GENERAL TERMS AND CONDITIONS OF 4.SCREEN GMBH FOR IN-CAR MARKETING CAMPAIGNS

Applicable as of October 1, 2022

TABLE OF CONTENTS

1.    SCOPE   
2.    DEFINITIONS   
3.    SERVICE FOR THE DISPLAY OF CAMPAIGNS   
4.    RESPONSIBILITY OF THE CLIENT   
5.    RIGHTS OF 4.SCREEN AND DISPLAY PARTNERS  
6.    BETA FUNCTIONS   
7.    AD SERVING; DUTIES OF THE CLIENT   
8.    TESTING   
9.    CANCELLATION OF ADS   
10.    RIGHTS OF USE FOR THE CAMPAIGN   
11.    CAMPAIGN REPORTING   
12.    COMPENSATION FOR ADS TO BE DISPLAYED IN-VEHICLE OR ON DIGITAL MEDIA   
13.    CAMPAIGN BUDGET, PAYMENT AND MINIMUM CAMPAIGN SPEND   
14.    TERM OF THE CAMPAIGN; TERMINATION   
15.    NO GUARANTEES   
16.    AVAILABILITY   
17.    WARRANTY   
18.    LIABILITY   
19.    INDEMNITY   
20.    CONFIDENTIALITY   
21.    AMENDMENTS TO TERMS AND CONDITIONS   
22.    MISCELLANEOUS   

 

1.    SCOPE

1.1    4.screen GmbH ("4.screen") operates an online booking platform for advertising media ("4.screen Portal"), through which 4.screen clients ("Client(s)") can book ads in vehicles and digital media (e.g., apps) with 4.screen in the context of mobility ("Campaigns"). The Client can set various parameters (e.g., targeting, budget, duration) for the Campaign, subject to the limits set by 4.screen. The ads can be displayed in various formats in vehicles and digital media ("Advertising Formats"), e.g., in the form of a banner ad.
1.2    The following General Terms and Conditions ("Terms and Conditions") apply to all services provided by 4.screen to its Clients.
1.3    Clients' terms and conditions that conflict with, deviate from or supplement these Terms and Conditions will not become binding, even if 4.screen does not object to them individually, unless their inclusion has been expressly confirmed in writing by 4.screen. Consent will not be deemed given if, with knowledge of the Client's terms and conditions, 4.screen accepts orders, provides services, or directly or indirectly refers to letters containing the terms and conditions of the Client or a third party.

 

2.    DEFINITIONS

In these Terms and Conditions, the following terms will have the meanings ascribed to them here, unless otherwise expressly provided in the following in a particular case:
(a)    "Applicable Law" means all statutory, tax and regulatory requirements applicable to the display of a Campaign and always means the law of the country in which a Campaign is to be displayed.
(b)    "Display Screen" means a visual interface in a vehicle or digital media on which Ads may be displayed.
(c)    "Display Partners" means companies, in particular automobile manufacturers and mobility service providers, which have contractual relationships with 4.screen regarding the delivery of Ads, and any third parties commissioned by the Advertisers to provide vehicles and/or digital media.
(d)    "Conversion" means a change in status of the End User triggered by the display of Ads (as defined below) in a vehicle or digital medium, e.g., by the End User (as defined below) reaching the location advertised in the Advertisement.
(e)    "End User" means the driver and/or other occupants of a vehicle and/or user of a digital medium to whom an Ad (as defined below) is displayed on a Display Screen.
(f)    "Impression" means an Advertisement that meets the advertising requirements under these Terms and Conditions and has been displayed to an End User on a Display Screen.
(g)    "Click" represents an action that an End User takes by interacting with the Display Screen, for example, by selecting a link or button on the Display Screen.
(h)    "Party" means either 4.screen or the Client; the "Parties" refers collectively to 4.screen and the Client.
(i)    "Advertiser" means an individual whose Ad (whether created by that individual or by a third party on their behalf) the Client places through a Campaign. If the Client posts a Campaign on the 4.screen Portal for itself and not on behalf of an Advertiser, the Client is simultaneously deemed an Advertiser for this use.
(j)    "Ads" means the advertising content of the Campaigns, including all transmitted data, text, logos and technology provided by the Client.

