terms of service dialis direct GmbH
§ 1 area of application
These terms and conditions (GTC) are part of all contracts of dialis direct gmbh Germany, Pappelallee 78/79, 10437 Berlin (provider) with a contractor (customer) on services in the field of the subject matter mentioned in § 2. Decisive is the valid version at the time of the conclusion of the contract. Deviating conditions of the customer are not part of the contract, unless the provider agrees to their validity in writing. Deviating regulations in the offer or performance description precede the regulations of these GTC.
§ 2 Contractual object
The provider offers its customers advertising services on the Internet and services related to advertising on the Internet. This includes, in particular, marketing by e-mail (§ 3), co-sponsoring (§ 4), as well as arranging and processing contracts for such services (§ 5).
§ 3 E-Mail-Marketing
1. The customer books with the provider the dispatch of advertisement by E-Mail (E-Mail-Marketing).
2. The remuneration of the provider depends on the booking type:
2.1 One-thousand-contact price (TCP): The customer pays 1,000 (one-thousandth) of the agreed TKP for each e-mail received. An e-mail is deemed to have been received when it has been delivered without an error message, be it at delivery or in return. The number of e-mails received is determined by the provider.
2.2 Cost per Click (CPC): In the e-mail, one or more hyperlinks are set, which are individualized for tracing. The customer pays for each call of such a hyperlink (Click), but only once per e-mail, the agreed CPC. The number of calls is determined by the provider.
2.3 Cost per Lead (CPL): The e-mail sets one or more hyperlinks that are individualized with a unique identifier (ID) for tracking. The customer pays for each contact (lead), which is conveyed over such a hyperlink, per e-mail however only once, the agreed upon CPL. In the case of doubt, contact means any behavior of the mail recipient which enables the customer further advertising measures or business initiation, in particular a registration or request via the linked Internet site. The parties determine the number of leads together, ie the customer provides the provider regularly, at the latest at his request, a list with the IDs over which a lead has been made.
2.4 Cost per Order (CPO): The e-mail sets one or more hyperlinks that are individualized with an ID for tracking. The customer pays the agreed CPO for each order (order), which is conveyed over such a hyperlink.
It is irrelevant whether such an order leads to the conclusion of a contract or a closed contract is revoked later or otherwise rewound. The parties determine the number of orders together, that is, the customer provides the provider regularly, at the latest at his request, a list with the IDs on which an order has been made.
3. The number of booked thousand contacts, clicks, leads, orders is only to be understood as a target. The customer owes the compensation according to the number of actually made thousand contacts, clicks, leads, orders, even if the target is exceeded or undercut. This does not apply insofar as the target is exceeded by more than 10% and the provider is responsible for exceeding the limit in accordance with § 14.
4. The customer can choose one or more categories (channels) of mail addressees when booking (eg: sports and / or fashion-interested). However, the provider of performance-based compensation (CPL and CPO) is not bound by the choice of the customer.
5. The customer is solely responsible for the content of the emails he sends to the seller. He guarantees that he complies with the relevant legal provisions, in particular those of the Telemedia Act (TMG), the Unfair Competition Act (UWG) and the Consumer Protection and Information Obligations of the German Civil Code (BGB) when formulating the e-mails. The provider is not obliged to check the content of the e-mails. However, he may refuse to send an e-mail if, in his opinion, the contents of which he explains to the customer do not meet the legal requirements. The customer indemnifies the provider from all claims that a mail recipient or other third parties make against the provider on the grounds that the content of the sent email does not comply with the legal requirements. Further claims of the provider remain unaffected.
6. The vendor wins the e-mail addresses, even or through third parties, using the Double-Opt-In procedure (DOI): In a first step, the recipient reveals his address and at the same time gives his consent to receive advertising messages. In a second step, the recipient receives an e-mail to this address with a personalized hyperlink for tracking. By calling this hyperlink, the recipient confirms that it was he who revealed his address and consented to receive promotional messages. In e-mail marketing, the provider only uses those addresses that have passed through the DOI.
§ 4 Co-Sponsoring
1. The provider organizes, even competitions. The customer sponsors such a raffle, which means he is named as a sponsor of the raffle. If a participant in the raffle consents to the participation in the promotional use of his personal data by the aforementioned sponsors, the customer may use this data within the framework of his consent for advertising purposes.
