General Terms and Conditions for Retail Media
§ 1 Subject and Scope
1.1 The following General Terms and Conditions (GTC), in their version valid at the time of the order, govern the contractual relationship between Shop-Apotheke Service B.V., Erik de Rodeweg 11-13, NL-5975 WD Sevenum, Netherlands (hereinafter referred to as "Shop Apotheke") and entrepreneurs within the meaning of § 14 BGB (hereinafter referred to as the "Advertiser"), who commission Shop Apotheke to provide services in the areas of media services, campaign management, services for targeted advertising and consultancy, in particular, the provision of advertising space on websites, other online media, and in public spaces as well as reporting.
1.2 The Advertiser can access these GTC at any time via the web address and print them out using their internet browser or save them on their computer.
1.3 Deviating, opposing, or supplementary General Terms and Conditions of the Advertiser will not become part of the contract unless Shop Apotheke expressly agrees to their validity, at least in text form. If the Advertiser does not agree, they must promptly notify Shop Apotheke in writing or text form. In such a case, Shop Apotheke reserves the right to withdraw any statements regarding the conclusion of a contract. Any references to the Advertiser's own GTC made in forms or in any other way are hereby expressly rejected.
1.4 The contract language is German.
§ 2 Definitions
2.1 "Ad Impression" refers to user visual contacts with the online advertisement.
2.2 "ClickRate" refers to the ratio of Ad Clicks to Ad Impressions or Page Impressions.
2.3 "CPC" (Cost-per-Click) is the price the Advertiser must pay for a user’s click on an advertisement.
2.4 "Media Services" refers to services provided by Shop Apotheke, particularly the provision of media such as advertising space (bannering) onsite, search & sponsored products on online media (offsite & DOOH), content & CRM.
2.5 "Online Media" refers to all websites, platforms, apps, and other online media where Shop Apotheke is to provide media services under this agreement.
2.6 "Page Impressions" refers to visits to the website where the online advertisement is placed.
2.7 "TKP" (Cost per Thousand Impressions) is the price the Advertiser must pay for media services reaching 1,000 users via Ad Impressions.
2.8 "Fixed Price" is the price the Advertiser must pay for an advertising measure according to the price list, regardless of the distributed volume.
2.9 "Visits" refer to user visits to an online medium. "Unique Users" refer to specific individual users.
2.10 "Advertising Material" refers to content, such as banners, that Shop Apotheke is to deliver on online media.
§ 3 Conclusion of Contract
3.1 The provision of media services is based on these GTC, supplemented by individual orders.
3.2 Shop Apotheke’s offers are always subject to change. The contract is concluded when Shop Apotheke expressly accepts the customer’s offer by sending an order confirmation, e.g., by email, or by executing the order or starting the performance of the order.
§ 4 Performance of Media Services
4.1 Shop Apotheke provides the agreed media services within the agreed period and/or until the maximum or advertising volume specified in the individual order is reached.
4.2 Any information on media services, such as the number of Ad Impressions or Clicks, indicates the upper limit of the services to be compensated by the Advertiser in the event of provision. Shop Apotheke will make every effort to use the maximum volume within the specified period. It must be considered that the availability of advertising space is limited, and the effectiveness of advertising materials varies.
4.3 Shop Apotheke is not obliged to deliver the advertising material (i) on a specific online medium, at a particular position on an online medium, or at a particular time or (ii) in the immediately visible area of an online medium (first screen), unless the parties have expressly agreed to this at least in text form. In the event of changes to media formats or their positioning, Shop Apotheke may replace agreed media formats or positions with other formats or positions with the same total volume.
4.4 If the order specifies the delivery of a certain number of Ad Impressions, Page Impressions, or Ad Clicks within a specific period and Shop Apotheke does not deliver the full amount during that period, Shop Apotheke is entitled to extend the online advertising beyond the agreed period and deliver the missing number of Ad Impressions, Page Impressions, or Ad Clicks. Shop Apotheke will coordinate the extension periods with the Advertiser, considering the legitimate interests of both parties. If Shop Apotheke does not deliver the missing amount even within the extension period, the Advertiser can reduce the payment proportionally for the undelivered Ad Impressions, Page Impressions, or Ad Clicks.
