of the
INGENIOUS TECHNOLOGIES AG
(hereinafter: Ingenious)
Französische Strasse 48
10117 Berlin

1. scope of application

For contracts between Ingenious and the contractual partner (hereinafter referred to as the client) for services, in particular in the context of the use of the Ingenious Technologies software "Partner Marketing Platform" including the modules Trail, Partnerships, Insights, Finance, Access, Creatives and Messaging (collectively and individually also referred to as "Software"), the following General Terms and Conditions 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 and, if applicable, customized consulting services and other services.

2.1.1 Ingenious is a platform for the automation of business processes and the associated data for the purpose of partnership management within B2B2B2C relationships in accordance with Clause 5.

2.1.2 Insofar as the parties agree on consulting or operational services, Clause 6 shall also apply.

2.1.3 Insofar as the parties agree on other services, Clause 7 shall apply additionally.

2.1.4 The use of Payment-as-a-Service requires a separate agreement between the parties.

2.2 The sending of an order by letter, fax or e-mail or, in the case of an online booking, the sending of an online order request is deemed to be an offer by the client to conclude a contract. Such an offer of the client refers to the respective services offered by Ingenious and includes these General Terms and Conditions. The acceptance by Ingenious can take place after receipt and examination of the offer expressly either by a corresponding notification to the client 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 7.

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 will announce significant changes, which change the functionality of the software as a whole, with a notice period of at least two weeks in an appropriate manner, e.g. during the use of the software.

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 dynamic user manual that can be accessed via the Internet, which describes the essential functionalities of the Ingenious platform and is updated from time to time. A more extensive description of the Ingenious platform 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 the use of the software (including the management of companies, dealers/advertisers or 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.

4.1.3 The client must refrain from any activity that is likely to impair and/or excessively burden the operation of the software, the services offered and/or the underlying infrastructure.
This includes in particular
- the use of software, scripts or databases in connection with the use of the software;
- automatically reading, blocking, overwriting, modifying or copying data, unless this is necessary for the intended use of the software;
- using the software for a purpose or in a manner that is expressly prohibited or illegal under these terms and conditions or the offer;
The Client shall comply with applicable law, including applicable export laws, when using the Software.

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 only provide Ingenious with 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 custom and 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 The client is responsible for all actions of its customers and other partners and agents within the scope of this contract and, if applicable, must accept responsibility for their actions as if they were its own.

4.3 Payment of the remuneration

4.3.1 The customer is obliged to pay the agreed remuneration to Ingenious in due time in accordance with Clause 8.
Ingenious to pay.

4.4 Reimbursement of costs for SSL certificates

4.4.1 Ingenious offers tracking via the client's domain. Insofar as the use of Wild Card SSL certificates is required for this, Ingenious shall order these for the client. The client shall reimburse the costs incurred for this at least for one year in advance. Clause 8 applies accordingly.

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.

4.5.2 The use of the software is only authorized for the contractually defined purpose (clause 5). In the event of improper use by the client or its partners or agents, Ingenious reserves the right to suspend further execution of the order until the client or its partners or agents cease the improper behavior.

4.6 Exemption

4.6.1 The client indemnifies Ingenious against all claims of third parties arising from alleged or actual infringements of rights by the client and/or its partners and/or agents and/or infringements of rights of third parties and undertakes to reimburse Ingenious for any costs incurred by Ingenious as a result of claims by third parties. 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 training program offered by Ingenious and are certified. Persons without appropriate training may not use the software.

4.8 Data protection

4.8.1 The protection of personal data has the highest priority for Ingenious. The client undertakes to comply with all data protection regulations when using the software and to take the necessary technical and organizational measures to protect the data from loss, unauthorized access and other dangers. Any security problems in connection with data protection must be reported to Ingenious immediately.