2. The vendor wins the e-mail addresses, even or through third parties, using the Double-Opt-In procedure (DOI): In a first step, the recipient reveals his address and at the same time gives his consent to receive advertising messages. In a second step, the recipient receives an e-mail to this address with a personalized hyperlink for tracking. By calling this hyperlink, the recipient confirms that it was he who revealed his address and consented to receive promotional messages. In e-mail marketing, the provider only uses those addresses that have passed through the DOI.
3. For each data set, which the customer may use in accordance with paragraph 1 sentence 2, the provider receives the agreed remuneration. The number of records is determined by the provider. A data record must be remunerated even if the customer does not use it. In addition to the remuneration, the customer owes the statement of a profit only if this is expressly agreed.
4. The customer is solely responsible for the use of the records. He guarantees that he observes the relevant legal regulations, in particular those of the TMG, the UWG and the BGB. The provider will not monitor the advertising measures of the customer. The customer indemnifies the provider from all claims that an advertiser or other third parties make against the provider on the grounds that an advertisement by the customer violates legal regulations. Further claims of the provider remain unaffected.
5. OptIn requests for delivered data records are only processed after full settlement of the invoice in the specified payment term and handed over to the customer. As far as the customer is in arrears with the payment of invoices, the Dialis direct gmbh of any information obligations and liability claims against third as well as the customer is released by the customer. This also applies if OptIn requests or liability claims from subsequent deliveries should result and the payment target is in the target with respect to these deliveries. The retention of information obligations in relation to delivered data does not invalidate the customer's obligation to pay. The delivered data records must be blocked by the customer until the payment of all outstanding invoices from the marketing of the customer. If the customer still uses the data, the provider charges a fine of 5,000 euros. For the proof the submission of a test address, which was enclosed in the deliveries, is sufficient.
§ 5 Mediation/Transaction
1.If the provider acts as an intermediary for another customer who offers advertising services (contractor) to another customer who books advertising services (client), the contract for the advertising services between these two customers is concluded (main contract). In case of doubt, the regulations of these terms and conditions apply to the main contract. For the mediation the offerer is released from the restrictions of the § 181 BGB.
2. If the Provider acts at the same time as the liquidator of the main contract, he is entitled to collect the remuneration of the Contractor for this with the Principal. The vendor will pay the contracted amount to the contractor after deduction of any remuneration for the brokerage / settlement activity. However, he is not liable to the contractor for the payment of the remuneration by the client.
§ 6 Running time and termination
1. If a notice period is agreed, each party may terminate the contract with this period. If a term has been agreed for the contract, it can only be terminated at the end of the term, insofar as a period of notice has been agreed, subject to this deadline, otherwise within a notice period of two weeks. If such a term contract is not terminated by a party in time, it will be renewed for the same term at a time (automatic contract renewal).
2. The right to terminate for good cause remains unaffected. An important reason exists, in particular, if insolvency proceedings have been instituted over the assets of a party or insolvency proceedings have not been initiated for lack of assets.
3. If the provider terminates the contract for good cause, whereby this reason is a breach of duty by the customer, or if the provider withdraws from the contract due to a breach of duty by the customer, the supplier shall be entitled to a flat-rate claim against the customer for damages in the amount of 20% of the (residual) Order value too. This does not apply if the customer is not responsible for the breach of duty. In addition, the customer is allowed to prove that the damage was not incurred at all or is significantly lower than the lump sum. Conversely, the provider is permitted to prove higher damage. In particular, the serious and final refusal to cooperate in order to carry out the contract is considered a breach of duty by the customer. (Remainder) order value means the remuneration for the commissioned services, which are not yet provided at the time of termination or resignation and can no longer be provided due to the termination or resignation. Further claims of the provider, in particular the claim for remuneration for the services already provided at this time, remain unaffected.
4. Termination requires written form.
5. If the contract includes access by the customer to the system of the provider, the provider will block the access data of the customer at the end of the contract. The customer data accumulated in the system will be deleted by the provider, as long as their provision, for billing purposes for example, is not required. The supplier will confirm the deletion in writing to the customer at his request. The customer is responsible for obtaining any backup of his data in good time before the end of the contract.
§ 7 Remuneration and payment
1. All prices are in doubt net, that is without VAT. For billing, all amounts are also taken into account, net of VAT. On the result, ie the amount to be paid, the sales tax is added (gross), as far as it is incurred.
2. The provider settles his payment to the customer by invoicing them by e-mail or alternatively by post. The customer has the respective invoice within 14 days by transfer to the account of dialis direct GmbH.
