Digital Out of Home Advertising
These General Terms and Conditions (GTC) regulate the legal relationship between the Customer and Livesystems Holding AG as well as its subsidiaries with regard to the distribution of advertising media via the digital medium of the respective company. Although in the following text only Livesystems AG is referred to for the sake of simplicity, the following GTCs expressly apply to all subsidiaries of Livesystems Holding AG. The customer is obliged to inform himself about the version of the GTCs valid at that time before conclusion of the contract. The German text shall be authoritative. Deviating provisions shall only be binding if the parties have agreed them in writing
1. contracting parties and subject matter
Livesystems AG operates an online advertising portal via the web interface under the URL address www.livesystems.ch. Advertising media can be entered and advertising broadcasts can be placed on this portal. The advertising broadcasts take place via the digital medium of Livesystems AG.
The customer orders the advertising broadcast from Livesystems AG. Advertising broadcasts can be ordered either online or by sending the advertising material together with signed contract documents by post or by e-mail in accordance with the order form.
With each order, Livesystems AG and the advertising customer (together hereinafter: the Parties) conclude a contract.
These General Terms and Conditions (hereinafter: GTC) govern the contractual relationship between Livesystems AG and the customer who has ordered advertising broadcasts (hereinafter: Advertising Customer).
The advertising customer acknowledges that the GTC form an integral part of the contract between him and Livesystems AG.
2. conclusion, duration and termination of the contract
The contractual relationship comes into effect:
- if the contract is concluded via the web interface at the URL address www.livesytems.ch, if the advertising customer has sent his offer electronically to Livesystems AG via the web interface, this order has been received on the server of Livesystems AG and Livesystems AG has sent the advertising customer a written confirmation (e-mail is sufficient);
- or if the contract is concluded by post or by e-mail, by the signing of the order form by the advertising customer and the countersignature of the order form by Livesystems AG ;
- or if the order confirmation is concluded by post or e-mail. The contract is legally valid unless the order confirmation is cancelled in writing by the customer within 5 working days.
In the event that neither a written confirmation nor a counter-signature should occur on the part of Livesystems AG, the first advertising broadcast of the advertising medium shall be deemed to be acceptance of the offer (order) by Livesystems AG.
The contractual relationship is limited in time. It ends with the expiry of the contractually agreed duration.
The right to termination for good cause remains reserved at all times. Livesystems AG may in particular terminate the contract without notice if the advertising customer does not pay the remuneration owed on time, violates the applicable law, the GTC, other contractual components or other rules of conduct (e.g. netiquette) or misuses the services for illegal or immoral purposes. Compensation for damages and further claims of Livesystems AG remain reserved.
3. withdrawal from the contract
a) The customer may withdraw from the contract after conclusion of the contract in accordance with Clause 2 with the following cost consequences. passengertv must be informed of the withdrawal by the customer in writing, whereby the date of receipt of the information by Livesystems AG is decisive.
b) The following cost consequences must be taken into account:
- no cost consequences in the event of cancellation within 14 days of the order if there are at least 14 days between the cancellation and the first broadcast.
- for contracts with a term of less than one year, in % of the invoice amount:
- 10 to 8 weeks before start of broadcast: 20%, 7 to 6 weeks before start of broadcast: 50%, from 5 weeks before start of broadcast: 100%
- for contracts with a term of more than one year, in each case in % of the price for a broadcast period:
- up to 12 weeks before broadcast: 50%, 11 to 5 weeks before broadcast: 75%, from 4 weeks before broadcast:
Agreements to the contrary may be recorded in writing between the customer and Livesystems AG.
c) Partial resignations and postponements to subsequent periods shall be treated as resignations.
4. rights and obligations of the advertiser
a) With regard to the necessary rights for advertising broadcasting
The advertising customer assures Livesystems AG that he possesses the necessary rights over all information and elements which he requires for advertising broadcast. The advertising customer shall indemnify Livesystems AG upon first request against all claims of third parties which may arise due to the infringement of competition law, criminal law, copyright law and other statutory provisions.
b) With regard to the content and design of the advertising material
The advertising customer is solely responsible for the content and design of the advertising material to be broadcast. He declares to comply with the relevant legal provisions and industry rules and is responsible to Livesystems AG in this respect. Namely illegal and immoral contents (such as pornography, depictions of violence, racist statements, calls for criminal offences, violation of personal rights and other rights of third parties as well as insults) are strictly prohibited; tobacco or alcohol advertisements are only permitted in certain areas. The customer shall provide Livesystems AG with a design for this purpose. Advertising media which are not recognisable as such due to their design must be clearly identified as advertising. Advertising media must be distinguished from the presentation of the news information and the information of the transport company.
