General Terms and Conditions

of Alchemist Media Labs GmbH, Friedrich-Kirsten-Straße 7b, 22391 Hamburg, Germany, for the booking platform "Everscreen"

This English version is a convenience translation. Only the German version of these General Terms and Conditions (Allgemeine Geschäftsbedingungen) is legally binding; in case of discrepancies, the German version prevails.

§ 1 Scope of Application and Contracting Parties

These General Terms and Conditions (hereinafter "GTC") apply to all services of Alchemist Media Labs GmbH, Friedrich-Kirsten-Straße 7b, 22391 Hamburg, Germany, provided in connection with the use of the booking platform "Everscreen" (hereinafter "Everscreen" or the "Platform"). The Platform enables the planning, booking and management of digital advertising campaigns with various advertising marketers and publishers.
The Platform is directed exclusively at entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), i.e. natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, act in the exercise of their commercial or self-employed professional activity. Use of the Platform by consumers within the meaning of Section 13 BGB is not permitted. Upon registration and with each subsequent booking, the user (hereinafter the "Customer") expressly warrants that they are acting exclusively within the scope of their entrepreneurial activity. Everscreen is entitled at any time to request suitable proof of the Customer's commercial status and to suspend use of the Platform until such proof is provided.
These GTC apply to all current and future services provided by Everscreen to the Customer in connection with the Platform, even where they are not expressly referred to in an individual case. Conflicting, deviating or supplementary general terms and conditions of the Customer shall not become part of the contract, even if Everscreen provides the service without reservation while aware of such terms. Deviations from these GTC are only effective if Everscreen has expressly agreed to them in writing.

§ 2 Service Models

Everscreen provides two mutually independent models which differ fundamentally with regard to Everscreen's legal position vis-à-vis the respective publishers and with regard to the remuneration structure. The Customer selects the model applicable to them upon registration or as part of the booking process. A combination of both models is possible provided the technical and operational requirements are met in the individual case.
Under the "Media Planning" model (hereinafter "Model 1"), Everscreen provides the Customer with the Platform as a technical tool for planning, managing and optimising digital advertising campaigns. Use of Model 1 requires that the Customer holds its own, already existing advertising accounts with the respective publishers. The Customer connects these accounts to the Platform via the technical interfaces (APIs) provided by Everscreen. All bookings are made by the Customer in its own name and for its own account directly with the publishers. Through the use of Model 1, Everscreen does not become a party to the relationship existing between the Customer and the publisher and assumes no responsibility for the performance of the obligations arising from that relationship. Publisher invoices received by Everscreen under Model 1 are forwarded by Everscreen to the Customer, and Everscreen invoices the Customer for the respective invoice amount plus a volume-based brokerage commission. The specific amount of the brokerage commission is displayed transparently to the Customer in the booking process before the respective booking is concluded and forms part of the booking confirmation.
Under the "Media Agency" model (hereinafter "Model 2"), Everscreen acts as an independent intermediary that purchases advertising services from publishers in its own name and for its own account and makes them available to the Customer as a bundled service package. The Customer engages Everscreen to book, execute and manage advertising campaigns with one or more publishers. Everscreen concludes the corresponding contracts with the publishers in its own name; no direct contractual relationship between the Customer and the publisher arises under Model 2. Everscreen invoices the Customer for the agreed total fee for the campaign. The difference remaining between the amount invoiced by the publishers and the total fee paid by the Customer constitutes Everscreen's remuneration. This remuneration structure is known to the Customer and is accepted upon conclusion of the respective booking contract.

