Managing Director Marc Grewenig, Max Ulbrich Register Court Saarbrücken HRB 106724
1.2 Any further terms and conditions, in particular the General Terms and Conditions of the contracting partner shall not apply, even if emlen does not expressly object to them.
1.3 These GTC shall not apply to consumers.
2.1 With emlen Cloud Services, the Customer shall obtain the technical possibility and authorization to access a software application hosted on a server of a third party provider by means of telecommunication and to use the functionalities of the software application within the scope of this Agreement.
2.2 The servers of emlen's hosting partner are located within the European Union.
2.3 emlen Cloud Services is a cloud-based software solution that enables companies of all types and sizes to share their information, content and offers digitally (mobile) with potential customers.
2.4 Via a login system, the customer gets access to the product (dashboard) and can create and manage his campaigns here. In addition to creating and managing users, content assets, contacts and access to the personalized microsite, the Customer can arrange for potential customers of the Customer to be provided with access to an individualized microsite by sending a link and also has access to statistics that analyze and evaluate the use of the personalized microsite by the participants. End users (=Client's target group) of the Client have web-based access to a personalized microsite and can read, use and redeem information, content and offers.
The prices are based on the current price list of emlen.
4.1 The Customer shall be granted the non-exclusive right, limited in time to the term of this Agreement, to access emlen Cloud Services by means of telecommunications and to use the functionalities associated with emlen Cloud Services by means of a browser in accordance with the emlen Cloud Services Agreement. The Customer shall receive no further rights, in particular to emlen Cloud Services, the software application or the operating software.
4.2 The Customer shall not be entitled to use emlen Cloud Services beyond the use permitted under the terms of the emlen Cloud Services Agreement and these General Terms and Conditions, or to allow third parties to use them, or to make them accessible to third parties beyond the use permitted under the terms of the emlen Cloud Services Agreement and these General Terms and Conditions.
4.3 In particular, the Customer shall not be permitted to duplicate, sell or temporarily make available emlen Cloud Services or parts thereof, and in particular not to rent or lend them.
4.4 If the contractual use of emlen Cloud Services is impaired by third-party property rights through no fault of emlen, emlen shall be entitled to refuse the services affected by this. emlen shall inform the Client of this without delay and provide him with appropriate access to his data. In this case, the Client shall not be obliged to pay. Other claims or rights of the client shall remain unaffected.
5.1 Both parties shall comply with the applicable data protection regulations, in particular those valid in Germany (EU Basic Data Protection Regulation, BDSG-New) and oblige their employees employed in connection with the contract to maintain data secrecy and confidentiality, unless they are already generally obliged to do so.
5.2 If the Customer collects, processes or uses personal data itself or through emlen, it shall be responsible for ensuring that it is entitled to do so in accordance with the applicable provisions, in particular those of data protection law, and shall indemnify emlen against any claims by third parties in the event of a breach.
5.3 It is clarified that the client remains "master of data" both in the general contractual relationship and in the sense of data protection law. The Principal shall be the sole owner of all customer-specific data (entered data, processed, stored data, output data). emlen shall not control the data and content stored for the Principal with regard to
5.3 It is clarified that the client remains "master of data" both in the general contractual relationship and in the sense of data protection law. The Principal shall be the sole owner of all customer-specific data (entered data, processed, stored data, issued data). emlen shall not check the data and contents stored for the Principal with regard to the legal admissibility of the collection, processing and use; this responsibility shall be assumed exclusively by the Principal.
5.4 If necessary, the parties shall conclude the necessary contract for the processing of personal data on behalf of the Client (contract processing agreement pursuant to Art. 28 DSGVO) separately and attach it to the contractual documents as an attachment.
5.5 emlen shall take technical and organizational security precautions and measures to ensure data protection. The Client is generally not entitled to demand access to the premises with the software application, server and operating software and other system components of emlen Clouds Services. This shall not affect the Client's rights of access after written notification to check compliance with technical and organizational measures and any other handling of personal data by emlen in accordance with the law and the contract in the context of the operation of emlen Cloud Services under this contract.
6.1 The Customer shall fulfil the obligations incumbent upon him for the provision and execution of the emlen Cloud Services contract. He shall in particular
- pay the agreed prices on time;
- protect the usage and access authorizations assigned to him as well as identification and authentication safeguards against access by third parties and not pass them on to unauthorized participants;
- ensure that (e.g. when transferring texts and data from third parties to emlen's servers) all industrial property rights and copyrights are observed;
- obtain the necessary consent of the respective data subject, insofar as he/she collects, processes or uses personal data in the context of using emlen Cloud Services and no legal permission is granted;
- not to misuse emlen Cloud Services or allow them to be misused, in particular not to transmit any information offerings with illegal or immoral content or to refer to information that serves to incite hatred, incite criminal offences or glorify or trivialize violence, is sexually offensive or pornographic, is likely to seriously endanger the morals or well-being of children or young people or could damage the reputation of emlen;
- refrain from attempting, either themselves or through unauthorized third parties, to access information or data without authorization, or to interfere or cause to be interfered with programs operated by emlen or to penetrate emlen's data networks without authorization;
- not to misuse the possible exchange of electronic messages for the unsolicited sending of messages or information to third parties for advertising purposes (spamming)
- to indemnify emlen against all claims by third parties that are based on the unlawful use of emlen Services by him or with his approval, or that arise in particular from data protection, copyright or other legal disputes associated with the use of emlen Cloud Services. If the Client recognizes or must recognize that such a violation is imminent, it shall be obliged to inform emlen without delay;
- back up the data transmitted to emlen regularly and in accordance with the risk, but at least once a day, and create his own backup copies in order to ensure the reconstruction of the data and information in the event of loss;
- before sending data and information, check it for viruses and use state-of-the-art virus protection programs;
- until the time of termination of the emlen Clouds Services contract, back up its existing data stocks in the system and the evaluations carried out by emlen by downloading them, as these data stocks can no longer be accessed by the Customer after termination of the contract.