In principle, the advertising customer may not advertise several products or companies in the same advertising broadcast. Exceptions are possible after consultation and by means of express consent by e-mail from Livesystems AG.
Political advertising material is subject to numerous official regulations. The customer shall notify Livesystems AG if an advertising material contains a political subject. The political party or organisation and the author of the advertising material must always be disclosed in writing to Livesystems AG. The carriers are entitled to make the execution of the advertising dependent on their consent. The client shall provide passengertv with a draft for this purpose.
c) With regard to compliance with technical specifications, deadlines and data security
The advertising customer is responsible for the delivery of the advertising media to be broadcast in accordance with the applicable technical specifications, which are given on the web interface under the URL address www.livesystems.ch. The advertising customer is responsible for the procurement and set-up of its connections, software and hardware etc.. Livesystems AG assumes neither a warranty for the use of its web interface nor for the use of its digital medium (incl. all end devices and settings).
The advertising customer is responsible for compliance with the delivery deadlines, which are specified on the web interface at the URL address www.livesystems.ch.
In the event of improper delivery of the advertising medium (in particular late delivery or technical unsuitability or defects), Livesystems AG assumes no guarantee for the agreed advertising broadcast of the advertising medium. In contrast, Livesystems AG may charge the advertising customer the price owed for the agreed advertising broadcast if the advertising broadcast becomes impossible due to circumstances for which the advertising customer is responsible. The following video formats are permissible: mpg, mov, avi, and flv. Exceptions are possible after consultation and by means of express consent by e-mail by Livesystems AG.
When transmitting advertising media, the advertising customer bears the risk of data loss or data corruption. He is also responsible for data security.
d) With regard to defects in the advertising medium or the advertising broadcast
The Advertiser shall inspect the Advertising Media immediately after the first Advertising Broadcast and notify any defects without delay. The period for giving notice of defects begins with the first advertising broadcast and ends after the expiry of twenty percent (20%) of the contractual period, but at the latest after two (2) working days. If the advertiser fails to give notice of defects within the aforementioned period, the advertising broadcast shall be deemed to have been approved.
Other claims of the advertising customer against Livesystems AG, in particular for complete or partial termination of the contractual relationship or for damages, are excluded.
e) With regard to the change in content of the advertising material and the postponement of the broadcast of the advertisement
Changes to the content of the advertising medium may be made by the advertiser during the term of the contract, subject to compliance with the GTC. The advertising content may not be changed in such a way that other products or other companies are advertised.
The request for postponement of the agreed time of an already booked advertising broadcast is only possible on working days and must be notified to Livesystems AG by e-mail (firstname.lastname@example.org) one (1) working day before the agreed broadcast date subject to available capacities. Such a postponement is in principle only permissible before the start of the contract period and requires the express consent of Livesystems AG. The advertising customer has no claim to postponement. Further postponements must be discussed with Livesystems AG as early as possible. For the new time of the advertising broadcast, the respective current conditions and prices apply, which are indicated on the web interface under the URL address www.livesystems.ch.
f) With regard to liability
The advertiser is solely responsible for the content and design of the advertising medium as well as for the possession of all rights (namely intellectual property rights) required for the broadcast of the advertisement.
If Livesystems AG itself, a member of the executive body or an employee of Livesystems AG (hereinafter: the affected party) is held liable under criminal, civil or administrative law in connection with an advertising broadcast, the advertising customer shall indemnify the affected party against all claims and be liable for the damage. The right of the party concerned to claim satisfaction remains reserved. The advertising client shall also be liable in particular for any legal and court costs incurred in this respect.
5. rights and obligations of Livesystems AG
In principle, Livesystems AG provides the agreed services to the advertising customer on the terms published at www.passengertv.ch. Livesystems AG may deviate from these terms at any time without precondition. It may deviate from these at any time and without preconditions. In the event of deviations, the price stated in the order confirmation of Livesystems AG shall be authoritative.