§ 3 Registration, Account and Access Credentials

Use of the Platform requires the Customer's prior registration. During registration, the Customer must provide complete, truthful and up-to-date information about themselves and their company, in particular name, company name, full address, VAT identification number (if available), a valid business email address and valid payment details. The Customer is obliged to update their registration data without undue delay as soon as any change occurs. Declarations by Everscreen sent to the email address on file are deemed to have been received by the Customer even if the address is no longer current, provided the Customer has breached their obligation to keep it up to date.
Upon completion of registration, the Customer receives access credentials for their account. The Customer is obliged to treat their access credentials confidentially, to protect them from access by third parties and to inform Everscreen without undue delay if there are indications of unauthorised use of their account. Until such notification is received by Everscreen, all actions taken via the account are attributed to the Customer, unless the Customer proves that they are not responsible for the unauthorised use.
The Customer may not pass on access credentials to third parties, unless these are employees or authorised representatives of the Customer who use the Platform for the Customer within the scope of their professional activity. The Customer is liable for all actions taken by such persons via their account as if they were the Customer's own actions.
Everscreen is entitled to temporarily suspend or permanently delete an account if there is concrete suspicion that the Customer provided false information during registration, is in breach of material obligations under these GTC, engages in abusive use, or uses the Platform to infringe third-party rights or to commit unlawful acts. Before permanently deleting an account, Everscreen will, where reasonable, inform the Customer in advance and give them the opportunity to respond.

§ 4 Booking Process and Conclusion of Contract

The booking process begins with the Customer creating a campaign configuration on the Platform. The Customer enters the essential campaign parameters, in particular the desired publishers and advertising environments, the campaign period, the campaign budget and the nature and scope of the desired advertising service.
Based on these inputs, the Platform calculates the total fee payable by the Customer, including the brokerage commission (Model 1) or the agency fee (Model 2), and presents this information to the Customer on an overview page before the booking is submitted.
The presentation of the campaign configuration and the calculated fee on the Platform does not yet constitute a binding offer but rather an invitation to the Customer to submit an offer. By submitting the booking, the Customer makes a binding offer to conclude a booking contract on the displayed terms. Everscreen is entitled to accept or reject this offer, in an automated fashion, immediately or within a reasonable period. The contract is concluded upon receipt of the booking confirmation by email at the address provided by the Customer.
The booking confirmation contains all essential contract parameters, in particular the selected service model, the selected publishers, the campaign period, the scope of the advertising service, the total fee and the payment terms. The content of the booking confirmation is binding for both parties. Deviations from the booking confirmation require express written confirmation by Everscreen.
Everscreen is entitled to reject a booking without stating reasons, in particular if the Customer has failed to meet their payment obligations from previous bookings, if the submitted advertising materials do not comply with the publishers' requirements or with statutory requirements, or if there are concrete indications of abusive use.

§ 5 Provision of Services and Duty of Best Efforts

Everscreen provides the agreed services with the diligence of a prudent businessperson. With regard to the execution and delivery of advertising campaigns, Everscreen owes a dutiful and committed effort to achieve the campaign objectives agreed with the Customer. Everscreen does not owe any specific advertising success, nor any guaranteed minimum number of impressions, clicks, conversions or other performance indicators, unless such a performance guarantee has been expressly agreed between the parties in writing.
Everscreen expressly points out that the actual delivery of advertising campaigns depends on a large number of external factors over which Everscreen has no or only limited influence. This includes in particular the technical availability of the publisher platforms, the ad-delivery algorithms used by the publishers, changes to the publishers' terms of use or advertising policies, and general market conditions such as the competitive environment in auctions for advertising inventory. Delays or restrictions in delivery attributable to such external factors do not constitute a breach of duty by Everscreen.
Where Everscreen books campaigns with publishers in its own name under Model 2 and a publisher refuses, interrupts or restricts the delivery of a campaign in whole or in part, Everscreen will inform the Customer thereof without undue delay and, together with the Customer, examine alternative measures, such as redirecting the budget to other publishers or adjusting the campaign configuration. If full performance cannot be permanently ensured, Everscreen is entitled to cancel the affected booking contract in whole or in part to that extent. In this case, the Customer is entitled to a pro-rata refund of payments already made, but only to the extent that Everscreen itself receives a refund from the publisher or can claim such a refund under the publisher's terms.

