Terms and Conditions

E PWR Terms

General Terms and Conditions of diva-e Products GmbH for E PWR

Status 15.07.2019

 

  1. Objects of the Terms and Conditions

(1) The General Terms and Conditions of diva-e Products GmbH, Sendlinger Str. 7, 80331 Munich, Germany (hereinafter ”diva-e Products”) regulate the use of the E PWR Software-as-a-Service (hereinafter “E PWR” or “Saas”) based on the contract concluded with the Customer in addition to any other contractually arranged appendices. Provisions to the contrary from the Customer shall also not become a component of the contract if diva-e Products has not expressly objected to them.

(2) diva-e Products only renders its services for companies. Companies are either legal or natural persons or legally responsible partnerships who negotiate as part of their trade or business operations when concluding a legal transaction.

 

  1. Object of the Contract

The Customer shall be offered a SaaS (Software-as-a-Service) application with E PWR comprising of the following two components:

(1) E PWR initially comprises the necessary server infrastructure for the selected services, according to the respective price model (for details see: www.e-pwr.io/pricing). These services include but are not limited to:

  • Storage of advertising campaign services for the customer, the storage of data in databases (so called user tracking)
  • Evaluation and presentation of data in tables and diagrams (reporting)
  • Active bid management based on various bidding strategies
  • Processing and running of advertising campaigns (campaign management)

The services are made available as part of a service contract according to §§ 611 ff. BGB.

(2) An additional object of this contract is the server-side use of the web application which has the purpose of the customer’s/user’s use of the application detailed in Paragraph 1. E PWR runs exclusively server-based and accesses the CPC / CPM bids in an ordered manner through the e-commerce marketplace’s API interfaces (e.g. Google AdWords/Merchant APIs, Amazon Vendor / Seller APIs). diva-e Products regulates according to the Customer’s objectives (e.g. minimum number of clicks under the additional condition of budget limitations or a maximum CPC / CPM bid) and puts these Customer objectives into practice – to the extent allowed by market conditions – in a bidding strategy chosen by the Customer and for which the Customer is also responsible.

The programming and E PWR remain the sole property of diva-e Products. The Customer may use the software for free during the trial period and in exchange for payment upon its expiry, in accordance with the selected price model as stipulated in these terms and conditions, and solely on websites operated by diva-e Products.

 

  1. Services from diva-e Products

diva-e Products has various price models for providing Customers a service offering tailored to their individual needs. These comprise various services and features (see www.e-pwr.io/pricing). The following services apply for all customers unless another price model or scope of service has been agreed between the Parties.

(1) E PWR enables the Customer to administer his or her accounts and keywords in accordance with the selected price model and scope of service, using suitable server capacity. diva-e Products reserves the right to expand or migrate server capacity and availability based on its own assessments. In doing so, diva-e Products shall provide the Customer with the technical capability required for the service stipulated in §2 Paragraph 2 to reach the WorldWideWeb. diva-e Products is responsible for the proper functioning of the service – not that of the WorldWideWeb.

(2) In order to enable the Customer to administer his or her accounts, he or she receives access to a so-called E PWR software front end on which the accounts and campaign data are aggregated and recorded in a manner typical for both the market and the sector. Furthermore, the Customer is provided with a username and password for logging into websites from diva-e Products and/or websites belonging to third-party providers (Okta).

(3) diva-e Products is entitled to suspend operation of the Saas for the purposes of maintenance and updating work or to resolve any technical disruptions. As far as technically possible, diva-e Products will carry out such work outside of the normal usage times, preferably at night or in the early hours of the morning (Central European Time).

(4) The SaaS has an annual average accessibility of 99%. This does not, however, include times in which the accessibility of diva-e Products was interrupted due to technical or other problems which were beyond diva-e Products’s control or otherwise caused by E PWR (e.g. force majeure, the fault of third parties, server-side manipulations from third parties in the form of hacking attacks, API interface outages on the markets, maintenance work about which the Customer has been notified in a timely manner etc.). Also excepted are interruptions which arise during the first 4 weeks after commencement of the contract and therefore form part of the initial set-up.

 

  1. The Customer’s Obligations

(1) Should malfunctioning occur through using the server as stipulated in § 3 Paragraph 1 of this contract, the Customer is to inform diva-e Products accordingly by email (support@e-pwr.io) or by fax.

(2) The Customer is required to treat the access details according to § 3 Paragraph 2 of this contract with the utmost care, is not to pass them on, and is to prevent improper use of the access details by third parties. Third parties who use the access with the knowledge and permission of diva-e Products are not regarded as unauthorised third parties. In case of unauthorised use of access data, the Customer is required to immediately inform diva-e Products accordingly and to bar access.