4.5 If the order includes retargeting measures, Shop Apotheke is only obligated to attempt to reach users who have visited an online offering with an advertisement served by Shop Apotheke again with advertising material. Shop Apotheke does not owe the success of retargeting measures, and any statements in the order regarding the targeted success are not binding.
4.6 Shop Apotheke has a three-day delivery window, plus or minus, for the agreed delivery date. Additionally, Shop Apotheke may postpone or cancel an agreed delivery date if the advertising materials are not provided by the Advertiser on time and without defects within the meaning of § 5, and the Advertiser has been timely informed of the consequences of not providing them on time, as well as if an online medium where Shop Apotheke is to place the advertisement is not available at the agreed delivery date, provided the unavailability is beyond the control of Shop Apotheke, or if timely delivery is impossible for technical reasons beyond the control of Shop Apotheke.
4.7 Shop Apotheke may use third parties to fulfil its contractual obligations.
4.8 If Shop Apotheke provides information on costs or prices not determined at the time of the contract, particularly costs for advertising spaces that Shop Apotheke purchases or has purchased through a bidding process, these are always non-binding estimates. In executing the contract, Shop Apotheke will ensure that the costs or prices are market-based (fair market value).
§ 5 Advertising Materials
5.1 The Advertiser must provide Shop Apotheke with the materials for the creation of advertising materials no later than six weeks before the agreed campaign start, completely, error-free, and in accordance with the contractual agreements, on Nextcloud. The creation of advertising materials is carried out by Shop Apotheke.
5.2 The Advertiser must ensure that the materials are free from viruses or other harmful elements.
5.3 If the Advertiser does not provide the advertising materials on time, this does not exempt them from their payment obligation. If the advertising materials can no longer be delivered as a result, Shop Apotheke must deduct any savings made as a result of the release from the obligation or any income earned or negligently failed to earn through the alternative use of freed-up advertising space.
5.4 The Advertiser grants Shop Apotheke a non-exclusive, unlimited by retrieval volumes, worldwide, time-limited to the term of the contract, and content-limited to the purpose of the contract, sub-licensable right to use the content of the provided advertising materials. The rights granted include the necessary copyright usage and exploitation rights as well as performance protection, trademark, and other rights, in particular, the right to reproduce, distribute, transmit, broadcast, make publicly available, extract from a database, retrieve, and edit the advertising material, as far as this is necessary for the performance of the contract. The above rights may be assigned to third parties.
5.5 The Advertiser ensures and guarantees that the advertising materials provided
are free from third-party rights, or they hold all necessary copyright usage and exploitation rights, as well as performance protection, trademark, and other rights to allow Shop Apotheke and/or the online media providers to use the advertising materials free from third-party rights;
clearly and unambiguously indicate their advertising character;
do not contain any content that glorifies violence or war (§§ 130, 131 StGB), pornographic content (§ 184 StGB), content harmful to minors (§§ 4 and 5 JMStV), racist, inciting, or dehumanizing content (§§ 130, 131 StGB);
do not contain any propaganda materials (§ 86 StGB) or symbols of unconstitutional organizations (§ 86a StGB);
do not incite to commit a crime, incite racial hatred, or promote a terrorist organization (§ 130a StGB);
are not anti-competitive;
do not contain defamatory statements or representations;
do not violate any local legal regulations at the place of publication of the advertisement;
do not contain any other unlawful content or content that may damage the reputation of Shop Apotheke.
