Disclaimer: The following English translation of the «Allgemeine Geschäftsbedingungen cptr AG» (GTC of cptr AG) is provided for informational purposes only. The only legally binding version is the original German version.
1. Scope of Application
Unless otherwise expressly agreed in writing, all advertising campaigns and related services are subject to the General Terms and Conditions (GTC) of cptr and, if fusedeck is used in the advertising campaigns, additionally (but subordinately in case of conflict) to the General Terms and Conditions for fusedeck.
General terms and conditions of contractual partners are explicitly and entirely not recognized and are thus considered excluded and waived; even if they claim exclusive applicability.
2. Definitions and Interpretation
2.1 Definitions
GTC
Refers to the General Terms and Conditions of cptr and, if fusedeck is used in the advertising campaigns, also the General Terms and Conditions for fusedeck.
Agency
Refers to a natural or legal person commissioned by an advertiser to provide consulting, conceptualization, planning, design, or implementation of advertising measures.
Behavioral Targeting / Re-Targeting
Refers to the delivery of advertisements based on specific user interests or the targeting of users who have already visited the landing page.
cptr
Means cptr AG.
Cookies
Text information that can be stored in the browser on a user’s computer for a visited website.
CPAE
Stands for Cost per Ad Engagement and defines the price for 1 Ad Engagement, invoiced to a client according to the offer.
CPE
Stands for Cost per Engagement and defines the price for 1 Site Engagement, invoiced to a client according to the offer.
Site Engagement
Refers to the active use of a landing page by a user. Active use occurs when a user performs a measurable action within 8 seconds, such as cursor movement, scrolling, swiping, touching, clicking, viewing a video, or keyboard input. A user is considered inactive if the landing page is not the active window.
Ad Engagement
Refers to the active interaction of a user with an advertisement. Active interaction is defined as interaction with a part/element of the ad for at least 1.25 seconds or with the entire ad for at least 3 seconds.
Frequency Capping
Refers to the number of ad impressions delivered per unit of time to a unique client, i.e., a single end device.
fusedeck
The tracking solution developed by cptr for analyzing and optimizing digital advertising campaigns and offers.
Final Report
Refers to the final report provided to the client after the campaign has ended. It includes, in particular, the achieved engagements, which form the basis for invoicing.
Campaign Confirmation
Refers to the written confirmation by cptr in the event of a deviation from the offer upon acceptance by the client.
Client
Refers to the contractual partner of cptr, which can be either the advertiser directly or the agency commissioned by the advertiser.
Landing Page
Refers to the HTML page or multiple pages of an advertiser to which campaign traffic is directed.
Net Value of the Advertising Campaign
Refers to the total budget in CHF listed in the offer (or possibly in the campaign confirmation).
Offer
Refers to the written offer made by cptr to the client.
Offer Acceptance
Refers to the written acceptance of an offer by the client.
Products/Services
Refers to documents, documentation, concepts, advertising campaigns, and all other products and services developed, designed, created, or provided by cptr in connection with advertising campaigns.
User
Refers to any unspecified person who uses the internet (internet user, operator).
Advertising Campaign
Refers to the time-limited marketing action carried out by cptr in accordance with the offer (or, if applicable, the campaign confirmation), to advertise products and services of the advertiser.
Ad / Advertisement
Refers to the instruments used to convey advertising messages (ad impressions), such as ad banners, interactive banners, videos, etc.
Advertising Medium
Refers to the medium used to deliver advertising messages, such as social networks, online portals, websites, etc.
Advertiser
Refers to the natural or legal person whose products or services are being promoted.
Working Day
Refers to any weekday, except Saturday and Sunday, on which banks in Zurich, Switzerland, are open for business.
2.2 Interpretation
Whenever terms such as “including,” “inclusive,” or “in particular” are used in these GTC, they are deemed to be followed by the words “without limitation.”
Any reference to “in writing” includes emails and electronically signed documents (including PDF format), regardless of whether the relevant electronic signature was issued by a legally recognized or accredited provider.
If a deadline is specified and starts from a certain day or the day of an act or event, it is calculated excluding that day, unless otherwise stated in the GTC. If the deadline does not end on a working day, it ends on the next working day.
