of the
INGENIOUS TECHNOLOGIES AG
(hereinafter: Ingenious)
Französische Str. 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 "Ingenious Enterprise" with Omni-Channel Tracking, Partnership Management, Billing & Accounting and Finance-as-a-Service modules(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 offers its clients a uniform overall solution consisting of Omni-Channel Tracking, Partnership Management and Accounting & Billing in accordance with clause 5.
2.1.2 Insofar as the parties agree to use the Ingenious Finance-as-a-Service module, Ingenious offers additional services in accordance with clause 6.
2.1.3 Insofar as the parties agree on consulting or operational services, clause 7 shall apply additionally.
2.1.4 If the parties agree on other services, clause 8 shall apply additionally.

2.2 By sending an order in text form or - in the case of an online booking - by sending the order, the client submits an application to conclude a contract in case of doubt. 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 client or with the beginning 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 customer during the execution.
3.2 Ingenious shall provide the software as a Software-as-a-Service solution for access via the Internet and shall grant the customer the right to use it. The scope of performance of the software results from these General Terms and Conditions and the respective offer.
3.3 An adaptation of the software to the specific needs of the customer is only owed in the case of a separate order 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 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 customer. Ingenious will endeavor to carry out these changes at night or at 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 customer with a user manual as a link or as a PDF document, which describes the essential functionalities of the contractual software. A further description of the software is not owed.
3.7 Ingenious is permitted to advertise the fact that the customer has commissioned Ingenious in an appropriate manner and for this purpose may also use logos etc. of the customer in reference lists (whether online or offline) beyond 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 to use the software (e.g. for advertiser 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.

4.2 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 facts relevant to the contract, in particular in connection with the determination of the performance-based billing 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 customer 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 customer to ensure a permanent backup of the data stored by him when using the software.
4.2.5 The client is responsible for all actions of his customers and other partners and agents within the scope of this contract and must, if necessary, accept their actions as his own.

4.3 Access and access data

4.3.1 The client shall ensure that only authorized persons trained in accordance with clause 4.8 have access to the software.
4.3.2 The individual access data shall be communicated to the customer by Ingenious in good time after conclusion of the contract and completion of the training within the meaning of clause 4.8.
4.3.3 The customer shall store his access data carefully and protect them from unauthorized access by third parties. The customer 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 Reimbursement of costs for SSL certificates

4.5.1 Ingenious offers tracking via the customer's domain. Insofar as the use of Wild Card SSL certificates is required for this, Ingenious shall order these for the customer. The costs incurred for this shall be reimbursed by the customer for one year in advance. Clause 9 applies accordingly.

4.6 Source code and use of software

4.6.1 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.
4.6.2 The use of the software is only authorized for the contractually defined purpose (Clause 5). In the event of improper use by the customer or its partners or agents, Ingenious reserves the right to suspend further execution of the order until the customer or its partners or agents cease the improper behavior.

4.7 Exemption

4.7.1 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.

4.8 Training

4.8.1 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 are not allowed to use the software.
4.8.2 The costs of the respective training are based on the applicable price list.

4.9 Data protection

4.9.1 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. Security problems in connection with data protection are to be communicated to Ingenious immediately.

 

5th Ingenious Enterprise

5.1 Partnership management

5.1.1 Use of the software by the client
The purpose of using the software is to manage, among other things, the client's partners within a private program or a 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 (hereinafter referred to as "KPIs"): KPIs; e.g. sales, leads, transactions, conversions, clicks, views).

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, to contractually design 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. The management of 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.

5.1.4 Tracking

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, 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 media 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.
5.1.4.4 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.

5.2 Omni-channel tracking

5.2.1 Ingenious enables the client to track the results of the online marketing measures agreed with its partners (omni-channel tracking with attribution options). The details result from the offer.
5.2.2 Ingenious will collect the necessary data and make it available in the evaluation tool. The client is responsible for setting the necessary parameters.
5.2.3 The client assures comprehensive cooperation in omni-channel 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.
5.2.4 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.
5.2.5 The client shall also refrain from doing anything that may impair omni-channel tracking and, if necessary, shall oblige partners accordingly.
5.2.6 The parties shall inform each other immediately if it becomes apparent that omni-channel tracking is impaired for any reason whatsoever.

5.3 Accounting & Billing

5.3.1 Ingenious supports the Client in the settlement and validation of commissions between the Client and Partners or between Partners.
5.3.2 Ingenious clearly assigns each recorded KPI to the partners involved and presents the respective transactions in a searchable manner for a certain period of time.
5.3.3 The recorded transactions are summarized in electronic vouchers which, depending on the accounting system used by the client or partners, can be used directly as accounting documents. The creation of proper receipts by Ingenious requires that the data of all partnerships involved are correctly entered by the client by the beginning of the respective accounting period.
5.3.4 Ingenious is not obliged to retroactively take into account a change in the tax status of the advertising partner. This applies to the tax laws applicable to the partnerships and in particular in the event that a small business owner under German law exceeds the maximum limits set out in § 19 UstG and is obliged to re-invoice. The client shall ensure that all details are entered correctly.