Livesystems AG may further develop its services at any time and adapt them in a reasonable manner for factual reasons. In particular, Livesystems AG may engage third parties for the provision of services without the consent of the advertising customer. Such adjustments are not deemed to be a change to the contract. The reasonableness of an adjustment is presumed.
Livesystems AG remains free to change its services or make price changes at any time.
b) Right of refusal and blocking
Livesystems AG has the right at any time to reject advertising orders without justification or to block their advertising broadcast.
Livesystems AG reserves the right in particular to reject advertising media on the basis of their content, form or technical quality as well as on the basis of characteristics of the advertising customer or to block their advertising broadcast. In such a case, Livesystems AG will notify the advertising customer of its decision within two (2) working days. The advertising customer may subsequently provide Livesystems AG with a modified, revised version of the advertising material which meets the requirements of Livesystems AG before the expiry of the contractual period. The advertising customer cannot derive any claims against Livesystems AG from the fact that no advertising was broadcast during the blocking period. On the other hand, Livesystems AG retains its claim to the agreed remuneration during this period, even if the advertising broadcast should not have taken place. Any additional costs incurred by Livesystems AG are to be borne by the advertising customer.
c) Warranty or exclusion of warranty
Livesystems AG only guarantees the functioning of its web interface and its digital medium to the extent that the non-functioning is based on intentional or grossly negligent behaviour on the part of Livesystems AG.
Livesystems AG undertakes to eliminate faults, impairments and errors of its servers and computers within a reasonable period. Livesystems AG endeavours to keep the web interface at the URL address www.passengertv.ch accessible at all times. Livesystems AG guarantees, within the scope of foreseeable requirements, a technically high standard for the functioning of its digital medium as well as for a local and timely reproduction of the advertising broadcast. However, the advertising customer expressly acknowledges that, according to the state of the art, it is not possible to ensure error-free advertising placement or broadcast at all times.
If a local or timely broadcast of the advertising material cannot take place for technical reasons or due to circumstances for which Livesystems AG is not responsible, the advertising broadcast will be rescheduled by Livesystems AG to another, if possible equivalent broadcast date. In the event of a postponement of the advertising broadcast, the advertising customer will be informed of this immediately by Livesystems AG. If the advertising customer does not immediately reject the postponement of the advertising broadcast to another time period proposed by Livesystems AG by e-mail (email@example.com), this is deemed to be the consent of the advertising customer to the postponement of the advertising broadcast.
In the event of a failure of the digital medium of Livesystems AG over a considerable period of time (more than 10% of the booked time), Livesystems AG will compensate for the duration of the failure by a subsequent advertising broadcast, provided this is in the interests of the advertising customer. If compensation cannot be agreed, the obligation of the advertising customer to pay for advertising time not broadcast shall lapse.
If the advertising broadcasts only fail on individual screens, but this failure accounts for more than 5% of all screens of the booked screen network of Livesystems AG, the advertising customer has a percentage claim to repetitions of the failed advertising broadcast. The claim for repetition is determined by the percentage of the failed advertising broadcasts. Further claims of the advertising customer are excluded.
Livesystems AG assumes no guarantee for the broadcast of the advertising media in a specific order.
Livesystems AG accepts no responsibility for any loss of data on the transmission path between the advertising customer and its servers and is not liable for data security.
Furthermore, Livesystems AG expressly excludes any warranty.
Livesystems AG may check the advertising media transmitted to it for various parameters, but does not thereby assume any warranty or liability, either expressly or impliedly.
d) illegal or immoral acts of the advertiser
If there is a suspicion that an advertising customer is using the services of Livesystems AG in an illegal or immoral manner, Livesystems AG may block the advertising broadcast immediately and for an indefinite period and/or terminate the contract without notice and compensation and/or report the illegal behaviour to the authorities.
Livesystems AG shall inform the advertising customer of its decision within two (2) working days. He must immediately remove the presumed illegal or immoral content or demonstrate and prove its legality. The blocking will be lifted as soon as the suspicion is invalidated.
The advertising customer may not assert any reduction of the price or other claims against Livesystems AG due to the fact that no advertising was broadcast during the blocking. On the other hand, the additional costs on the part of Livesystems AG can be charged to the advertising customer.
Compensation for damages and further claims of Livesystems AG remain reserved.
e) Liability and exclusion of liability
Livesystems AG is liable to the advertising customer, irrespective of the legal grounds, only for intentional or grossly negligent conduct.