3. Conclusion of Contract
3.1 Offer
Unless otherwise stated in the offer or agreed in writing, the offer from cptr is binding for 30 calendar days from the date of the offer.
3.2 Formation of the Contract
A contract for an advertising campaign is concluded when the client’s written acceptance of the offer is received by cptr within 30 calendar days from the date of the offer. A contract is also considered concluded without written acceptance if, upon the client’s instruction or approval, preparatory work or the campaign has begun.
If the acceptance of the offer deviates from the offer, it is only binding for cptr if the deviations are accepted by cptr through a campaign confirmation within 30 calendar days of the acceptance date.
4. Agencies
4.1 Agencies as Direct Representatives
Unless otherwise expressly agreed in writing, the agency acts in the name and on behalf of the advertiser (direct representation), making the advertiser the client of cptr. As representative of the advertiser, the agency is obliged to forward the GTC to the advertiser. The advertiser can only discharge its payment obligation by paying cptr directly.
4.2 Agencies as Indirect Representatives
If the agency acts—by exception and with written confirmation—explicitly in its own name but on behalf of the advertiser (indirect representation), then the agency is considered the client of cptr.
In this case, the agency is obligated to contractually pass on the GTC to the advertiser and disclose the advertiser’s name to cptr. Until the agency fulfills its disclosure obligation, the offer acceptance is not binding on cptr.
If the agency defaults on payment, cptr is authorized (but not obligated) to instruct the advertiser on behalf of the agency to pay the outstanding amount directly to cptr. This instruction does not release the agency from its payment obligation until the full amount owed to cptr has been paid.
5. Execution and Performance Measurement
5.1 Execution
cptr shall execute the advertising campaign in accordance with the provisions of the contract.
cptr is entitled to engage third parties to fulfill its contractual obligations.
cptr is free to choose the distribution channels or advertising media for executing the campaign and enters into contracts with advertising media providers in its own name and at its own expense.
5.2 Performance Measurement
The performance of cptr’s services shall be measured exclusively using the programs deployed by cptr, particularly fusedeck. The performance is measured by the number of engagements as specified in the detailed final report.
6. Client’s Duties to Cooperate
6.1 General
The client undertakes to always provide sufficient human resources for the advertising campaign, appoint a project manager, and deliver all relevant information for the campaign to cptr in a timely manner.
6.2 Submission of Base Materials
The client is obliged to provide cptr with all base materials necessary for the advertising campaign (in particular, advertisements and creatives, graphics, texts, and videos) in the format required by cptr, at their own expense and no later than the following deadlines prior the confirmed campaign start date:
• Images, texts, graphics, and videos: 10 working days
• Redirect codes (ad codes): 3 working days
These deadlines apply unless otherwise expressly agreed upon in writing or alternative deadlines have been communicated in writing by cptr.
If the client fails to fulfill this obligation, cptr cannot guarantee the campaign start as confirmed and reserves the right to withdraw from the contract. If cptr does not withdraw, the campaign duration remains unchanged; however, the start and end dates will shift by the length of the delay.
6.3 Approval of Advertisements
cptr shall submit the advertisements it has created to the client for approval before use. Unless otherwise agreed in writing or unless the client objects in writing within three working days, the advertisements created by cptr are deemed approved by the client.
cptr is entitled to make minor adjustments (e.g. for performance improvement) even after approval without further review by the client.
6.4 Right of Rejection
cptr and the advertising media providers reserve the right—even in binding advertising campaigns—to reject delivered advertisements for legal, ethical, discriminatory, or similar reasons. cptr also reserves the right to reject advertisements due to their origin, content, format, or technical quality.
In such cases, cptr is also entitled to withdraw from the contract.
7. Warranty by cptr
cptr guarantees the best possible execution of the advertising campaign within the given technical conditions. Any warranty regarding qualitative performance, particularly the effectiveness of the campaign, is expressly excluded.
8. Warranty by the Client
The client is responsible for and guarantees that the delivered advertisements are free of any material defects and that they or the advertiser hold the necessary rights—especially copyright and trademark rights—associated with the advertising materials used in the campaign. Upon conclusion of the contract, the client grants cptr the usage, sublicensing, and editing rights necessary for executing the campaign.
