GENERAL TERMS AND CONDITIONS OF BUSINESS OF TISOOMI GMBH
OBJECT AND SCOPE
- tisoomi is a marketer of online advertising space. The following General Terms and Conditions (“Terms”) apply to all contracts and service relationships (“Agreements”) between tisoomi GmbH, Borselstraße 3, 22765 Hamburg (“tisoomi”) and its customers (“Customer” or “Advertiser”, hereinafter uniformly referred to as “Customers”). These Terms apply only to businesses in the sense of sec. 14 BGB [German Civil Code] as well as legal entities and are part of the Agreement, unless otherwise agreed in writing.
- These Terms shall also apply to all future business relations with the Customer without the need for their renewed express inclusion.
- Any terms and conditions of the Customer deviating from these Terms as well as any amendments and supplements to these Terms shall not be recognised. This shall also apply if the Customer’s terms and conditions of business and/or delivery have not been expressly objected to.
- tisoomi reserves the right to change these Terms with effect for the future. In this case tisoomi shall notify the Customer about the changes. The changes are considered accepted, if the Customer does not object within six weeks after receiving a notification of such change. tisoomi shall inform the Customer about the right to object and the legal consequences of missing the deadline within the notification of change. If the Customer objects to a change, tisoomi has the right to terminate the Agreement.
2. OFFER AND CONCLUSION OF THE CONTRACT
- tisoomi’s offers are subject to change. Subject matter of the Agreement are the tisoomi’s services and products, as they are described in the respective offer (“Individual Order”) or in the product description at the time of the conclusion of the Agreement. tisoomi reserves the right to technical changes in the offered services and products, provided these are reasonable.
- The Agreement between tisoomi and the Customer shall only come into force after an offer is signed by tisoomi and the Customer. For this purpose, the Customer must return the countersigned order form by fax or by email to tisoomi (“Acceptance”). In addition to the regulations made in the respective individual order these Terms apply.
- The Customer assures that the information provided in the context of the conclusion of the Agreement about its identity and other circumstances relevant to the Agreement are complete and correct. The Customer undertakes to inform tisoomi immediately about changes in this data.
- The Customer is aware that legal correspondence (e.g. confirmation emails, amendments to the Terms or other notifications) may be sent to him by email. These are considered to have been received if they are accessible under normal circumstances in the email inbox used by the Customer in the course of previous communications.
3. ASSURANCES AND PERFORMANCE BY THE CUSTOMER
- The Customer assures that the content of its Advertising Media complies with applicable law and does not infringe any third party rights. In particular, the Customer warrants that its Advertising Media do not contain any content that is erotic, pornographic, incites war, violence or racial hatred or that is politically extremist.
- The Customer warrants that it is entitled to conclude the Agreement.
- The Customer warrants and represents (if applicable) that it will use the “AdDefend Software” provided to it by tisoomi in accordance with AdDefend’s specifications and only in compliance with all legal (in particular those relating to data and consumer protection and the relevant competition law provisions) and industry-specific requirements.
- The Customer may not interfere with the functioning of the “AdDefend Software”. In particular, it may not interfere with the communications between its server and the AdDefend server. Furthermore, the Customer may not interfere with the performance of the campaigns either directly or indirectly through third parties or technical means.
- The Customer shall take precautions to protect its data and, in particular, regularly make back-up copies.
4. PERFORMANCE OF TISOOMI
- tisoomi will provide the contractual service according to the current order or service description at the time of the conclusion of the Agreement. tisoomi will in particular provide the “AdDefend Software” of the AdDefend GmbH, which is affiliated with tisoomi, necessary for the handling of the campaign.
- tisoomi is entitled to interrupt its services for maintenance and updates. tisoomi will inform the Customer, as far as reasonable, in time about such interruptions, provided that these can affect the performance of the contractual services.
- tisoomi is entitled to use the services of third parties to fulfil its contractual obligations.
5. GRANTING OF RIGHTS
- tisoomi grants the Customer a limited, worldwide, non-exclusive, free of charge license to use the AdDefend Software for the duration and purposes of the Agreement.
- tisoomi is allowed to name the Customer in the context of a reference list together with other Customers on its own website and in other (offline and online) own advertising channels. Another use, for example in the press, shall be coordinated with the Customer. For this purpose the Customer grants tisoomi a free of charge right to use, copy and distribute its logo and name for the mentioned purposes.
- The advertising delivered by the AdDefend technology shall be subject to the rights of third parties.
- tisoomi creates, by means of the service of AdDefend GmbH, an account of the ad impressions, conversions or other parameters on the websites of the respective publisher as well as other values relevant for billing and internal purposes using a technical system for recording page impressions.
- Billing is based on the relevant values determined by tisoomi through AdDefend GmbH. Own accounts carried out by the Customer have no validity as long as the Customer cannot prove that values determined by tisoomi are incorrect. Any deviations in measurement of up to 10% are minor and shall not be deemed to be a defect or overfulfilment (fluctuation tolerance). In the event of measurement deviations of more than 10%, the parties shall determine the cause of the difference and endeavour to reduce the statistical discrepancy. Any agreed revenue share shall be measured on the basis of the net advertising revenue. These are the gross advertising revenues achieved by tisoomi by the display of advertisements on the websites of the Customer less value added tax (VAT), all discounts and commissions such as Customer discounts, agency discounts, agency commissions, agency refunds, discounts, etc.
