The emarketing group is a leading technology provider in the field of advertising, datafeed management, tracking

Terms of use

(Valid from 01.10.2023; legally, the German versions of the provisions apply. The translated versions are for simplification purposes only).

Introduction

emarketing AG, Landsberger Str. 110, 80339 Munich, (hereinafter "emarketing") offers cloud-based marketing platforms (hereinafter "platforms") on which customers can book and use marketing services. The services offered are aimed at commercial online merchants or other traders. In the following, the term "customer" refers to the trader who uses the services of emarketing.

§ 1 Subject of the Terms and Conditions

These General Terms and Conditions (hereinafter referred to as "GTC") govern the use of the platforms and the services offered on it.

2. emarketing works with advertising platforms, data suppliers and other cooperation partners (individually and collectively each a "Partner") to provide the services. A list of these partners can be requested from emarketing. emarketing may change this list at any time. These GTC also apply to services provided by emarketing together with other cooperation partners who are not expressly named in the list.

The use of the platforms by the customers is exclusively subject to these GTC. The customer's GTC shall not apply. This also applies if emarketing does not expressly object to the customer's GTC.

4. the customer assures that he/she is only commissioned as an entrepreneur in the sense of § 14 BGB (German Civil Code), i.e. in the course of his/her commercial or self-employed professional activity.

§ 2 Subject matter of the contract; services

1. emarketing provides platforms to support customers' online marketing. Examples of use include increasing the online reach of a website, acquiring new customers, optimizing advertising campaigns, adjusting prices, generating market data and/or increasing online sales figures.

(2) The subject matter of this Agreement is the use of the Platforms, the purpose of which is the application by the Customer of the services specified in Paragraph 1.

3. the platforms run server-based and interact with the partners via the API interfaces.

4. the marketing services offered are provided on the basis of software specially developed for this purpose.

5. the software remains the exclusive property of emarketing. The Customer may use it in accordance with the selected price model, exclusively in accordance with the provisions regulated in these GTCs and only on the websites operated by emarketing.

The registration of the customer on one of the platforms is a prerequisite for use. Upon registration, a customer account is created, into which the customer can log in by providing an e-mail address and a password. The password must be kept secret from third parties. The customer's e-mail address provided during registration shall be used for communication within the scope of the execution of the contract, unless otherwise stipulated in the cooperation agreement.

In order to use the platforms, it is necessary to link the platforms with the customer accounts that the customers maintain with partners. A link takes place exclusively at the instigation of the customer. This can be done online or by e-mail. Access to partners by emarketing is technically usually via an interface (API).

8. emarketing offers different price models, which include different benefits and services. Details of these marketing services and their conditions & prices can be viewed by the customer online directly before the conclusion of the purchase (https://www.emarketing.com/de/preise) or are regulated in a separate cooperation agreement.

9. emarketing provides its marketing services to the Customer on the basis of information provided by the Customer (hereinafter the "Information"). Such information is read automatically from the website or via interfaces. However, the Customer may also provide this Information in other ways, e.g. by e-mail.

10. emarketing transfers to the Customer a simple, non-transferable right of use, limited to the term of the contract, for the purposes described in § 2 para. 1. This entitles the customer - for his own purposes - to use the service on the platforms. Any changes within the scope of the simple use are prohibited.

(11) The Customer is entitled to transfer the contractual services to a third party (e.g. an advertising customer) in part or in full, against payment or free of charge, taking into account § 2 and within the scope of the right of use granted in § 2 para. 10, or to create corresponding accounts for this third party. In such cases, the Customer shall always remain the contractual partner and debtor of emarketing's claims for remuneration. There is no direct contractual relationship with the third party.

12. the customer remains the owner of all rights, in particular all copyrights, to the information and data collected by him for the services. He permits emarketing to use the information and data within the scope of its services, including the right to reproduce information and data within the scope of the services and to transmit them to third parties.

§ 3 Obligations of the Customer to Provide, Cooperate, Check and Other Obligations; Indemnification in the Event of Violations of Rights by Provided Content

1. the customer shall provide the information necessary for the use of the platforms. The Customer is obliged to carefully check the information provided by him within the scope of this contract in advance for the infringement of industrial property rights (e.g. trademarks) and other rights of third parties. At emarketing's request, the Customer must provide evidence of a corresponding permission and/or license for the trademarks and other intellectual property rights used by him.