 

3.    SERVICE FOR THE DISPLAY OF CAMPAIGNS

3.1    The Client can book Campaigns via the 4.screen Portal and transmit Campaign Content (as defined below) to 4.screen. 4.screen offers Campaigns to Display Partners and transmits the Campaign Content to the Display Partners.
3.2    The Client authorizes 4.screen to make the Ads available to the Display Partner so that the Display Partner can place the Ads in selected vehicles and/or on digital media provided by the Display Partner.
3.3    The Display Partner is free to decide which Ads to display in the vehicle and/or on digital media. 4.screen has no influence on this selection. The Client has no right to the display of specific Ads. It is also possible that no Display Partner opts to display a certain Ad or that it cannot be displayed in vehicles and/or on digital media for technical reasons.
3.4    No contract is ever entered into between the Client and the Display Partner via the
4.    screen Portal. Contracts to display Ads are only entered into between the Client and 4.screen and between 4.screen and the Display Partner. 4.screen will act in its own name and for its own account.
3.5 All services provided by 4.screen under these Terms and Conditions are services pursuant to sections 611 ff. German Civil Code (BGB).

 

4.    RESPONSIBILITY OF THE CLIENT

4.1    Campaigns must include the following content (collectively, "Campaign Content"):
(a)    Ads, in particular texts, logos and images – taking into account the specifications of the relevant Advertising Format;
(b)    the maximum bid amount that the Client wishes to invest in a campaign ("Campaign Budget");
(c)    tailoring and targeting of Ads (ad trafficking or targeting) (collectively, "Campaign Targets");
(d)    Optional: landing pages to which an Ad leads viewers (e.g., landing pages, mobile apps), together with the associated URLs, content of those target pages, waypoints, and redirects ("Campaign Landing Pages");
(e)    Optional: QR code and associated Campaign Landing Pages; and
(f)    Optional: Location Data and location information for Clients' advertised locations, such as address and business category ("Location Data")
4.2    The Client is solely responsible for:
(a)    Campaign Content;
(b)    the timeliness, completeness, seriousness, quality and accuracy of a Campaign or Campaign Content;
(c)    compliance with campaign delivery rules under section 7;
(d)    error-free transmission of Campaign Content to 4.screen (e.g. by email or in the 4.screen Portal);
(e)    decisions related to Campaign Targets and a Campaign's commercial plausibility;
(f)    the permissibility of a Campaign, its display and the Campaign Content in accordance with Applicable Law; in particular, the Client bears sole responsibility under press, competition, data protection and other laws for Campaign Content transmitted by it;
(g)    Advertiser's services and products advertised in the Ad and on the Campaign Landing Pages (collectively, the "Advertised Services"), including but not limited to their availability and lawfulness under Applicable Law; and
(h)    the granting of the rights of use pursuant to section 10.
4.3    4.screen or the Display Partners are not obligated, but have a right, to review the Campaign and the Campaign Content with regard to the points mentioned in clause 4.2, in particular with regard to accuracy, timeliness, completeness, integrity, quality, compatibility with these Terms and Conditions and Applicable Law and/or to ensure they are free of errors or that the Campaign Content is corrected.
4.4    The Client is responsible for ensuring sufficient backup of Campaign Content. 4.screen has no custodial or safekeeping obligations with respect to the transmitted Campaign Content. Data loss cannot be precluded. When the Client submits Campaign Content to 4.screen, regardless of its specific form, it is the Client's responsibility to create backups.

 

5.    RIGHTS OF 4.SCREEN AND DISPLAY PARTNERS

5.1    4.screen has the right not to offer campaigns to Display Partners on a case-by-case basis, for example where 4.screen takes the view that a breach of clause 7.1 has occurred; in this case,
4.screen will inform the Client and give it the opportunity to correct Campaigns.
5.2    Both 4.screen and the Display Partners have the right to reject or remove a Campaign as a whole or a specific Ad, a specific target or a specific landing page at any time, even if the display of a Campaign has already commenced, in particular if changes to Campaign Content already accepted for display are subsequently submitted by the Client.
5.3    4.screen and the Display Partners are permitted to terminate campaigns at any time or change them in a manner that is not unreasonable for the Client.
5.4    4.screen and the Display Partners are permitted to run Campaigns themselves to promote their own services and products.

 

6.    BETA FUNCTIONS

6.1    Some 4.screen Portal features are marked as "beta" or otherwise offered without Client support or marked as confidential (collectively, "Beta Features").
6.2    The Client must not disclose any information relating to Beta Features or the terms of use or the existence of nonpublic Beta Features to any third party, including the general public, unless
4.screen has expressly given its consent in writing to doing so.
6.3    The Beta Features may be changed by 4.screen at any time and data associated with the Beta Features may be deleted and overwritten by 4.screen at any time. 4.screen does not assume any warranty, nor consequently any liability, for Beta Features.

