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GENERAL TERMS AND CONDITIONS FOR ONLINE ADVERTISING THROUGH VI Video intelligence

These General Terms and Conditions (GT&Cs) are valid for all commercial relationships between vi video intelligence AG, Mühlebachstr. 162, CH-8008 Zürich (“vi“) and its advertising clients (“Advertiser“) regarding the provision of online marketing services by vi. vi’s Advertising Code of Conduct for Advertiser (s. Annex) is part of these GT&Cs.

1. Conclusion of Individual Contracts

1.1 An individual contract on the provision of online advertising services shall come into being when vi accepts a written offer (email is sufficient) submitted by the Advertiser (“Individual Contract“). The specific Individual Contract in question shall contain the respective scope of performance and the contractual terms as harmonized with the circumstances of each individual case. If the provisions of an Individual Contract diverge from those of these GT&Cs, the provisions of the Individual Contract shall take precedence.

1.2 If the Advertiser is an advertising agency or an advertising intermediary not acting in his/her own name, the agency and the advertising intermediary is obliged to specify (and proof) for whom it is placing the advertising.

1.3 General terms and conditions or any other standard contract terms of the Advertiser or third parties shall have no validity, even if vi does not object to them expressly in an individual case.

2. Obligations of the Advertiser

2.1 The Advertiser shall supply the contractually agreed advertising materials such as videos (“Ad Media“) at his own expense up until such time as is agreed in the Individual Contract or – if no time is agreed in the Individual Contract – until no later than five working days before the agreed publication date, and in complete and perfect condition and in accordance with the contractual agreements.

2.2 If the Advertiser does not comply with the agreed date with the result that the Ad Media can be published only with a delay or not at all, this shall not impair vi’s claim to the agreed remuneration. In cases where it is no longer possible to publish the Ad Media, vi must take into account amounts which it saves as a result of its exemption from performance or which it acquires or culpably fails to acquire as a result of the alternative use of the freed resources.

2.3 The Advertiser guarantees that the transmitted Ad Media do not infringe legal provisions, official prohibitions or any provision of vi’s Advertising Code of Conduct for Advertiser (s. Annex) and that the Ad Media is free of any third-party rights (in particular trademark rights, patent rights or copyright) which present an obstacle to use the Ad Media as defined by the Individual Contract and these GT&Cs.

2.4 The Advertiser ensures that the Ad Media is clearly recognizable as advertising. Insofar as the Ad Media is not clearly recognizable as advertising, vi shall be entitled to identify the Ad Media as advertising, in particular by labeling it with the word “Advertisement” or similar indications to make clear its advertising character.

2.5 vi is not obliged to check the Ad Media or the links referred to by the Ad Media, including the content of those links. Any checks carried out by vi shall not release the Advertiser from his responsibility for the Ad Media and/or the links, including the content of those links.

3. Services provided by vi

3.1 vi will incorporate/embed the Ad Media into the Ad Space of its media player and/or any other part of its website (“Ad Space“) in the scope and for the period as agreed in the respective Individual Contract.

3.2 If the parties agree in the Individual Contract upon a maximum number of internet users’ visual contact with the Ad Media (“Ad Impressions“), retrievals of the website on which the Ad Media is placed (“Page impressions“), internet users’ clicks on Ad Media (“Ad Clicks“) or any other internet users’ action such as the purchase of a product, the installation of an application or the registration for a newsletter after an internet users’ clicks on Ad Media (“Lead“), the placement of the Ad Media shall be made only for the respective period. Insofar as vi has assured the Advertiser that it will deliver a particular number of Ad Impressions, Page Impressions and/or Ad Clicks within a particular period and the number thus assured was not delivered in full during this period, vi shall be entitled, but not obliged, to carry on placing the online advertising in question and subsequently deliver the still missing number of Ad Impressions, Page Impressions and/or Ad Clicks. The deadlines for such delayed deliveries shall be coordinated with the Advertiser taking the legitimate interests of both parties into account. If the agreed number is not delivered subsequently within the period allowed for delayed delivery, the Advertiser shall be entitled to reduce the remuneration proportionally for the Ad Impressions, Page Impressions and/or Ad Clicks that were not delivered.

