General Terms and Conditions
General Terms and Conditions (GTC) of Modular Minds GmbH for ADWARY® Services
§ 1 Scope of Application
- The following terms and conditions are valid for the services offered under the brand "ADWARY" by Modular Minds GmbH (in the following called ADWARY®) to its contracting parties (in the following called customers) and the contracts made by the customer with ADWARY®. Deviations from this must be in written form. This is also valid for the cancellation of the preceding sentence.
- General terms and conditions or deviating conditions of the customer are not valid for the contractual relationship.
- All contracts with ADWARY® shall be governed by the current version of the GTC.
§ 2 Definitions
- For the purposes of these General Terms and Conditions, the following definitions apply:
ADWARY® Customer Account: Refers to the contractual construct including all ADWARY® accounts and access rights as well as contracted services and is the central billing instance for the respective contract.
ADWARY® Access: Refers to a specific account access of an individual user to ADWARY®'s system.
Click Fraud: Clicks on an advertising platform carried out manually or mechanically by third parties, also with the help of distributed bot networks, to the disadvantage of an advertiser in order to drive up its costs or to remove it from the advertising placement.
Tracking URL: A specially prepared URL that is compulsorily used to either supplement the target URLs of the advertising placement or that is stored in the advertising platform so that the advertising platform can call it on every click. This captures the data necessary for the basic function of ADWARY®. This is also called server-side tracking.
Tracking Code: A piece of code that is optionally integrated into the client's website to allow ADWARY® to more accurately determine click fraud. This is also called client-side tracking.
Client: Entrepreneur or company according to §14 of the German Civil Code (BGB) who has concluded a contract with ADWARY®.
Customer data: This is data that the customer provides to ADWARY® as part of the order for order fulfillment and billing, as well as for the provision of access to ADWARY®.
User Data: This is particular data about the users of the Customer's websites that is transmitted to ADWARY® at the Customer's request for the purpose of providing and performing ADWARY®'s analytics and protection functions.
§ 3 Subject of the Contract
- ADWARY® provides services for the identification, documentation and prevention of click fraud.
- ADWARY® will provide an infrastructure that records, analyzes and documents clicks on advertisements and - if possible on the respective advertising platform - excludes potentially fraudulent clicks in the future. ADWARY® will also provide the necessary tracking code that the customer can integrate into his website, tracking URLs for ad placement and a corresponding backend for configuration and analysis.
- If the tracking code or tracking URL is correctly installed, ADWARY® logs the clicks on the ads and uses algorithms to determine the probability of fraudulent clicks. The determined probability may differ from the actual circumstances. Therefore, ADWARY® does not guarantee the accuracy of the determined fraud probability.
- ADWARY® automatically blocks fraudulent clicks for the future, if the respective advertising platform provides such a function and if the customer has purchased this service.
- ADWARY® does not guarantee availability for its services or the blocking functions of advertising platforms.
- ADWARY® can change the scope of its services at any time, if this is possible due to improvements or necessary due to laws or the discontinuation of functions at the advertising platforms. The customer cannot derive any claims against ADWARY® from this.
- ADWARY® can continuously adjust the scope of functions and algorithmic analysis in order to optimize the detection of click fraud. This may result in changed probability estimates of click fraud. The customer cannot derive any claims against ADWARY® from this.
- Communication on the part of ADWARY® will be done exclusively by mail or in the backend of ADWARY®. ADWARY® can also offer other ways of communication.
§ 4 Charging, Billing, Terms of Payment
- The charges for the services of ADWARY® results from the price offer on the website and in the order process of ADWARY® at the time of signing the contract or at the time of placing the order or after announced changes which are not rejected by the customer.
- The payment for the services of ADWARY® is due in full at the beginning of each billing period for the whole billing period. This also applies to service quotas ordered, regardless of whether the quota is used or exhausted. If usage-dependent charges are charged, the usage-dependent payment shall be due at the end of the billing period.
- All payments shall be made immediately when due.