 

7.    AD SERVING; DUTIES OF THE CLIENT

7.1    The Client is obligated not to offer any Ads and not to transmit any Campaign Content to 4.screen, which or whose display
(a)    disregards the Rules on Advertising and its Appraisal issued by the German Advertising Standards Council (available at https://werberat.de/english-keyfacts/) and similar national or international organizations (especially in the countries in which the advertising is to be displayed);
(b)    promotes the use of tobacco, alcohol, pornography or is sexually offensive;
(c)    is misleading or untrue beyond of what is permissible for advertising claims;
(d)    is in competition with 4.screen or the Display Partners;
(e)    contains religious or political content or that may appear inappropriate to End Users;
(f)    contains insulting, defamatory, discriminatory, sexist or pornographic content;
(g)    contains content that glorifies or trivializes violence, glorifies war, incites hatred or is degrading;
(h)    is unconstitutional or contains symbols of unconstitutional organizations;
(i)    violates the rights of third parties;
(j)    constitutes incitement to commit crimes;
(k)    might conflict with the public policy objective of protecting minors, or impair children's or adolescents' well-being;
(l)    contain computer programs that may damage software or hardware or interfere with the use of computers, or contain viruses or other malware;
(m)    includes advertising for third parties or products and services offered by third parties, unless these are part of the Advertiser's Advertised Services;
(n)    may damage the Display Partner's reputation or are unacceptable to the Display Partner due to their content, origin or technical form; or
(o)    is otherwise illegal or unlawful, violate governmental orders and requirements of Applicable Law, or link to Campaign Landing Pages with such content (collectively, "Prohibited Content").
7.2    The Client is obligated to check Campaign Content before it is transmitted and to ensure that the Campaign Content does not contain any Prohibited Content and is permissible and lawful under Applicable Law, for example with regards to data protection regulations, e-commerce and competition law. In particular, the Client is obligated to label any Ads for products in compliance with the legal requirements under Applicable Law.
7.3    The Client is obligated to check Campaign Content for computer programs that could damage software or hardware or impair the use of computers, viruses or other malware before transmitting it to 4.screen and to use state-of-the-art measures (e.g., antivirus software) for this purpose.
7.4    The Client is obligated to create Ads pursuant to the requirements stored on the 4.screen Portal and the specifications depending on the Advertising Format. These will be communicated in advance either on the 4.screen website (https://www.4screen.com/) or as part of the bidding terms and conditions and may be adjusted by 4.screen at any time. Where a change in Advertising Format specifications affects ongoing Campaigns, 4.screen will endeavor to announce the change two weeks in advance, to give Client the opportunity to revise or update Campaigns.
7.5    The Client is obligated to ensure that all Campaign Content and permissions provided by it or on its behalf are complete, accurate and up to date. In particular, the Client will ensure that only such Campaign Content and Advertised Services are included in a Campaign about which Advertised Locations and their staff have been sufficiently informed and instructed. The Client will also ensure that the advertised locations and their staff are notified immediately of any relevant changes to the content of a Campaign.
7.6    The Client is obligated to ensure the availability and lawfulness of Advertised Services in accordance with Applicable Law.
7.7    Where the rejection, non-display or premature discontinuation of an Ad by 4.screen or the Display Partner is based on the fact that the Ad contains Prohibited Content or that Client has breached its obligations under this section 7, the Client acknowledges and agrees that in this case it is not entitled to a refund of any remuneration or other compensation paid by it and, in deviation from section 13, it is obligated to pay the full Campaign Budget regardless of whether the Campaign is actually displayed.
7.8    Any breach of this section 7 may result in immediate exclusion from the use of the
4.screen Portal, termination without notice, and the initiation of civil and criminal proceedings and claims for damages by 4.screen and Display Partners against the Client.

 

8.    TESTING

8.1    The Customer authorizes 4.screen and the Display Partners to use Campaign Content provided via the 4.screen Portal (e.g. texts, logos and images) for testing different or new formats. These tests are performed in a separate test environment (e.g., in a Display Partner's test vehicle). The End User of the Campaign Content is not affected by these tests and will not become
 
aware of the tests. To ensure timely and effective test results, Client authorizes 4.screen to perform such tests without prior notice or separate compensation to the Client.
8.2    In addition, display tests can be conducted that are displayed to a limited group of End Users ("Live Tests"). Live tests are considered Beta Features as defined in section 6.1. The Client receives no remuneration for Live Tests.