(3) The Customer assures diva-e Products that he or she will communicate all necessary information to diva-e Products in text form for successfully performing its services and will not save or place any campaigns or content in the internet whose availability, publication or use infringes on the applicable right or rights of third parties (especially against name and brand rights, data protection laws or other legal requirements etc.). diva-e Products is not obliged to check the Customer’s content for possible legal infringements; the Customer alone is responsible for the adherence to legal requirements. diva-e Products is entitled but not obliged to reject or remove the Customer’s content if it does not conform to the requirements specified in this paragraph.

(4) The Customer is required to release diva-e Products from the claims of third parties, irrespective of the type of claims, which result from the illegality of content which the Customer has stored on the campaigns covered in this contract. This obligation to release also includes the obligation to completely release diva-e Products from reasonable legal defence costs (e.g. court and lawyer costs).

(5) The Customer is obliged to use all services for their intended purpose. The Customer is prohibited from manipulating the SaaS, especially from using the mechanisms or other scripts connected with the SaaS which could disrupt the functioning of E PWR’s services. The Customer may not take any measures which would lead to E PWR’s system experiencing unreasonable or excessive load. Use of the software together with software from third parties is prohibited. Measures of this kind always require diva-e Products’s prior written permission.

(6) Data is to be set according to the format which is defined in the web application. The Customer is therefore obliged to ensure data security. The Customer is particularly aware that complete protection from loss or damage is not possible. The Customer shall therefore save and back up its data and content on a regular basis, depending on the level of risk, in order to enable restoration should the data or information be damaged. diva-e Products has the right not to process information and data set by the Customer to the extent that this data would or could cause errors in the data processing or if it has not been set in the correct format. The Customer is responsible for monitoring procedures of this kind and deriving the necessary measures from them.

(7) The Customer shall notify diva-e Products immediately if:

  • the Customer has applied to open insolvency proceedings or must do so in the next 14 days,
  • third parties have applied to open insolvency proceedings,
  • the Customer has stopped making payments due to financial difficulties (either fully or in part) or must do so,
  • measures have been taken against the customer to satisfy the claims of third party creditors at the same time the Customer experiences financial difficulties, or
  • the Customer has agreed to measures taken against it to satisfy the claims of third party creditors at the same time he or she experiences financial difficulties.

(8) To the extent that the Customer breaches his or her obligations according to this contract, diva-e Products is entitled, with prior warning, to bar access to the Customer and to withhold the services stipulated in this contract. diva-e Products is entitled to bar access immediately in the case of severe dereliction of duty such as payments in arrears, manipulation of services, placement of illegal content etc.

 

  1. Payment / Compensation

(1) The Customer is committed to paying the compensation agreed to in this contract.

(2) diva-e Products will invoice the Customer the contractually arranged compensation each month. The amount which arises from the actual sales volume will be payable 14 days after the invoice has been issued. Legal provisions will apply in the event of delinquent payment.

 

  1. Usage Rights

(1) diva-e Products grants the Customer a simple, non-transferable usage right for the purposes outlined in § 2 Paragraph 2 which is limited to the duration of this contract. This entitles the Customer to use the services for internet sites operated by diva-e Products for his or her own purpose. Changes of any kind within the scope of simple usage are not permitted.

(2) The Customer is entitled to transfer the usage rights granted to him or her to a third party (e.g. an advertising customer), either fully or in part, either free of charge or in exchange for payment, in keeping with the usage rights granted to him or her in § 4 in the context of § 6 Paragraph 1 or may create appropriate accounts for this third party at E PWR. The Customer always remains the contractual partner and liable party in such cases should diva-e Products have any claims for payment. No contractual arrangement with any third party occurs at any time.

(3) The Customer remains the owner of all rights, especially all copyrights, to the information and data recorded from the Customer for performing the services. The Customer grants diva-e Products the right to use all information and data, including the right to reproduce information and data and to transfer it to third parties, to the extent required for performing the services.

 

  1. Guarantee

(1) diva-e Products guarantees usability of the SaaS only as described in § 3. The customer is aware that software/SaaS completely free of errors cannot be created. The software being free from defects will therefore only be guaranteed within the normal scope of the market and the sector.

(2) diva-e Products does not guarantee the SaaS will achieve a particular level of performance success, especially regarding the number of conversions, extent of the traffic, range or click prices or CPM (cost per mille).

