These General Terms and Conditions (GTC) govern the legal relationship between the Customer and Livesystems Holding AG as well as its subsidiaries with regard to the broadcasting 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 to 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 is established:
- if the contract is concluded via the web interface at the URL address www.livesystems.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 each case 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 start of broadcast: 50%, 11 to 5 weeks before start of broadcast: 75%, from 4 weeks before start of 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. Rechte und Pflichten des Werbekunden
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 that he will comply with the relevant legal provisions and industry rules and is responsible to Livesystems AG in this respect. In particular, illegal and immoral content (such as pornography, depictions of violence, racist statements, calls to commit crimes, infringement of personal rights and other rights of third parties, and insults) are strictly prohibited; Tobacco or alcohol advertising is only permitted in certain areas. The customer provides Livesystems AG with a draft for this purpose. Advertising media that are not recognizable as such due to their design must be clearly identified as advertising. Advertising media must differ from the presentation of the news information and the information from 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 with the express consent of Livesystems AG by e-mail.
Political advertising material is subject to numerous official regulations. The customer notifies Livesystems AG if an advertisement contains a political subject. passengertv must always be informed in writing of the political party or organization and the author of the advertising material. The transport companies are entitled to make the execution of the advertising dependent on their consent. The customer provides passengertv with a draft for this.
c) Regarding compliance with technical information, 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 information, which is provided on the web interface at the URL address www.livesystems.ch. The advertising customer is responsible for procuring and setting up his connections, software and hardware, etc. Livesystems AG does not assume any guarantee for the use of its web interface or for the use of its digital medium (including all end devices and settings).
The advertising customer is responsible for adhering to the delivery deadlines, which are specified on the web interface at the URL address www.livesystems.ch.
If the advertising material is not delivered properly (in particular late delivery or technical unsuitability or defects), Livesystems AG assumes no liability for the agreed advertising broadcast of the advertising material. On the other hand, Livesystems AG can invoice the advertising customer for 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 allowed: mpg, mov, avi, and flv. Exceptions are possible after consultation and with the express consent of Livesystems AG by e-mail.
When transmitting advertising material, the advertising customer bears the risk of data loss or data damage. He is also responsible for data security.
d) Regarding defects in the advertising medium or the advertising broadcast
The advertising customer must check the advertising material immediately after the first advertising broadcast and report any defects immediately. The notice period begins with the first advertising broadcast and ends after twenty percent (20%) of the contract period has expired, but no later than after two (2) working days. If the advertising customer fails to report defects within the specified period of time, the advertising broadcast is 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) Regarding the change in content of the advertising material and the time shift of the advertising broadcast
Changes to the content of the advertising material can be made by the advertising customer himself during the contract period in compliance with the General Terms and Conditions. The advertising content may not be altered in such a way as to promote other products or other companies.
The request to postpone the agreed time of an already booked advertising broadcast is only possible on working days and must be submitted one (1) working day before the agreed activation date, subject to the available capacities of Livesystems AG by e-mail () to be communicated. Such a postponement is generally only permissible before the start of the contract period and requires the express consent of Livesystems AG. The advertiser is not entitled to postponement. Further postponements must be discussed in advance with Livesystems AG as early as possible. The current conditions and prices, which are specified on the web interface at the URL address www.livesystems.ch, apply to the new time of the advertising broadcast.
f) Regarding liability
The advertising customer is solely responsible for the content and design of the advertising medium and for owning all rights (specifically intellectual property rights) required for the advertising broadcast.
If Livesystems AG itself, a member of an executive body or an employee of Livesystems AG (hereinafter: the person concerned) is held liable under criminal, civil or administrative law in connection with an advertising broadcast, the advertising customer shall indemnify the person concerned from all claims and shall be liable for the Damage. Claims for satisfaction by the person concerned remain reserved. In particular, the advertising customer is also liable for related legal and court costs.
5. Rights and obligations of Livesystems AG
Livesystems AG generally provides the agreed services to the advertising customer under the conditions published at www.livesystems.ch. You can deviate from this at any time and without any preconditions. In the event of deviations, the price specified in the Livesystems AG order confirmation is decisive.
Livesystems AG can further develop its services at any time and adapt them appropriately for factual reasons. In particular, Livesystems AG can call in third parties to provide services without the consent of the advertising customer. Such adjustments are not considered a contract change. The appropriateness of an adjustment is presumed.
Livesystems AG is 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 refuse advertising orders without justification or to block their advertising broadcast.
In particular, Livesystems AG reserves the right to reject advertising materials or to block their advertising broadcast due to their content, form or technical quality as well as due to the characteristics of the advertising customer. In such a case, Livesystems AG will inform the advertising customer of its decision within two (2) working days. The advertising customer can subsequently deliver to Livesystems AG a modified, revised version of the advertising material that meets the requirements of Livesystems AG before the end of the contract 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 right to the agreed remuneration during this period, even if the advertising has not been broadcast. 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 insofar as the non-functioning is due to intentional or grossly negligent behavior on the part of Livesystems AG.
Livesystems AG undertakes to eliminate disruptions, impairments and errors on its servers and computers within a reasonable period of time. Livesystems AG endeavors to keep the web interface accessible at the URL address www.livesystems.ch at all times. Within the framework of the foreseeable requirements, Livesystems AG guarantees 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, given the current state of technology, it is not possible to ensure error-free advertising placement or broadcasting at all times.