5. partnership management platform

5.1 Partnership Management (Partnerships)

5.1.1 Use of the software by the client
The purpose of using the software is to manage the client's partners within a private program, private network or public network. The software supports the client in the management of online advertising campaigns through partnerships determined by the client and success-related events generated by these partnerships (hereinafter referred to as "KPIs" or "events"; e.g. sales): KPIs or events; e.g. sales, leads, transactions, conversions, clicks, views, API calls).

5.1.2 Relationship to partnerships of the client
It is the sole responsibility of the client to select the partnerships of its private programs, private networks or public networks, to initiate a campaign with the respective contractual partner and to contractually structure and implement it.

5.1.3 Self-management of the partnerships
The client shall manage the online marketing campaigns and the partnerships involved itself 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. It is the sole responsibility of the client to manage the confirmation or rejection of KPIs. The maximum period for a fictitious confirmation of the KPIs in the event of no rejection is 60 days.

5.1.4 Tracking (Trail)

5.1.4.1 Part of the software is to enable the tracking of KPIs defined by the client. The tracking system provided by Ingenious shall be used for this purpose.
5.1.4.2 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 the specifications of Ingenious and ensure the permanently reliable delivery of the tracking codes.
5.1.4.3 If tracking is not possible for reasons for which the client or one of its partners is responsible (e.g. due to an expired SSL certificate, change of the DNS setting, other store, website or advertising material failure for which Ingenious is responsible), the claim for remuneration of Ingenious remains 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.
5.1.4.4 The client shall also refrain from doing anything that could impair tracking. The parties shall inform each other immediately if it becomes apparent that tracking is impaired for whatever reason.

5.1.5 Customer journey tracking (insights)

5.1.5.1 Ingenious enables the client to track the results of the online marketing measures agreed with its partners (customer journey tracking with attribution options). The details can be found in the offer.
5.1.5.2 Ingenious will collect the necessary data and make it available in the evaluation tool. The client is responsible for setting the necessary parameters.
5.1.5.3 The client assures comprehensive cooperation in customer journey 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.
5.1.5.4 If tracking is not possible for reasons for which the client or one of its partners is responsible (e.g. due to an expired SSL certificate, change of DNS setting, other store, website or advertising media failure for which Ingenious is responsible), the claim for remuneration of Ingenious 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.
5.1.5.5 The client shall also refrain from doing anything that could impair customer journey tracking and, if necessary, oblige partners accordingly.
5.1.5.6 The parties shall inform each other immediately if it becomes apparent that Customer Journey Tracking is impaired for any reason whatsoever.

5.2 Charging, account processing, billing and payment (finance)

5.2.1 Ingenious supports the client in the recording, calculation, settlement and validation of commissions and payments within the framework of contracts concluded between the client and partners or partners among themselves.

5.2.2 Ingenious clearly assigns each recorded KPI to the partners involved and presents the respective transactions for a defined period in a verifiable manner.

5.2.3 The recorded transactions are summarized in electronic vouchers which, depending on the accounting system used by the client or partners, can serve directly as accounting vouchers. The creation of proper vouchers by Ingenious requires that the data of all partners involved are correctly entered by the client by the beginning of the respective accounting period.

5.2.4 Ingenious ensures complete documentation of the transactions carried out. A change in the status of a partner cannot be deleted retroactively. This also applies to any tax regulations applicable to the partners and any need to re-invoice. The client shall ensure that all information is entered correctly from the outset.

