GENERAL TERMS AND CONDITIONS

31.07.2015

Bidmanagement GmbH, Chausseestraße 22, 10115 Berlin (hereinafter referred to as “Bidmanagement“) developed different software products (hereinafter referred to as “software products”) to optimise online marketing activities, which they make available to the company “(hereinafter referred to as “client”) either free of charge or in return for payment. The following general terms and conditions (hereinafter referred to as “GTC”) as set out in section I as well as the additional terms of use (hereinafter referred to as “terms of use”) for the product in use as set out in section II apply to the use of these software products.

I. GENERAL TERMS AND CONDITIONS

1. SCOPE

1.1 These GTC apply to all contracts between Bidmanagement and the client for the use of software products (hereinafter referred to as “software license agreement”).

1.2 The GTC apply exclusively. The client’s general terms and conditions only become part of the contract when such has been particularly agreed in writing.

1.3 Only operator of legal age are authorised to use the software products. Operators are natural persons or corporate bodies or a partnership with legal capacity that concludes a legal transaction in the course of carrying out their commercial or independent professional activities.

1.4 Bidmanagement reserves the right to alter these GTC, in particular during technical innovations, further developments and upgrades, as far as these implementation of the technical alterations, further developments and upgrades are necessary. The latest version of the GTC can be requested from support@adspert.de or accessed under http://www.adspert.de/de/agb. The client will receive a notice via e-mail by no later than six (6) weeks before the new version of the GTC taking effect. If the client does not object tthe the new version of GTC within six (6) weeks of them being in force they will be assumed as accepted. Bidmanagement will refer the significance of the six-week notice and the right of objection as well as the legal consequences of silence to the client in a seperate appropriate notice.

2. CONCLUSION OF THE CONTRACT, SETTING UP OF A CLIENT ACCOUNT AND CONNECTION TO THE CHOSEN SOFTWARE PRODUCT

2.1 The conclusion of the contract will either take place offline or online.

2.1.1 Offline: Upon the client’s request Bidmanagement will send these GTC including a legally binding offer to the client to conclude a software license agreement which in default of divergent provision will remain valid for seven (7) days. A software license agreement will become legally binding once the client has signed the contractual offer. The 7-day notice governs receiving the contractual offer signed by the client at Bidmanagement.

2.2 The client (online conclusion) or Bidmanagement (offline conclusion) will set up an individual client account after the conclusion of the contract. The client needs to make the following data available to Bidmanagement for setting up of the client account:

  • Client’s data (company, its registered office, postal address, VAT-ID),
  • Client’s e-mail address,
  • Relevant payment information in accordance with the applicable terms of use of the respective software product,
  • Additional information relevant for the purpose and the basic settings as set out in the terms of use of the respective software product.

2.3 After the creation of the client account, the client will be connected to the chosen software product in accordance with the applicable terms of use.

2.4 The software products are compatible with the standard versions of Firefox, Internet Explorer, Safari and Google Chrome. Other browsers are not supported. The client recognises that optimal performance and higher speeds of the software products are only possible using the latest version of these browsers and outdated versions may lead to slower performance under certain conditions.

2.5 The client is responsible for keeping the password confidential. The client will keep his/her access password confidential and take the appropriate measures needed to maintain confidentiality. Should he/she allow third parties access to the Adspert account the client will be liable for any and all abuses. In the event of abuse or loss of this information or suspicion of such a loss the client will immediately report such to Bidmanagement via e-mail to support@adspert.de.

3. TRIAL PERIOD

Bidmanagement reserves the right to initially offer a trial period during which the client can use the chosen software product for free. If the client would no longer like to use the chosen software product at the end of this trial period Bidmanagement will as a result block the client account. A further use of the software product is not possible afterwards. The right for a trial period is not guaranteed.