3.3 vi shall be entitled to edit the Ad Media with regard to its format, size and technical properties insofar as vi regard this as necessary for the delivery of the Ad Media and reasonable for the Advertiser in consideration of vi’s interests. vi shall not be obliged to hand over the Ad Media to the customer upon termination of the online advertising or to retain it.

3.4 If technical circumstances prevent publication on the agreed date, provided that vi was not responsible for such obstacles arising, vi shall be entitled to postpone or cancel an agreed date for the publication of the Ad Media.

4. Grant of Rights

4.1 The Advertiser hereby grants vi and the affiliates of vi for the purposes of this contract and limited to the contractual term agreed in the respective Individual Contract, the non-exclusive, worldwide right to integrate the Ad Media into the agreed Ad Space, to present and publish it there and to make it accessible and transmit it to the general public and closed user groups via fixed and mobile communications networks in places and at times of their choice for the purpose of simultaneous or successive use – also readily retrievable – and to reproduce the Ad Media for the above purposes.

4.2 The above grant of rights also refers, in particular, to existing copyrights and ancillary copyrights applicable to the Ad Media, privilege as to one’s own image, rights to bear names and titles, trademark rights and other identification rights.

5. Rejection of Ad Media

5.1 vi shall be entitled to either wholly or partly reject and remove (either temporarily or permanently) Ad Media that contains illegal content or any other content that infringes vi’s Advertising Code of Conduct for Advertiser (s. Annex).

5.2 If there is reasonable suspicion that the Ad Media provided by the Advertiser contains illegal content or any other content that infringes vi’s Advertising Code of Conduct for Advertiser (s. Annex), vi shall be entitled to discontinue its publication until the Advertiser succeeds in dispelling the suspicion. A reasonable suspicion in this sense shall apply in particular when such a suspicion has been induced by official proceedings or by a criminal investigation or when there are comprehensible grounds for believing that such proceedings will soon be initiated. The same shall also apply if vi is requested by a third party to refrain from any further placement of the Ad Media because it is illegal or infringes third-party rights, provided that the third party’s claim is not clearly, and for vi recognizably, unfounded.

5.3 Sections 3.1 and 3.2 shall also apply accordingly if the Ad Media advertise or provide a link to illegal content or any other content that infringes vi’s Advertising Code of Conduct for Advertiser (s. Annex).

6. Third Party Claims and Indemnification

6.1 The Advertiser shall release vi and/or affiliates of vi from any and all claims asserted by third parties against vi because of an infringement (i) of industrial property rights (e.g. patent or trademark rights), copyright or other rights (e.g. privilege as to one’s own image), (ii) legal provisions (e.g. criminal law, youth protection law, unfair competition law) as a result of the use of the Ad Media in conformity with the Individual Contract and/or as a result of the promoted subjects (e.g. an Advertiser’s offer or website) or (iii) of vi’s Advertising Code of Conduct for Advertiser (s. Annex). In this regard, the Advertiser shall also assume the necessary costs incurred by vi in defending its rights, including any and all court costs and lawyers’ fees. This does not apply if and to the extent that the Advertiser is not responsible for the violation of rights. The limitations on liability in Section 10 shall not apply for the indemnification obligation. Any compensation claims asserted on grounds of loss or damage going beyond this shall remain unaffected by the indemnification obligation.

6.2 vi and/or the affiliate of vi undertake not to acknowledge third-party claims without the Advertiser’s consent and not to reach any settlement on the matter in question with the third party. The Advertiser, however, may refuse his consent only for good cause.

7. Remuneration and Tracking Results

7.1 The remuneration to be paid by the Advertiser for vi’s services shall ensue from the respective Individual Contract, in which the parties in particular have to agree upon the basis on which the remuneration is calculated, e.g.:

  • 1000 Page Impressions or Ad Impressions (“Thousand Contact Price” or “TCP”),
  • an Ad Click (“Cost Per Click” or “CPC”) or
  • a Lead (“Cost per Lead” or “CPL”).

7.2 The sole authoritative factor for the counting of the quantity of Ad Impressions, Page Impressions, Ad Clicks or Leads shall be vi’s reporting activities. If the Advertiser has counted divergent quantities, these shall not be taken into account if the divergent counts do not demonstrably differ by more than 10%. In other cases the parties shall come to an agreement on the counted quantity that is authoritative for the contractual relationship. If the parties are unable to agree within twenty days on the definitive quantity counted, they shall have recourse to a neutral, approved and generally accepted arbitration board to resolve the dispute in accordance with its arbitration rules as amended at the time the arbitration proceedings were initiated.