- The prices for the services used by the Customer result from the respective individual orders and from the respective valid price lists of tisoomi. Unless otherwise stated or if no statutory VAT applies, prices do not include statutory VAT.
- Invoices to the Customer shall be sent by post or in electronic form, unless otherwise expressly agreed with the Customer.
- Invoiced amounts come due with receipt of the invoice and are payable immediately. If the Customer delays the payment, tisoomi may charge the statutory interest rate. tisoomi reserves the right to prove and assert higher damages caused by the delay in payment. In addition, tisoomi is entitled in the case of a delay in payment to pause the contractual services. The Customer remains obliged to pay the agreed fee also for the time of the pause. Furthermore the non-utilisation of the contractual services by the Customer does not release it from its payment obligation. Further claims and rights of tisoomi remain unaffected.
- If the Customer has objections against an invoice of tisoomi, these are to be asserted within four weeks after receipt of invoice to tisoomi in writing or by email. If any objections are not asserted within four weeks after receipt of the invoice, the invoice is considered to be approved by the Customer.
7. WARRANTY AND LIABILITY OF TISOOMI
- tisoomi is not liable for damages caused by the incorrect use of the AdDefend software.
- Otherwise tisoomi is – pursuant to the statutory provisions – only liable for damages caused by fraud or gross negligence of the legal representatives or leading employees of tisoomi or by serious organisational fault or which are based on the fact that a guaranteed quality of the tisoomi software is missing. This restriction does not apply to damages based on the injury of the life, the body or the health.
- Irrespective of the legal basis, tisoomi is only liable for damages caused by culpable violation of an essential contractual obligation by legal representatives or vicarious agents of tisoomi. The liability is limited in this respect to the foreseeable, typical damage, with whose emergence tisoomi had to count on conclusion of the Agreement on the basis of the circumstances known to it at this time. The liability of tisoomi for loss of profit is excluded.
- The aforementioned liability regulations also apply analogously in favour of the employees and representatives of tisoomi.
- Claims for damages of the Customer, which are based on a simple negligent breach of duty of tisoomi, cannot be asserted after one year after the occurrence of the damage. This restriction does not apply to damages which are based on the injury of the life, the body or the health. In all other respects the statute of limitations for claims for defects shall be determined in accordance with the statutory provisions.
8. TERM OF THE CONTRACT
- The duration of the Agreement depends on the respective individual order.
- The right to extraordinary termination remains unaffected. Both parties shall therefore have an extraordinary right of termination if the other Party to the Agreement repeatedly breaches material obligations which it is obliged to perform under the Agreement and does not restore the contractual condition within 14 days of receipt of a written request to that effect. In all other respects, the statutory provisions of the BGB shall apply.
9. DATA PROTECTION
If the use of the AdDefend technology requires consent (art. 6 (1) (a) GDPR), tisoomi will ensure that the respective responsible publisher as controller obtains this consent.
- During the term of the Agreement and for 3 years thereafter, the Parties undertake to keep confidential all documents, information and data which have been made accessible to them or have come to their knowledge as a result of the cooperation. The parties undertake to protect the documents, information and data of the other Party in the same way as they protect their own confidential information, but at least with the diligence of an ordinary businessperson. These documents, information and data may only be used to perform the services that are the object of the Agreement.
- The subject of the confidentiality obligation shall also be such documents, information and data concerning companies affiliated with the Parties, other cooperation partners or suppliers, as well as documents, information and data concerning Customers and commercial agents of the Parties.
- The confidentiality obligation shall not apply to documents, information and data which are or become public knowledge without this being based on a breach of contract by a Party, the disclosure of which is required by law or by the authorities, or to information which has been exempted from confidentiality by subsequent agreement in writing, by fax or by email.
- Press releases or other publications regarding the existence or nature of the cooperation under the Agreement shall be agreed between the Parties prior to publication and shall require the express consent of the respective other Party.
- Amendments and supplements to the Agreement must be made in writing. This also applies to an amendment of this written form requirement. Email is not sufficient for this purpose. The Customer’s General Terms and Conditions shall not apply.
- Should any provision of the Agreement be or become invalid or unenforceable, or should the Agreement contain a loophole, this shall not affect the validity of the remaining provisions. In this case, the parties are obliged to agree on a valid provision in place of the invalid, unenforceable or missing provision which comes as close as possible to the economic purpose of the invalid, unenforceable or missing provision.
- The Agreement shall be governed by German law under the exclusion of the UN Convention on Contracts for the International Sale of Goods [UN CISG] and private international law.
- The place of performance as well as the court of jurisdiction for all disputes between the Parties shall be Hamburg, insofar as the Customer is a merchant, a legal entity under public law or a special fund under public law. The place of jurisdiction shall also apply if the Customer does not have a general place of jurisdiction in Germany, insofar as the Customer relocates its place of residence and/or registered office outside of Germany after the conclusion of the Agreement or its place of residence and/or registered office or normal place of residence are unknown at the time proceedings are instituted.