5.6 In case of a breach of the above guarantees or obligations, the Advertiser indemnifies Shop Apotheke from all third-party claims, including government authorities, made against Shop Apotheke despite the contractual use of the advertising materials and the websites or other content linked to them, and covers the costs and expenses (including reasonable attorney's fees) incurred by Shop Apotheke due to such third-party claims. Shop Apotheke will not acknowledge such third-party claims or enter into a settlement with the third party without the Advertiser’s consent, which may only be withheld for a good reason. This indemnification obligation does not apply if the Advertiser is not responsible for the breach. Any claims for damages for further damages remain unaffected.
5.7 Shop Apotheke is not obliged to check the advertising materials provided by the Advertiser before or after delivery and is not liable, in particular, for the legality of their content.
5.8 If there is a reasonable suspicion that the advertising materials provided by the Advertiser contain illegal content or infringe third-party rights, Shop Apotheke may reject them or suspend their delivery until legal clarification is provided, or the suspicion can be dispelled in another way. A reasonable suspicion exists, in particular, if a third party requests Shop Apotheke to stop further advertising, claiming that the advertisement is illegal or infringes third-party rights, provided the request is not obviously and recognisably unfounded to Shop Apotheke. Shop Apotheke will inform the Advertiser of the rejection or suspension, stating the reasons, without delay.
5.9 If advertising materials do not meet the applicable technical specifications or the agreed design (such as agreed co-branding guidelines) or violate one of the above guarantees, Shop Apotheke is entitled to reject them or stop an ongoing campaign.
5.10 Shop Apotheke may label the advertising materials as advertising, e.g., with additions such as "Advertisement", "Advertising", "Sponsored", or "Sponsored", and/or separate them from any editorial content spatially, especially if the advertising materials provided by the Advertiser are not sufficiently recognisable as advertising.
5.11 If, in Shop Apotheke’s opinion, it is necessary for the delivery of the advertising materials, Shop Apotheke may edit the advertising materials in terms of size, format, and technical specifications, as far as this is reasonable for the Advertiser, considering Shop Apotheke’s interests. If content editing of the advertising materials is necessary, Shop Apotheke will obtain the Advertiser’s consent before making such edits; any delays in service provision resulting from this are the responsibility of the Advertiser.
5.12 Shop Apotheke is entitled to temporarily restrict the availability of the website if this is necessary for capacity reasons, for the security or integrity of the servers, or to carry out technical measures, and if this serves the proper or improved provision of services (maintenance work). Shop Apotheke will consider the Advertiser's legitimate interests, especially by providing prior information.
5.13 Disruptions or interruptions to the performance of the contract due to technical malfunctions, connection failures, hardware and software errors, and third-party actions that Shop Apotheke cannot be held responsible for (such as viruses or denial-of-service attacks) do not entitle the Advertiser to any rights.
§ 6 Availability of Goods/Launch of New Products
6.1 The availability of goods must be ensured by the manufacturer during the campaign period. A switch from one product to another - by the manufacturer - is only possible within the same category and only once during a campaign, and only in case of a lack of availability of goods by the manufacturer.
6.2 The bindingly booked advertising measures apply exclusively to products that are already listed at Shop Apotheke. Requests for the listing of a product must be received by Shop Apotheke at least six weeks before the launch. The Advertiser should contact their buyer contact at Shop Apotheke in this regard. The period between the product launch and the start of the advertising measures must be at least two weeks. It is the responsibility of the Advertiser to ensure this.
§ 7 Cancellations
7.1 The Advertiser can cancel an advertising measure free of charge up to 60 days before the start of delivery. The start of delivery is the day when the agreed service is first to be provided under the contract. This does not apply to advertising measures already specified as part of the annual agreement.
7.2 In the case of a cancellation between the 59th and 30th day inclusive before the start of delivery, the cancellation fee is 50% of the net contract value; for cancellations between the 29th and 14th day inclusive before the start of delivery, the cancellation fee is 70% of the net contract value; for cancellations between the 13th and 3rd day inclusive before the start of delivery, the cancellation fee is 90% of the net contract value. After this period, the costs of the full net contract value will apply despite the cancellation of the advertising measure.