Liability for indirect damage, consequential damage or loss of profit is expressly excluded.
Livesystems AG accepts no responsibility for misuse by third parties (e.g. hackers, senders of computer viruses etc.), for security deficiencies of telecommunication networks and the Internet.
The price for advertising broadcasting is generally based on the conditions apparent on the day of the order at www.passengertv.ch. Livesystems AG may deviate from this at any time and without preconditions. In the event of deviations, the price stated in the order confirmation of Livesystems AG shall be authoritative. The prices are always in CHF (excl. VAT).
Unless otherwise agreed in writing, the remuneration shall be paid monthly within 30 days in accordance with the invoice sent by Livesystems AG.
c) Default in payment
In the event of default in payment, Livesystems AG is entitled to suspend all advertising broadcasts for the advertising customer in default. Any reminder fees (CHF 40.-) as well as interest on arrears of 5% shall be borne by the advertising customer.
In the event of justified doubts regarding the solvency of the advertising customer (e.g. bankruptcy or moratorium), Livesystems AG is entitled at any time to make the advertising broadcast dependent on the advance payment of the amount and the settlement of outstanding invoice amounts without regard to an originally agreed payment date.
The advertiser is not entitled to a discount. Any discounts shall only apply if they have been agreed in the individual case.
f) Ban on offsetting
The Parties may not assign or transfer their rights and obligations under this Agreement [and its constituent parts] to any third party without the prior written consent of the other Party.
7. property rights and data protection
a) Property rights
All property rights (copyrights, trademark rights, etc.) relating to information accessible on the websites of Livesystems AG belong to Livesystems AG or third parties who make the information available to Livesystems AG.
The advertising customer shall grant to Livesystems AG all copyrights, ancillary copyrights and other rights necessary for the use of the advertising in accordance with the contract, in particular the right to reproduce, distribute, transmit, broadcast, process, store in and retrieve from a database in terms of time, place and content to the extent necessary for the performance of the order.
The advertising customer warrants that (i) it is the owner or licensee of the copyrights, ancillary copyrights and other rights to the content of the advertising material and is entitled to grant the contractually provided rights of use to Livesystems AG, and (ii) the advertising material does not contain any content that violates personal rights, competition or the law.
If claims are made against Livesystems AG due to infringement of third party property rights or violations of personality, competition or law in connection with the advertising media, the advertising customer shall indemnify Livesystems AG in full.
b) Data protection
When processing personal data, Livesystems AG and the advertising customer shall comply with Swiss data protection law and - insofar as applicable - telecommunications law.
The advertising customer undertakes to provide true information during registration and on the occasion of all further business contacts with Livesystems AG.
From the start of broadcasting, Livesystems AG is entitled to use the spots supplied by the Customer for presentations and documentations and/or to publish them on its own website, unless otherwise agreed between the Customer and passengertv.
8. no exclusivity
Livesystems AG does not guarantee the advertising customer any exclusive rights. In particular, it reserves the right to carry out advertising broadcasts for any other advertising customer at any time or to advertise its own products and services.
The parties shall treat as confidential all information of which they have become aware arising from or in connection with this contract and which is neither generally known nor generally accessible. This confidentiality obligation also covers the pre-contractual exchange of information and lasts indefinitely beyond the termination of the contract.
10. amendment of the contract
Any amendment to the contract (including any deviation from the GTC as well as from any other parts of the contract and ancillary agreements) must be made in writing. This also applies to amendments and additions to this written form clause.
The customer is obliged to inform himself about the version of the GTC valid at that time as well as any amendments thereto before concluding the contract. The German text shall be authoritative. Deviating provisions shall only be binding if the parties have agreed them in writing.
11. severability clause
Should individual provisions of these GTC be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, the validity of the other provisions shall not be affected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that comes as close as possible to the economic purpose of the invalid provision in a legally permissible manner. The above provisions shall apply mutatis mutandis in the event that the contract proves to be incomplete.
12 Jurisdiction and applicable law
The exclusive place of jurisdiction for disputes arising from or in connection with the present contract shall be the ordinary courts of the city of Bern.
This contract is subject to Swiss law to the exclusion of the Vienna Sales Convention. The mandatory provisions of the Swiss Code of Obligations and the provisions of public law are reserved.
Liebefeld, as of October 2017