INGENIOUS TECHNOLOGIES AG
(hereinafter: Ingenious)
Rosenheimer Str. 145h
81671 Munich
1. scope of application
Contracts between Ingenious and the contractual partner (hereinafter referred to as the "Client") for services relating to the use of Ingenious Technologies Software: Ingenious .net, Ingenious .track, Ingenious .pay (collectively and individually also referred to as "Software"), the following General Terms and Conditions shall apply exclusively in the version valid at the time of conclusion of the contract. Conflicting terms and conditions of the client shall not apply unless Ingenious expressly agrees to their validity in writing.
2 Subject matter and conclusion of contract
2.1 The subject matter of this contract is technical services for the use of Ingenious Technologies software.
2.2 An essential component is the provision of the respectively agreed Ingenious Technologies software, namely Ingenious .net in accordance with Clause 5, Ingenious .track in accordance with Clause 6 and Ingenious .pay in accordance with Clause 7 as individually bookable partial services. Contracts for Ingenious .BIZ include the delivery of all partial services in accordance with the aforementioned clauses.
2.3 By sending an order in text form, the client submits an application to conclude a contract. The subject of this application is an offer by Ingenious, including these GTC. The acceptance by Ingenious takes place after receipt and examination of the order by a corresponding notification to the customer or with the start of the provision of the service by Ingenious.
3. general rights and obligations of Ingenious
3.1 Ingenious shall provide the services agreed in the respective offer and shall take into account the rights, legal interests and interests of the client in the performance.
3.2 Ingenious provides the software as a software-as-a-service solution for access via the Internet and grants the client the right to use it. The scope of services of the software results from these General Terms and Conditions and the respective offer.
3.3 Adaptation of the software to the specific needs of the client is only owed if commissioned separately and in accordance with Clause 8.
3.4 Ingenious is entitled but not obliged to modify the software, in particular to adapt it to technological progress. Individual functionalities may also change or be completely omitted. Ingenious shall give the client at least two weeks' notice in text form (§ 126b BGB) of any significant changes that alter the functionality of the software as a whole.
3.5 If changes are made to the software, this can lead to an impairment of the use of the software by the client. Ingenious will endeavor to carry out these changes at night or on weekends. They may only lead to a temporary interruption or impairment of accessibility during normal business hours if this is necessary for technical reasons. Unannounced periods of unavailability are limited to a total of ten hours per month.
3.6 Ingenious shall provide the client with a user manual as a PDF document, which describes the essential functionalities of the contractual software. A more extensive description of the software is not owed.
3.7 Ingenious is permitted to advertise the fact that the client has commissioned Ingenious in an appropriate manner and may use logos and the like of the client for this purpose in reference lists (whether online or offline) even after the end of the contract.
3.8 Unless otherwise expressly agreed in writing, Ingenious is permitted to accept and process orders from clients in the same or similar sectors during the term of the contract and beyond.
3.9 Ingenious is entitled to assume that all parameters defined by the client within the software itself (e.g. conditions, definitions, advertising material) and the automatically generated results of the software based on these parameters are complete and correct. In particular, Ingenious is not obliged to check the conditions and automatic results.
4. general rights and obligations of the client
4.1 Determining the parameters
4.1.1 The client is responsible for determining the parameters required for using the software (including for partner management).
4.1.2 The client is aware that the results determined by the software are based on a fully automated process taking into account the conditions set by the client.
4.2 General obligations to cooperate
4.2.1 The client undertakes to provide Ingenious with the best possible and comprehensive support in the fulfillment of the contractually agreed services. This obligation to cooperate includes in particular the timely delivery of necessary information and documents.
4.2.2 The client shall provide Ingenious with exclusively truthful information with regard to contract-relevant facts, in particular in connection with the determination of the performance-based settlement with its clients or partners (e.g. when entering the parameters in accordance with clause 4.1). The customer assures that he will not enter into any agreements with his customers or partners which are detrimental to the interests of Ingenious contrary to the principle of good faith with regard to common usage.
4.2.3 The client shall designate at least one contact person for Ingenious who is authorized and able to make all decisions arising in the context of this contractual relationship and to communicate them to Ingenious.
4.2.4 It is the responsibility of the client to ensure that the data stored by it when using the software is backed up at all times.
4.3 Access and access data
4.3.1 The Client shall ensure that only authorized persons who have been trained in accordance with Section 4.7 have access to the Software.
4.3.2 The individual access data will be communicated to the client by Ingenious in good time after conclusion of the contract.