5.2.5 Payment
The following provisions apply additionally if the parties agree to use the Payment section of the Finance module:
5.2.5.1 Ingenious shall support the Client in the settlement of payments agreed in the contracts concluded between the Client and Partners or between Partners.
5.2.5.2 As technical service provider of the client, Ingenious will primarily forward the results automatically generated by the software via an interface (API) to a banking institution designated by Ingenious (hereinafter referred to as "bank"). This includes in particular the forwarding of the notification of the KPIs confirmed by the client when using the software to the bank. In addition, the software automatically generates payment overviews or journals for the partners and makes these available to the client in a digital format.
5.2.5.3 The payment itself is processed by the Bank on behalf of the Client. The use of Payment-as-a-Service without the bank is possible, but requires a separate agreement with Ingenious.
5.2.5.4 Ingenious is not obliged to check the results determined by the software.
5.2.5.5 The processing of payments by the bank is not the subject of this contract.
5.2.5.6 By using the Payment section and confirming the KPIs, the Client can issue payment instructions directly to the Bank. The information is automatically forwarded via the API when the software is used. Ingenious acts neither as an agent nor as a messenger in this process, but solely as a technical service provider.
5.2.5.7 The client is responsible for transferring an appropriate and sufficient budget for the respective campaign to the business account. Ingenious is not obliged to ensure or check sufficient funds in the account.
5.2.5.8 If the budget is used by a third party, e.g. an agency, the amount paid in is deemed to have been paid by the client in case of doubt.

5.3 Access and access data

5.3.1 The client shall ensure that only authorized persons who have been trained in accordance with Section 4.7 are granted access to the software. This applies in particular, but not exclusively, to the use of the API.

5.3.2 The individual access data shall be communicated to the client by Ingenious in good time after conclusion of the contract and completion of the training within the meaning of clause 4.7.

5.3.3 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.

5.3.4 If the customer provides access data for 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.

5.4 Deviations from the original setup

5.4.1 The Platform is intended to provide the best possible performance. Deviations from this setup that are attributable to the actions of the client may affect the overall performance of the platform and the results achieved.

5.4.2 Ingenious is aware that some deviations are reasonable (e.g. in the management and delivery of advertising material (Creatives); in the connection of third-party systems with the Platform (Integrations); in other or additional tags or parameters; in the interaction and communication with Platform participants (Messaging)). However, in order to avoid a reduction in the performance of the system or changes in the availability or flexibility of the platform, the client shall consult with Ingenious before making any changes.

5.4.3 Any reduction in performance or change in availability caused directly or indirectly by deviations made by the client shall be at the client's own risk and responsibility.

 

6. customer services, customer support, training, managed services

6.1 Insofar as the parties agree on additional services, Ingenious shall provide consulting and operational services for the use of the software. The service levels result from the order. Ingenious only owes the consulting service, but not a certain success pursued with the help of the consulting.

6.2 The term of the Customer Support (Standard Support and Premium Support) is linked to the term and notice periods of the main contract in accordance with Clause 10.

 

7. obligations for other service contracts

7.1 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.

7.2 Ingenious is entitled to employ subcontractors to perform 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. The client cannot derive any rights from any delays caused by such changes.

7.3 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.

 

8. remuneration, payment modalities and consequences of default

8.1 All agreed prices are net prices and are subject to the applicable statutory value added tax.

8.2 Unless expressly agreed otherwise in writing, the agreed remuneration shall be paid in advance (prepayment) for three months in advance.

8.3 The set-up fee is due upon conclusion of the contract. Within the first four weeks (set-up phase), the set-up fee covers the costs for a limited monthly consulting volume and set-up. If the scope of the consultation within the set-up phase exceeds the limited consultation volume or if the consultation takes place after the end of the set-up phase, the costs will be charged on a time and material basis in accordance with the applicable price list.

8.4 The Customer Support Fees are due once a year in advance, provided they are shown separately.

8.5 The amount of the agreed technology fee is determined according to the occurrence of the KPIs and commissions specified by the customer in the context of the software. As far as the customer enters commissions in the amount of 0 Euro in a possible success-based fee settlement, Ingenious can determine an amount customary in the market in view of the concrete circumstances at its reasonable discretion when calculating the technology fee.

8.6 Invoices shall be issued at the beginning of each billing period, whereby the amount of the Technology Fees is based on projections resulting from tracking and may be adjusted on an ongoing basis; deviating amounts shall be taken into account and offset in subsequent invoices. The amount of the first invoice is estimated by Ingenious at its reasonable discretion.