7.3 Unless otherwise agreed in an Individual Contract, vi shall charge the agreed remuneration for the services rendered after the promotion in question has come to an end. If the term of the promotion is longer than one month, vi can charge the agreed remuneration at the end of the respective month. The agreed sum shall be payable on issue of the invoice and must be transferred without deductions to vi’s bank account within 14 (fourteen) days.

7.4 The Advertiser may set off its own claims against claims by vi only if such claims have been recognized by vi or by declaratory judgment.

7.5 All agreed prices are strictly net and must be paid plus the statutory rate of VAT.

8. Warranty and Force Majeure

8.1 vi does not assume any warranty for the secure, interruption-free or error-free operation of its media player or another part of its website.

8.2 The Advertiser shall be obliged to check the online advertising containing the Ad Media without undue delay after its publication and to notify vi in writing of any discernible errors without undue delay but no later than one week after the publication. If the Advertiser fails to provide notification in this way, the online advertising shall be regarded as approved in accordance with the respective Individual Contract and these GT&Cs, unless the error was not discernible at the time of the check. If an error in the online advertising becomes apparent at a later date, the Advertiser must give notification of it without undue delay upon its discovery, otherwise the online advertising shall be deemed approved even in consideration of this error.

8.3 In cases of force majeure, vi shall be released from its obligation to render its services. All unforeseen events and events having impact on the performance of the Individual Contract or these GT&Cs for which neither of the parties is responsible shall be deemed force majeure. Such events shall include without limitation lawful means of industrial action, also in third-party companies, official measures taken by authorities, the failure of communication networks and gateways of other operators, disruptions in the area of network sellers, other technical mal-functions, including when such circumstances occur in the area of subcontractors, sub-suppliers or their subcontractors, or operators of subnodal data processors. No entitlements shall result for Advertisers from any failures for which vi is not responsible.

9. Limitation of Liability

9.1 Except if essential contractual obligations (meaning such obligations the fulfillment of which makes the due performance of the agreement possible in the first place, on the compliance with which the other party may normally rely and the breach of which jeopardizes the achievement of the contractual purpose) are violated, vi shall be liable for damages only if and to the extent that vi, its legal representatives, senior executives or other vicarious agents are culpable of having acted intentionally or with gross negligence. Should essential contractual obligations be violated, vi shall be liable for any culpable conduct of its legal representatives, senior executives or other vicarious agents.

9.2 With the exception of intentional or grossly negligent conduct of legal representatives, senior executives or other vicarious agents, the liability of vi shall be limited in amount to damages typically foreseeable at the time the agreement is concluded.

9.3 The exclusions of liability referred to above shall not apply in the event of specific guarantees having been made by vi or in the event of damages resulting from injury to life, limb or health or the violation of mandatory statutory regulations.

10. Communication and Confidentiality

10.1 The Parties shall present any and all advertising, press releases and other publications concerning the other Party for the purpose of prior written coordination. They shall be permitted only with the prior written approval of the other Party.

10.2 The Parties undertake to hold in confidence all confidential information received by one Party (“Recipient“) from the other Party (“Disclosing Party“) or information that becomes known in connection with the performance of an Individual Contract or these GT&Cs, not to disclose such information to third parties and to use such information only for the purposes of the Individual Contracts. In particular, such information is to be considered confidential that concerns the content, performance and handling of Individual Contracts and these GT&Cs, such as customer and product data, technical data, such as computer programs and interfaces, and financial data, such as sales, margins and purchase conditions.

10.3 Exempt from the provision in Clause 10.2 above shall be that information for which the Recipient can prove that (a) the Recipient received such information after the closing date of this agreement from a third party without any obligation to maintain secrecy, provided that such third party did not for its part breach through the disclosure of the information any obligation existing vis-à-vis the Disclosing Party to maintain confidentiality; (b) such information was previously known to the Recipient upon the closing date of this agreement or that such information was already public knowledge at such point in time; or (c) such information became public knowledge after the closing date of this agreement without any breach by the Recipient of the obligations contained in this Clause 10. This Clause 10 likewise does not apply to information that has to be disclosed based on compulsory provisions of law, non-appealable court decisions or administrative orders. As permitted by law, the Party obligated to disclosure the information shall be obligated to inform the other Party in advance or without delay of the disclosure and to endeavor not to disclose the information to the general public and to conclude a corresponding confidentiality agreement.