4.3.3 The client must store its access data carefully and protect it from unauthorized access by third parties. The client shall be liable for any actions taken using the access data. The client is not authorized to disclose the access data to third parties.
4.3.4 If the customer assigns access data to third parties (e.g. employees, service providers or customers) with the consent of Ingenious, the customer is responsible for any actions that these third parties take using these access data. He shall familiarize these third parties with the use of the software, inform them of the significance of the actions to be taken, oblige them to store the access data carefully and to protect them from unauthorized access by third parties and expressly prohibit the disclosure of the access data to other persons. The client must also accept actions carried out using such access data.
4.4 Payment of remuneration
4.4.1 The client is obliged to pay the agreed remuneration to Ingenious in due time in accordance with Clause 9.
4.5 Source code and use of software
4.5.1 The client has no claim to the release of the source code of the software. The client is not entitled to gain access to the source code in any way and to make changes to it. Furthermore, the client is not entitled to reproduce or modify the software or to grant third parties access to the contractual software outside the agreed purpose of the contract.
4.6 Exemption
4.6.1 The client shall indemnify Ingenious against all claims of third parties arising from alleged or actual infringements of rights and/or infringements of third-party rights and undertakes to reimburse Ingenious for any costs incurred by Ingenious as a result of third-party claims. Reimbursable costs include in particular the costs of reasonable legal prosecution and legal defense.
4.7 Training
4.7.1 The customer shall ensure that the persons authorized to use the software (in particular employees, service providers or customers) participate in the technical training offered by Ingenious.
4.7.2 If the client works for third parties (e.g. as an agency), he also undertakes to take part in the sales training offered by Ingenious.
4.7.3 The costs of the respective training course are based on the applicable price list.
5 Ingenious .net (Partnership Management)
Insofar as the parties agree to use Ingenious .net, the following shall apply in addition:
5.1 Use of the software by the client
5.1.1 The purpose of using the software is to manage the client's partners within a private program or private network. The software supports the client in the management of online advertising campaigns by partners determined by the client and success-related events generated by these partners (hereinafter: KPIs; e.g. sales, leads, clicks, views).
5.2 Relationship with partners of the client
5.2.1 It is the sole responsibility of the client to select the partners of its Private Programs or Private Networks, to initiate a campaign with the respective contractual partner, to draw up a contract and to carry it out. Ingenious itself does not become a contractual partner of the respective partner of the client.
5.2.2 The client shall manage the online marketing campaigns and the partners involved himself and shall be responsible for determining both the details of the campaigns (e.g. type of advertising material) and the conditions, in particular KPIs and commissions for the contractual partners, within the framework of the software. The confirmation or rejection of KPIs is the sole responsibility of the client. The maximum period for a fictitious confirmation of the KPIs in the event of no rejection is 60 days.
5.3 Tracking
5.3.1 Part of the software is to enable the tracking of KPIs defined by the client. The tracking system provided by Ingenious as part of Ingenious .net is used for this purpose.
5.3.2 The client assures comprehensive cooperation in tracking. In particular, the client shall integrate the corresponding tracking codes (container tags) on the target pages in a timely manner in accordance with Ingenious's specifications and ensure the permanently reliable delivery of the tracking codes.
5.3.3 If tracking is not possible for reasons for which the client or one of its partners is responsible, in particular because the tracking code is not correctly integrated, or if tracking is not possible because the client's web server cannot be reached (e.g. due to an expired SSL certificate, change of DNS setting, other store, website or advertising material failure for which Ingenious is responsible), Ingenious's claim to remuneration shall remain unaffected by this. The calculation of the remuneration amount for the period of the tracking failure is based on the average value of the previous three months.
5.3.4 The client shall also refrain from doing anything that may impair tracking. The parties shall inform each other immediately if it becomes apparent that tracking is impaired for whatever reason.
6. ingenious .track (multichannel tracking)
Insofar as the parties agree to use Ingenious .track, the following shall apply in addition:
6.1 Ingenious .track enables the client to track the results of the online marketing measures agreed with its partners (multichannel tracking). The details can be found in the offer.
6.2 Ingenious will collect the necessary data and make it available in the evaluation tool. The client is responsible for the prior setting of the necessary parameters within Ingenious .track.
6.3 The customer assures comprehensive cooperation in multichannel tracking. In particular, the client shall integrate the corresponding tracking codes (container tags) at all relevant points in a timely manner in accordance with Ingenious's specifications and ensure the permanently reliable delivery of the tracking codes.