 

9.    CANCELLATION OF ADS

9.1    The Client can cancel an Ad up to four working days before the start of the Campaign. If the Client cancels an Ad after a time indicated by 4.screen in the 4.screen Portal (e.g., in the event of a Campaign based on a reservation), the Client will bear the cancellation costs notified to it by 4.screen, and it is possible that the Ad may be shown by the Display Partners despite cancellation. The Client remains obligated to pay the fees incurred due to the display of the Ad (e.g., fees based on number of impressions, clicks or conversions).
9.2    The Client must cancel an Ad (a) through the Client's account in the 4.screen Portal, if this function is available there, or (b) if not, by sending an email to the individual at 4.screen who is responsible for the Client account, or (c) if there is no such individual, by emailing 4.screen at the following email address: ads-support@4screen.

 

10.    RIGHTS OF USE FOR THE CAMPAIGN

10.1        By transmitting Campaign Content to 4.screen, the Client hereby grants 4.screen and the Display Partners all rights necessary for the display of the Campaign and in accordance with these Terms and Conditions, in particular the non-exclusive, geographically unlimited right of use, which is limited in time to the term of a Campaign and can be sublicensed to Display Partners and requisite third parties, to use the Campaign Content within the scope of these Terms and Conditions and to display the respective Ad to End Users, which also includes the right to store, reproduce, format, reformat, technically edit, transmit and make accessible the Campaign Content, as well as the right to use Campaign Content for testing within the scope of section 8.
10.2    The Client represents and warrants that it has all necessary rights to Campaign Content and Campaign Landing Pages, in particular with respect to any national, international or supranational registered or pending trademarks, domain names, business designations, designs, patents, utility models, other industrial property rights, trade secrets and rights under works protected by copyright or related rights ("IP Rights"), or has a right to use Campaign Content in order to grant 4.screen and the Display Partners the rights under section 10.1, and that the use of the Campaign Content by 4.screen or the Display Partner under the contractual terms does not breach these Terms and Conditions or Applicable Law and does not infringe any IP Rights or other rights of third parties.
10.3    4.screen hereby accepts all rights granted.
10.4    If the Client is not the Advertiser, the Client warrants that it has been granted all rights necessary for the performance of these Terms and Conditions by the respective Advertisers as required at the appropriate time.
10.5    The Client acknowledges that all enhancements provided by 4.screen are the sole property of 4.screen or third parties, even if they are the result of feature requests or bug reports from the Client, and that the Client has no rights thereto.

 

11.    CAMPAIGN REPORTING

11.1    The Client will provide the Advertiser with reporting data documenting the total amount spent with 4.screen and the performance achieved (including at least: costs, clicks and impressions by users attributable to the Advertiser's account). This must be done at least once a month.
4.screen has the right to provide information relevant to the Advertiser on such request by an Advertiser.
11.2    Clause 11.1 does not apply to Live Tests as defined in clause 8.2.