The client is responsible for and guarantees that the advertisements, formats, and content—whether directly or indirectly (i.e., especially via links to additional content or platforms)—do not infringe upon third-party rights, particularly copyrights, name rights, personal rights, or trademark rights. Furthermore, they must not violate other legal provisions, especially intellectual property laws, competition laws (such as the UWG and PBV), and other applicable laws and regulations (e.g., lottery, casino, criminal, pharmaceutical, alcohol, and food laws), as well as ethical principles (such as those set forth by the Fairness Commission).
9. Rights from the Creation of Advertising Materials by cptr
If cptr is commissioned to create advertising materials, all rights arising from the work, particularly copyrights, shall remain with cptr. The client is granted a non-transferable, unlimited (in time and location) right to use the advertising material for advertising purposes, which is covered by the price of the campaign.
10. Data
10.1 Personal Data
The client is obligated to comply with applicable data protection laws when processing personal data, particularly regarding the duty to inform affected individuals. cptr may provide the client with a sample privacy policy or other text to facilitate this obligation. However, data protection responsibility remains solely with the client.
cptr processes personal data solely on behalf of the client in accordance with cptr’s data processing agreement. In this arrangement, the client is the sole data controller under data protection law, and cptr acts exclusively as a data processor.
10.2 Data from Advertising Campaigns
During the execution of advertising campaigns, cptr collects data to evaluate and improve campaign efficiency. This data is gathered through technologies for performance and reach measurement, such as cookies. It includes data on the success of an advertising asset per user, for example, impressions, click behavior, and duration. Such data is used for purposes such as behavioral targeting, retargeting, or frequency capping. cptr also uses this data to analyze campaigns.
cptr also collects user-input data during campaigns. This data is analyzed and aggregated to verify authenticity, enrich existing data, and ensure quality.
cptr is entitled to retain and use campaign data at its own discretion for its own purposes, such as product/service development and improvement. For data classified as personal data, cptr complies with applicable data protection law and ensures affected individuals are informed through its own privacy policy.
11. Duration of the Advertising Campaign
The campaign duration is based on the agreement between the client and cptr.
The campaign duration may be extended by written agreement between cptr and the client.
If the targeted number of engagements is not achieved due to force majeure (including technical failures) or circumstances not attributable to cptr, cptr may, in coordination with the client, extend or postpone the campaign period. In case of significant delays, cptr will inform the client. If the client does not object in writing without delay or within one working day, the extension is deemed accepted.
12. Prices and Payment Terms
12.1 Prices
Prices offered by cptr are individually defined for each specific contract. The price of the campaign excludes additional costs – particularly production costs – unless otherwise expressly agreed in writing. Any additional products or services not covered by the campaign confirmation will be invoiced separately by cptr and must be paid by the client. All prices are quoted in Swiss Francs (CHF) plus VAT or other applicable taxes. In exceptional cases, invoicing in EUR may be agreed upon in the campaign confirmation.
12.2 Price Changes
Price changes are possible at any time. For already confirmed campaigns, price changes are binding only if announced by cptr at least 10 calendar days before the campaign start. In the case of a price increase, the client has the right to withdraw from the contract. This right must be exercised in writing within 5 working days of receiving notice. If no contrary notification is received, cptr is entitled to carry out the campaign at the new price.
12.3 Advance Payment
It is at cptr’s sole discretion to begin or continue a campaign only after advance payment. If the advance payment is not made within the specified payment period, cptr may withdraw from the contract.
12.4 Invoicing
cptr generally invoices its services at the end of each month. In exceptional cases, invoicing may occur at the end of the campaign at cptr’s discretion.
12.5 Due Date
Unless expressly agreed otherwise in writing, all cptr invoices are due 30 days after the invoice date and payable in Swiss Francs without deductions. After this period, the client is automatically in default without the need for a reminder from cptr. Invoices that are not disputed within 30 days shall be considered accepted.
12.6 Payment Default
In the event of payment default, cptr is entitled to charge default interest of 5% on the invoiced amount. The right to claim further damages remains reserved.
13. Commissions
13.1 Agency Commission and Discounts
Agencies provide services that reduce workload or mitigate risk for cptr. For this, agencies may receive an agency commission (agency remuneration) or discounts from cptr. The advertiser agrees that cptr may directly compensate agencies for services agreed upon between cptr and the agencies via such commissions or discounts.