If the advertising material cannot be broadcast locally or on time for technical reasons or for circumstances for which Livesystems AG is not responsible, Livesystems AG will shift the advertising broadcast to another, if possible equivalent broadcasting date. In the event of a time shift in the advertising broadcast, the advertising customer will be informed of this immediately by Livesystems AG. If the advertising customer does not immediately send an e-mail () declines, this is deemed to be the advertising customer's consent to the postponement of the advertising broadcast.
In the event of a failure of Livesystems AG's digital medium over a considerable period of time (more than 10% of the booked time), Livesystems AG will compensate for the duration of the failure by subsequently broadcasting advertising, provided this is in the interests of the advertising customer. If compensation cannot be agreed, the advertising customer is not obliged to pay for advertising time that has not been broadcast.
If the advertising broadcasts only fail on individual screens, but this failure accounts for more than 5% of all screens in the booked screen network of Livesystems AG, the advertising customer has a percentage claim to repetitions of the failed advertising broadcast. Repeat entitlement is determined by the percentage of missed commercials. Further claims by the advertising customer are excluded.
Livesystems AG assumes no liability for the broadcast of the advertising material in a specific order.
Livesystems AG assumes 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.
Otherwise, Livesystems AG expressly excludes any warranty.
Livesystems AG can check the advertising media sent to it for various parameters, but does not assume any guarantee or liability, either expressly or implicitly.
d) Illegal or immoral actions by 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 can block the advertising broadcast immediately and for an indefinite period of time and/or terminate the contract without notice and without compensation and/or the illegal behavior report to the authorities.
Livesystems AG will inform the advertising customer of its decision within two (2) working days. He must immediately remove the allegedly illegal or immoral content or explain and prove its legality. The block will be lifted as soon as the suspicion has been refuted.
The advertising customer cannot assert any price reduction or other claims against Livesystems AG due to the fact that no advertising was broadcast during the blocking. On the other hand, Livesystems AG can charge the advertising customer for the additional costs.
Livesystems AG reserves the right to claim damages and other claims.
e) Liability and Disclaimer
Regardless of the legal basis, Livesystems AG is only liable to the advertising customer for intentional or grossly negligent conduct.
Liability for indirect damage, consequential damage or loss of profit is expressly excluded.
Livesystems AG assumes no responsibility for misuse by third parties (e.g. hackers, senders of computer viruses, etc.), for security deficiencies in telecommunications networks and the Internet.
The price for the advertising broadcast is always based on the conditions visible on www.passengertv.ch on the day of the order. Livesystems AG can deviate from this at any time and without any preconditions. In the event of deviations, the price specified in the Livesystems AG order confirmation is decisive. The prices are in CHF (excl. VAT).
Unless otherwise agreed in writing, the remuneration is to be paid monthly within 30 days according to the invoice sent to Livesystems AG.
c) late payment
In the event of a delay in payment, Livesystems AG is entitled to suspend all advertising broadcasts for the advertising customer who is in default. Any reminder fees (CHF 40.00) as well as default interest 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 debt restructuring 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, regardless of an originally agreed payment date.
The advertiser is not entitled to a discount. Any discounts only apply if they have been agreed in individual cases.
f) Set-off ban
The parties may not assign or transfer their rights and obligations under this contract [or any part thereof] to a third party without the prior written consent of the other party.
7. Intellectual Property Rights and Data Protection
a) property rights
All property rights (copyrights, trademark rights, etc.) in relation to information that is accessible on the Livesystems AG website belong to Livesystems AG or third parties who make the information available to Livesystems AG.
The advertising customer grants Livesystems AG all copyright usage, ancillary protection (related property rights) and other rights required for the contractual use of the advertising, in particular the right to reproduce, distribute, transmit, broadcast, edit, store in and retrieve from a database in terms of time, place and content to the extent required for the execution of the order.
The advertising customer guarantees that (i) he is the owner or licensee of the copyright usage, ancillary protection (related property rights) and other rights to the content of the advertising material and is entitled to grant the contractually provided usage rights to Livesystems AG, and (ii) the advertising material contain no personality, anti-competitive or illegal content.
If claims are made against Livesystems AG for violations of property rights of third parties or violations of personality, competition or law in connection with the advertising material, the advertising customer shall indemnify Livesystems AG in full.
b) data protection
When processing personal data, Livesystems AG and the advertising customer comply with Swiss data protection law and – to the extent applicable – with telecommunications law.
The advertising customer undertakes to provide true information when registering 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 provided by the customer for presentations and documentation and/or to publish them on its own website, provided no agreement to the contrary has been made 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 at any time to carry out advertising broadcasts for any other advertiser or to advertise its own products and services.
The parties shall treat confidentially all information which they have received 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. Contract Modification
Any change to the contract (including any deviation from the General Terms and Conditions and any other parts of the contract and ancillary agreements) must be in writing. This also applies to changes and additions to this written form clause.
Before concluding the contract, the customer is obliged to inform himself about the version of the General Terms and Conditions valid at that time and any supplements thereto. The German text is authoritative. Deviating provisions are only binding if the parties have agreed to them in writing.
11. Severability Clause
Should individual provisions of these General Terms and Conditions be ineffective or unenforceable or become ineffective or unenforceable after conclusion of the contract, the effectiveness of the other provisions shall not be affected. In place of the invalid or unenforceable provision, the valid and enforceable provision shall apply that comes as close as possible to the economic meaning and purpose of the invalid provision in a legally permissible manner. The above provisions apply accordingly in the event that the contract proves to be incomplete.
12. Jurisdiction and Applicable Law
The ordinary courts of the city of Bern are the exclusive place of jurisdiction for disputes arising from or in connection with this contract.
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 public law provisions remain reserved.
Liebefeld, October 2017