6.4 If tracking is not possible for reasons for which the client or one of its partners is responsible, in particular because the tracking code is not correctly integrated, or if tracking is not possible because the client's web server cannot be reached (e.g. due to an expired SSL certificate, change of DNS setting, other store, website or advertising material failure for which Ingenious is responsible), Ingenious's claim to remuneration shall remain unaffected by this. The calculation of the remuneration amount for the period of the tracking failure is based on the average value of the previous three months.
6.5 The client shall also refrain from doing anything that may impair multichannel tracking and, if necessary, oblige partners accordingly.
6.6 The parties shall inform each other immediately if it becomes apparent that multichannel tracking is impaired for whatever reason.
7 Ingenious .pay (Payment & Accounting)
Insofar as the parties agree to use Ingenious .pay, the following shall apply in addition:
7.1 Essential service content and conditions of use
7.1.1 Ingenious supports the client in the settlement of commissions and the processing of payments from the contracts concluded between the client and partners or partners among themselves.
7.1.2 As the client's technical service provider, Ingenious shall primarily forward the results automatically generated by the software via an interface (API) to a banking institution designated by Ingenious (hereinafter: bank). This includes in particular the forwarding of the notification of the KPIs confirmed by the client within the framework of the software to the bank. In addition, the software automatically creates payment overviews or journals for the partners and makes these available to the client in a digital format.
7.1.3 Ingenious will assign and inform the client of a project number or transaction/identification number, which the client must always state in the purpose of payment to the bank.
7.1.4 A prerequisite for the use of Ingenious .pay is the conclusion of a contract with the bank for a collective credit account for payment services as part of the Ingenious .pay service (hereinafter: account contract) on the bank's terms and conditions applicable at the time, whereby the client becomes the joint account holder of the collective credit account. If and insofar as the account contract does not (or no longer) exist, all obligations of Ingenious arising from the use of Ingenious .pay shall cease to apply. The payment processing itself is handled by the bank for the client.
7.1.5 The client undertakes to provide Ingenious with all necessary information for the identity and legitimation verification of the client or of partners who make deposits, in a timely, complete and correct manner. For this purpose, Ingenious is entitled to collect and store the following data from the client and to transmit it to the bank on behalf of the client:
- Company,
- legal form,
- Registration number (if available),
- Address of the registered office or principal place of business (street, house number, zip code, town, country),
- telephone number,
- fax number,
- e-mail address,
- Names of the members of the representative body or legal representatives (first name and surname),
- beneficial owner,
- Reference account details (credit institution, account number, bank code)
This reference account details serve as the payout account for remittances from the collective credit account less any fees, unless another payout account is specified,
- Copy of the extract from the commercial register.
7.1.6 Ingenious is not obliged to check the results determined by the software.
7.2 Payment processing
7.2.1 This agreement does not cover the processing of payments by the Bank.
7.2.2 By using Ingenious .pay and confirming KPIs, the client issues payment instructions directly to the bank, if applicable. The information is forwarded automatically through the use of the software via the API; Ingenious acts neither as an agent nor as a messenger, but merely as a technical service provider.
7.2.3 The client is responsible for transferring an appropriate and sufficiently high budget for the respective campaign to the bank's credit account. Ingenious is not obliged to ensure or check the sufficient coverage of the account.
7.2.4 If the budget is paid in by a third party, e.g. an agency client, the amount paid in shall, in case of doubt, be deemed to have been paid by the client. This shall not apply if the third party itself is a joint holder of the collective credit account at the Bank.
7.2.5 For the full use of Ingenious .pay, it is necessary that the partners to whom commissions are to be paid agree to the payment procedure regulated here, including the bank. It is the responsibility of the client to ensure that appropriate contractual arrangements are made with the partners. This also applies if the client itself does not maintain any direct contractual relationships with the partners (e.g. the partners are commissioned by the client's customers).
7.2.6 The client will inform Ingenious of the reference accounts of the partners as payment accounts to which the bank can make payments if necessary. Ingenious will verify this reference account with a so-called "1-cent transfer". Partners for whom this account verification is negative will not be able to participate in Ingenious .pay.
7.3 Monitoring of account balances
7.3.1 Ingenious shall check the Account transactions and monitor the proper status of the Accounts using the data provided by the Bank by comparing them with the results automatically determined by the Software, but shall at no time be granted rights of disposal over the amounts deposited in the relevant Collection Account.
7.3.2 The client grants Ingenious a comprehensive reading right for the respective collective credit account at the bank and ensures that, if applicable, its clients (and, if applicable, their partners) also grant Ingenious a corresponding right of inspection. This right includes in particular that Ingenious can view the account balance and all account transactions of clients and partners at any time.