4. GRANT

4.1 Bidmanagement grants the client the non-exclusive (simple), non-transferrable and non- sublicensable right to use the software prodcuts from Bidmanagment’s central server in accodance with the terms of use for the duration of the agreed period. Ownership of the software product is not transferred to the client. Should Bidmanagement provide new versions, updates or upgrades of the software products during the contractual term the right of use indicated will apply to the same degree. However, Bidmanagement is under no obligation to provide new versions, upgrades or updates where this is not required to rectify a defect. Other than for the purpose of these GTC the client is not entitled to use, reproduce or download the software product or any other data than his/her own and also not making such data accessible to third parties.

4.2 In every case where the client culpably grants third parties access to the software products in use, the client will be held liable for damages amounting to the fees that would arise for the client from the conclusion of a contract that would be the standard contractual period of one (1) year. The client reserves the right to prove that no damage or significantly lower damage was inflicted. All further rights from Bidmanagement will remain unaffected by the above-mentioned provision.

4.3 Should the usage of the software product as set out in the contract be hindered not through any fault of Bidmanagement but rather through the property rights of third parties, Bidmanagement has the right to refuse the provision of services affected by this. Bidmanagement will immediately inform the client of such a hindrance and provide the client access to the data in an appropriate manner. In such cases, the client will not be required to pay. All other claims or rights from the client will remain untouched.

5. DATA PROTECTION

5.1 If the client provides data to Bidmanagement regardless of its form the client will save a backup on their own data storage system beforehand. Bidmanagement will backup the transferred data from the client by saving it to the data base and backup for the duration of the contract.

5.2 Bidmanagement will use virus scanners and firewalls so that there is no unauthorised access to the client’s data and that the transfer of harmful data in particular viruses is hindered or prohibited as far as economically and technically possible.

5.3 The client is however aware that it is impossible to fully protect him/herself against harmful data and unauthorised access to his/her data. Should it not be possible to remove successfully a threat at a reasonable technical and economic cost Bidmanagement is entitled to delete the client’s data with the harmful content. Bidmanagement will inform the client accordingly.

5.4 In the event of any data loss the client will either provide the relevant data to Bidmanagement or enable access to the data free of charge once again.

6. AVAILABILITY OF THE SOFTWARE PRODUCTS

6.1 Bidmanagement guarantees 99% availability of the software products as an annual average.

6.2 Should maintenance work be necessary Bidmanagement will inform the client in due time where possible, of the resulting downtime of the software product. Disruptions due to maintenance work will not be deducted from the availability due.

6.3 Bidmanagement will not be held responsible for internet/network generated down times especially where hardware and software cannot be accessed via the internet due to problems which do not fall under Bidmanagement’s sphere of influence (e. g. force majeure, a third party action etc.)

7. CLIENT SUPPORT

Bidmanagement will not be obliged to provide client support. It will only supply the software product in question. Nevertheless, Bidmanagement will however endeavour to answer any client questions made over the telephone using the client hotline number shown on the website or sent to the e-mail address which is also listed there within three working days (based on the current domicile of Bidmanagement).

8. WARRANTY

8.1 The period of limitation for Warranty claims is one year. This does not apply to the client’s claims for compensation of damages as set out in clauses 9.2 and 9.3.

8.2 Bidmanagement is responsible for ensuring that the software products correspond to the performance specifications arising from the relevant terms of use.

8.3 The object of the warranty is solely the version of the software product that has been made available by Bidmanagement. Neither software product errors that lead subsequently back to interventions caused by the clients nor are errors arising from the client’s operating system or third party products the object of the warranty.

8.4 The client must report obvious defects immediately or two weeks at the latest after the beginning of use. Any other defects must be reported upon detection without delay. Notification must be made in writing to support@adspert.de. A comprehensible description of the defect must be included. The warranty will lapse for any defects not reported in good time.

8.5 In as far as possible, the client will support Bidmanagement free of charge in the rectification of the defect and provide the necessary documents, data, et cetera required for the analysis and rectification of the defect.

8.6 If it emerges that after inspecting the defect reported by the client that the reported error is not a defect arising from the software product (cf. also clause 8.3) Bidmanagement may charge the client the cost of inspecting the reported defect in accordance with either the standard hourly rates or current prices set by Bidmanagement. The current hourly rate is 75 pounds per hour. This does not though apply, if the client did not also recognise, while acting under due care that the disturbance would not fall within the sphere of responsibility of Bidmanagement.