12.    COMPENSATION FOR ADS TO BE DISPLAYED IN-VEHICLE OR ON DIGITAL MEDIA

12.1    Via the 4.screen Portal, Clients can place bids with the Display Partner to display content; the Client bids an amount set by it for available impressions, clicks or conversions ("Bidded Orders"). The 4.screen Portal acts as a marketplace. The assumption is that the Display Partner will then display the Campaign of the highest bidder in each case. The decision as to which Campaign is displayed is the responsibility of the Advertiser, which can also define the criteria to determine what content can be displayed (e.g., Campaign with the highest monetary value, Campaign within a certain radius, bid from a certain sector, etc.). As 4.screen cannot warrant the display of Ads to the End User (see section 3.3), no compensation can be granted for Bidded Orders. The Client is only charged for Ads that are actually displayed (performance-based invoicing). The data provided by the Display Partner forms the basis for calculating the respective invoicing criteria (clicks, impressions, or conversions).
12.2    Alternatively, 4.screen and the Client may determine a monetary amount to be paid by a Client to achieve 1,000 Impressions ("CPM"). For certain Advertising Formats, a fixed number of impressions within a fixed period can then be agreed at a constant CPM between 4.screen and the Client, which, in contrast to Bidded Orders, works in principle like a reservation ("Time-bound Fixed Price Booking"). In this case, the Display Partner will deliver the agreed number by the end of the period pursuant to the provisions of clause 3.1. If the Display Partner fails to do so, 4.screen will not charge the Client for the undelivered Ads.
12.3    Statistical factors may also be used on a case-by-case basis to calculate the Ads that were actually displayed pursuant to sections 12.1 and 12.2. In particular, in individual cases where the Ads actually displayed cannot be determined without error for technical reasons, statistically collected correction factors provided by the Display Partner may be applied to determine a reduced value to be invoiced to the Client. The amount of the reduction depends on the vehicle type, vehicle settings and the software version and is thus determined individually for each display. The reduction is determined by the Display Partner based on the above-mentioned criteria in consultation with 4.screen and can change on a daily basis. At the Client's request, 4.screen will provide the respective valid reduction.
12.4    For the avoidance of doubt: If a Campaign is terminated prematurely by 4.screen or the Display Partner (before reaching the specified amount in the case of Bidded Orders and before the expiry of the specified period in the case of a Time-bound Fixed Price Booking), 4.screen will only invoice the Client for the delivered Ads on a pro-rata basis.

 

13.    CAMPAIGN BUDGET, PAYMENT AND MINIMUM CAMPAIGN SPEND

13.1    While booking a Campaign via the 4.screen Portal, the Client sets the Campaign Budget. The total fee charged by 4.screen for a Campaign will not exceed the Campaign Budget. If the Campaign Budget is exceeded (over-delivery) because of a discrepancy between the agreed and the actual number of impressions, clicks or conversions delivered, the Client will only be charged fees in the amount of the agreed Campaign Budget.
13.2    Invoices are issued by 4.screen across Campaigns at the end of a calendar month.
13.3    The Client must pay all fees incurred in connection with a Campaign via a mode of payment approved by 4.screen for that Client and within a term of payment of 14 days after invoicing by 4.screen. 4.screen charges interest on late payment at the statutory interest rate (section 288 (2) German Civil Code (BGB)). The Client agrees that 4.screen may provide invoices online for the Client to download. All fees agreed between the Client and 4.screen do not include Taxes (in particular VAT). If 4.screen must collect or pay Taxes, those Taxes will be charged to the Client unless the Client provides 4.screen with a valid tax exemption letter from the relevant tax authority in good time. The Client must pay all invoiced amounts without any deductions or withholding of Taxes. "Taxes" means all levies, duties and taxes (other than income tax payable by 4.screen on its net earnings) in connection with the use of Campaigns, including any penalties or interest thereon. The Client agrees to pay (a) all Taxes and other governmental charges, and (b) in the event of default, all necessary costs, including legal fees and court costs, incurred by 4.screen in enforcing lawful claims for payment.
13.4    Unless otherwise specified in the bidding terms and conditions, fees are calculated based on invoicing criteria in accordance with the applicable Campaigns (e.g., on the basis of clicks, impressions, or conversions). Any receivables payable to 4.screen that the Client does not specifically dispute in writing within seven days of invoicing will be deemed accepted, and the Client has no rights of retention in this respect (unless they are undisputed or have been declared final and absolute) or other rights. Neither Party is entitled to set off any payment to be made under these Terms and Conditions against any other payment to be made under these Terms and Conditions unless the counterclaim is undisputed or has been declared final and absolute. 4.screen may extend, review or revoke the Client's lines of credit at its sole discretion. Beyond the established line of credit, 4.screen is not obligated to deliver Ads or provide other services.
13.5    If a Campaign is displayed pursuant to clause 12.1, the minimum Campaign spend per month will be EUR 1.00. If the Campaign spend is greater than EUR 0.00 and less than EUR 1.00,
4.screen's Campaign spend to be invoiced pursuant to clause 12.1 (sentence 6) will be rounded up to reach the minimum Campaign spend.

14.    TERM OF THE CAMPAIGN; TERMINATION

14.1    The Client's Campaign, and thus the delivery of impressions, clicks, or conversions, ends (a) on reaching the Campaign Budget or (b) at the specified end date of the term of the Campaign, whichever occurs first.
14.2    Either Party may terminate the agreement underlying these Terms and Conditions at any time without notice by notifying the other Party, provided, however, that the following will apply:
(a)    Campaigns that are not canceled pursuant to section 9 and new Campaigns may be delivered and reserved, and (b) continued use of the 4.screen Portal after cancellation will in any event be subject to 4.screen's then-current Terms and Conditions for Campaigns, available at
4.screen's website (https://www.4screen.com/). 4.screen may suspend the Client's Campaign at any time, for example, in case of payment problems, violations of policies or these Terms and Conditions, and for statutory reasons.
14.3    The performance of Campaigns after termination is at the discretion of 4.screen and the Display Partners.

