emlen GmbH (hereinafter referred to as: emlen)
Dudweiler Street 71
Managing director Marc Grewenig, Max Klein
Registry Court Saarbrücken HRB 106724
1. Scope of Application
1.1 These General Terms and Conditions of Use (hereinafter "GTC") for the use of emlen Cloud Services apply exclusively to all contracts concluded by emlen with its Customers for the use of the emlen Cloud Services product.
1.2 Further terms and conditions, in particular general terms and conditions of the Contractual Partner, 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 authorization to access a software application 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 Via a login system, the client gets access to the product (dashboard) and can create and manage their campaigns here. In addition to creating and managing users, content assets, contacts and access to the personalized microsite, the client can arrange for the client's potential customers to be provided with access to an individualized microsite by sending a link and also has access to statistics which analyze and evaluate the use of the personalized microsite by the participants. End users (= target group of the Customer) of the Customer have web-based access to a personalized microsite and can read, use and redeem information, content and offers.
3.1 Prices shall be based on emlen's current price list.
3.2 The calculation of the monthly licence fee due in each case shall be based on the maximum number of User Seats activated in the month in question, which represents the number of activated Users.
3.3 Upon commencement of the agreement, the Customer shall be provided with a user seat at the agreed price. This first User may invite any number of additional Users with his User-Seat. Each accepted invitation leads to the activation of a further user seat. Unaccepted invitations (hereinafter referred to as "pending invitations") are not included in the calculation of the monthly license fees. Activated user seats can be deleted at any time with the consequence that they are no longer to be paid for as of the following month. 3.4 The exact number of activated user seats shall be determined retroactively for the respective month by an automated process in the system.
3.5 Unless otherwise agreed, the Customer may extend the number of activated user seats per month without limitation.
4. Right of Use
4.1 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 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 and these GTC, to have it used by third parties or to make it accessible to third parties beyond the use permitted under the emlen Cloud Services Agreement and these GTC.
4.3 In particular, Customer is not permitted to reproduce, sell or make available for a limited period of time emlen Cloud Services or parts thereof, in particular not to rent or lend them.
4.4 If the use of emlen Cloud Services in accordance with the contract is impaired by third party property rights through no fault of emlen, emlen shall be entitled to refuse the services affected thereby. emlen shall inform the Customer of this without delay and allow the Customer access to its data in an appropriate manner. In this case the Customer shall not be obliged to make any 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 itself or through emlen, it shall guarantee 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 third-party claims 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 owner with regard to the authority to dispose of 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 exclusively 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 in accordance with Art. 28 DSGVO) and attach it to the contractual documents as an annex.
5.5 emlen shall take technical and organizational 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 rights of access following written notification for the purpose of checking compliance with the technical-organizational measures and emlen's other handling of personal data in accordance with the law and the contract in the context of the operation of emlen Cloud Services in accordance with this contract.
6. Duties and obligations of the Customer
6.1 The Customer shall fulfill the obligations incumbent upon it for the performance and execution of the emlen Cloud Services Agreement. 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 from the respective data subject if personal data is collected, processed or used in the context of the use of emlen Cloud Services and no legal grounds for permission apply
- not to misuse emlen Cloud Services or allow them to be misused, and in particular not to transmit any information with illegal or immoral content or refer to such information which incites hatred, incites criminal offences or glorifies or trivializes violence, is sexually offensive or pornographic, is likely to seriously endanger the morals of children or young people or impair their well-being or may damage emlen's reputation
- refrain from attempting to retrieve information or data without authorization, either by themselves or through unauthorized third parties, or to interfere or allow interference 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)
- indemnify emlen against all claims by third parties which are based on an unlawful use of emlen Services by him or which are made with his approval or which arise in particular from data protection law, copyright law or other legal disputes connected with the use of emlen Cloud Services. If the Customer recognizes or must recognize that such a breach is imminent, it shall be obliged to inform emlen immediately
- back up the data transmitted to emlen regularly and in accordance with the risk, but at least once a day, and make his own back-up copies in order to ensure that the data and information can be reconstructed in the event of loss
- check data and information for viruses before sending them and use state-of-the-art virus protection programs
- back up its existing data files in the system and the analyses carried out by emlen by downloading them until the time of termination of the emlen Clouds Services contract, as access to these data files by the Customer is no longer possible after termination of the contract.
6.2 Access to emlen Clouds Services shall be by means of telecommunications. The prerequisites for using emlen Cloud Services are:
- Internet access
- current browser/client (outdated versions of the browser/client may result in 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 the 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 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 eliminated or the risk of repetition has been ensured by the submission of an appropriate cease-and-desist declaration to emlen, which is subject to a penalty. In this case the Customer shall remain obliged to pay the agreed prices.
7.2 In the event of a breach of § 6.1 subsections 5 to 7, emlen shall be entitled to delete the data concerned.
7.3 In the event of an unlawful breach of the obligations set out in § 6.1 subsections 5 to 7 by a subscriber authorized by the Customer, the Customer shall, upon request, immediately provide emlen with all information required to assert claims against the subscriber, in particular the name and address of the subscriber.
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. emlen shall inform the Customer by e-mail each time a new invoice is posted 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, additional 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 Customer in the event of intent or gross negligence for all damage caused by emlen or 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, limb or health. Otherwise, emlen shall only be liable if emlen has breached a material contractual obligation (cardinal obligation). In such cases, liability shall be limited to compensation for foreseeable, typically occurring damage and shall not apply to consequential damage.
9.3 emlen's strict liability for damages (§ 536 a BGB) for defects existing at the time of conclusion of the contract shall be excluded. § 9.1 and 9.2 shall remain unaffected by this.
9.4 Liability under the provisions of the Product Liability Act shall remain unaffected.
10. Force majeure
None of the contracting parties shall be obliged to fulfill the contractual obligations in case of and for the duration of force majeure. In particular, the following circumstances shall be considered 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 one of the contracting parties; this shall not apply if and to the extent that emlen also offers the telecommunications service.
Each party to the contract must inform 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 shall commence at the agreed time and run 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 on different rules in the emlen Cloud Service Agreement.
11.4 The right to terminate 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 emlen's registered office. If emlen brings an action, it shall also be entitled to choose the place of jurisdiction at the registered office of the contracting party. The right of both parties to seek interim legal protection before the courts with jurisdiction in accordance with the statutory provisions shall remain unaffected.
12.2 German law shall apply exclusively to the exclusion of 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 in writing in order to be effective. This shall also apply 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.