§ 6 Customer Obligations Regarding Advertising Materials and Campaign Content

The Customer is solely responsible for the lawfulness of the advertising materials submitted or uploaded by them and of the products, services and content advertised therewith. The Customer warrants that all advertising materials and campaign content comply with the applicable statutory requirements.
The Customer further warrants that the advertising materials used by them do not infringe any third-party rights, in particular no copyrights, ancillary copyrights, trademark rights or personality rights, and that they hold all necessary usage rights and other permissions for the use of the respective advertising materials.
When booking and configuring their campaigns, the Customer is obliged to comply with the advertising policies of the selected publishers as applicable from time to time. Where possible, Everscreen provides on the Platform guidance on the essential requirements of the most important publishers, but assumes no warranty for their completeness or currency. The Customer is required to inform themselves about the currently applicable publisher policies.
If Everscreen identifies a breach by the Customer of the above obligations, or if Everscreen is held liable by a third party or a publisher on account of such a breach, Everscreen is entitled to interrupt or terminate the affected campaign without prior notice. Further rights of Everscreen, in particular the right to extraordinary termination of the usage agreement, remain unaffected.
Upon first written request, the Customer shall indemnify Everscreen against all claims, costs and expenses incurred by Everscreen as a result of a breach by the Customer of the obligations set out in this section, including reasonable costs of legal defence. Everscreen will inform the Customer of third-party claims without undue delay and, where possible and legally permissible, give the Customer the opportunity to influence the defence against the respective claim.

§ 7 Fees and Payment Terms

The fee payable by the Customer is determined by the offer displayed in the booking process and recorded in the booking confirmation. All stated prices are net prices plus the statutory value added tax applicable at the time of invoicing.
For campaigns with a total amount of up to EUR 10,000 (net), payment is made exclusively by credit card via a payment service provider engaged by Everscreen (hereinafter "PSP"). The Customer's credit card is charged in regular instalments of EUR 1,000 each over the term of the campaign. Everscreen is entitled to select and change the PSP used at its own discretion; such a change does not give the Customer any right to contract adjustment or termination. The Customer's credit card data are processed exclusively by the PSP; Everscreen has no access to these data.
If the credit card provided by the Customer cannot be charged for a reason attributable to the Customer, for example due to insufficient funds, an expired or blocked card, or a decline by the card-issuing bank, Everscreen is entitled to interrupt or terminate the running campaign immediately and without further prior notice. Services already rendered up to the time of the interruption must nevertheless be paid for by the Customer. Everscreen assumes no liability for the effects of such an interruption on campaign performance or for other damage of the Customer indirectly caused by the interruption.
For campaigns with a total amount of EUR 10,000 (net) or more, payment may be made on invoice, provided this has been expressly and individually agreed with an Everscreen employee before the booking confirmation. The agreement of payment on invoice does not create any legal entitlement of the Customer; Everscreen decides on this at its own discretion, in particular taking into account the Customer's creditworthiness and previous payment history.
In the case of payment on invoice, Everscreen issues an invoice to the Customer after completion of the campaign or after defined billing periods. The invoice amount is due for payment within 14 days of the invoice date without any deduction. If the Customer defaults on a due payment, Everscreen is entitled to charge default interest at a rate of nine percentage points above the applicable base interest rate pursuant to Section 247 BGB and to claim the default lump sum pursuant to Section 288 (5) BGB. The assertion of further default damages remains expressly reserved.
Everscreen is entitled to interrupt running or already booked campaigns of the Customer or to reject new bookings for as long as the Customer is in default with the payment of due amounts from previous bookings. The Customer has set-off rights only insofar as their counterclaim is undisputed or has been finally adjudicated. A right of retention of the Customer is excluded insofar as it is based on claims from other contractual relationships.

