§ 1 Contracting parties
- The contracting parties to the Agreement for the Use of the Productsup Platform are Products-Up GmbH, Bahnhofstr. 5, 91245 Simmelsdorf (“Provider” or “Productsup”) and the Customer, as a business customer.
- The term “business customer” refers in particular to entrepreneurs within the meaning of BGB (German Civil Code) section 14. Entrepreneurs are natural persons or legal entities or partnerships with legal personality who or which, when concluding a legal transaction, act in the exercise of their commercial or free-lance professional capacity.
§ 2 Subject-matter of the Agreement
- With the Productsup Platform, the Provider shall provide the Customer with the necessary server infrastructure for individual product data management and distribution to various product marketing channels (e.g. CSEs, Google, Affiliate Networks, RTB Platforms, etc.). Additional features, such as tracking, as it is known, can be activated.
- A further subject of this Agreement concerns the use of software by the server (hereinafter called “Productsup software”), with the purpose of product data management, product data manipulation and optimization, as well as distribution to various products marketing channels. The Productsup software runs exclusively server-based and intervenes to adjust the quality of the Customer’s products data feeds prior to the distribution to various product marketing channels. The programming and the Productsup software shall remain the exclusive property of the Provider. The Customer may use them on the internet sites operated by the Provider in return for payment and exclusively in accordance with the terms of this Agreement and for the purpose of implementing this Agreement.
§ 3 Obligations of the Provider
- The Provider shall make the Productsup Software available as a cloud-computing solution that runs on the server centre of the Provider. The customer receives separate access to the software, in which case a username and password will be used to grant the Customer access to log in to the Productsup Platform. A sophisticated user-right management is available to the Customer.
- The Provider shall then install the Productsup Software on those servers. In this connection, the Customer shall then be granted the right to use the Productsup software. In this context, the Provider shall make the technical possibilities available to the Customer to achieve the service laid down in § 2 para. 2, using the World Wide Web. The Provider shall be responsible for the due and proper operation of the service– i.e. not for the World Wide Web .
- As far as technically possible, the Provider shall implement any necessary technical alterations which have a major influence on the operation of the services laid down in § 2 outside the normal operating hours of the services. This shall preferably be done during the night or in the early hours of the morning.
- The average annual availability of the tracking component shall be 99.75 %. This shall not include times when availability is suspended because of technical or other problems which are outside the Provider’s sphere of influence (such as force majeure, fault by third parties, manipulation of the server by third parties in cyber attacks, failure of the API interfaces to the markets, maintenance activities of which the Customer has been notified in good time, etc.). Similarly, interruptions occurring within the first 4 weeks after the commencement of the contractual relationship and therefore falling within the initial commissioning period shall also be excluded.
- The Provider shall monitor the capacity utilisation of the server used by the Customer and shall inform the Customer before the capacity utilisation reaches a critical technical level. If this should happen, the Provider shall expand the server structure. The Customer shall allow the Provider a reasonable period of time to increase the capacities. The cost of the server capacity, including any increase in memory, shall be included in the service fee. If, however, a customer requests that a separate server be used to store his data, which shall remain at the Provider’s discretion and shall depend on availability, the Customer shall bear the costs incurred in implementing this request in addition to the agreed service fee.
§ 4 Obligations incumbent on the Customer
- If any malfunctions should occur during the use of the server in accordance with § 3 para. 1 of this Agreement, the Customer shall inform the Provider about those malfunctions without delay by e-mail, fax or mail.
- The Customer is obliged to treat the access data pursuant to § 3 para. 2 of this Agreement with care, not to divulge them, and to prevent misuse of the access data by third parties.
- Persons using the access which is the subject-matter of this Agreement with the Customer’s knowledge and permission are not unauthorised third parties for the purposes of § 4 para. 2 of this Agreement.
- The Customer warrants to the Provider that he will always communicate to the Provider in text form and in good time all the information required for the successful rendering of his services and that no campaigns or contents will be stored or placed on the internet the provision, publication or use of which would violate applicable law or third-party rights (in particular violations of the law relating to the use of names and trade mark law, data protection law or similar legal provisions, etc.).
- The Customer undertakes to indemnify the Provider against claims by third parties, irrespective of their nature, resulting from the illegality of any contents stored by the Customer on the campaigns which are the subject of this Agreement. The obligation to indemnify the Provider shall also include the obligation to indemnify the Provider comprehensively against reasonable legal defence costs (e.g. court costs and lawyers’ fees).
§ 5 Blocking of contents
- If and to the extent that the Customer should store illegal contents contrary to his assurance pursuant to § 4 para. 4 of this Agreement or should play them on the Internet, the Provider shall inform the Customer of the fact. In this event, the Provider shall retain the right to withdraw the service or to refuse to comply with his performance obligation under this Agreement wherever he is legally authorised or even obliged to do so.
§ 6 Remuneration
- The Customer undertakes to pay the remuneration to use the Productsup Platform, as laid down in the service agreement.
§ 7 Terms of payment
- The Provider shall invoice the Customer monthly for the remuneration owed under the Agreement. The use fee, agreed to in the Agreement, shall become due and payable within 7 days after invoicing.
- The account details for payment are as follows:
Account holder: Products-Up GmbH
Bank: Deutsche Bank
§ 8 Rights of use
- The Provider shall grant the Customer a simple, non-transferrable right of use limited to the term of the Agreement for the purposes laid down in § 2 para. 2. This shall entitle the Customer to use the service – for his own purposes – on the Internet sites operated by the Provider. Any changes within the framework of the simple use shall be prohibited.
