These are the terms and conditions (“Terms and Conditions”) between PubGrade GmbH, Schloss-Rahe-Str. 15, Aachen, Germany (“PubGrade”) and the Advertiser and/or Agency (“Client”) named on the relevant purchase order relating to any campaign conducted by PubGrade.
1. No order submitted to PubGrade shall be deemed to be accepted by PubGrade unless and until confirmed in writing by PubGrade. Each purchase order accepted by PubGrade shall incorporate these Terms and Conditions as if set out in the purchase order in full. Each purchase order shall be a separate contract between PubGrade and the Client. It is a condition of acceptance by PubGrade of a purchase order that these Terms and Conditions are incorporated to the exclusion of all other standard Terms and Conditions. A Client’s standard Terms and Conditions of purchase or other standard terms of business shall not apply to the contract formed by a purchase order.
2. If an Agency, the Client represents and warrants that it has all necessary consents and authorization to enter into this Agreement on the Client’s behalf.
3. Once a purchase order has been submitted, a Client cannot terminate or alter it for any reason without the prior written consent of PubGrade.
4. The services provided hereunder are provided “as is”. PubGrade makes no warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, quality, accuracy or fitness for a particular purpose. Except as otherwise expressly provided in this agreement, all conditions, warranties, terms, representations, and undertakings express or implied, statutory or otherwise in respect of the services provided hereunder are to the fullest extent permitted by law expressly excluded. No oral or written information or advice given by any representative of PubGrade or by anyone else shall create any warranties by PubGrade.
5.1 PubGrade does not exclude or limit its liability for death or personal injury caused by its own negligence or any other liability, the exclusion or limitation of which is expressly prohibited by law.
5.2 Except as provided for in Clause 5.1 above, the liability of PubGrade in respect of any and all claims (whether in contract or in tort) arising out of or in connection with this Agreement is limited in respect of each event or series of connected events to an amount equal to the fees paid under this Agreement.
5.3 Except as provided for in Clause 5.1, notwithstanding anything else contained in this Agreement in no event shall PubGrade be liable to the Client for:
5.31 Loss of profits, business revenue, goodwill, anticipated savings;
5.32 Any act or omission of the Client and/or
5.33 Indirect, special, incidental or consequential loss or damage
6. The Client is responsible for the content and appearance of Ads (including any links to or from) and the selection of keywords to be associated with any Ads. The Client hereby grants to PubGrade all rights that PubGrade requires fulfilling the services to be provided hereunder. The Client shall obtain all rights, licenses and consents (including without limitation where required regulatory consents) needed to permit the use, display, reproduction, transmission and distribution of an Ad and all contents contained therein. The Client indemnifies PubGrade and shall keep PubGrade indemnified from and against any claim that;
6.1 Any of the facts contained in an Ad are not true or not accurate; and
6.2 Anything in an Ad is obscene, defamatory, libelous, violates any right of privacy or infringes any intellectual property rights (including without limitation copyright, patent or trademark) or any other human, personal or other rights of any person or entity is otherwise unlawful.
7. The Client shall provide all content, artwork and design for any Ad on or before the date and in accordance with the specification notified to the Client by PubGrade. PubGrade reserves the right to decline to post an Ad if in its absolute discretion it believes it would be inappropriate to do so.
8. The Client grants PubGrade the right to mention the client´s brand and logo as a reference.
9.1 If any provision of these Terms and Conditions is held for any reason to be ineffective or unenforceable in whole or in part this shall not affect the validity or enforceability of the other provisions of these Terms and Conditions.
9.2 No waiver by PubGrade of any breach of the agreement by the Client will be treated as a waiver of any subsequent breach of the same or any other provision.
9.3 Variations to these Terms and Conditions will only be effective if in writing and signed by an authorized representative of each of PubGrade and the Client.
9.4 PubGrade’s employees or agents are not authorized to make any representations concerning services unless confirmed by PubGrade in writing.
10.1 PubGrade may invoice the Client for all amounts as they become due under this agreement. Invoices must be paid within 14 days of the date of such invoice.
10.2 PubGrade may charge interest on all sums outstanding beyond the date on which they are due for payment under this Agreement. Interest may be charged on that basis from the date payment was due until the date of payment (including after any judgment has been obtained) at the rate of 3% per year above the current base rate of Lloyds TSB Bank plc.
10. This Agreement shall be governed by and construed in accordance with the laws of Germany without regard to the principles of conflicts of law. The parties hereto submit to the non-exclusive jurisdiction of the German courts.