8.7 By way of derogation from the above provisions, Warranty claims for Bidmanagement will be in accordance with Sections 599, 600 of the German Civil Code (Bürgerliches Gesetzbuch: BGB) in the case where the contractual parties have agreed upon a free trial period.

9. LIABILITY

9.1 Clients may not claim damages.

9.2 Exempt from this limitation of liability, are compensation claims for loss of life, bodily injury and damage to health or breaches of material contractual obligations (cardinal obligations) as well as liability for other damage resulting from an intentional or grossly negligent breach of obligations on the part of Bidmanagement, their legal representatives or agents. Cardinal obligations as defined in these GTC are such obligations which allow for the orderly execution of the contract and the attainment of its purpose and whose adherence the client needs to be able to trust in.

9.3 Bidmanagement will be liable for other negligent breaches of important contractual obligations on the merits, regardless of the legal basis. In such cases, the amount that Bidmanagement will however only be liable is up to the amount of a typically foreseeable damage.

9.4 Bidmanagement will assume no further liability. In particular Bidmanagement will not be liable for initial defects, provided that the conditions stated in clauses 9.2 and 9.3 do not exist.

9.5 Bidmanagement will not be liable for damages; insofar that the client could have prevented these occurrences though measures that are reasonably expected of him/her, in particular program and data backups.

9.6 Bidmanagement will also not be liable for the content of the client’s advertising campaign. In particuler, Bidmanagement makes no proprietary claim to such content.

9.7 The provisions under clause 9 will also apply to the benefit of employees, other agents and legal representatives of Bidmanagement.

9.8 In the event that the contractual partners have agreed upon the free use of an indivdual software product, Bidmanagement’s liability is limited to intent and gross negligence, departing from the provisions above (cf Section 599 of the German Civil Code, Bürgerliches Gesetzbuch, BGB). Any other liability is exempted in such a case.

9.9 Liability under the German Product Liability Act will not be affected.

10. INDEMNITY

10.1 Bidmanagement will not be liable for the clients’s advertising campaigns on the online-advertising platforms (e.g: Google, Adwords, Yandex, Facebook and Bing). The client will be exclusively liable for this. The client will indemnify Bidmanagement from all compensation claims made by other users, online advertising platforms or other third parties (including authorities) on the grounds of an infringment of their rights caused by the inclusion of illegal or false information, in particular with regards to the use of illegal search terms on the client’s advertising campaigns. The client will assume all reasonable costs including reasonable costs resulting from legal defense that Bidmanagement will incur due to the client’s infringement of third party rights. All other rights and compensation claims from Bidmanagment will remain untouched. The client is entitled to prove that the incurred costs from Bidmanagement were actually lower.

10.2 The aforementioned obligations will only apply, when the client can be held accountable for the infringement of the right.

11. FEE, BILLING, DELAY

11.1 The client must pay Bidmanagement the fee, which was agreed upon in writing. Where the contractual partners have not agreed upon the fee in writing, the fee to be paid by the client will be in accordance with the price list set out in the terms of Use for the software Product in question.

11.2 The fee to be paid by the client can comprise of different instalments for each country.

11.3 All mentioned fees and prices are plus the relevant statutory value added tax.

11.4 The client will receive an invoice for the fee to be paid by him/her by no later than the 15th of each month. Unless otherwise agreed, the fee to be paid by the client must be paid immediately upon the date of the invoice.

11.5 If the client leaves his/her credit card details, his/her PayPal account or his/her account details as a guarantee for the software products, Bidmanagement is authorised to withdraw the fee to be paid by the client directly from the client’s credit card, PayPal account or bank account.

11.6 Should the client revoke Bidmanagements access to the data required for the use of the chosen software product before the contract term expires or there should be other reasons arising from the client’s sphere of responsibility, where the software product can neither be used in part nor in it’s entirety the client will still be required to pay the agreed fee until the end of the contract term.

11.7 Bidmanagement is, without prejudice to other rights, authorised to block the client’s access to his/her account during the default period. In such an event, the client will still be required to pay the monthly fees. The blocking of the account will only be lifted once the client has brought the payments up to date.