- The customer's obligation to pay fees remains in effect even in cases where services to be provided by third parties - for whatever reason - are not provided, unless ADWARY® is at fault.
- ADWARY® is entitled to invoice all services ordered by the customer, even if the customer does not use the services or the results of the services or does not use them completely.
- All prices are net prices and do not include value added tax.
- ADWARY® keeps the created invoices in the ADWARY® customer account. If necessary, ADWARY® will send the invoices by e-mail to the e-mail address stored in the ADWARY® customer account. ADWARY® can also send the invoices to the customer in any other electronic form.
§ 5 Upgrades/Downgrades, Options
- Upgrades: The customer may - if available - switch to a higher-value service or a longer billing period at any time. If this occurs within a billing period, the remaining unused credit prior to the upgrade shall be credited to the upgrade.
- Downgrades: If available, the customer may switch to a lower-value service or a shorter billing period at any time, effective at the end of a billing period, in the ADWARY® customer account.
- Options: Additional services offered by ADWARY® as options to the existing contract may be added to the main service at any time. If this is done within a billing period of the main service, the charge for the option will be prorated for the remaining billing period of the main service. An option can be cancelled in the ADWARY® customer account at any time with effect from the end of the billing period of the main service. For upgrades/downgrades of options, the above points regarding upgrades/downgrades apply.
§ 6 Term of Contract, Termination of Contract, Cancellation
- The contract begins with the completion of the order in the online form and has an indefinite term. The minimum term is one payment period.
- The contract can be terminated by either party at any time at the end of a payment period. If the customer cancels the contract by other means than in the ADWARY® customer account, the customer has to give us one week time of notice to the end of a payment period ("processing period").
- A premature termination of the contract is possible in case of a contradiction of the customer in case of changes of general terms and conditions or prices according to §11.1 under observance of the period of time mentioned there. Immediate termination by a contracting party is possible if the other contracting party grossly violates its contractual obligations and it permanently fails to fulfill its obligations despite a written request to do so. Otherwise, early termination shall be excluded.
- In the event of premature termination of the contract - for whatever reason - the payment for services already provided but not yet invoiced shall immediately become due in full. A refund of payments made in advance will not be made unless the customer has justifiably terminated the contract in accordance with the previous paragraph. In this case, the fees paid beyond the end of the contract will be refunded.
§ 7 Late Payment, Inkasso
- In case of delayed payment by the customer ADWARY® is entitled to pause or completely stop the services until payment of all outstanding amounts and receivables. The pausing or discontinuation of services by ADWARY® does not exempt the customer from the obligation to pay. Periods of pausing or discontinuation cannot be offset by the customer - even in case of subsequent payment.
- ADWARY® is allowed to provide further services only if all outstanding debts including all costs for collection or legal action are settled.
§ 8 Right of Set-Off and Withholding of Payment
- The customer shall only be entitled to set-off against claims of ADWARY® insofar as the counterclaims arise from the same contractual relationship and are undisputed or have been finally determined by a court of law. The exercise of a right of withholding is only permissible insofar as the counterclaim is based on the same contractual relationship.
§ 9 Data Protection
- As a German provider ADWARY® is bound to comply with the German Data Protection Regulation (DSGVO) based on the EU-DSGVO (GDPR). ADWARY® collects and processes the collected data exclusively on servers and with systems that are subject to the EU-DSGVO (GDPR).
- ADWARY® collects, stores and processes customer data by means of electronic systems, as far as it is necessary for the provision and billing of the functions of ADWARY®. This may include personal or personally identifiable data. No data will be transferred to third parties, unless this is necessary for billing purposes (e.g. payment providers) or ADWARY® is obliged to transfer customer data due to laws or judicial decisions.
- ADWARY® collects, stores and processes user data by means of electronic systems, as far as it is necessary for the function of ADWARY® to protect against click fraud. This may include personal or person-related data (for storage of such data see next point). No data will be transmitted to third parties, unless ADWARY® is required to do so by law or court order and ADWARY® is able to reconstruct the data at all.