 

15.    NO GUARANTEES

4.screen and the Display Partners make no warranty in connection with the Campaigns or their outcome.

 

16.    AVAILABILITY

16.1    4.screen strives to provide maximum possible availability of the 4.screen Portal.
16.2    Maintenance work, security and capacity reasons, technical or operational circumstances and events beyond 4.screen's control may result in temporary or permanent unavailability of the
4.screen Portal. 4.screen reserves the right to temporarily restrict access to the 4.screen Portal or the ability to use it, in whole or in part, if this is necessary due to capacity limits or server security or integrity, or in order to perform technical measures that serve the proper provision or improvement of the services (e.g., for maintenance work).
16.3    4.screen is in any event not be responsible for the unavailability or functional impairment of the 4.screen Portal which
(a)    are due to causes beyond the control of 4.screen, especially those within the sphere of influence of Display Partners, third parties, service providers or telecommunications providers;
(b)    arise from the use of services, hardware or software not provided or expressly acknowledged by 4.screen, including but not limited to problems related to insufficient bandwidth or third-party software or services;
(c)    are caused by Client's use after having been instructed by 4.screen to alter such use and Client having failed to do so as instructed;
(d)    are caused by the Client's or its employees', agents', contractors' or suppliers' unauthorized act (including erroneous entries) or failure to take any required action, or by any
 
other person gaining access to the 4.screen Portal, or otherwise caused by the Client's failure to follow reasonable security procedures; or
(e)    are caused by the Client's failure to comply with required configurations and updates, or due to use of the 4.screen Portal inconsistent with the features and functions of the
4.screen Portal (e.g. attempts to perform unsupported operations) or inconsistent with the help published by 4.screen.

 

17.    WARRANTY

17.1    4.screen gives no representations and warranties, but will use its best efforts to ensure that the 4.screen Portal, the offer of Campaigns and the transmission of Campaign Content to the Display Partners are all provided using the latest technology.
17.2    In the event of functional impairment of the 4.screen Portal, the Client will notify 4.screen by email to ads-support@4screen describing the functional impairment. 4.screen does not owe any remedy for the specific functional impairment. Instead, 4.screen will provide updates necessary to maintain compliance with the agreement and to remedy functional impairments. This includes, in particular, regular technical and functional updates, which 4.screen is, however, not obligated to perform.
17.3    4.screen and the Display Partners will endeavor, within the scope of foreseeable requirements, to provide the best possible reproduction of Ads in accordance with the relevant customary technical standard. However, the Client is aware that, even using state-of-the-art technology, it is not possible to provide a completely error-free reproduction of Ads at all times. An error in the presentation of Ads and/or transmission of the Campaign Content will not be deemed to exist, in particular, if it is immaterial or caused:
(a)    as a result of noncompliance by the Client with specifications regarding transmission and Advertising Formats, in particular as set out in sections 4 and 7;
(b)    by the use of inadequate display software or hardware (e.g., browser) by the Client or the internet service provider;
(c)    due to disruptions of communication networks (e.g., but not exclusively line or power failure) at 4.screen or other operators;
(d)    by computer failure due to system failure or line failure;
(e)    by incomplete and/or non-updated cached bids on so-called proxy servers (caches) or in the local cache;
(f)    by an outage of the 4.screen Portal that does not last longer than 24 hours (whether consecutively or in total) within 30 days after the start of the contractually agreed booking;
(g)    due to failure of or connection problems to a vehicle and/or digital medium;
(h)    by modification or deletion of content carried out as part of the adaptation to be displayed in vehicles and/or on digital media selected by the Display Partner; or
(i)    if the interference with the reproduction of the Ad does not substantially impair its purpose.
 
