General Terms and Conditions for emlen Cloud Services
emlen company with limited liabilty (in the following: emlen)
Dudweilerstraße 71
66111 Saarbrücken
E-Mail: info@emlen.io
https://emlen.io
Managing director: Marc Grewenig, Max Klein
Registry Court of Saarbrücken HRB 106724
1. Scope of application
1.1 These General Terms and Conditions for the use of emlen cloud services (hereinafter "GTC") apply exclusively to all contracts concluded by emlen with its customers for the use of the product emlen cloud services.
1.2 Further terms and conditions, in particular general terms and conditions of the customer, shall not apply, even if emlen does not expressly object to them.
1.3 These GTC do not apply to consumers.
2. General subject matter of the contract
2.1 With emlen cloud services the customer receives the technical possibility and authorisation to access a software application which is hosted on a server by a third party provider by means of telecommunications and to use the functionalities of the software application within the scope of this contract.
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 which enables companies of all types and sizes to share their information, content and offers digitally (mobile) with potential customers.
2.4 A login system gives the customer access to the product (dashboard) where they can create and manage their campaigns. In addition to creating and managing users, content assets, contacts and access to the personalised microsite, the client can arrange for the client's potential contractual partners to be provided with access to an individualised microsite by sending a link and also has access to statistics which analyse and evaluate the use of the personalised microsite by the participants. End users (= target group of the customer) of the customer have web-based access to a personalised microsite and can read, use and redeem information, content and offers.
3. Prices
3.1 The prices are based on the current price list of emlen.
3.2 With regard to the calculation of the licence fee due in each case, the number of user seats activated at the beginning of the respective contract interval, which represents the number of activated users, is decisive. If additional users are added during a contract interval, these will be charged and invoiced additionally from the month of activation until the end of the contract interval.
3.3 At the beginning of the contract, the customer is provided with the agreed number of user seats at the agreed price. The admin user seat can be used to invite any number of further users. Each invitation sent leads to the activation of a further user seat. Activated user seats can be cancelled at any time with the consequence that they are no longer to be remunerated from the following contract interval.
3.4 The exact number of activated user seats is determined by an automated process in the system. Any shortfall in the number of user seats activated at the beginning of a contract interval will only be taken into account when the next interval is billed.
3.5 Unless otherwise agreed, the customer may extend the number of activated user seats per contract interval without limitation.
4. Right of use
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, by means of a browser, the functionalities associated with emlen cloud services in accordance with the emlen cloud services Agreement. The customer shall not receive any further rights, in particular to emlen cloud services, the software application or the operating software.
4.2 The customer is not entitled to use emlen cloud services beyond the use permitted under the emlen cloud services agreement, these GTC and the General Terms of Use for emlen cloud services or to allow third parties to use it beyond the use permitted under the emlen cloud services agreement and these GTC.
4.3 In particular, the customer is not permitted to reproduce, sell or temporarily transfer emlen cloud services or parts thereof, especially not to rent or lend them.
4.4 If the contractual use of emlen cloud services is impaired by the property rights of third parties through no fault of emlen, emlen shall be entitled to refuse to provide the services affected thereby. Emlen shall inform the customer of this without delay and allow him access to his data in an appropriate manner. In this case the customer shall not be obliged to make payment. Other claims or rights of the customer shall remain unaffected.
5. Data protection and data security
5.1 Both parties shall comply with the applicable data protection provisions, in particular those applicable in Germany (EU Data Protection Regulation, BDSG-Neu), and shall oblige their employees deployed in connection with the contract to maintain data secrecy and confidentiality, insofar as they are not already subject to corresponding general obligations.
5.2 If the customer collects, processes or uses personal data himself or through emlen, he warrants that he is entitled to do so in accordance with the applicable provisions, in particular the provisions of data protection law, and shall indemnify emlen against claims by third parties in the event of a breach.
5.3 It is clarified that the customer remains "master of the data" both in general in the contractual relationship and in the sense of data protection law. The customer is the sole authorised party with regard to the power of disposal and ownership of all customer-specific data (data entered, data processed, data stored, data output). emlen shall not carry out any checks on the data and content stored for the customer with regard to the legal admissibility of the collection, processing and use; this responsibility shall be assumed solely by the customer.
5.4 If required, the Parties shall separately conclude the necessary contract on the processing of personal data on behalf of the customer (order processing agreement pursuant to Art. 28 DSGVO) and attach it to the contractual documents as an annex.
5.5 Emlen shall take technical and organisational security precautions and measures to ensure data protection. The customer is in principle 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 customer's right of access after written notification to check compliance with the technical and organisational measures and the other legal and contractual handling of personal data by emlen in the context of the operation of emlen cloud services under this contract.