11.8 The client may only set–off or exercise a right of retention in the case of legally determined or uncontested claims. The client may assign claims arising from this Contract to third parties only with the written agreement of Bidmanagement.

12. TERM AND TERMINATION

12.1 The software license agreement will begin upon conclusion of the contract (cf. clause 2.1). In addition, it will be for an unspecified period, if not subject to a separate written agreement between the parties.

12.2 Where the contract is concluded for an unspecified period, either party may terminate the contract at any time with a 30 day notice to the end of the month.

12.3 Where a contract is concluded for a fixed period, the software license agreement will end after the agreed term ends. It will be automatically extended by the original agreed term, if one of the parties does not terminate it one (1) month before the expiration of the contractual term.

12.4 TThe right to terminate the agremment for good reason will remain untouched. A good reason will exist, if circumstances arise, which will make the continuation of the contract with regard to the content and purpose of the contract for one or both of the parties unreasonable. Good reasons are in particular, where:

  • The client uses the software product above and beyond what is allowed in this contract;
  • The client either defaults on payment of the fee or a significant part of the fee for two consecutive months. Or he/she defaults on payment of the fee that amounts to an amount that corresponds to the fee for two months for a period which covers more than two months.

12.5 The terminating party is required to provide both a written warning before carrying out a termination for good reason and a reasonable period of notice for the contractual condition in question to be rectified. A prior warning can only be waived in cases regulated by law.

12.6 If the Contract is terminated prematurely as a result of circumstances caused by the client, Bidmanagement can demand the client to pay a lump sum of compensation amounting to one half of the remaining fees payable up to the end of the regular term. The amount of damages will be set either higher or lower based on whether Bidmanagement can prove a higher loss or the client can prove a lower loss.

12.7 The termination must be made in writing.

13. CONSEQUENCES OF TERMINATION

13.1 Bidmanagement must not collect user-specific data from the client after termination.

13.2 The client will no longer have access to its client account after termination.

13.3 The client will undertake to withdraw Bidmanagements access to all advertising platforms.

14. GENERAL

14.1 The place of jurisdiction for any disputes arising from the business relationship between Bidmanagement and the client will be decided by Bidmanagement and either in Berlin or the client’s headquarters. The place of jurisdiction is exclusively Berlin for legal actions brought against Bidmanagement. Mandatory statutory provisions concerning exclusive jurisdictions will remain untouched by this provision.

14.2 The law of the Federal Republic of Germany will apply with the exclusion of the CISG.

14.3 Should individual provisions of these GTC be or become completely or partially void and/or unenforceable, the remainder of the GTC will remain in force. The parties are obliged to replace the void and/ unenforcable provision with a vaild and enforceable provision which reflects as far as possible the void and/or unenforceable provision. This will also apply to the rectification of any gaps in this contract.

II. TERMS OF USE FOR ADSPERT

1. PERFORMANCE SPECIFICATIONS

1.1 Adspert is a self-learning software that adapts flexibly to market changes in order to manage and direct advertising campaigns on online advertising platforms (such as Google Adwords, Yandex Direct, Bing and Facebook).

1.2 The management of advertising is carried out using statistical analysis. Adspert automatically regulates the cost-per-click (“CPC”) offer to meet the client’s objectives. Depending on the client’s objectives the support can take the form of maximisation of profit, the generation of a specified number of conversions, the expenditure of a specific budget, the achievement of costs per conversion and the increase in Return on Investment (ROI). If a specific KUR or an individual goal should be achieved via API, this shall be transmitted to Adspert.

1.3 Adspert will not be responsible for the implementation of a successful bidding strategy. In addition, Adspert will neither guarantee a minimum number of clicks nor maintain an average CPC determined by the client or completely exhaust a budget set by the Client. This applies in particular in the event that the set budget is inconsistent with the desired number of minimum clicks.