2. with regard to the information provided by the Customer, the Customer shall indemnify emarketing against all disadvantages and claims incurred by emarketing as a result of its use within the scope of the purpose of the contract. The customer bears full responsibility and liability for the content of the information provided by him in accordance with § 2 within the scope of the purpose of the contract. He/she shall indemnify emarketing against any claims under competition law, copyright law, name law and/or trademark law and/or any other claims of third parties based on a violation by the Customer of this provision or of other obligations under these GTC. The same applies in case of advertising, marketing, offering, selling, renting and/or leasing of illegal products.

3. the customer is responsible for the accuracy and timeliness of the information provided by the customer and the indemnification under the preceding paragraph shall also apply to any claims and disadvantages due to incorrectness or lack of timeliness of the information.

4. the Customer grants emarketing the right to use the information provided by the Customer, in anonymous form, for statistical purposes. This includes, in particular, the unrestricted right to use the information provided to optimize the algorithm or to improve the success estimates.

The customer undertakes to use all services exclusively as intended. The customer is prohibited from manipulating the platforms, in particular from using mechanisms or other scripts in connection with the platforms that could disrupt the function of the services from the platforms. The Customer shall not take any action that may result in an unreasonable or excessive load on the Platforms. Use of the Services together with third party software is prohibited. The prerequisite for such measures is always that emarketing has given its prior written consent.

§ 4 Contract term and termination

1. a contract between emarketing and the customer comes into effect with an electronic order placement on the platforms or the conclusion of a cooperation agreement. The order is deemed to have been placed as soon as emarketing has sent the customer a confirmation e-mail after the order process has been completed or the cooperation agreement has been signed by both parties. The contract is concluded for an indefinite period of time, unless a different period of time has been agreed upon in the contract.

2. emarketing and the customer are entitled to terminate the contract at any time without notice for good cause. Good cause for emarketing exists in particular if

1. the customer is in arrears with due payments for more than 10 working days after receipt of the payment reminder or reminder.

2. the customer violates essential provisions of these GTC (§5) or other legal provisions and has not remedied the situation within a reasonable period despite a warning. A warning is not required if it is unsuccessful or the violation is so serious that the provider cannot reasonably be expected to adhere to the contract.

3. emarketing reserves the right of immediate termination if customers violate the provisions of §5. In this case, services paid in advance for outstanding service periods will be refunded pro rata. Termination by emarketing vis-à-vis the customer will be sent to the e-mail address of the customer's emarketing customer account.

4. if the order has been triggered on the platforms, the Customer shall give notice of termination to emarketing in the Customer's customer account. In all other cases, notice of termination shall be given electronically to info@emarketing.com.

5. in the event of an ordinary termination, emarketing undertakes to make available to the Customer all contract and customer data stored with it as well as all access to the platforms until the end of the term.

6. emarketing shall block the terminated service for the Customer after termination and, if applicable, expiry of the notice period. Upon termination of the contract, the Customer loses his authorization to use the service in question and ceases to use it. The Customer shall be responsible for the prior timely backup of its data and - without prejudice to mandatory statutory claims - shall have no claim to the surrender of the data collected by it after termination of the contract.

The customer undertakes to remove all tracking pixels and tracking codes within 14 days of the end of the contract without being asked to do so. If the Customer does not comply with this obligation within 14 days, emarketing reserves the right to charge the Customer for any costs incurred without prior reminder.

8. the Customer shall notify emarketing without delay if:

1. the opening of insolvency proceedings has been applied for by the customer or is to be applied for within the next 14 days,

2. the opening of insolvency proceedings has been requested by third parties,

3. the customer has stopped or must stop payments (in whole or in part) due to payment difficulties,

4. measures have been taken against the customer in connection with payment difficulties in order to satisfy third-party creditor claims, or

5. the customer has agreed to agreements to satisfy third-party creditor claims in connection with payment difficulties.

If the Customer violates his obligations under this contract, emarketing is entitled, after prior warning, to block the Customer's access and withhold services under this contract. In the event of serious breaches of duty, such as default of payment, manipulation of services, posting of illegal content, etc., emarketing is entitled to block access immediately.