- ADWARY® encrypts and stores user data exclusively anonymized or irreversibly encrypted after calculating the probability of fraud. This way ADWARY® ensures that no personal data is stored or cannot be reconstructed, unless the customer decides otherwise in his ADWARY® customer account on his own responsibility.
- ADWARY® explicitly points out to the customer that data protection and data security for data transmissions in open networks like the internet cannot be guaranteed according to the current state of the art. ADWARY® has taken all technical and organizational measures in accordance with the law to secure stored personal data against misuse and unauthorized access. However, especially in the case of data transmission via the Internet, ADWARY® has no control over the access possibilities of third parties and therefore cannot assume any responsibility for the security of data transmitted via the Internet.
§ 10 Duties of the Customer
- The customer is exclusively responsible for establishing the necessary technical and legal conditions for the use of ADWARY®.
- The customer implements the ADWARY® components exclusively by himself. For the correct function of ADWARY® the customer has to use at least the provided tracking URL in his advertising placements. The optional tracking code has to be integrated into the website by the customer unchanged or only adapted according to the instructions of ADWARY®. The customer will receive detailed instructions in his ADWARY® customer account. The customer is solely responsible for the correct integration of the tracking code into his website as well as the correct extension of the link targets by the tracking URL in the advertising placement. A modification of the tracking code or the tracking URLs on the part of the customer is not permitted.
- Important messages from ADWARY® will be sent by e-mail and/or in the ADWARY® customer account. The customer has to take care that these messages reach him and that he takes note of them.
- The customer keeps his data stored at ADWARY® always up to date. This concerns in particular data, which concern fiscal aspects, the account as well as the contact possibility. The customer is fully and unlimitedly liable to ADWARY® for any damages resulting from non-compliance.
- The customer is responsible to inform employees, customers and other third parties, which are directly or indirectly affected by the use of ADWARY®, about the collected data and the kind of data processing, according to the legal requirements.
- Overall the customer commits himself not to violate contractual provisions or applicable law in connection with the use of ADWARY®.
§ 11 Contractual Adjustments
- ADWARY® is allowed to change these terms and conditions and prices. ADWARY® will announce such changes in the ADWARY® customer account and, if necessary, textually with a minimal notice period of 2 weeks. The changes will become effective according to the announcement, if the customer does not reject them textually until the announced time of the changes' coming into effect. If the customer disagrees in due time, the contract will end at the time the change will take effect.
§ 12 Liability
- ADWARY® is only liable for damages caused by intentional or grossly negligent actions. Any further liability is excluded. The liability is in any case limited to the value of the order.
- ADWARY® is not liable for impairments, limitations or impediments of performance as well as interruptions or malfunctions of ADWARY® services, which are caused by circumstances beyond the responsibility of ADWARY®.
- Liability towards commercial customers for loss of profit is excluded.
§ 13 Final Clauses
- The German language version of these General Terms and Conditions shall always be used to interpret the content of the contract and the rights and obligations of the contracting parties.
- Place of fulfillment and place of payment is Kiel, Federal Republic of Germany. This contract shall be governed by the laws of the Federal Republic of Germany. The application of the UN Sales Convention is excluded.
- The exclusive place of jurisdiction for all claims arising out of or in connection with the contractual relationship between the contracting parties, including actions on checks and bills of exchange, as well as all disputes arising between the parties concerning the formation, fulfillment or termination of the contract, shall be Kiel, Federal Republic of Germany, in the case of business persons, merchants, legal entities under public law or special funds under public law, or if the customer does not have a general place of jurisdiction within the Federal Republic of Germany. ADWARY® reserves the right to bring an action against the customer at the customer's general or other place of jurisdiction, which may be competent according to national or international law.
- Should individual terms be or become ineffective, or should the terms contain a loophole, the legal effectiveness of the remaining terms shall remain unaffected. In place of the invalid term or condition, a valid term or condition shall be considered agreed upon that comes closest to the intended term or condition in economic sense.