6.2 Access to emlen Clouds Services shall be via telecommunications. Prerequisites for the use of emlen Cloud Services are
- Internet access
- current browser/client (outdated versions of the browser/client may cause display errors)
6.3 The provision of these conditions as well as the telecommunication services including the transmission services from the point of transfer of services to the equipment used by the customer are not subject matter of this contract, but are the responsibility of the customer.
7.1 emlen shall be entitled to block access to emlen Cloud Services and its data in the event of an illegal violation by the Client of one of the material obligations set out in this Agreement, in particular in the event of a violation of the obligations set out in § 6.1 sub-sections 5 to 7. Access shall only be restored once the breach of the material obligation concerned has been permanently remedied or the risk of recurrence has been ensured by issuing an appropriate, punishable declaration of discontinuance to emlen. In this case, the client remains obliged to pay the agreed prices.
7.2 emlen shall be entitled to delete the affected data in the event of a violation of § 6.1 sub-paragraphs 5 to 7.
7.3 In the event of an unlawful violation of the obligations set out in § 6.1 sub-sections 5 to 7 by a Participant authorized by the Client, the Client shall, upon request, immediately provide emlen with all information required to assert claims against the Participant, in particular the Participant's name and address.
8.1 The client shall pay the prices agreed in the order document.
8.2 Prices are due after invoicing. The invoice shall be made available to the Client in his emlen user account, whereby emlen shall inform the Client by e-mail about the setting of a new invoice in the account. The invoice amount must be credited to the account specified in the invoice no later than 14 days after receipt of the invoice. In the event that emlen consents to the collection of the invoice amount via SEPA Direct Debit Mandate, the payment will be processed via the payment service provider Stripe. In this respect, reference is made to the General Terms and Conditions of Stripe.
8.3 All prices are net prices and are payable plus the applicable statutory value added tax.
9.1 emlen shall have unlimited liability to the Client in the event of intent or gross negligence for all damage caused by the Client and its legal representatives or vicarious agents.
9.2 In the event of slight negligence, emlen shall have unlimited liability in the event of injury to life, body or health. Otherwise emlen shall only be liable to the extent that emlen has breached a material contractual obligation (cardinal obligation). In these cases, liability shall be limited to compensation for foreseeable, typically occurring damages and shall not apply to consequential damages.
9.3 emlen's strict liability for damages (§ 536 a BGB) for defects existing at the time of contract conclusion shall be excluded. § 9.1 and 9.2 remain unaffected.
9.4 Liability under the provisions of the Product Liability Act shall remain unaffected.
Neither party is obliged to fulfil its contractual obligations in the event and for the duration of force majeure. In particular the following circumstances are to be regarded as force majeure in this sense:
- fire/explosion/flooding for which the other party is not responsible,
- War, mutiny, blockade, embargo,
- industrial action lasting over 6 weeks and not culpably brought about by the contractual partner,
- technical problems of the Internet that cannot be influenced by a contractual partner; this shall not apply if and to the extent that emlen also offers the telecommunication service.
Each contractual partner shall inform the other party in writing without delay of the occurrence of a case of force majeure.
11.1 The contract shall commence at the agreed time and end upon expiry of the agreed term of the contract. The agreed term of the contract is based on the emlen Cloud Services contract.
11.2 The right to terminate the contract for good cause shall remain unaffected. Notice of termination must be given in writing.
§ Section 12 Final Provisions
12.1 The exclusive place of jurisdiction for all disputes arising from and in connection with this contract shall be emlen's place of business. If emlen brings an action, it shall also be entitled to choose the place of jurisdiction at the domicile of the contractual partner. The right of both parties to seek interim legal protection before the competent courts in accordance with the statutory provisions shall remain unaffected.
12.2 German law shall apply exclusively, excluding the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).
12.3 The conclusion of the contract as well as subsequent amendments and supplements to the contract must be made in writing to be effective. This shall also apply to the amendment of this clause. Oral collateral agreements have not been made.
12.4 Should one or more provisions of these General Terms and Conditions of Business and Licensing be or become invalid, this shall not affect the validity of the remaining provisions.