10.4 vi shall be entitled to transfer confidential information to companies affiliated with vi for the purpose of performing this agreement.

10.5 The above confidentiality obligations shall continue to apply even after the expiration or termination of this agreement for three additional years.

11. Applicable Law, Jurisdiction

11.1 The Individual Contracts and these GT&Cs shall be, in its application and interpretation, governed exclusively by the laws of Switzerland. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1998 shall not apply.

11.2 Zürich (Switzerland) is agreed upon as place of jurisdiction for any and all claims arising from or due to Individual Contracts, these GT&Cs and the advertising via the vi website.

12. Miscellaneous

12.1 Any additions and amendments to this GT&Cs must be in written form to be valid. This shall also apply to any waiver of this written form requirement. The parties agree that signed declarations sent by fax or scan via e-mail shall also satisfy the written form requirement. Unless otherwise agreed, all other notifications within the scope of the implementation of this contract can be sent by e-mail. Verbal agreements and communication by telephone, on the other hand, shall not be sufficient.

12.2 vi shall be entitled to either wholly or partly transfer the rights and duties under the Individual Contracts and these GT&Cs to companies affiliated with vi. If the Advertiser’s legitimate interests are impaired by such a transfer, the Advertiser can cancel this contract without notice as of the date when the transfer comes into effect.

12.3 Any invalidity of individual provisions of GT&Cs shall not affect the validity of the remaining provisions. Such invalid provisions shall be replaced primarily by legally valid provisions that come as close as possible in economic terms to the invalid provisions. The same shall apply to any lacunae.

ANNEX: vi ADVERTISING CODE OF CONDUCT FOR ADVERTISER

vi AG, Mühlebachstr. 162, CH-8008 Zürich (“vi“) provides services that allows advertisers (“Advertisers“) to present advertising media (esp. videos) in a unique format and appearance (“Ad Media“) via its website or applications by incorporating or embedding the Ad Media into vi’s website, esp. into vi’s media player (“vi Ad Space“).

1. Ad Media

1.1 Advertiser shall provide their Ad Media to vi in an appropriate data format. The Ad Media shall be suitable for the agreed purposes and of low-maintenance. Ideally, the Ad Media only has to be set up once and then remain valid and functional without any further maintenance.

1.2 vi is not responsible for checking the Ad Media provided by the Advertiser. Instead, the Advertiser guarantee that the Ad Media complies with this Code of Conduct and does not pose any legal risk for vi.

2. Unacceptable Ad Media
Certain contents are fundamentally forbidden in the Ad Media. This applies in particular to the following content:

2.1 Illegal content
As a fundamental rule, all content that is illegal under Swiss law is forbidden. In particular, content that infringes the prohibition of unfair advertisement; e.g. the prohibition of misleading or disguising advertisement shall be forbidden.
Advertisers that are operating internationally must also observe the terms of the statutory requirements of the following countries:

  • Country, where the registered office of the Advertiser is located,
  • Country of the advertising target group (depending on the nationality of the target group)

2.2 Ad Media which must not be made accessible to young people under the age of 18 is explicitly forbidden. This applies irrespective of the existence of any other access restrictions on the basis of the users’ nationality or age.

2.3 Other forbidden content

  • Sexually suggestive texts, images, videos or other content
  • Content depicting or promoting prostitution (direct solicitation or implied)
  • Content depicting or promoting violence, including harming or killing humans or animals
  • Content depicting or promoting violent or sexual assault
  • Content receiving a significant amount of negative user feedback or is otherwise deemed to violate social common sense or vi’s brand image
  • Content implying to insult, harass, threaten, demean or impersonate others
  • Content promoting violence or advocating against an individual, organization or particular group (in particular groups identified by their age, color, national origin, race, religion, political party, sex, sexual orientation, language or handicap).