7.3.3 If Ingenious detects errors in the account transactions, this will be communicated to the bank and the client by transmitting the transaction data. An error exists in particular if the account transactions do not match the payment data determined by the software.
7.4 Accounting
7.4.1 Ingenious clearly assigns each recorded KPI to the partners involved and presents the respective transactions in a clear and researchable manner for a certain period of time.
7.4.2 The recorded transactions are summarized in electronic documents which, depending on the booking system used by the client or partner, can be used directly as booking documents.
7.4.3 The creation of proper vouchers by Ingenious requires that the data of all partners involved are entered correctly and in good time by the client.
7.5 Bank draft and services without the involvement of a banking institution
7.5.1 During the term of the contract, Ingenious is entitled to use the services of another banking institution for the fulfillment of the obligations arising from this contract. In this case, the client shall conclude appropriate agreements with the new bank designated by Ingenious.
7.5.2 Insofar as the parties have agreed the use of Ingenious.pay to the exclusion of the involvement of the bank, the service of Ingenious in connection with the use of Ingenious .pay is limited to the provision of the account data determined by the software for the client. The billing of the respective campaign is then carried out independently by the client.
8. obligations for other service contracts
8.1 Insofar as other service orders (in particular individual adaptations of the software, training courses, support services) are agreed, Ingenious shall be responsible for acting within the agreed period and scope. The details of the service to be provided by Ingenious are set out in the respective order and - if concluded - in a separate contract. Ingenious owes the performance of the agreed services, but not the achievement of a certain success.
8.2 Ingenious is entitled to employ subcontractors for the performance of services and may replace both subcontractors and individual persons employed to perform the agreed service without the express consent of the client, provided this is not unreasonable for the client. If delays occur due to the changes, Ingenious cannot derive any rights from this.
8.3 When selecting the persons employed to fulfill the service contract, Ingenious shall take the interests of the customer into account appropriately. Ingenious may also commission and involve other external service providers to support the provision of services.
9. remuneration and payment modalities
9.1 All agreed prices are net prices and are subject to the applicable statutory value added tax.
9.2 Unless expressly agreed otherwise in writing, the agreed remuneration shall be paid in advance (prepayment).
9.3 The set-up fee is due upon conclusion of the contract, the production and customer support fees are due once a year in advance. The amount of the agreed transaction fees is calculated according to the occurrence of the KPIs defined by the client within the scope of the software.
9.4 If services are agreed in accordance with clause 7 of these GTC (Ingenious .pay), the client agrees that fees due for the services provided by Ingenious will be transferred by the bank to Ingenious from the budget paid by the client into the collective credit account.
9.5 Invoices shall be issued at the beginning of the billing period (production and customer support fees) or once a month for the current month (transaction fees), whereby the amount is based on projections resulting from tracking; deviating amounts shall be taken into account in subsequent invoices. The customer is obliged to pay Ingenious's travel expenses incurred within the scope of this contract after they have been invoiced by Ingenious.
9.6 In the event of late payment, Ingenious is entitled to charge the client interest at a rate of 8 percentage points above the prime rate. In the event of default of payment, Ingenious may suspend the further execution of current orders and campaigns until full payment has been made.
9.7 Claims against Ingenious may only be assigned with its express written consent.
10 Warranty and liability
10.1 With regard to the granting of the right to use the software, the warranty provisions of §§ 535 ff BGB apply. The no-fault claim for damages pursuant to § 536a para. 1 Alt. 1 BGB is excluded.
10.2 The client is obliged to inspect the contractual software and its functionality immediately after the possibility of use has been granted and to report any defects detected in writing with a precise description of the error. If the client fails to give notice, the software shall be deemed approved, unless it is a defect that was not recognizable during the inspection. The same shall apply mutatis mutandis in the case of defects that arise later.
10.3 Delay in the rectification of defects presupposes the setting of a reasonable deadline for the rectification of defects by the customer. If this deadline expires, the client has the right to set Ingenious a further reasonable deadline for rectifying the defect. If Ingenious does not remedy defects within this period, the customer has the right to reduce the agreed remuneration appropriately. All deadlines must be set in writing.
10.4 In all other respects, the provisions of service contract law pursuant to §§ 611 et seq. of the German Civil Code (BGB) shall apply, whereby claims of the client against Ingenious for poor performance or defects in the performance of the services shall lapse six months after the claim arises and knowledge or grossly negligent or willful ignorance of the circumstances giving rise to the claim.