7.3 Any cancellation of an advertising measure must be made in writing or text form.
§ 8 Payment, Terms of Payment, Settlement
8.1 The Advertiser shall pay Shop Apotheke the remuneration agreed in the respective (individual) order.
8.2 Shop Apotheke reserves the right to change prices. After the conclusion of the contract, price changes are only effective if Shop Apotheke announces them at least six weeks before the planned delivery of the advertising materials. In the event of a price increase, the Advertiser has the right to terminate the contract within 14 days of receiving the price increase notification. This clause 8.2 does not apply to costs or prices not determined at the time of the contract, particularly costs for advertising spaces that Shop Apotheke purchases through a bidding process and can therefore only estimate at the time of the contract. Shop Apotheke always points this out in the respective offer. Reference is made to clause 4.8. In such cases, Shop Apotheke will invoice the actual costs or prices.
8.3 The reporting by Shop Apotheke, in particular, the Ad Impressions, Page Impressions, Ad Clicks, Click Rates, or other agreed parameters determined by Shop Apotheke (through the Retail Media Platform) or a service provider commissioned by Shop Apotheke, is decisive for proof of performance and calculation of remuneration. Deviating Ad Impressions, Page Impressions, Ad Clicks, Click Rates, or other parameters determined by the Advertiser or third parties will not be considered. Shop Apotheke may transmit or make the report available to the Advertiser electronically via the Retail Media Platform (RMP).
8.4 Unless otherwise agreed, the settlement takes place after the campaign has been completed. Shop Apotheke is entitled to demand advance payments.
8.5 Shop Apotheke sends invoices to the Advertiser electronically.
8.6 Invoice amounts are due without deduction upon receipt of the invoice and payable within 14 days unless otherwise expressly agreed in the contract.
8.7 All prices are net plus VAT at the applicable rate.
§ 9 Term, Termination
9.1 The (individual) orders become effective upon conclusion and end with the provision of the contractual service by Shop Apotheke. Early ordinary termination is excluded.
9.2 Clause 8.2 and the right to extraordinary termination remain unaffected.
9.3 Terminations must be made in writing.
§ 10 Liability
10.1 Shop Apotheke is liable for damages, except in the case of a breach of essential contractual obligations, only if and to the extent that Shop Apotheke, its legal representatives, senior employees, or other vicarious agents are guilty of intent or gross negligence. In the event of a breach of essential contractual obligations, Shop Apotheke is liable for any culpable conduct by Shop Apotheke, its legal representatives, senior employees, or other vicarious agents. Essential contractual obligations are obligations whose fulfilment enables the proper performance of the contract in the first place and on whose compliance the contractual partner regularly relies or may rely.
10.2 Except in cases of intent or gross negligence by Shop Apotheke, its legal representatives, senior employees, or other vicarious agents, Shop Apotheke's liability is limited to the foreseeable damages that typically arise in transactions of this type.
10.3 The above exclusions and limitations of liability do not apply in the case of explicit guarantees by Shop Apotheke, for claims under the Product Liability Act, due to fraudulent concealment of defects, for damages arising from injury to life, limb, or health, or in the case of other mandatory statutory regulations.
§ 11 Data Protection
11.1 The Advertiser ensures compliance with the relevant data protection regulations.
11.2 The Advertiser is not entitled to use tracking pixels or similar technologies when delivering advertising materials unless this has been expressly agreed between the parties, at least in text form. The same applies to Flash cookies and comparable technologies.
11.3 Even if the use of tracking pixels etc. is permitted under clause 11.2, the Advertiser is prohibited from associating individual users with an affinity or information relevant to delivering personalized advertising (e.g., gender, category affinity, etc.). Shop Apotheke is entitled to conduct random checks to ensure compliance with this regulation. If Shop Apotheke has information that the Advertiser is violating this prohibition, Shop Apotheke may verify compliance with the prohibition through appropriate measures or have it verified. The Advertiser must facilitate this. If the Advertiser refuses such verification on the grounds that it would give Shop Apotheke access to the Advertiser's trade secrets, the verification must be carried out by an independent, professionally qualified third party, with the Advertiser bearing the costs for the independent third party if a violation is found.