 

6. finance-as-a-service (payment & accounting)

If the parties agree to use Finance-as-a-Service in addition to the Enterprise Solution, the following shall also apply:

6.1 Essential service content and conditions of use

6.1.1 Ingenious supports the client in the processing of payments from the contracts concluded between the client and partners or partners among themselves.
6.1.2 As a technical service provider of the client, Ingenious primarily forwards 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.
6.1.3 A prerequisite for the use of Finance-as-a-Service is the conclusion of a contract for a business account for payment services within the scope of Finance-as-a-Service (hereinafter: account contract) with the Bank under the Bank's applicable terms and conditions, whereby the Client becomes the account holder of the business account. If and insofar as the account contract does not (or no longer) exist, all performance obligations of Ingenious arising from the use of Finance-as-a-Service shall cease to apply. The payment processing itself is provided by the bank for the customer.
6.1.4 Ingenious is not obliged to check the results determined by the software.
6.1.5 Payment processing by the bank is not the subject of this agreement.
6.1.6 Through the use of Finance-as-a-Service and the confirmation of KPIs, the client issues payment instructions to the bank directly. The information is forwarded automatically through the use of the software via the API; Ingenious acts neither as a representative nor as a messenger, but merely as a technical service provider.
6.1.7 The client is responsible for transferring an appropriate and sufficient budget for the respective campaign to the bank's business account. Ingenious is not obliged to ensure or check the sufficient coverage of the account.
6.1.8 If the budget is paid in by a third party, e.g. an agency client, the amount paid in is deemed to have been paid by the client in case of doubt.

6.2 Monitoring of account balances

6.2.1 The client grants Ingenious a comprehensive reading right for the respective business account at the bank and ensures that, if applicable, his 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 and compare the actual account balance with the amount paid out. However, Ingenious shall at no time have the right to dispose of the amounts paid into the respective business account.

6.3 Bank drafts and services without the involvement of a banking institution.

6.3.1 Ingenious is entitled to terminate the cooperation with the bank specified in clause 6.1.2 for good cause and to offer an interface to another bank to be determined by Ingenious. In this case, the client shall conclude corresponding agreements with the new bank determined by Ingenious.
6.3.2 Insofar as the parties have agreed the use of Finance-as-a-Service under exclusion of the involvement of the bank, the service of Ingenious in connection with the use of Finance-as-a-Service is limited to the provision of the accounting data determined by the software for the client. The client then carries out the accounting of the respective campaign independently.

 

7. customer services, customer support, training, managed services

7.1 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.
7.2 The term of the Customer Support (Standard Support and Premium Support) is linked to the term and notice periods of the main contract according to Clause 11.
7.3 Unless otherwise individually agreed in writing, the term of the other services shall be at least 6 months. If the services are not terminated with a notice period of 3 months to the end of the respective term, the term is automatically extended by 6 months. Clause 11 remains unaffected with regard to the term of the contract as a whole.

 

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 to perform services and may replace both subcontractors and individual persons employed to perform the agreed services without the express consent of the customer, provided this is not unreasonable for the customer. If delays occur due to the change, 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 reasonable consideration. Ingenious may also commission and involve other external service providers to support the provision of services.

 

9. remuneration, payment modalities and consequences of default

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) for three months in advance.
9.3 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 consulting within the set-up phase exceeds the limited consulting volume or if consulting takes place after the end of the set-up phase, billing shall be based on time and effort in accordance with the applicable price list.
9.4 The customer support fees are due once a year in advance.
9.5 The amount of the agreed technology fee shall be determined according to the occurrence of the KPIs and commissions specified by the client in the context of the software. Insofar as the customer enters commissions in the amount of 0 Euro, Ingenious can determine a customary amount at its reasonable discretion in view of the specific circumstances when calculating the technology fee.
9.6 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.
9.7 Fees for additional services (e.g. in the context of other service orders pursuant to clause 8) shall be invoiced on a time and material basis.
9.8 In the event of default of payment, Ingenious may block access to the account and/or switch off tracking and/or discontinue other individual services or discontinue the further execution of current orders and campaigns until the outstanding amounts have been settled.
9.9 An assignment of claims against Ingenious can only take place with its express and 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 to defects that occur later.
10.3 Delay in the rectification of defects presupposes the setting of a reasonable deadline for the rectification of defects by the client. If this deadline expires, the customer has the right to set Ingenious a further reasonable deadline to remedy 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. BGB shall apply, whereby claims of the client against Ingenious due to poor performance or defects in the execution of the services shall become time-barred 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, insofar as it is not a question of 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 Otherwise, liability is excluded, whereby the exclusion of liability does not apply in the event of damage to life, limb or health of a person or for 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 providers 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 Duration of contract, 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 12 months to the end of the month, unless otherwise individually agreed in writing.
11.2 Ordinary termination before expiry 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.
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 customer 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 being notified to do so.
- the client does not comply with data protection standards contrary to Clause 4.9 and/or 12 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 customer data;
11.4 An important reason which entitles the client to terminate the contract due to defects in the software only exists in the case of significant defects and only if the client proceeds in accordance with clauses 10.2 and 10.3 and Ingenious does not succeed in remedying the defects or granting access to reasonable alternatives within the reasonable exclusion period. A material defect in 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 writing (§ 126 BGB). Termination by e-mail is excluded.

 

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 provided 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 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.
12.4 Insofar as Ingenious has to process personal data when providing the services, Ingenious shall comply with the data protection laws. Stored data will be stored by Ingenious for at least six months, even beyond the end of the contract.
12.5 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.
12.6 Ingenious is entitled to use collected data in anonymized form. Such anonymized data does not allow conclusions to be drawn about the cooperation partner or its clients.

 

13. final provisions

13.1 The law of the Federal Republic of Germany shall apply exclusively to all disputes between the contracting parties, to the exclusion of 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.
13.2 All amendments or additions to these GTC or the underlying contract must be made in text form (§ 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 customer 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 permitted 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 become effective 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.