2.4 Forbidden objects of the advertisement
Ad Media that promotes any type of illegal activity or any infringement of other’s legal rights is prohibited.
Furthermore, Ad Media that contains advertisement for one of the following objects is forbidden:

  • Abortion
  • Illicit drugs or drug paraphernalia and miracle cures
  • Firearms or ammunition
  • Counterfeits or imitation goods
  • Multilevel marketing/selling
  • Gambling in countries where it is not permitted by law

2.5 Advertisement for vi’s competitors
Ad Media that contains advertisement for vi’s competitors is forbidden. Especially Ad Media that contains advertisement for one of the following video on demand platforms is forbidden:

  • Crackle
  • Hulu
  • Viki
  • Myvideo

At its sole discretion, vi may allow in writing Ad Media that contains advertisement for one of vi’s competitors.

3. Online shops and other websites of Advertisers; esp.: landing pages

3.1 Legal admissibility
The Advertiser guarantees that the offered goods and services and the forms of marketing do not pose any legal risk for vi. He shall make explicit references to any special circumstances such as inadmissibility of advertising and/or of marketing his goods or services in certain target markets. vi is not responsible for checking the legal admissibility of the goods and/or services provided by the Advertiser or the form of marketing the goods/services.

3.2 Cookies
In some countries, certain obligations exist to inform visitors of websites about cookies. In some countries, consent may be required, too. Thus, every Advertiser is solely responsible for the fulfillment of those obligations. On the one hand, an Advertiser may be obliged to inform users about cookies that are used, including such placed by third parties. This obligation to provide information may also include information on the purpose of the cookie and how the user may prevent cookies being placed on his or her device. On the other hand, it may further be necessary that users must give his or her consent to the use of cookies on the Advertiser’s website, before a cookie is placed, either by the Advertiser or a third party. Where it is required to receive a user´s consent for the use of cookies (including third party cookies), such consent must include cookies placed by third parties.

3.3 Up-to-dateness
Advertisers guarantee that the offers promoted via the Ad Media are available at all times during the promotion. For the duration of the promotion, they are obliged to perform effective maintenance of the URLs to which the Ad Media is intended to be linked or which are promoted by the Ad Media. In particular, Advertisers shall ensure that promoted websites can be accessed in accordance with the state of the art for the duration of the placement period.

3.4 Distracting order methods
If the parties agree upon a performance-based compensation in terms of a commission for each customer that vi brokers to the Advertiser, the commission should be paid for all products that can be purchased via the shop by end customers. Since the concept of performance-based compensation for advertising services depends on customers concluding transactions in a manner that allows tracking, Advertisers shall prevent customers from being redirected to their offer via the Ad Media and then offering alternative ordering options that do not allow tracking. Instead the commission should be paid to vi for all products that can be purchased via the shop by end customers. Allowing orders to be made by telephone or similar means should be avoided in particular.

3.5 Optimizing the website / online shop
After a potential customer has been redirected to the Advertiser’s landing page via the Ad Media, it is the Advertiser’s task to turn this potential customer into a buyer. How effective a website is at doing this is reflected in the conversion rate, which is an important quality benchmark. The Advertisers should therefore design their advertised online shops or websites to ensure the highest possible rate of conversion, in particular by

  • reducing and clarifying the steps required to place an order
  • only ask for customer details that are absolutely necessary/demanded by law
  • display the shipping and payment methods in a transparent manner
  • avoid distracting links during an order process

4. Unacceptable activities

4.1 Spyware / Malware
Ad Media and Advertisers’ online shops and websites must not contain software which installs itself without a corresponding user request, which performs undesired or harmful functions, and/or which runs completely unnoticed in the background, is forbidden. This includes in particular functions which:

  • send personal data of the user to the manufacturer of the software (call home) or to third parties without the knowledge or consent of the user,
  • manipulate or delete data and files,
  • circumvent or impair security software and other security devices (firewalls, anti-virus software etc.),
  • hinder or prevent deinstallation of the software or
  • make it possible to cause damage or to pursue criminal objectives in another way.

4.2 Lead / sale fraud
It is forbidden to manipulate the tracking information in any way, especially for the purpose of simulating a lower number of tracked transactions.

5. Transparency and communication
Transparency and communication are of decisive importance for the success of the advertisement. To increase the success, the Advertiser should provide the following information to vi.

5.1 Cross-channel marketing
It is recommended that Advertisers inform vi in advance of any cross-channel marketing measures such as print or TV campaigns to enable vi to optimize its campaigns.

5.2 Eligibility requirements
Advertisers shall indicate in their program-specific requirements which advertising forms are permitted or not permitted and the criteria for the respective decision.

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