- The Customer shall be entitled to make the services which are the subject of this Agreement available to a third party (e.g. an advertising customer) in their entirety or in part, in return for payment or free of charge, observing the provisions of § 4 and within the context of the right of use to use granted by § 8 para. 1; or, on the other hand, to create appropriate campaigns for said third party with the Provider. In these events, the Customer shall always remain the Provider’s contracting partner and no direct contractual relationship shall be created with the third party.
§ 9 Warranty and liability
- The Provider shall not be liable for the success of the Customer’s performance marketing activities. It is in particular not part of the subject-matter of the service agreement to provide any kind of guaranteed outcome or results of the Customer’s product marketing campaigns. Nevertheless, the Provider shall be obliged to undertake all appropriate and economically reasonable measures within his sphere of influence to deliver a perfect product data structure and quality to meet the requirements of the various product marketing channels selected and used by the Customer.
- The Provider shall only be liable for losses, except in the event of a violation of essential contractual obligations (i.e. cardinal obligations, as they are known), if and to the extent that the Provider, his statutory representatives, senior members of staff or other vicarious agents have acted intentionally or with gross negligence. In abstract terms, cardinal obligations are obligations which have to be met in order to make the due implementation of this contract of use possible at all, and compliance with which the contracting parties can regularly rely. In the event of a violation of cardinal obligations, the Provider shall be liable for any case of culpable behaviour by his statutory representatives, senior executives or other vicarious agents.
- The exclusions and limitations of liability mentioned above shall not apply to losses resulting from injury to life, body or health, the assumption of a quality guarantee or malicious non-disclosure of defects by the Provider, and in the event of claims based on strict or product liability.
- Claims for damages against the Provider shall become statute-barred after the expiry of 12 months from the time at which the claim arises and when the creditor obtains knowledge of the facts giving rise to the claim or should have obtained such knowledge without gross negligence. Claims for damages for the purposes of paragraph (3) above shall be excluded from this reduction of the period of limitation.
- To the extent that the Provider’s liability is excluded, this shall also apply to the personal liability of the Provider’s members of staff, employees, personnel, representatives, shareholders and vicarious agents.
- Under no circumstances shall the Provider be liable for losses incurred as a result of losses or delays in performance due to unforeseeable events for which the Provider, his statutory representatives or vicarious agents is not responsible (force majeure). Such events of force majeure are in particular war, unrest, forces of nature, fire, sabotage attacks by third parties (such as by computer viruses, for example), power cuts, administrative injunctions, legal industrial action within the company and a breakdown or limitation of the performance of other operators’ communication networks and gateways.
§ 10 Currency, termination
- The currency and termination of the use of the Productsup Platform begins on the stipulated date as laid down in the service agreement created by Productsup or alternatively 2 weeks after the creation of a test account. However this will not begin without prior confirmation or separate offer provided by Productsup.
- Either party shall be entitled to terminate the service agreement at any time for good cause without observing a period of notice. A good cause shall exist in particular if
- the Customer is in default for more than 7 working days over payments that are due and payable and after having received a payment reminder or written notice of default;
- the Customer violates essential conditions of these General Terms and Conditions (§ 4) or other legal provisions and fails to remedy the violation within a reasonable period despite having been issued with a written warning. No written warning shall be required if there is no likelihood of its being successful or if the violation is so serious that it would be unreasonable for the Provider to adhere to the Agreement.
- In the event of termination, the Provider undertakes to provide the Customer with all the contract and Customer data stored with the Provider (including those relating to the Customer’s end customers) and also all additions before the expiry of the term of the Agreement. If requested by the Customer, the Provider shall destroy all Customer data after the expiry of the Agreement. This deletion or destruction of Customer data may not take place until the Provider has provided the Customer with all the contract and Customer data (including those relating to his own customers).
§ 11 Competition
- Both parties agree to treat the technical and economic details of their co-operation confidential as a matter of principle. Both parties shall, however, be permitted to report in general terms in customer information material, leaflets, presentations, etc. that there is a service relationship between the parties. If the Provider wishes to be permitted to reveal the names of the Customer’s end customers in such a general manner (e.g. in cases of agency) this shall require the Customer’s prior consent; this shall not, however, be refused unduly.
§ 12 Data protection
- The Provider shall not pass on data belonging to the Customer to third parties or use them for his own purposes, irrespective of their nature. Furthermore, only Customer data used to ensure that the technical operation is running smoothly may be stored and filed – in encrypted form – according to security standards customary on the market. Reference is made to the Federal Data Protection Act regarding both parties’ obligations.
- The Provider reserves the right to use the specified contact data for information specific to the product. The Customer may revoke this right at any time by e-mail to firstname.lastname@example.org. The data shall not be passed on to third parties.
§ 13 Final provisions
- German law exclusively shall apply to this Service Agreement, with the reference provisions under international private law being excluded. The exclusive legal venue shall be Nürnberg.
- If any individual provisions of this Service Agreement are invalid lose their validity due to an event that occurs at a later stage, this shall not affect the validity of the rest of the Service Agreement. The invalid contractual provision shall be replaced by a provision which comes closest to what the contracting parties would have intended if they had taken the relevant issue into consideration. The same shall apply to any loopholes contained in this Service Agreement.