General terms and conditions (Date 29. July 2014)
1. Scope of Applicability
1.1. These General Terms and Conditions apply to the business relationship between data subscribers (hereinafter the “Customer”, “You”) and adsquare GmbH, Saarbrücker Str. 36, 10405 Berlin, Germany (hereinafter “adsquare”), unless otherwise agreed in a separate written agreement between the parties. Any opposing terms and conditions of the Customer only apply if confirmed by adsquare in writing.
1.2. Modifications of these Terms and Conditions will be notified to the Customer in writing or via email. If the Customer does not object to these modifications within four weeks after receipt of the notification, the modifications are deemed accepted. In case of a modification of the Terms and Conditions, the Customer will be separately informed about its right to object and the legal consequences of non-action.
2. Subject-Matter of Agreement
2.1. adsquare offers a data service for the qualitative improvement of the delivery criteria and effectiveness of interest-based advertising (the “Service”). The subject-matter of the Service is the identification and output of probability statements regarding target group segments and individual variables, int. al. based on context-related data on the local environment (“adsquare Data”). The subject-matter of the agreement is the grant of a license to use the Service and the adsquare Data. During the term of the agreement, the Service is provided to the Customer by adsquare itself or in co-operation with various marketing partners, such as e.g. mobile advertising networks or exchange platforms, hosted on own servers, or, to the extent the Customer is not itself a marketing partner, possibly hosted on servers of marketing partners. adsquare enables the Customer to access the data via a proprietary interface (“adsquare API”) or, to the extent the Customer is not itself a marketing partner, via a defined user interface of a marketing partner.
2.2. For the term of the agreement, adsquare grants the Customer a non-exclusive, non-transferrable right to use the Service and the adsquare Data in connection with interest-based digital advertising for itself or third parties (cf. section 2.4). Any use outside of this purpose of use requires the prior written consent of adsquare. All rights in the API, software and databases which are used by the Customer within the scope of this Agreement remain with adsquare. The Customer may not store, publish, modify, reproduce, hire, give away, lease, sublicense or otherwise commercially use for purposes other than those of this Agreement any software, applications or databases provided by adsquare.
2.3. The log-in data required for the use of the Service is regularly provided to the Customer via email to the email address stated by the Customer, immediately after formation of the agreement, however, no later than within three (3) days after formation of the agreement.
2.4. Any use of the Service is only permitted by the Customer stated in the agreement, its employees and third parties which were commissioned to use the Service on behalf of the Customer. The Customer may not disclose the log-in data to third parties.
2.5. The technical parameters for the API required to use the Service are described in separate adsquare API specifications. Section 4 applies in case of a modification of the adsquare API specifications during the term of the agreement. Interfaces provided by marketing partners may be subject to separate specifications and terms which are provided to you by the respective marketing partner and which must be adhered to by the Customer.
3.1. To the extent the Service is provided by adsquare, adsquare warrants an average availability of 98 percent of the time per month (“Availability”) to the Customer. Any planned downtimes for care, maintenance and updates of hardware and software, as well as downtimes due to circumstances not attributable to adsquare, are deemed as Availability. Planned downtimes are already taken into consideration in calculating the royalties and do not authorize the Customer to reduce the former. To the extent the Service is provided via a marketing partner, the availability times communicated by the respective marketing partner apply.
3.2. adsquare will inform the Customer about planned downtimes in writing or via email at least three (3) days in advance; planned downtimes may not exceed 10 hours per month.
4. Changes of Service
4.1. adsquare will continuously further develop the Service and reserves the right to modify the Service (e.g. changes and expansions of data formats, changes of the API specifications). To the extent adsquare makes changes to the Service during the term of this Agreement, the grant of rights under section 2.2 also applies to these changes.
4.2. To the extent the changes are material and/or influence the use of the Service by the Customer, adsquare will inform the Customer about the changes in writing or via email in due time, but no later than 14 days prior to the effectiveness of the changes. If the changes lead to material detriments for the Customer or if the use of the Service is unreasonably complicated for the Customer, then the Customer may extraordinarily terminate the agreement with immediate effect. Termination must be made in writing or via email within 14 days after receipt of the notification about the change. Any use of the Service after effectiveness of the change is deemed as acceptance of the change.
5. Use of the Service and Duties of the Customer
5.1. When using the Service via the adsquare API, the Customer shall ensure that
5.1.1. only the API keys provided by adsquare for the respective purpose are used (in particular, that third party API keys are not used);
5.1.2. only accurate, correct geographical positions from actual end users are transmitted to adsquare;
5.1.3. there are no unnecessary loads generated on the backend, e.g. by non-compliance with the API specifications.
