§ 1 Subject of the Agreement
(1) Subject of the Agreement is the provision of the required server infrastructure for the storage of customer advertising campaign work and the storage in databases of data for evaluation for the purposes of user tracking.
(2) Likewise subject of this Agreement is the active bid management of CPC bids in the advertising networks of Google Search Marketing and MIVA (hereinafter referred to as "channels").
(3) Likewise subject of this Agreement is the server-side use of a software package (hereinafter referred to as "bid management") with the purpose of administering and managing advertising campaigns. The bid management shall hereby have access via the channels API interfaces to the CPC bids for regulatory purposes. He shall perform regulatory work consistent with the stated aims of the customers (e.g. minimum number of clicks under the subsidiary condition of a budget restriction or maximum CPC bid) and shall implement these - to the extent permitted by the market environment - in the form of a bidding strategy selected by the customer. The programming and the software shall remain the property of the provider. The customer may use these free of charge according to the provisions of this Agreement on the Internet sites operated by the provider.
§ 2 Obligations on the Part of the Provider
(1) The provider shall make available to the customer servers with the capacity to administer up to 1000 campaigns or, as the case may be, 300,000 keywords. The capacities may be extended by agreement with the provider. The provider shall install the bid management on this system.
The customer shall thereby acquire the right to use the services of the bid management. The provider shall hereby make available to the customer the technical means required to access the service via the WorldWideWeb. The provider shall be responsible for the proper operation of the service.
(2) The provider guarantees that the customer's services will be available globally on the WorldWideWeb pursuant to section (5).
(3) In order to allow the customer at any time to administer his own customers he shall be given access to a bid management GUI interface on which customer and campaign data shall be aggregated and collated in the normal campaign structure. Furthermore, to facilitate the operation the customer shall be provided with the following access data: User name and password for logging in on the provider's website.
(4) The provider shall undertake to carry out any necessary technical changes that would have a significant effect on the operation of the services outside the normal times of use of the services. Preferably at night or in the early hours of the morning.
(5) The provider shall guarantee a rate of accessibility of the services of a yearly average of 99.5%. Excepted herefrom shall be times in which the accessibility is suspended for technical or other reasons that do not fall within the scope of influence of the provider (such as, for example, force majeure, the fault of third parties, server-side manipulation by third parties in the form of disruptive attacks, failure of API interfaces to the channels, performance of maintenance services of which the customer has previously been notified etc.). Likewise excluded shall be interruptions that arise within the first 4 weeks of the contractual relationship and fall within the scope of the initial start-up.
(6) The provider shall regularly monitor server capacity use and inform the customer before the capacity use reaches a critical level. Should such a situation arise, then the provider shall within one working day and at his own expense carry out an extension of the server structure. The customer shall be required to allow the provider an appropriate period of time to extend the capacities.
§ 3 Obligations on the Part of the Customer
(1) Should faults arise when the server is being used pursuant to § 2 section 1 of this Agreement, the customer shall undertake to inform the provider of such faults in writing (e-mail, fax, post etc.)without delay.
(2) The customer shall undertake to handle the access data pursuant to § 2 section 3 of this Agreement with great care, not to pass them on and to prevent any misuse of the access data by third parties.
(3) Pursuant to § 3 section 2 of this Agreement, those persons who have been granted the access forming the subject of this Agreement with the knowledge and consent of the customer shall not be considered unauthorised.
(4) The customer shall give every assurance that no campaigns will be stored and published on the Internet whose provision, publication or use would be in breach of current laws or the rights of third parties (with particular reference to trademark law).
(5) The customer shall undertake to indemnify the provider from any claims of whatever kind made by third parties arising from the illegality of contents that the customer has stored in the campaigns forming the subject of this Agreement. This obligation of indemnity shall also include the obligation to completely indemnify the provider from any legal defence costs (e.g. court and statutory legal fees).
(6) The customer shall undertake in turn to inform his customers and contract partners of all obligations arising out of § 3 of this Agreement.
§ 4 Blocking of Contents
If, and to the extent that the customer, all assurances pursuant to § 3 section 4 of this Agreement to the contrary, should use the service to disseminate illegal contents, the provider shall inform the customer correspondingly. The possibility of blocking the service or refusing to fulfil the obligations arising out of this Agreement shall only be admissible to the extent that the customer has due to gross negligence failed to fulfil his contractual obligations.
§ 5 Payment Modalities
The provider shall issue the customer with a monthly invoice for the contractually agreed remuneration. Both flatrate remuneration and minimum turnover hereby become due for payment in advance on the first working day of the month in question. The usage amount that arises out of the actual turnover volume shall become due for payment in each case 30 days after the invoice has been issued.
§ 6 Rights of Use
(1) The provider shall grant the customer a simple right of use. This shall entitle the customer to use the service for his own purposes on the Internet sites operated by the provider. The right of use shall be restricted to the duration of the contract unless otherwise determined in this Agreement. The provider can in principle market the bid management freely and without restriction without the need for consent from the customer.
(2) The customer shall be entitled to pass on the performance of the service forming the subject of this Agreement to a third party (e.g. an advertising customer) for his or her use in whole or in part, free of charge or in return for payment, taking into consideration § 3 sections 2,3,4 and 5, in the framework of the right of use vouchsafed in section 1 or to create corresponding campaigns for this third party on the provider's websites.