10.5 Ingenious and/or its vicarious agents and/or legal representatives shall only be liable in the event of intent or gross negligence. The contractual and non-contractual liability for property damage and financial loss, loss of profit and consequential damage of the customer is excluded in the case of slight negligence, unless it concerns liability for the breach of essential obligations (cardinal obligations). Cardinal obligations are those obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the client may regularly rely. In cases of slightly negligent breach of a cardinal obligation, liability shall be limited to the amount of damages foreseeable at the time of conclusion of the contract and typical for the contract.
10.6 Liability is otherwise excluded, whereby the exclusion of liability does not apply in the event of damage to life, limb or health of a person or to liability under the Product Liability Act.
10.7 As a service provider, Ingenious is not liable for damages caused by technical malfunctions or service disruptions of the provider or other third parties. Ingenious is also not liable for damages which the customer could have prevented by reasonable measures, in particular regular, at least daily, program and data backup.
11 Contract duration and termination
11.1 The term begins with the signing of the contract. The contract runs indefinitely and can be terminated with a notice period of 6 months to the end of the month, unless otherwise individually agreed in writing.
11.2 Ordinary termination before the end of an agreed minimum contract term is excluded. Unless otherwise agreed, a minimum term of 12 months shall apply. This does not affect the right to extraordinary termination for good cause.
11.3 An important reason for termination exists for Ingenious in particular if
- the customer does not fulfill his obligation to pay the remuneration despite a reminder;
- the client is in arrears with the payment of the monthly remuneration in an amount equal to the remuneration for two months;
- Ingenious is held liable by third parties for alleged infringements in connection with the work for the client, or
- the client grossly violates its obligations to cooperate under this contract or, in the case of less serious breaches of contract, does not cease the conduct complained of despite a corresponding notice.
11.4 Good cause entitling the customer to terminate the contract due to defects in the software shall only exist in the case of material defects and only if the customer acts in accordance with clauses 10.2 and 10.3 and Ingenious is unable to remedy the defects or provide access to reasonable alternatives within the reasonable exclusion period. A material defect of the software only exists if essential components of the software are not or essentially not functional.
11.5 Notice of termination must be given in text form (§ 126b BGB).
12 Confidentiality and data protection
12.1 The contracting parties undertake to treat all operational and business policy information and findings of the other contracting party that become known in connection with the performance of this contract as confidential and not to disclose them to third parties without the prior consent of the other contracting party, and to impose a corresponding obligation on their employees and vicarious agents. This shall not apply if information and findings are generally known or were already known to the other contracting party at the time of disclosure. This obligation shall continue to apply even after termination of the contractual relationship.
12.2 All documents handed over to Ingenious by the customer are confidential. Ingenious shall store them carefully and return them to the customer upon request. There is no right of retention on these documents. Ingenious is entitled to make copies for the purpose of securing findings and evidence.
12.3 Insofar as Ingenious has to process personal data when providing the services, Ingenious shall comply with the data protection laws.
12.4 In the context of the cooperation, it cannot be excluded that Ingenious obtains personal data of interested parties or customers of the client. Ingenious places the highest value on confidentiality and protection of data. Ingenious observes the principle of data economy and deletes personal data of interested parties and customers of the client that come into its possession no later than four weeks after payment of the remuneration agreed for the underlying marketing campaign. Ingenious protects data according to the current standard, the technical development and the sensitivity of the data offered encryption mechanisms. Ingenious is entitled to manage data in anonymized form in order to statistically evaluate marketing measures and thus contribute to the improvement of campaigns. Such anonymized data does not allow any conclusions to be drawn about the cooperation partner or its customers.
13. final provisions
13.1 All disputes between the contracting parties shall be governed exclusively by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods. The place of performance and jurisdiction for all disputes arising from and in connection with this contract, regardless of the legal basis, is Munich.
13.2 All amendments or additions to these GTC or the underlying contract must be made in text form (Section 126b BGB). This also applies to any amendment to this provision.
13.3 Changes to the contractual provisions by Ingenious are possible with a notice period of 28 days. The client has a special right of termination in the event of changes to the GTC, which must be asserted within one week of notification.
13.4 A set-off of liabilities of the client arising from this contract is only permissible with claims against Ingenious, the existence of which has been legally decided or expressly recognized by Ingenious by written declaration.
13.5 Ingenious is entitled to transfer this contract with all rights and obligations to a subsidiary or sister company. The transfer shall take effect 28 days after it has been notified to the client.
13.6 Should individual provisions of the contract be or become invalid, this shall not affect the validity of the other provisions as a whole.