5.2. If and to the extent the Customer uses the adsquare API, the Customer undertakes to observe the following co-operation duties which are required for a proper provision of the Service. This relates to:
5.2.1. creating the prerequisites for the use of the Service with regard to hardware and software, internet connection and interface access by own programs and/or web services;
5.2.2. the regular back-up of its own data;
5.2.3. the use of technical safeguards against abusive and/or unlawful use of the Customer’s systems by third parties;
5.2.4. the proper transmission of the data required for the use of the Service (“Input Data”) to adsquare in a manner corresponding to the API specifications.
5.3. The Service may only be used to improve the delivery criteria for online advertising and for the targeted delivery of online contents. The Customer undertakes to delete data obtained from adsquare immediately after the delivery of the advertising materials and/or processing of the request, and in particular not to store data obtained from adsquare together with personal user profiles. Any retargeting or profiling and/or segmentation of users on the basis of adsquare Data are expressly prohibited.
5.4. The Customer shall inform adsquare immediately about any error or malfunction of the Service. The Customer shall use its best endeavors to meaningfully describe errors and follow the instructions on removing or working around the error provided by adsquare.
6. Formation and Term of Agreement
6.1. An agreement on the use of the Service is made when adsquare sends the order confirmation to the Customer (in written form or via email), or, at the latest upon transmission of log-in data.
6.2. The term of the agreement commences upon activation of the Customer for the Service.
6.3. Termination by the Customer is made by written notice to adsquare (email is sufficient). adsquare will not deliver any data sets to the Customer after the termination. If the Customer were to retrieve any data after the effective date of the termination regardless, adsquare is entitled to royalties for the delivery of this data pursuant to section 7.
6.4. Termination by adsquare is made by written notice to the Customer (email is sufficient).
7. Royalties and Invoicing
7.1. Depending on the use of the Service, adsquare offers different payment models, the details and amounts of which are subject to a separate agreement.
7.2. To the extent required for invoicing, the Customer undertakes to draw up on a monthly basis a detailed and true report about the campaigns executed and enriched with the Service, including the incurred impressions and to send such report to adsquare in writing or via email or, if available, via the reporting tool provided by adsquare. The Customer agrees that adsquare may use proprietary or third party tracking services in order to monitor the use and delivery of campaigns enriched by the Service and will provide the information required for this purpose to adsquare and undertake all necessary steps in order to technically implement the tracking services into its systems.
7.3. Invoices issued by adsquare are due and payable immediately and will be subject to interest in the amount of 8 percentage points above the respective applicable ECB base interest rate as from the 15th day after invoicing.
8. Unlawful Use
Any use of the Service and of the data provided by adsquare is made in compliance with the respective applicable laws and the terms of this agreement. It is not permitted to use the Service in connection with advertising pornography and/or contents or products which are harmful to minors, offensive, sexist, racist or discriminating, glorify violence and/or National Socialism, and/or infringe third party rights. The data provided via the Service may not be permanently stored by the Customer and may in particular not be combined with personal customer profiles. adsquare reserves the right to suspend access to the Service in case of breaches of this section 8 or to terminate the agreement with immediate effect in case of repeated or material breaches.
9. Warranty for Defects
9.1. The Service is deemed defective if the use of the Service is unacceptably complicated or rendered impossible for the Customer or if the Availability pursuant to section 3.1 is not reached. There is no defect if the use of the Service is unacceptably complicated or rendered impossible because the Customer uses the Service outside of the API specifications.
9.2. Strict liability for defects of the Service which existed upon formation of the agreement is excluded.
9.3. adsquare does not assume any responsibility for the functioning and uninterrupted operation of the Customer’s internet connection.
9.4. adsquare uses data from various data sources for providing the Service, including data from third party providers; accordingly, adsquare depends on this basic data as regards topicality, correctness and accuracy. adsquare applies the highest possible diligence in selecting these third party providers and endeavors to achieve regular updates. However, adsquare does not assume any warranty that the data provided within the scope of the Service is correct, current and accurate.
9.5. In case of a defect of the other services to be rendered by adsquare, the Customer is entitled to the statutory warranty rights. In this context, the parties agree with respect to any shortfall of the availability times pursuant to section 3.1 that the reduction amounts to 5% of the royalties payable in a subscription period per percentage point of the availability shortfall below the agreed Availability, respectively.
9.6. If the use of the Service encounters defects or is otherwise impeded, the Customer is obligated to inform adsquare hereof immediately.