§ 8 Cancellation and Revocation

Cancellation of a bindingly confirmed campaign booking is only possible if and to the extent that the cancellation terms of the publisher(s) concerned permit it. Decisive in this respect are the general terms and conditions and advertising policies of the respective publisher applicable at the time of booking, over which Everscreen has no influence and whose content it cannot unilaterally shape.
Upon request, Everscreen will inform the Customer about the cancellation rules of the publisher concerned known to Everscreen at the time of the request. This information is provided to the best of Everscreen's knowledge; however, Everscreen assumes no warranty for the accuracy, completeness or currency of the cancellation terms communicated. The Customer is required to inform themselves about the publisher terms applicable from time to time.
If cancellation is possible under the publisher's terms, Everscreen will assert the cancellation vis-à-vis the publisher upon the Customer's written request, in the Customer's name (Model 1) or in its own name for the Customer's benefit (Model 2). The Customer is entitled to a refund of payments already made only to the extent that Everscreen itself receives a corresponding refund from the publisher or can claim one under the publisher's terms. Any cancellation fees deducted or separately charged by the publisher are borne by the Customer and will be invoiced to the Customer separately.
Where campaigns are cancelled at a time when delivery has already begun, the advertising services already rendered up to the cancellation must in any case be paid for, irrespective of whether a cancellation is accepted by the publisher. As an entrepreneur, the Customer has no statutory right of revocation.

§ 9 Liability of Everscreen

Everscreen is liable without limitation for damage based on intent or gross negligence of Everscreen, its legal representatives or vicarious agents, as well as for damage arising from culpable injury to life, body or health.
In cases of slight negligence, Everscreen is liable only for the breach of material contractual obligations. Material contractual obligations in this sense are those obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the Customer may regularly rely (cardinal obligations). In these cases, Everscreen's liability is limited in amount to the damage typically foreseeable at the time of conclusion of the contract. In all other respects, Everscreen's liability for slight negligence is excluded.
Everscreen is not liable for disruptions, restrictions, interruptions or failures of the services of publishers, payment service providers or other third parties, insofar as these lie outside Everscreen's sphere of influence. In particular, Everscreen assumes no liability for algorithmic changes to the publisher platforms, for technical disruptions on the publishers' side, for unilateral changes to terms of use or advertising policies by publishers, or for effects of the general competitive environment on campaign performance.
Everscreen is furthermore not liable for the accuracy, completeness or currency of data transmitted to the Platform via the publishers' interfaces, in particular campaign reporting data. The reporting data provided by the publishers are passed on by Everscreen without its own verification; in this respect, only the data provided by the publishers themselves are authoritative.
The above exclusions and limitations of liability do not apply to liability under the German Product Liability Act (Produkthaftungsgesetz) or to other mandatorily regulated statutory liability provisions.

§ 10 Availability of the Platform

Everscreen strives for the highest possible availability of the Platform but does not guarantee uninterrupted or error-free availability. Everscreen will announce planned maintenance work to the Customer in good time where possible. Everscreen is entitled to temporarily restrict the Platform or to shut it down completely insofar as this is necessary for reasons of security, technical necessity, or to carry out maintenance and update measures.
Short-term interruptions of Platform availability caused by technical reasons, force majeure or actions of third parties do not constitute a breach of duty by Everscreen and do not entitle the Customer to reduce the agreed fee or to withdraw from the contract, unless the interruption is attributable to a breach of duty for which Everscreen is responsible and persists for so long that the Customer can no longer reasonably be expected to adhere to the contract.

§ 11 Data Protection

Everscreen processes personal data of the Customer and of the persons acting on the Customer's behalf exclusively on the basis of the applicable data protection regulations, in particular Regulation (EU) 2016/679 (General Data Protection Regulation, GDPR) and the German Federal Data Protection Act (BDSG). Further details on the processing of personal data, in particular on the nature, scope, purpose and legal bases of the processing as well as on the rights of the data subjects, are set out in Everscreen's privacy policy, which is permanently available on the Platform.
In the context of booking and executing advertising campaigns via the Platform, Everscreen does not process any personal data of end users of the advertising measures. No processing on behalf of a controller within the meaning of Art. 28 GDPR takes place between Everscreen and the Customer with regard to end-user data. Insofar as the Customer uses audience data in the campaign configuration that may contain personal data of end users, the responsibility under data protection law for this lies solely with the Customer.