13.2 Agency Assurances
The legal treatment of agency commissions or discounts under section 13.1 is governed by the relationship between the advertiser and the agency. The agency assures cptr that payment of commissions or the granting of discounts will not result in any legal or contractual violations. In particular, the agency assures cptr that it has informed its clients (advertisers) fully, in advance, and transparently about such commissions or discounts, and that it transfers all discounts and compensations to its clients unless otherwise stipulated in the contractual relationship between the agency and the advertiser.
14. Liability of cptr
cptr shall only be liable for direct material and financial damage caused intentionally or through gross negligence in the performance of its contractual obligations. Liability under a specific contract is in any case limited to the net value of the advertising campaign.
Any further liability of cptr or its auxiliary agents for additional or indirect damages, including but not limited to claims for the replacement of indirect or incidental damages, lost profits, lost use, unrealized savings, operational interruptions, as well as lost earnings, is expressly excluded. Liability for auxiliary agents is limited to the selection and instructions given to the auxiliary agent. cptr is under no circumstances liable for unlawfully stored or processed customer data, or for the unlawful or abusive use of such data by customers.
The limitations of liability under these GTC apply regardless of the legal basis. Any mandatory statutory liability remains unaffected.
15. Customer Liability
15.1 Liability
The customer is liable to cptr for damages caused by culpable defects, delays, or non-fulfillment of contractual obligations. If the campaign cannot be executed due to reasons attributable to the customer, cptr is entitled to charge the net value of the campaign. Section 16.2 applies accordingly. The customer has no right to compensation.
15.2 Exemption
If cptr and/or a publisher is held liable by third parties (e.g., due to the content of the ad material) for copyright, competition law, or other reasons, the customer shall exempt cptr and/or the publisher upon first request. The customer shall also reimburse cptr and/or the publisher for any costs incurred (including damages, legal, and court fees). cptr commits to seek prior consent from the customer before concluding any out-of-court settlements.
16. Termination
16.1 Termination by cptr
cptr may withdraw from contracts without compensation if a publisher or other third party ceases, changes, or withdraws services beyond cptr’s control or foresight. In such cases, the customer is not entitled to claims.
cptr may also terminate contracts if the customer is in default, particularly in the event of delayed advance or other payments, fails to fulfill its cooperation obligations (sections 6.1 to 6.3), if ad materials are rejected (section 6.4), or in any legally permitted cases. In such cases, the provisions of Section 16.2 shall apply accordingly, and the customer shall compensate cptr as specified therein.
16.2 Termination by Customer
The customer may cancel up to 10 calendar days before the campaign start, subject to a cancellation fee (penalty) based on the net campaign value:
• Cancellation between 10 and 4 days before the campaign start: 50% of the net campaign value
• Cancellation less than 4 days before the campaign start: 100% of the net campaign value
• Cancellation after the campaign start: 100% of the net campaign value
All amounts are subject to VAT. Payment terms under section 12.5 apply. cptr reserves the right to claim further damages.
17. Final Provisions
17.1 Written Form
All amendments, supplements, side agreements, and the revocation of these GTC must be made in writing.
17.2 Changes to GTC
cptr may amend its GTC at any time. Customers with ongoing contracts will be notified electronically in advance.
17.3 Exclusion of Offsetting
The customer waives the right to offset any claims in advance.
17.4 Assignment
The assignment of a campaign contract (or any associated rights or obligations) by the customer requires prior written consent from cptr. cptr may assign claims against the customer to third parties without consent.
17.5 Confidentiality
Offer documents may not be disclosed to third parties or shared with competitors or market participants without written consent from cptr.
17.6 Severability Clause
If any provision of these GTC is or becomes invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by one that legally and economically most closely reflects its purpose.
17.7 Applicable Law
Swiss law shall apply exclusively to these GTC and all contracts or dealings with cptr, excluding international private law conflict rules and the UN Convention on Contracts for the International Sale of Goods (CISG).
17.8 Jurisdiction
The ordinary courts in Zurich shall have exclusive jurisdiction for all disputes arising from or in connection with these GTC or related contracts or dealings, including issues of validity, breach, or termination.
Zürich, 18.09.2024, cptr AG