§ 7 Guarantees and Liability
(1) The provider shall be liable for any defects in the software provided as defined in the statutory provisions (§§ 536 ff. German Civil Code).
(2) The provider shall not be liable for the proper functioning of the telephone cables to the server forming the subject of this Agreement in such cases of power failure or failure of servers, such as, for example, the channels APIs, over which he has no influence.
(3) The provider shall not be liable for providing a successful bidding strategy as described in § 1 (3). No guarantee can be given that a minimum number of clicks will be delivered, that the average CPC determined by the customer will be achieved or that the budget set according to the customer's specification will be fully used. This shall especially apply if the budget set runs counter to the desired number of minimum clickthroughs. The provider shall nonetheless undertake to do everything in his power to ensure that the customer's targets are met as fully as possible. Nor shall the provider be liable for any negative developments in campaign performance; nor shall he provide any guarantee that the campaign will after the period of management be able exactly to achieve its original status. The reason for this lies in the dynamics of the channel, meaning that market conditions can change fundamentally in the course of the management period.
(3) In the case of slight negligence, the provider shall only be liable for any breaches of those obligations central to the fulfilment of the contract (cardinal obligations). For all other cases the precontractual, contractual and post-contractual liability of the provider shall be limited to cases of premeditation and gross negligence. The limitation of liability shall also apply in cases where the fault lies with one of the provider's vicarious agents and of indirect damages.
(4) The provider shall assume no liability for the loss of the customer's data material if this loss is not attributable to gross negligence of premeditated action on the part of the provider. The provider shall secure the data using the mirroring process (RAID1 procedure).
§ 8 Duration of Contract, Cancellation
(1) The bid management contract will be concluded with the duration laid down on the signature page and can be cancelled by either party by means of a written declaration (§ 126 b German Civil Code) with a period of notice of 1 month before the end of the contract period. Should the contract not be cancelled in time it will automatically be extended for a further twelve months.
(2) Should the contract be cancelled the provider shall undertake to make available to the customer by the end of the contractual period all contract and customer data stored by him (including those relating to the customers of the customer) as well as all accesses. Should the customer so wish, the provider shall after the expiry of the contractual period destroy all data relating to the customer. This deletion or destruction of the customer data may be undertaken only once the provider has made available to the customer all contractual and customer data (including those relating to the customers of the customer) in his possession.
(3) Both parties shall retain the right to cancel the contract for cause (§ 314 section 1 German Civil Code).
(4) Cause for cancellation of this Agreement shall for the provider especially arise in the cases of § 543, section 2 nos. 2 and 3 of the German Civil code and in cases where the customer has repeatedly failed to fulfil his obligations pursuant to § 3 of this Agreement and no supplementary performance has been forthcoming.
§ 9 Competition
(1) The provider shall undertake not to pass on data of any kind from the customer's portfolio to third parties or to reuse it for his own purposes. Furthermore, only those customer data with relevance for trouble-free technical operation will be stored on the server, and these shall be filed in line with the very highest security standards and, as far as possible, encrypted.
(2) Neither the provider nor the customer are under any obligation to make reference in their offers to the company of the other party or the goods or services provided by the same. Any form of comparison or statement that could be seen as casting an aspersion, irrespective of medium, shall be prohibited.
(3) Both parties agree to treat their collaboration and any use made of the provider's services by the customer in strict confidence. Any form of public statement whatsoever which one of the contract parties wishes to make requires the consent of, and consultation with, the other party.
§ 10 Agreement on Data Protection / NDA
In the context of the collaboration in respect of the bid management commission, the contractor shall assure the customer of his particular attention to data protection. Confidential information as defined by this Agreement
- All information and material in written or oral form which the contractor receives either directly or indirectly from the client for the purpose of executing the commission and which have been identified as confidential or whose confidentiality can be ascertained from their object or other circumstances. These particularly include data from the client and his customers, campaign data, AdTexts and keywords, campaign statistics and conversion data.
- The services commissioned and other results of work done. The contractor shall undertake to treat all information to which he becomes privy, either directly or indirectly, in the strictest confidence and not to pass it on to third parties, to dispose of it or to make use of it without the prior written consent of the client. The contractor shall take all appropriate precautions required to ensure that this confidentiality is maintained. Confidential information will be passed on only to those members of staff who require it to carry out their activities. The contractor shall ensure that those persons whose activities require them to handle the information likewise sign the confidentiality agreement. The obligation of absolute confidentiality shall continue to apply after the collaboration has ended. If so required, all documents that have been provided including all copies made of them and work documents and materials are to be returned.
The contractor shall be fully liable for any damages that may arise on the part of the client through breaches of these contractual obligations. The obligation of confidentiality shall also apply to the legal successors of both parties.
§ 11 Final Clauses
(1) German law shall apply exclusively to this Agreement. Munich has been agreed as the place of jurisdiction.
(2) Should individual provisions of this Agreement be ineffective or lose their effectiveness due to some subsequently arising circumstance, the effectiveness of the remaining parts of the Agreement shall be unaffected. The ineffective provisions shall be replaced by a regulation which most closely approximates to the effect the contract parties would have desired if they had taken the point in question into consideration. The same shall apply mutatis mutandis to any loopholes in this Agreement.