9.7. The Customer may only terminate this agreement extraordinarily for important cause due to defects if the continuation of the contractual relationship is unacceptable or if a breach of contractual duties which is not merely immaterial persists despite warning and/or setting of a grace period. A warning is not required if the breach is so serious that a warning does not seem suitable to end the breach and/or restore the faith. Generally, adsquare may attempt to correct any one specific defect twice prior to an extraordinary termination of the agreement due to this particular defect.
10.1. adsquare is fully liable in case of willful intent, deception and gross negligence, in case of personal injury and in case of claims under the German Product Liability Act.
10.2. Liability of adsquare in case of a simply negligent breach of a material contractual duty (core duty – Kardinalpflicht) is limited to the amount of the foreseeable damages typical to the contract, which the parties unanimously hold to amount to the royalties which the Customer has to pay to adsquare in connection with the campaign underlying the event which gave rise to the damages (the right of the Customer to demonstrate higher damages remains unaffected). Core duties within the meaning of this provision include the main contractual performance obligations and obligations the fulfillment of which is essential for the due and proper implementation of the contract and on the fulfillment of which the Customer may generally rely.
10.3. Any other liability of adsquare is excluded. In particular, adsquare does not assume any liability or responsibility for the design or lawfulness of advertising materials or the Customer’s use of the data generated by the Service.
10.4. The Customer indemnifies adsquare from all third party claims, including damage compensation and liability claims as well as reasonable attorney’s fees which are asserted against adsquare in or out of court because of or in connection with (i) a culpable breach of the Customer’s contractual duties or (ii) an infringement of duties under data protection or competition law by the Customer. In such cases, the Customer will assist adsquare in the legal defence and provide all necessary information. adsquare is solely entitled to conduct the litigation, including the right to enter into settlement agreements (whether in court or out of court) or to otherwise end the dispute.
11. Data Protection
11.1. The data used, refined and transmitted to the Customer by adsquare is based on publicly available and statistical data and does not constitute personal data. The geographic reference of the data basis used by adsquare may vary according to density of population and territory in order to ensure sufficient anonymization.
11.2. The Customer assures that the input data provided by the Customer for use of the Service is not personal data, i.e. that the input data does not permit adsquare and the Customer to make conclusions regarding certain or identifiable individuals, unless the transmission and the processing of such personal data by adsquare is legally permitted to the Customer. If adsquare has to provide proof of such legal permission vis-à-vis third parties, including data protection authorities, the Customer undertakes to provide all necessary evidence and documents.
11.3. If adsquare processes personal data on behalf of the Customer, the general terms and conditions for Commissioned Data Processing apply within the scope and on the terms of the Annex “Contractual Terms of Commissioned Data Processing”.
11.4. The Customer warrants that it complies with its statutory obligations, in particular all data protection obligations, under the respective applicable law. The Customer acknowledges that it may be necessary in some jurisdictions that the user is informed about (i) the use of positioning data in connection with the use of the Service and/or (ii) a possibility to object to this use, and/or to obtain the consent of the user to such use. Compliance with the respective statutory provisions is the responsibility of the respective data controller.
11.5. The Customer acknowledges that the use of the retargeting functionality may require that (i) the end user is informed about this use and/or a possibility to object to this use, and/or (ii) the consent of the user to such use is obtained. Compliance with the respective statutory provisions is the responsibility of the respective data controller. In this case, adsquare recommends that the following notice is published in a suitable location:
“This service uses the targeting service for the improvement of the delivery quality of display advertising offered by adsquare GmbH within the scope of which geographical coordinates and an anonymous user ID are used. adsquare cannot identify an individual via this data or draw conclusions about an identifiable individual. By using this service, you agree to the use of the aforesaid data for the aforementioned purpose. The use of the data may be prevented by using the settings options for interest-based advertising on your mobile device.”
11.6. In case the Customer cannot contact end users directly, the Customer will inform the data controller in accordance with section 11.4 and 11.5.
12.1. This agreement is subject to the laws of the Federal Republic of Germany under exclusion of UN Sales Law.
12.2. Sole venue for all disputes under or in connection with this contractual relationship is Berlin, unless the Customer is a consumer.
12.3. Any invalidity of a term of this agreement does not affect the other terms of this agreement. Invalid terms are to be replaced by such terms which most closely resemble the intended economic effect of the invalid term. This also applies in case of any gaps which need to be filled.
12.4. Any terms which deviate from or supplement the foregoing terms, as well as a waiver of this written form requirement, can only be agreed in writing. There are no oral ancillary agreements.
These General Terms and Conditions have most recently been updated on 29.07.2014.