1.4 Bidmanagement is obliged to do its upmost to fulfill exactly the client’s specifications. Bidmanagement will not be liable for a negative development of the advertising campaign. Due to the dynamics of environmental changes within the advertising market (e.g. seasonal changes, new competitors, slump in demand of individual products and penalties from the online advertising platforms for certain advertising measures), Bidmanagement will not be liable when the advertising campaign optimised by Adspert corresponds exactly to the original advertising campaign before being optimised by Adspert.

2. REQUIREMENTS FOR THE CONNECTION TO ADSPERT

2.1 The connection to Adspert on each online advertising platform depends on the respective specifications and technical requirements of the marketing program from each online advertising platform.

2.2 The client must have a client account at Bidmanagement (cf. clause 12.2) and an active account on one of the online advertising platforms (e.g. Google AdWords-Account, Yandex, Bing, Facebook).

2.3 The client must provide via Adspert access to his/her data within the framework of the online advertising platforms (e.g.by disclosing his/her 10 digit Google-Adwords account number or the Google Adwords API) in order to be connected to Adspert. The client must provide Bidmanagement with the required information. Should this disclosure neither take place nor be correct the use of Adspert will not be possible.

3. FEE

Unless agreed otherwise in writing the fee will be composed of a minimum monthly fee for each account Bidmanagement manages on an online advertising platform and a variable monthly fee.The variable fee is based on the „advertising expenditure” of the client. The client may track all transactions processed via Adspert on the Adspert dashboard. The monthly minimum fee will take into account the variable monthly fee. The client’s monthly fee is defined as follows: the monthly fee will be 399 pounds if the expenditure for Google Adwords is below 10,000 pounds. A variable fee amounting to 3.5% of the expenditure for Google Adwords in that month will be charged if the expenditure for Google Adwords is above 10,000 pounds.

4. CHANGES

Bidmanagement reserves the right to alter these terms of use in particular during technical alterations, subsequent developments and upgrades provided that the implementation of the technical alterations, subsequent developments and upgrades are necessary. The latest version of the terms of use can be requested from support@adspert.de or accessed under http://www.adspert.de/de/agb.The client will receive written notice via email no later than six weeks prior to the new version of the terms of use taking effect. If the client does not object to the the new terms of use within six (6) weeks of them being in force the new terms of use shall be deemed accepted. Bidmanagement will refer the client in an appropriate manner of the significance of the six-week notice and the right of objection as well as the legal consequences of silence.

III. TERMS OF USE FOR ADSPERT-RTB

1. SCOPE

1.1 Bidmanagement provides with Adspert-RTB a self-learning software that adapts flexibly to market changes for the automated buying of ads on numerous online advertising platforms and transfers the advertising content of its advertising clients to the website operators behind the online advertising platforms in return for payment.

1.2 Bidmanagement acts as an independent contracting party towards the advertising client who acts in his/her own name and for his/her own account. Bidmanagement will not facilitate any contractual relations between the advertising client and the third party in particular not between the advertising client and the website operators.

1.3 Bidmanagement provides the client with a technical interface (API) where the client will place on Bidmanagement the automated orders for the buying of online ads. The placed orders will be exported to the connected Real-Time-Bidding platforms by Bidmanagement through Bidmanagement registering the transmitted advertising material on platforms connected to Bidmanagement.

1.4 The management of advertising is carried out using statistical analysis. As a result the debiting by Bidmanagement will take place on a CPM basis (cost per mile basis) (Bidmanagement will pay the linked platforms for every 1.000 advertisements). The goal is to generate clicks on the advertisements via optimal positioning on the appropriate platforms. Bidmanagement charges the client according to the CPC-Basis (the client determines the CPC and pays this CPC for each click on the advertisement), so that Bidmanagement among others will bear the CTR –Risk (CTR=click through rate: the ratio between the insertion of the advertisement and the click on the advertisement).

1.5 Bidmanagement reserves the right to reject advertising campaigns and will neither guarantee a minimum number of clicks nor the exhaustion of a budget set by the client. This applies in particular in the event that the set budget is inconsistent with the desired number of minimum clicks.