§ 5 Infringing, dangerous or immoral advertising or other misuse; right of refusal and termination; contractual penalty

1. the products or services to be advertised for the customer in accordance with the order - or the advertising for them - may not violate legal provisions (e.g. laws for the protection of minors or criminal laws) or the rights of third parties, be immoral, endanger the health of humans or animals, or be racist or incite hatred. Furthermore, they (or the advertising for them) must not offend any minorities or be in any other way contrary to good taste. Furthermore, the advertising of the products or services may not constitute a violation of the general terms and conditions of the advertising platforms. The advertising of substances, services or other benefits, products and/or materials whose advertising, marketing, offering, sale, rental and/or lending is illegal, prohibited or unethical is not permitted and may be deleted with costs and, if necessary, reported to emarketing. emarketing reserves the right to assert further claims for damages.

2. emarketing reserves the right not to use or to remove information provided by the Customer in the event of a violation of § 5 para. 1. The same applies if, in emarketing's opinion, the content of the information could possibly be the subject of illegal, disparaging, defamatory, indecent statements or such pictorial representations.

3. the Customer shall indemnify emarketing against any claims by third parties as well as possible fines and consequences of regulatory proceedings based on the Customer's violation of this § 5.

4. emarketing may refuse to provide its contractual services to the Customer at any time and may terminate ongoing contracts without notice if there is a violation of § 5 para. 1 or § 5 para. 2 sentence 2 or if there would be a violation if the advertising were placed or if the services are not feasible for technical reasons.

§ 6 Changes in performance & amendment of the GTC

(1) These GTC may be amended to the extent necessary to adapt to developments that were not foreseeable at the time of the conclusion of the contract and that emarketing did not cause or cannot influence and whose non-consideration would not insignificantly disrupt the balance of the contractual relationship and to the extent that essential provisions of the contractual relationship are not affected thereby. Essential regulations are those concerning the type and scope of the contractually agreed services and the term including the regulations on termination. Furthermore, these General Terms and Conditions may be amended insofar as this is necessary to eliminate not insignificant difficulties in the performance of the contract due to regulatory gaps that have arisen after the conclusion of the contract. This may be the case in particular if the case law on the effectiveness of provisions of these GTC changes, e.g. if a provision is declared invalid by the case law or a change in the law leads to its invalidity.

(2) The contractually agreed services may be changed if and to the extent that this is necessary for good cause which could not be foreseen at the time the contract was concluded and the relationship between performance and consideration is not unreasonably changed to the disadvantage of the customer. A valid reason exists if new technical developments make a change in service necessary because the service can no longer be provided in the previous contractually agreed form or if newly enacted or amended statutory or other sovereign requirements necessitate a change in service.

3. emarketing will notify the Customer in text form of any amendments to these GTC or to the contractually agreed services pursuant to the above paragraphs 2 and 3 at least four (4) weeks before they are scheduled to take effect. In the case of changes that are not exclusively in the customer's favor, the customer has the right to object to the changes in text form (e.g., by letter or e-mail) until the time they become effective. The customer shall be specifically informed of this in the notification of change.

4. in the case of changes and additions that are essential for compelling legal reasons, the customer's right to object in accordance with this provision shall not apply. In this case, the customer shall have a right of termination to be exercised by e-mail within two weeks of receipt of the notice. If the Customer objects in due time, the contract will be continued under the previously applicable terms and conditions; in this case, emarketing reserves the right to terminate the contract as of the next possible ordinary date.

5. changes to the services of the advertising platforms may have a direct impact on the provision of services. emarketing has no influence on this. In this respect, it is the customer's responsibility to regularly inform himself about the current functioning of the advertising platforms.

§ 7 Invoice; Terms of Payment; Direct Debit Authorization

1. emarketing will invoice the Customer for chargeable services. Unless another billing mode has been agreed upon, invoices are to be paid in advance by means of the payment method selected by the customer at the time of booking.

2. the invoice is created electronically in PDF format and provided to the customer. The customer agrees to this method of invoicing in accordance with § 14 of the Value Added Tax Act. The provision of the electronic invoice for download via the customer's account shall not give rise to any disadvantageous legal consequences for the customer beyond the transmission of the invoice within the meaning of Section 14 of the German Value Added Tax Act.

3. in the event of return debit notes or due to unauthorized objection, emarketing shall charge a processing fee in the amount of 25.00 euros per affected invoice.

4. offsetting by the customer with claims that are disputed and not legally established is excluded. Furthermore, the exercise of rights of retention by the customer is excluded if these are based on other contractual relationships.