(3) diva-e Products does not guarantee a successful bidding strategy for the Customer. Delivering a minimum number of clicks in particular is not an object of this service contract, nor is maintaining a specific average CPC or CPM defined by the Customer or exhausting a budget which the Customer has previously defined. This applies especially when that defined budget is inconsistent with the required minimum number of clicks or views. Nevertheless, diva-e Products is committed to using appropriate and commercially reasonable measures within its influence for achieving the Customer’s objective as far as is possible. diva-e Products therefore does not guarantee a positive development in the campaign performance and also does not guarantee that the Customer’s campaign will reach the original status after management. The reason is for this is the market dynamic known to both contractual parties that market conditions can fundamentally change during the management period.

(4) diva-e Products has no influence on falsifications which may arise through erroneously transmitted data from marketplaces (e.g. Amazon Vendor API), advertising blockers, cookies which have been deleted in the meantime or the errors/misuse of third parties.

(5) The SaaS made available by diva-e Products supports the Customer automatically only in the agreed scope and supports the Customer’s marketing measures using software. In particular, diva-e Products is not responsible for checking the Customer’s strategy (e.g. regarding the lawful-ness, reasonableness and commercial viability), that the customer will accept a bid during auction, the Customer’s advertising from the applicable marketplace (e.g. Google Shopping, Amazon) or the site’s owner are punctually, correctly and fully displayed or that the marketing measures will achieve a specific level of success.

 

  1. Liability

(1) diva-e Products is liable in cases of intent or gross negligence for damages incurred by diva-e Products as well as its legal representatives or proxies in the context of performing the services according to this contract as well as for damages resulting from injury to life, the body or to health for which diva-e Products, its legal representatives or proxies are responsible.

(2) Furthermore, diva-e Products is not liable for slight negligence, except in cases where a major contractual obligation is breached. The notion of essential contractual obligations refers to such obligations without whose fulfilment the proper execution of the contract cannot be possible and upon whose compliance the user ordinarily depends or may depend. In these cases, the liability is limited to the replacement of foreseeable, typically occurring damages.

(3) To the extent that diva-e Products’s liability according to the above stipulations is limited or excluded, this also applies for the proxies of diva-e Products.

(4) diva-e Products is not liable in any way for damages as a result of service outages or service delays due to unforeseeable events (force majeure) beyond the control of diva-e Products, its legal representatives or its proxies. Force majeure events are understood to include, in particular, war, unrest, natural disasters, fire, sabotage attacks through third parties (e.g. through computer viruses), electrical power outages, official decrees, legal internal industrial dispute measures and the outage or limiting of service for communication networks and gateways of other Parties, provided these events are not the fault of diva-e Products.

(5) The statute of limitation for damage claims against diva-e Products in one year, calculated from the legal start of the limitation period. This does not apply for claims due to damages from injury to life, the body or health in cases of intentional of grossly negligent dereliction of duty which lapse within the regular period of limitation.

(6) Liability under the Product Liability Act shall remain unaffected.

 

  1. Term of the Contract

(1) The duration and ability to terminate the contract is derived from the Master Agreement.

(2) Every termination requires the written form.

(3) Both Parties are entitled to terminate the Master Agreement for an important reason at any time without adhering to a notice period. An important reason for diva-e Products particularly applies when

  • the Customer is longer than 10 working days in arrears after having received a payment reminder or warning notice;
  • the Customer breaches major provisions of these Terms and Conditions (§ 4) or other legal provisions and has not remedied the situation within a reasonable period despite reminders. No reminder is required if this is not expected to yield success or if the breach is so severe that upholding the contract is not feasible for the Provider.

(4) In the case of an ordinary termination, diva-e Products is obliged to provide the Customer with all contractual and Customer data (also the Customer’s affected accounts) together with all access details to E PWR web applications up until the end of the contractual period.

(5) After termination and, if applicable, upon conclusion of the notice period, diva-e Products shall bar the cancelled services from the Customer. Once the contract has ended, the Customer will lose all usage rights of the affected service and discontinue his or her usage. The Customer is responsible for securing his or her data in time and does not have any claim to be issued with any of his or her recorded data once the contract has ended.

 

  1. Competition and Advertising

(1) Both Parties agree to treat the technical and commercial details of the cooperation confidentially.

(2) Both Parties may report in a general manner that a contractual relationship exists between the Parties in their customer information material, brochures, presentations etc. or, in the case of agencies that such a relationship exists with its end customers, unless one or both Parties object. The Parties shall make company logos available for reference purposes if requested to do so.

 

  1. Data Protection

(1) Compliance with data protection provisions is of particular significance to diva-e Products. In addition to the data protection provisions from E PWR (see www.e-pwr.io/data-protection), the following conditions shall apply.