3. The provider is entitled to demand a reasonable advance from the customer. In case of doubt, an advance of 50% of the remuneration, which is expected to be due within the next three months, is considered appropriate. However, this is agreed upon by mutual agreement between the two parties.
§ 8 limitation of liability
The provider is fully liable for intent and gross negligence, for injury to life, limb and health, according to the provisions of the Product Liability Act and to the extent of an assumed warranty. In the event of a slightly negligent breach of a material contractual obligation, the liability of the provider shall be limited in amount to the damage which is foreseeable and typical according to the type of business in question. Significant contractual obligations are those whose fulfillment enables the proper execution of the contract in the first place and on whose compliance the customer may regularly rely. A further liability of the provider does not exist. In particular, there is no liability of the provider for initial defects, unless there is a fault in accordance with sentences 1 and 2. This limitation of liability also applies to the personal liability of the employees, representatives, organs and vicarious agents of the provider.
§ 9 Privacy & Data Security
1. The parties observe the relevant data protection regulations, in particular those of the BDSG and the TMG. They also oblige their employees to observe data secrecy in accordance with § 5 BDSG, unless such an obligation already exists.
2. The provider takes as far as he holds data for the customer, to the extent required regular backups. For the loss of customer data, however, the provider is liable only insofar as such a loss could not have been avoided by appropriate measures of data security on the part of the customer. In the case of data loss, the customer provides the provider at the request of his backup. For the liability for loss of data for damages, the limitation of liability according to § 8 additionally applies.
The provider also meets the technical and organizational requirements according to the Annex to § 9 BDSG. In particular, he must protect the systems subject to his access against unauthorized knowledge, storage, modification and other unauthorized access or attacks of any kind. To this end, it shall take the measures necessary to the latest state of the art to the extent necessary, in particular to protect against viruses and other defective programs or routines, and other measures to protect its equipment, in particular to protect against burglary. When using systems that are not under his access, he must impose obligations on his contractors and regularly monitor their compliance.
3. Insofar as the provider collects, processes or uses personal data on behalf of the customer, the collection, processing or use of this data takes place only within the framework of the instructions of the customer; if it is of the opinion that such an instruction violates the relevant data protection regulations, it will inform the customer immediately (§ 11 Abs. 3 BDSG). The details pursuant to section 11 (2) sentence 2 BDSG are laid down by the parties either in the annex to this contract or separately in writing. If the provider becomes exclusively active for the customer (exclusive contract), the customer may not claim any services from the area of the subject matter of third parties mentioned in § 2 during the term of the exclusive contract, as far as he claims the respective service of the third party through the provider can take (exclusivity). If this is the case, the provider informs the customer on request. The exclusivity does not exist, as far as the offerer mediates the services of the third party to the customer (§ 10). The Customer may request exemption from the exclusivity provided that the provider requires compensation for the service in question which is significantly (at least 20%) higher than the compensation required by the third party for the same service.
4. In the event of a breach of the exclusivity pursuant to para. 1, the customer must provide the vendor with information about the services used by the third party vendor, in particular its scope and the amount of the fee, in accordance with §§ 259, 260 BGB and give an account. In addition, the provider is entitled to a lump-sum claim against the customer for damages in the amount of 20% of the remuneration that the customer owes the third party for the services used. This does not apply if the customer is not responsible for the violation. In addition, the customer is allowed to prove that the damage was not incurred at all or is significantly lower than the lump sum. Conversely, the provider is permitted to prove higher damage. Further claims of the provider remain unaffected.
§ 10 confidentiality
The parties are obliged to keep business and trade secrets as well as operational matters of a confidential nature of the other party, which are expressly designated as such or obviously recognizable as such, kept secret. The obligation of confidentiality extends in particular to the content of the contract, including any attachments. On the other hand, the obligation to maintain secrecy does not extend to information already known to the other party or lawfully disclosed by a third party, which has already been publicly known or becomes public knowledge without breach of this secrecy obligation, or which has been disclosed by law, court or government Need to become. A breach of secrecy entails a contractual penalty of 2.400 €.
§ 11 final provisions
1. In the case of invalidity of one or more provisions in the contract, all others remain unaffected. The legally ineffective provisions are immediately replaced by legally valid provisions.
2. All changes and additions must be made in writing in order to be effective.
3. German law applies, excluding the UN Sales Convention and the relevant referral provisions of German international private law. Court of jurisdiction is Berlin.