§ 8 No warranty

1. the accessibility and retrievability of advertisements as well as the unrestricted use of booked marketing services cannot be fully guaranteed. In particular, temporary impairments in the use of partners are not uncommon. Furthermore, emarketing assumes no liability for access restrictions of the customer that are due to force majeure or other circumstances for which emarketing is not responsible and which lie outside its sphere of influence.

2. emarketing exclusively guarantees the usability of the platform as described in

§ 2 described. The customer is aware that software cannot be created completely error-free. Therefore, freedom from errors of the software is only guaranteed to the extent customary in the market and industry.

3. emarketing and its partners are entitled to carry out maintenance work on servers and databases, which may result in short-term interruptions of the marketing services. In doing so, emarketing will keep disruptions to the operational process, in particular to data retrieval, as low as possible. This will not result in any claims for compensation on the part of the customer.

4. notices of obvious inaccuracies in the advertisements placed for the customer must be asserted in each case no later than 2 working days after publication of the advertisement. Otherwise, any claims resulting therefrom shall lapse.

5. emarketing does not assume any guarantee or warranty for the effective results from the marketing services provided.

§ 9 Liability

1. emarketing is liable in the case of intent and gross negligence, in the context of product liability, in the case of the provision of guarantees as well as for damages arising from injury to life, body or health in accordance with the statutory provisions.

2. without prejudice to § 9 para. 1, liability for slight negligence shall only exist for damage caused by the breach of so-called cardinal obligations and shall be limited in amount to the damage typical for the contract and foreseeable at the time of conclusion of the contract. The obligation to pay compensation does not include the cost of recovering lost data. Cardinal obligations are those obligations whose violation endangers the purpose of the contract and/or whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the other party may regularly rely. The limitation to compensation for damages typical for this type of contract also applies to any consequential harm caused by a defect.

3. emarketing's liability is otherwise excluded. This also applies to damages caused by a legal representative or a vicarious agent of emarketing. It is clarified that § 9 para. 1 and para. 2 remain unaffected by this paragraph.

§ 10 Competition and advertising

Emarketing and the customer agree to keep the technical and commercial details of their cooperation confidential as a matter of principle.

Emarketing and the customer are permitted until revoked by one party to report in a general manner in general customer information, brochures, presentations, etc. that a service relationship exists between the parties or, in the case of agencies, an activity for their end customers. For this purpose, the parties shall provide company logos for reference purposes upon request.

§ 11 Data protection

1. compliance with data protection regulations is of particular importance to emarketing. In addition to the data protection regulations of emarketing (see: https://www.emarketing.com/company/datenschutz), the following regulations apply.

2. emarketing will process personal data from the customer's inventory as well as from its user inventory for the purpose of fulfilling and executing the contract with the customer and otherwise only to the extent that this is permissible in accordance with the applicable provisions of data protection law (in particular the EU General Data Protection Regulation and the Federal Data Protection Act). Emarketing is entitled to use data that arises from the use of the services by the user, such as collected tracking / tag information and statistics, in an anonymous manner.

3. the customer is obligated to comply with all data protection regulations applicable to him (in particular the EU Basic Data Protection Regulation and the Federal Data Protection Act).

4. should emarketing be held liable for violations of data protection regulations or the personal rights of third parties by the customer, or should emarketing suffer other damages as a result, the customer will indemnify and hold emarketing harmless from all related claims of any kind, including the reasonable costs of legal defense (e.g. court costs and attorney's fees), insofar as the customer is responsible for the violation/damages.

§ 11 Final provisions

(1) The contract shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

2. place of jurisdiction is Munich.

Should a provision or part of a provision of this contract be or become invalid, the validity of the remainder of the contract shall not be affected. The contracting parties undertake to replace the invalid provision with one that economically corresponds to the purpose of the contract.

4. emarketing is entitled to transfer the existing contractual relationship with the Customer to a company affiliated with it within the meaning of §§ 15ff. German Stock Corporation Act (Aktiengesetz); the option to terminate the contract in accordance with § 5 of these GTC remains unaffected.

§ 12 Supplements

In addition, the respective current GTC, advertising guidelines and other guidelines of the partners apply, insofar as applicable, with the proviso that the obligations of the user to the partners described therein describe the obligations of the customer to emarketing. In the event of contradictions or ambiguities, these GTC of emarketing shall take precedence over the GTC for the partners.