(2) diva-e Products will process data from the Customer’s own portfolio as well as its user portfolio for the purpose of fulfilling and implementing the contract with the Customer. This will otherwise only be done to the extent permitted by applicable data protection provisions (especially the EU General Data Protection Regulation and the German Federal Data Protection Act). diva-e Products is entitled to the data created through the use of the services by the user, such as tracking/tag information and statistics, in an anonymised form.

(3) The Customer is required to comply with all data protection provisions applicable to the Customer (especially the EU General Data Protection Regulation and the German Federal Data Protection Act).

(4) Should diva-e Products be used due to the breach of data protection provisions or the personal rights of third parties on the part of diva-e Products or should damages be sustained by diva-e Products as a result, the Customer shall release and indemnify diva-e Products from all related claims regardless of the type, including reasonable costs for a legal defence (e.g. court and lawyer costs), to the extent that the Customer is responsible for the breach/damages.

 

  1. Information Regarding Further Offers from diva-e Products for E PWR

(1) diva-e Products will use the necessary email address for the implementation of the contract to inform the Customer from time to time about current developments and new products and services at E PWR.

(2) The Customer can cancel the use of the email address at any time without incurring any costs according to the basic tariff (e.g. emailing diva-e Products at info@e-pwr.io). The Customer is advised of this option to cancel in each advertising email from diva-e Products for E PWR.

 

  1. Changes to these Terms and Conditions and the Services

(1) These terms and conditions change be changed to extent necessary for the adjustment of developments which were not foreseeable at the time the contract was signed and which diva-e Products has not caused, is unable to influence, and whose non-consideration would significantly disrupt the balance of the contractual arrangement and to the extent that significant provisions of the contractual arrangement would not be affected. Significant provisions are those regarding the type and scope of contractually arranged services and the duration, including provisions for termination. Furthermore, these terms and conditions can be amended to the extent that this is necessary for resolving significant difficulties in implementing the contract due to contractual loopholes which have emerged after the contact has been signed by both Parties. This can particularly be the case if the jurisdiction affecting the validity of provisions in these terms and conditions changes, e.g. if a court ruling declares a provision to be invalid or if a change to the law renders a provision invalid.

(2) The contractually arranged services can be changed if necessary due to a compelling reason which was not foreseeable at the time the contract was signed and if the balance of service and consideration would be changed as a result to the detriment of the Customer. A compelling reason applies if new technological developments make a service change necessary because the performance in the previous contractually arranged form can no longer be delivered or if newly enacted or changed legal or other sovereign provisions necessitate a change of services.

(3) diva-e Products shall notify the Customer in text form of any changes to these terms and conditions or the contractually arranged services in accordance with the preceding paragraphs 4 and 5 at least six (6) weeks prior to their planned effective date. The Customer has the right to object to any changes which are not wholly to its advantage up until the effective date. This is to be done in text form (e.g. letter or email). The Customer shall receive a special notice regarding this in the change notification.

 

  1. Final Provisions

(1) The contract is subject exclusive to the law of the Federal Republic of Germany, with the exception of the provisions of private international law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

(2) Only undisputed or legally determined counterclaims can be used to offset or make a right of retention valid against claims from diva-e Products. Furthermore, the Customer is only entitled to exercise a possible right of retention to the extent that a counterclaim from the same contractual relationship exists.

(3) The non-realisation of a contractual right shall not be deemed the waiver of the right in question unless this has been communicated to the other contractual Party by the bearer of this right in writing.

(4) The place of fulfilment is the head office of diva-e Products to the extent that the Customer is a merchant in the sense of the Handelsgesetzbuch, a legal entity of public law or special public funds, the location of diva-e Products will be used as the exclusive place of jurisdiction for all disputes directly or indirectly arising from the contractual relationship (including check, change and documentation procedures). This also applies for the legal dunning procedures, for persons without a place of jurisdiction in Germany, for persons who have moved their place of residence or usual place of abode abroad after having signed this contract, or for persons whose place of usual residence or abode is unknown. diva-e Products is also entitled to institute legal proceedings at the legal place of jurisdiction.

(5) Verbal supplementary agreements are void. Differing or additional provisions together with changes to this contract, including that governing the written form, are only valid when they have been agreed to in writing and have been explicitly labelled as changes or additions.

(6) Should individual provisions of this contract be invalid or lose their validity due to circumstances occurring later, the validity of the rest of the contract shall otherwise remain unaffected. The same applies for any gaps in this contract.

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