client shall be obliged to inform Lufthansa in writing and without delay if any circumstances preventing compliance with the stipulated deadline arise or become known. The client shall be responsible for ensuring timely delivery, as well as delivery of faultless printing docu¬ments, to the office to be 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 obligated to make the material required for broadcasting the advertising spots for movies or TV series available to Lufthansa at least nine weeks prior to broadcasting. The copies to be broadcast must be of the quality expected by Lufthansa. Lufthansa shall invoice the costs incurred for transferring other formats, e.g. NTSC, or poor broadcast¬ing quality to the required format and quality. 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. When send¬ing the copies to be broadcast, the client shall be obliged to state the details required for settling accounts [performing rights] with GEMA, particularly the name of the producer, publishing house, composer, title and length of the music. The client warrants that he will settle the GEMA accounts.
16. 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, this shall not entitle the client to claim any reduction in the agreed fee.
17. Responsibility of the client in terms of media, competition and copyright law
In relations with Lufthansa, the client shall bear sole responsibility for the advertising spot as regards media law, competition law and other content. The client shall exempt Lufthansa from all third-party claims, especially claims associated with media, competition and copyright law.
Liability of Lufthansa [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.
19. 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. 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. Place of jurisdiction in business relations with business people, legal entities under public law and public-law special funds shall be at Lufthansa’s registered office.