17.4    4.screen is not responsible for any changes to the Campaigns or errors that are beyond 4.screen's control. This applies in particular to changes made to the Campaigns by the Display Partner once 4.screen has transmitted the Campaign Content. Likewise, 4.screen is also not responsible for Campaigns that were booked via the 4.screen Portal and transmitted to the Display Partner, but were not displayed in vehicles and/or on digital media, or that cannot be played in vehicles and/or on digital media for technical reasons. Please note that the Display Partner reserves the right to cancel or reject Campaigns at any time.
17.5    All claims against 4.screen arising from a breach of contractual duties are subject to a limitation period of one year from the start of the statutory limitation period, unless they are based on intentional conduct.
17.6    In the event of operational disruptions or in cases of force majeure, illegal labor disputes, unlawful seizure, traffic disruptions, general shortages of raw materials or energy and the like – in the operations of 4.screen and the Display Partners – 4.screen is entitled to full payment for the Ads displayed. 4.screen is entitled to postpone market launch dates due to current events. The Client will have no claims against 4.screen on this basis. There is no obligation for
4.screen to fulfill orders and pay compensation, in particular to pay compensation for Ads that are not published or not published on time.

 

18.    LIABILITY

18.1    For each case of simple negligence, each Party will only be liable in the event of breach of contractual duties, the fulfillment of which characterizes the agreement and on which the contractual partner may rely; such liability is limited to the foreseeable damage typical for such agreements. This does not apply to losses resulting from injury to life, body, or health or in cases of mandatory liability, in particular not to liability for cases in which a procurement risk or warranty for damage has been assumed, in the case of liability under the German Product Liability Act (ProdHaftG), liability under the GDPR or where a defect is fraudulently concealed. Strict liability is also excluded for defects which already existed at the time the agreement was made. Further, liability of the Parties pursuant to sentence 1 is precluded for indirect damage, including loss of profit. Liability in cases under sentence 1 is limited to the consideration in the respective calendar year in which the damaging event took place (the maximum liability amount applies to all damage arising in the respective year or which is based on a damage event which occurred during this year).
18.2    If damage occurs or has already occurred, the Parties undertake to make all necessary efforts or promptly arrange that all necessary efforts are made to minimize the damage and its effects.

 

19.    INDEMNITY

19.1    The Client will indemnify 4.screen and the Display Partners against third-party claims and resulting losses arising from Client's culpable conduct in relation to Prohibited Content in connection with Campaign Content, infringement of third-party rights (including but not limited to patent, copyright, trade secret or trademark infringement or other commercial exploitation) or Ads, Campaign Targets, Campaign Landing Pages, Advertised Services and breaches of these Terms and Conditions. The Client will in particular indemnify 4.screen and the Display Partners against any such third-party claims arising from a culpable breach of section 4 (Responsibilities of the Client) (such as a claim by an End User for nonavailability of a product advertised in the Ad or the claim by an End User if the Client provides 4.screen with incorrect or incomplete Location Data) or arising from an actual or alleged failure to grant rights with respect to the Campaign. "Losses" within the meaning of this section means any losses, costs, claims, receivables, actions, proceedings, fines, penalties, judgments, liabilities, damages, compensation, settlements, expenses, and/or professional fees and/or charges, including necessary legal defense costs.
19.2    The Client will assist 4.screen and the Display Partners, as far as legally possible, in defending or settling such third-party claims.

 