1.6 Bidmanagement is obliged to do its upmost to fulfill exactly the client’s specifications. Bidmanagement will not be liable for a negative development of the advertising campaign. Due to the dynamics of environmental changes within the advertising market (e. g. seasonal changes, new competitors, slump in demand of individual products and penalties from the online advertising platforms for certain advertising measures), Bidmanagement will not be liable, when the advertising campaign optimised by Adspert corresponds exactly to the original advertising campaign before being optimised by Adspert.

2. GRANT, INDEMNITY, CLIENT’S RESPONSIBILITY

2.1 The client grants Bidmanagement free of charge and without any territorial restrictions for the transmitted advertising content all of the rights necessary in order to execute the Contract for the duration of the advertising campaign. This includes in particular the right to make the advertising content on online media such as the internet publicly accessible.

2.2 The client will indemnify both Bidmanagement and the website-operators from any claims made by a third party upon first request, provided that these claims infringe third party rights, statutory provisions or obligations arising from this GTC. The exemption also includes adequate legal representation including court and lawyer fees.

2.3 In the case of a third party claim, the client undertakes to support Bidmanagement and the website operator as far as possible with information during the assessment of the claims and the legal defense. The above-mentioned obligations of the client will not apply if he or she cannot be held accountable for the infringement. Any further claims from Bidmanagement and the website operator against the client will remain unaffected.

2.4 The client is responsible for both the technological aspects and content of the advertising content provided by Bidmanagement. The client guarantees that the advertising content is not against the law, in that he or she has for the advertising content the rights required to fulfill this Contract and that third party rights, in particular copyright or intellectual property rights are not affected by their use.

2.5 The client guarantees that the advertising content transmitted by him/her will not contain in particular any content which glorifies violence or war, is of an erotic or pornographic nature, incites violence or is inhuman nor is content objected to by the German Advertising Council or symbols of unconstitutional organisations.

2.6 The client guarantees that advertising content transmitted by him/her will not lead to pages (e. g. via links) whose content infringes the above clauses.

2.7 If the client acts as an agent on behalf of another client, he/she is obliged to carefully select the advertisers representing him/her, to bind them by the provisions of these GTC, to take steps against an infringement and to report the infringement immediately.

2.8 Bidmanagement is entitled to either demand the blocking of an advertising campaign without giving any reason at any time or arrange it themselves; if a website operator or Bidmanagement has been authorised by an administrative or judicial decision to remove the client’s advertisement and or the client’s pop-up ad leads to or has led to a functional error for the website operator.

3. FEE

3.1 Unless agreed otherwise in writing, the fee will be composed of a minimum monthly fee for each account Bidmanagement manages on an online advertising platform and a variable monthly fee. The variable fee is based on the „advertising expenditure” of the client.

3.2 The client undertakes to pay a fee to Bidmanagement that corresponds to the value of the advertising campaign stipulated in the Contract (The number of clicks multiplied with the CPC).

3.3 The clicks determined by Bidmanagement will serve as a basis, provided that they do not differ more than 20% from the clicks determined by the client. If the difference is bigger, we will determine “a fair value” through a joint investigation.

3.4 The billing is carried out by establishing a credit with Bidmanagement this means the client will make an advance payment and further payments will be made depending on use (“prepaid-model”). All fees and prices are plus the relevant statutory value added tax.

3.5 The client will receive the invoices by no later than the 15th of each month.

3.6 The client may only set–off or exercise a right of retention in the case of legally determined or uncontested claims. The client may assign claims arising from this Contract to third parties only with written agreement from Bidmanagement.

4. CHANGES

Bidmanagement reserves the right to alter these terms of use, in particular during technical alterations, subsequent developments and upgrades, provided that the implementation of the technical alterations, subsequent developments and upgrades are necessary. The latest version of the terms of use can be requested from support@adspert.de or accessed under http://www.adspert.de/de/agb. The client will receive written notice in an e-mail no later than six weeks prior to the new version of the terms of use taking effect. If the client does not object to the the new terms of use within six (6) weeks of them being in force,the new terms of use will be deemed accepted. Bidmanagement will refer the client in an appropriate manner of the significance of the six-week notice and the right of objection as well as the legal consequences of silence.