6. Duties and obligations of the customer
6.1 The customer shall fulfil his obligations under the provision in order to fulfill his performance obligations of the emlen cloud services agreement. He shall in particular
1. pay the agreed prices on time;
2. protect the usage and access authorisations as well as identification and authentication safeguards assigned to him from access by third parties and not pass them on to unauthorised participants;
3. ensure that (e.g. when transferring texts and data of third parties to servers of emlen) all industrial property rights and copyrights are observed;
4. obtain the necessary consent of the respective data subject, insofar as he collects, processes or uses personal data within the scope of the use of emlen cloud services and no legal grounds for permission apply;
5. not to use emlen cloud services improperly or allow them to be used improperly, in particular not to transmit information offers with illegal or immoral content or to refer to such information which serves to incite hatred, incite to criminal offences or glorify or trivialise violence, are sexually offensive or pornographic, are likely to seriously endanger children or young persons morally or impair their well-being or may damage the reputation of emlen;
6. refrain from attempting to retrieve information or data without authorisation, either themselves or through unauthorised third parties, or to intervene or allow intervention in programmes operated by emlen or to penetrate data networks of emlen without authorisation;
7. not to misuse the possible exchange of electronic messages for the unsolicited sending of messages or information to third parties for advertising purposes (spamming);
8. indemnify emlen against all claims of third parties which are based on an unlawful use of emlen services by him or which are made with his approval or which result in particular from data protection law, copyright law or other legal disputes which are connected with the use of emlen cloud services. If the customer recognises or must recognise that such a breach is imminent, the customer is obliged to inform emlen immediately;
9. back up the data transmitted to emlen regularly and in accordance with the risk, but at least once a day, and make its own back-up copies in order to ensure the reconstruction of the data and information in the event of loss;
10. check data and information for viruses before sending them and use state-of-the-art virus protection programs;
11. safe the system.data files as well as the evaluations carried out by emlen via download until the time of termination of the emlen Clouds Services contract, since the customer is no longer able to access these data files.
6.2 Access to emlen Clouds Services is by means of 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 prerequisites as well as the telecommunication services including the transmission services from the service transfer point to the devices used by the customer are not the subject of this contract, but are the responsibility of the customer.
7. Use of emlen services in breach of contract
7.1 Emlen shall be entitled to block access to emlen cloud services and its data in the event of an unlawful breach by the customer and/or the users activated by him of one of the material obligations set out in this contract, in particular in the event of a breach of the obligations set out in § 6.1, subsections 5 to 7. Access will only be restored once the breach of the material obligation concerned has been permanently remedied or the risk of repetition has been eliminated by the submission of an appropriate cease-and-desist declaration to emlen., which is subject to a penalty. In this case, the customer remains obliged to pay the agreed prices.
7.2 emlen shall be entitled to delete the data concerned in the event of a breach of § 6.1 subsections 5 to 7.
7.3 In the event of an unlawful breach of the obligations set out in § 6.1 subsections 5 to 7 by a subscriber authorised by the customer, the customer shall, upon request, immediately provide emlen with all information required to assert claims against the subscriber, in particular the subscriber's name and address.
8. Terms of payment
8.1 The customer shall pay the prices agreed in the order document.
8.2 Prices shall be due after invoicing. The invoice shall be made available to the customer in his emlen-user account, with emlen informing the customer by e-mail in each case that a new invoice has been set up 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. If the customer consents to the collection of the invoice amount by SEPA direct debit mandate, the payment shall be processed via the payment service provider Stripe. In this regard, 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. Liability
9.1 emlen shall be liable to the customer without limitation in the event of intent or gross negligence for all damage caused by it and its legal representatives or vicarious agents.
9.2 In the event of slight negligence, emlen shall be liable without limitation in the case of injury to life, body or health. Otherwise, emlen shall only be liable if emlen has breached a material contractual obligation (cardinal obligation). In these cases, liability is limited to compensation for the foreseeable, typically occurring damage and does not apply to consequential damage.
9.3 The strict liability of emlen for damages (§ 536 a BGB) for defects existing at the time of conclusion of the contract is excluded. § 9.1 and 9.2 remains unaffected.
9.4 Liability under the provisions of the Product Liability Act shall remain unaffected.
10. Force majeure
Neither of the contracting parties shall be obliged to fulfil the contractual obligations in the event of and for the duration of force majeure. In particular, the following circumstances shall be regarded as force majeure in this sense:
- fire/explosion/flood for which the contracting party is not responsible,
- war, mutiny, blockade, embargo,
- industrial dispute lasting more than 6 weeks and not culpably caused by the contractual partner,
- technical problems with the Internet which cannot be influenced by a party to the contract; this shall not apply if and insofar as emlen also offers the telecommunications service.
Each party to the contract must notify the other immediately in writing of the occurrence of a case of force majeure.
11. Commencement and term of the contract, termination for good cause
11.1 The contract begins at the agreed time and runs for an indefinite period with the minimum contract term agreed in the emlen cloud services contract.
11.2 The contract may be terminated at the end of the minimum contract term at any time without observing a notice period to the end of the month by giving notice in text form.
11.3 If the contract is not terminated at the end of the respective minimum contract term, the contract shall be extended again by the respective agreed minimum contract term and may then be terminated again at the end of the extended minimum contract term in compliance with the aforementioned procedure. The contracting parties may agree deviating rules in the emlen cloud service agreement.
11.4 The right of termination for good cause remains unaffected. It must be made in text form.
12. Final provisions
12.1 The exclusive place of jurisdiction for all disputes arising from and in connection with this contract shall be the registered office of emlen. If emlen files a suit, it shall also be entitled to choose the place of jurisdiction at the registered office of the contractual partner. The right of both parties to seek interim legal protection before the courts having jurisdiction in accordance with the statutory provisions shall remain unaffected.
12.2 German law shall apply exclusively to the exclusion of the provisions of private international 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 in writing in order to be effective. This also applies to any amendment of this clause. No verbal collateral agreements have 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.