§ 12 Confidentiality

Both parties undertake to keep secret from third parties all information about the other party obtained in the course of the business relationship that is marked as confidential or that is recognisably to be regarded as confidential given the nature of the information or the circumstances of its transmission, and not to use such information for purposes other than the performance of the contracts concluded on the basis of these GTC.
This obligation does not apply to information that was already known to the recipient before its transmission, that is or becomes generally accessible through no fault of the recipient, that the recipient lawfully received from a third party, or whose disclosure is required by statutory obligations. In the latter case, the recipient is obliged to inform the disclosing party in advance, insofar as this is legally permissible.
This confidentiality obligation continues to apply for a period of three years beyond the end of the contractual relationship.

§ 13 Term and Termination of the Usage Agreement

The agreement on the use of the Platform (usage agreement) is concluded for an indefinite period. Either party may terminate the usage agreement with 30 days' notice to the end of a calendar month. Termination requires written form or text form by email to the address of the other party on file.
The right to extraordinary termination for good cause remains unaffected. Good cause exists for Everscreen in particular if the Customer defaults on due payments in a total amount of more than EUR 2,000 and fails to remedy this default within a reasonable grace period of at least seven days set by Everscreen, if the Customer repeatedly or seriously breaches material obligations under these GTC, if insolvency proceedings are applied for or opened over the Customer's assets, or if an application for the opening of such proceedings would be dismissed for insufficiency of assets.
Termination of the usage agreement does not automatically affect the continued existence of individual booking contracts bindingly concluded before receipt of the termination. Such booking contracts continue on the terms agreed at the time of booking, unless Everscreen also terminates the individual booking contracts for good cause or the parties agree otherwise. Upon termination of the usage agreement, the Customer is no longer entitled to use the Platform or to make new bookings.

§ 14 Changes to these GTC

Everscreen reserves the right to amend these GTC with effect for the future. Changes will be communicated to the Customer by email to the address stored in the account. The change notification contains the text of the amended or new provisions as well as a notice on the significance of silence as consent and on the Customer's right to object. If the Customer does not object to the change in writing or by email within four weeks of receipt of the change notification, the amended GTC are deemed accepted.
In the event of a timely objection by the Customer in due form, Everscreen is entitled to terminate the usage agreement extraordinarily as of the date the amended GTC take effect. This right is also pointed out in the change notification. Booking contracts already concluded are not retroactively affected by a change to these GTC.

§ 15 Final Provisions

The law of the Federal Republic of Germany applies, excluding the conflict-of-law rules of private international law and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). Insofar as the Customer is domiciled abroad, this applies subject to mandatory protective provisions of the law applicable at the Customer's registered office, insofar as these cannot be derogated from under European conflict-of-law rules.
The exclusive place of jurisdiction for all disputes arising from or in connection with these GTC and the contracts concluded on their basis is Hamburg, provided the Customer is a merchant, a legal entity under public law or a special fund under public law, or the Customer has no general place of jurisdiction in Germany. Everscreen is furthermore entitled to sue the Customer at the Customer's general place of jurisdiction.
Should individual provisions of these GTC be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be deemed replaced by the valid provision that comes closest to the economic purpose of the invalid provision. The same applies to any gaps in these GTC.
There are no oral side agreements to these GTC. Amendments and supplements to these GTC and to the contracts concluded on their basis must be made in writing to be effective. This also applies to the waiver of this written-form requirement itself. Transmission by email satisfies the written-form requirement of these GTC, provided the email was sent by a person authorised to sign.