8.7 Fees for additional services (e.g. within the scope of other service contracts pursuant to Section 7) shall be invoiced on a time and material basis.

8.8 In the event of late payment, Ingenious may block account or API access and/or disable tracking and/or suspend other individual services or suspend further execution of current orders and campaigns until the outstanding amounts have been paid.

8.9 Claims against Ingenious may only be assigned with its express written consent.

8.10. Ingenious is entitled to adjust the prices at its reasonable discretion (§ 315 BGB) and to increase the stated prices if a further provision of services without price adjustment is unreasonable for Ingenious when weighing up the interests of both parties. Ingenious is entitled to further price increases if the last price increase was made at least 6 months ago. Ingenious will announce the price increases to the client one month in advance by e-mail. If the client does not object to the price increase in writing within 4 weeks of the announcement of the planned price increase, this shall be deemed to constitute acceptance of the announced price increase. Ingenious will point this out separately in the announcement.

 

9 Warranty and liability

9.1 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.

9.2 The client is obliged to inspect the contractual software and its functionality immediately after being granted the possibility of use 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 the defect was not recognizable during the inspection. The same shall apply mutatis mutandis in the case of defects that arise later.

9.3 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 to rectify 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.

9.4 In all other respects, the provisions of service contract law pursuant to §§ 611 et seq. BGB shall apply, whereby claims of the client against Ingenious due to poor performance or defects in the execution 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.

9.5 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.

9.6 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.

9.7 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.

 

10. duration of contract, termination

10.1 The term begins with the signing of the contract. The contract runs indefinitely and can be terminated with a notice period of 12 months to the end of the month, unless otherwise individually agreed in writing.

10.2 Ordinary termination before the end of an agreed minimum contract term is excluded. Unless otherwise agreed, a minimum term of 24 months applies. This does not affect the right to extraordinary termination for good cause.

10.3 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.
- the Client fails to comply with data protection standards contrary to Clause 4.8 and/or 11 or a data protection or data security problem becomes publicly known irrespective of compliance with standards, in particular if third parties gain unlawful access to Client data;

10.4 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 9.2 and 9.3 and Ingenious is unable to remedy the defects or provide access to reasonable alternatives within a reasonable period of time. A material defect in the software only exists if essential components of the software are not or essentially not functional.

10.5 Ingenious may terminate contracts or parts of contracts for which no remuneration is provided (such as for test use) at any time without observing a notice period.

10.6 Notice of termination must be given in writing (§ 126 BGB). Termination by e-mail is excluded.

 

11. confidentiality

11.1 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.

11.2 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.

11.3 Confidentiality agreements (NDA) specified and concluded by the client prior to the conclusion of the contract shall lose their effectiveness upon conclusion of the contract and shall be replaced by this contract.

11.4 As far as Ingenious has to process personal data during the provision of the services, Ingenious will observe the data protection laws. Stored data will be stored by Ingenious for at least six months, even beyond the end of the contract.

11.5 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 agreed remuneration 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.

11.6 Ingenious is entitled to process the collected data in anonymized form. The anonymized data does not allow any conclusions to be drawn about the cooperation partner or its customers.

 

12. final provisions

12.1 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 Berlin.

12.2 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.

12.3 Ingenious is entitled to change the terms of the contract. Ingenious will announce changes to the customer by e-mail within one month before the change becomes effective. If the client does not object to the amendment of the contractual provisions in writing or by e-mail within 2 weeks of the announcement, this shall be deemed to be consent to the validity of the amended contractual provisions. Ingenious will point this out separately in the announcement. In the event that the client makes use of the right to object to the amendment of the contractual provisions, Ingenious shall be entitled to a special right of termination with a notice period of three months to the end of the month.

12.4 The client may only exercise a right of retention due to non-performance or poor performance in relation to the respective part of the service.

12.5 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.

12.6 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.

12.7 Should individual provisions of the contract be or become invalid, this shall not affect the validity of the other provisions as a whole.