§ 12 Confidentiality
12.1 The parties agree to keep all documents, information, and data received from the other party about the other party’s affairs, as well as any that were made accessible or became known due to the collaboration ("Confidential Information"), confidential for the duration of the contract and for three years thereafter, and to use them exclusively for the performance of the contract. The content of this agreement and any (individual) orders is also to be treated as confidential. Each party is obligated to consult with the other party if there are any doubts as to whether specific documents, information, or data should be treated as confidential. The receiving party will use at least the same care and protective measures to maintain the confidentiality of the Confidential Information as it uses to protect its confidential information of the same kind, but at least the standard care in the industry.
12.2 The obligation to maintain confidentiality does not apply to information that (i) is or becomes publicly known without a breach of contract by a party, (ii) was known to the receiving party at the time of disclosure, (iii) the receiving party can prove it received from a third party after the conclusion of this agreement without an obligation of confidentiality, provided that the third party did not itself breach any confidentiality obligations towards the disclosing party, or (iv) must be disclosed due to a mandatory legal or regulatory obligation or a binding court decision.
12.3 If the Advertiser is an agency, Shop Apotheke is entitled to forward a booking confirmation to the respective advertising client of the agency.
12.4 Shop Apotheke is entitled to refer to the collaboration with the Advertiser as part of its self-promotion, also by displaying the Advertiser's brands or logos.
§ 13 Force Majeure
Severe events, such as force majeure, labor disputes, unrest, warlike or terrorist conflicts, which have unforeseeable consequences for the performance of the contract, release the contractual parties from their performance obligations for the duration of the disruption and to the extent of its effect, even if they are already in default. This does not automatically lead to the termination of the contract. The contractual parties are obligated to inform each other about such an obstacle and to adjust their obligations to the changed circumstances in good faith.
§ 14 Limitation
All claims of the Advertiser against Shop Apotheke arising from the order become time-barred after one year, starting from the end of the calendar year in which the claim arose and the Advertiser became aware or should have become aware of the circumstances giving rise to the claim through gross negligence. This does not apply in the case of liability by Shop Apotheke for intent. § 199 paras. 2 to 5 BGB remain unaffected.
§ 15 Miscellaneous
15.1 Rights or claims from this agreement may not be assigned without the written consent of the other party.
15.2 Unless there are overriding agreements between the parties, these GTC, together with the order and any annexes, set out all agreements between the parties regarding the subject of the contract at the time of signing. This replaces all previous agreements, oral or written statements of intent, and other legally binding or non-binding agreements regarding the subject of the contract. No side agreements have been made.
15.3 In the event of individual agreements made between Shop Apotheke and the Advertiser (including ancillary agreements, supplements, and amendments), these take precedence over these GTC. The content of such agreements is, subject to evidence to the contrary, a contract in text form or a confirmation from Shop Apotheke in text form.
15.4 The Advertiser may only offset its claims against claims from Shop Apotheke with legally established claims.
15.5 This agreement is governed exclusively by the law of the Federal Republic of Germany, excluding conflict-of-law rules and international uniform law, in particular, the UN Convention on Contracts for the International Sale of Goods.
15.6 If the Advertiser is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive - including international - legal venue for all disputes arising from the contractual relationship is Düsseldorf. The same applies if the Advertiser does not have a general legal venue in Germany. However, in all cases, Shop Apotheke is also entitled to bring an action in accordance with an overriding individual agreement or at the Advertiser's general legal venue. Overriding statutory provisions, in particular regarding exclusive jurisdictions, remain unaffected.
15.7 Should individual provisions of these GTC be or become invalid or unenforceable after the conclusion of the contract, the validity of the remainder of the contract shall remain unaffected. The statutory provisions shall replace the invalid or unenforceable provision. The same applies if the contract proves to be incomplete.
[As of: 08.10.2024]