20.    CONFIDENTIALITY

20.1    The Parties will treat confidentially the existence and the content of this agreement and all information of the other Party and its Affiliates within the meaning of sections 15 ff. German Stock Corporation Act (AktG), ("Affiliates") which is subject to secrecy and which is obtained in connection with this agreement, including information obtained pre-contractually, orally, in writing or in any other form, and in each case business secrets ("Confidential Information") and only use it for the contractually agreed purpose.
20.2    Confidential Information includes, but is not limited to, client data, Beta Features, this agreement and the amount of fees payable to 4.screen.
20.3    The Parties must take all necessary and reasonable steps to prevent disclosure of Confidential Information to and/or the exploitation of the Confidential Information by third parties. It is only permissible to disclose the Confidential Information to such employees, staff and external advisors of the Parties who are directly involved in performance of the agreement (i.e., on a need-to-know basis). If they are not professionally bound to secrecy, they are obliged to agree in writing to comply with the confidentiality obligation within the context of this Agreement, and to the extent permitted by law, also for the time after they leave the company. The disclosure of Confidential Information is also permitted if and to the extent that the party burdened with the obligation of confidentiality ("Burdened Party") is obligated to do so due to a statutory provision or an official order, has informed the other party in writing of the intended disclosure and has taken precautions provided for by law and/or reasonable precautions to keep the extent of disclosure as low as possible. Otherwise, disclosure to third parties is only permitted with the prior written consent of the other party.
20.4    The confidentiality obligations under these Terms and conditions do not apply if and to the extent that the otherwise Burdened Party proves that the information concerned:
(a)    was already generally known at the time the knowledge was gained or became generally known at a later time and without any breach of the obligations under this agreement,
(b)    was already known to the Burdened Party at the time knowledge was gained without any breach of confidentiality obligations,
(c)    was developed by the Burdened Party independently, that is, without use of or reference to the Confidential Information,
(d)    was made available to the Burdened Party by third parties who lawfully obtained the Confidential Information and were authorized to disclose it.
20.5    Upon termination of this agreement, the Burdened Party will, upon the written request of the other Party, promptly and at its own expense surrender to the other Party or destroy, to the extent feasible with reasonable effort, all Confidential Information (including all data carriers and copies made by the Burdened Party or third parties) and provide confirmation of this to the other Party. This does not apply if and to the extent that the Burdened Party is legally required to keep Confidential Information. The Burdened Party does not have a right of retention.
20.6    The confidentiality obligations under this agreement end two years after this agreement ends.
20.7    Notwithstanding any provisions to the contrary in these Terms and Conditions, the Parties are permitted to publish the fact of the cooperation as such and the Client's use of the 4.screen Portal.

 

21.    AMENDMENTS TO TERMS AND CONDITIONS

4.screen may amend these Terms and Conditions at any time. 4.screen will notify the Client of any amendment to the Terms and Conditions by email no later than two months prior to such amendment; the amended Terms and Conditions will be published on the 4.screen website (https://www.4screen.com/) or communicated in electronic form. The notification to the Client will specify a reasonable period for the Client to object to the amended Terms and Conditions. If the Client does not object within the specified period, its consent to such amended Terms and Conditions will be deemed given on expiry of that period. In the notification, 4.screen will specifically inform the Client of the opportunity to raise objections and the legal consequences of failure to do so. Amendments to the main contractual obligations require the Client's express consent to become effective. If the Client does not agree to the amended Terms and Conditions within the period granted, 4.screen reserves the right to terminate this agreement in accordance with clause 14.2.

 

22.    MISCELLANEOUS

22.1    These Terms and Conditions and their interpretation and all noncontractual obligations in connection with it are governed by the substantive law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply. The exclusive place of jurisdiction for all disputes arising from or in connection with this agreement including its validity is Munich.
22.2    These Terms and Conditions constitute the entire agreement between the Parties with respect to the subject matter of the agreement and supersede all prior agreements of any kind with respect to its subject matter.
22.3    The Client is not entitled to make any public statements regarding the contractual relationship established by these Terms and Conditions (unless required by law).
22.4    Except for the amendments regulated in section 21 (Amendments to the Terms and Conditions) by 4.screen, amendments must be agreed by both Parties in writing and must expressly refer to a change of these Terms and Conditions. This also applies to any amendment of this written form requirement.
22.5    If any provision of these Terms and Conditions is or becomes void or invalid in whole or in part, this will not affect the validity of the other provisions. Statutory law (section 306 (2) German Civil Code (BGB)) will apply instead of any general terms and conditions that are not referred to or are invalid. In all other respects, the Parties will agree on a valid provision to replace the void or invalid provision that reflects as closely as possible the original commercial purpose, provided that no supplementary interpretation of this agreement takes priority or is possible. The same applies in the event of a contractual omission.
22.6    Neither Party may assign this agreement or any part thereof without the written consent of the other Party. This does not apply (a) to 4.screen, which may transfer all or part of its rights and/or obligations under these Terms and Conditions to an Affiliate, provided that 4.screen notifies the Client of such transfer, and (b) to a Client, which transfers its rights and obligations under these Terms and Conditions to an Affiliate of the Client, provided that (i) the transferee confirms in writing to be bound by these Terms and Conditions, (ii) the Client remains responsible for the fulfillment of its obligations under these Terms and Conditions in case the transferee fails to perform them, and (iii) the Client notifies 4.screen of the transfer. Irrespective thereof, 4.screen may assign claims arising from a contractual relationship subject to the Terms and Conditions to third parties without the Client's consent.
22.7    These Terms and Conditions do not establish an agency relationship (including as a commercial agent) or a partnership or joint venture between the Parties.

END