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Terms & Conditions

(VALID FROM 01.05.2015)

Introduction

The services offered on emarketing.com are aimed at commercial online retailers or other businesses that want to increase the reach of their website and win new customers. emarketing.com is operated by emarketing AG, Landsberger Str. 110, 80339 Munich, (hereinafter "emarketing"). The term "customer" refers to the trader who uses the services of emarketing. emarketing manages z.T. manually, but mostly fully automated one or more advertising campaigns of the customer. This includes the extraction, analysis and selection of keywords, the formulation of ad text, the creation of banner ads, their placement on various platforms, as well as the optimization and allocation of each ad and daily CPC updates to ensure maximum success for the budget to achieve.

§ 1 validity of the general terms and conditions; Registration; Prerequisites for commissioning

  1. These General Terms and Conditions (hereinafter referred to as the "Terms and Conditions") exclusively govern the placing of one or more advertising campaigns within the framework of the advertising platforms referred to in Section 2 (hereinafter "Advertising Platforms") by emarketing for the customer.
  2. The advertising platforms supported by emarketing are Google AdWords, and Google Shopping / Product Listing Ads. Google AdWords, and Google Shopping / Product Listing Ads are advertising platforms of Google Ireland Limited, Gordon House, Barrow Street, Dublin 4, Ireland (hereafter "Google") and facebook for social media marketing campaigns.
  3. Insofar as emarketing also offers the switching of advertisements on other high-reach platforms such as Bing and the customer commissions this, these terms and conditions shall apply accordingly, unless otherwise stipulated. The same applies to advertising by means of platforms and third party technologies, e.g. in the field of retargeting or similar
  4. The registration of the customer on emarkerting.com and his assignment to place advertisements in the context of advertising platforms takes place exclusively under inclusion of these GTC. Conditions of the customer do not apply. This also applies if emarketing does not expressly contradict the terms and conditions of the customer.
  5. The registration of the customer on emarketing.com is a prerequisite for commissioning emarketing. Upon registration, a customer account is created, in which the customer can log in by entering his e-mail address and a password. The password is to be kept secret from third parties. The e-mail address of the customer specified at the registration is also used in the case of commissioning for communication during the execution of the contract. The customer agrees to electronic invoicing via the customer account (see § 11 para. 2).
  6. The customer assures that the commissioning is carried out only as an entrepreneur within the meaning of § 14 BGB, ie in the context of exercising his commercial or independent professional activity.

§ 2 Subject of the contract

  1. emarketing designs and advertises advertisements (i.e., graphic advertisements in any form, in particular online) for the customer within advertising platforms or other high-reach platforms, and manages corresponding advertisement or marketing campaigns. The placement is technically i.d.R. via an interface to the advertising platforms (API). The customer commissions these services of emarketing.
  2. The services of emarketing are based on the advertising platforms whose functionality is described in § 4. In order to provide its services to the customer, emarkerting will set up an account for the use of the advertising platforms on the advertising platforms in the name of emarketing, which is linked to a special account (namely the so-called MCC account) of emarkerting and managed by emarkerting. Alternatively, the customer may associate his existing account with Google with emarkerting so that emarkerting optimizes, manages, and / or enhances the customer's existing account.
  3. A contractual relationship is concluded exclusively between the customer and emarkerting (in the form of a service agreement on services). A separate framework agreement must be signed for agencies or other service providers wishing to use emarkerting to provide their own service to their customers.
  4. emarkerting provides its marketing services (see § 4) for the customer on the basis of the information provided by the customer. In particular, they are automatically read from the website or from interfaces of the customer's shop systems (see § 5 (1)). emarkerting will use personal data provided by the customer only to the extent permitted by law; For more information, see the Privacy Policy: https://www.emarketing.com/company/privacy
  5. The customer undertakes to emarkerting not to advertise the same products with the same advertisement for the duration of the contract existing between him and emarkerting, in particular not to double-tap Adwords on a URL.
  6. The customer is not entitled to use the advertisements created and / or switched by the client (including advertising slogans, graphic advertising and / or advertising or marketing campaigns) for advertising purposes.

§ 3 Services of emarkerting

  1. emarkerting creates customer-specific advertising campaigns for the customer, formulates the advertising texts, designs ad banners and places them on the advertising platforms via interfaces or bookings. When creating the relevant advertisements, emarkerting orients itself to the content on the landing page specified by the customer - usually the customer's website or online shop - or to the information otherwise provided by the customer (see § 5 para. 1). If verbal acquisition of the keywords provided by the customer or based on information provided by the customer indicates that emarkerting believes the chances of ad insertion are inadequate, emarkerting is justified in in the interest of the customer also to use related or similar terms.
  2. emarkerting will, at its best discretion and taking into account its own specific knowledge, determine the amounts which are offered per click on the advertisement (s) created for the customer and may not be exceeded (so-called "CPC"). During the contract period, emarkerting will continuously check which product of the advertising platforms (for example, Google AdWords) is supposed to best meet the customer's advertising goals and, according to an internal algorithm, set the maximum click prices themselves and fully automatically. It is understood that the insertion of an ad (e.g., AdWords ad) is also an advertising service of emarketing.
  3. The frequency of clicks depends on industry demand and budget. The advertisements of the customer may be displayed until the daily budget has been used up due to the costs charged per click by the advertising platforms. emarketing can not guarantee that and how often a particular ad will appear in which ad position within a given time frame.
  4. emarketing makes every effort to optimize ad campaigns (such as AdWords campaigns) to achieve a low click price and high ad exposure, depending on the industry's relevant industry. In the case of AdWords campaigns, this is done through a high quality factor (see § 4 (2)) of the ad.
  5. The customer receives online statistics on a regular basis, listing the keywords and overall impressions and overall clicks to track the success of the ad campaigns (e.g., AdWords campaign). The statistics can be accessed via the customer account.
  6. emarketing will provide all services mentioned in this § 3 on a regular basis in an automated form based on specially developed software. emarketing will make every effort to ensure that the procedures used are state-of-the-art. However, there is no examination of the keywords read on the website of the customer or based on the information provided by him on trademark or other intellectual property rights or infringements. This also applies to ad texts and keywords that are generated on the basis of texts from the customer's website. Also a manual review of the results of the software - including the designed ads and keywords - on consistency or violations of rights is not made by emarketing.

§ 4 concepts of advertising platforms

  1. The advertising concept Google AdWords, as it is used by emarketing, works in such a way that after a search with the Internet search engine Google the relevant Internet user above or next to the actual search results additional advertisements ("AdWords ads") are displayed. Costs are calculated by Google as soon as Internet users click on an ad (if the customer uses the services of emarketing, Google invoices in relation to emarketing, not towards the customer). A display of the AdWords advertisements takes place basically always, if the key words deposited for the customer are identical with the search terms entered by the Internet user. If AdWords ads are booked by a variety of companies for specific key terms, there may not be enough AdWords ads for reasons of space that emarketing has no control over. In this case, the decision as to which AdWords ad is actually displayed and the order in which it is determined for each Google search automatically in a so-called auction by Google. It hangs the chance to appear or as far as possible to be faded in u.a. from the amount of the maximum amount per click and the rating of the so-called quality of the advertisement by Google (in the following "quality factor"). Up-to-date information about how Google AdWords works can be found at http://adwords.google.com.
  2. Google Shopping's advertising concept, as used by emarketing, works in such a way that after searching with the Internet search engine Google (using the "Shopping" option or http://www.google.com/shopping ) the relevant Internet users corresponding offers from dealers are displayed. For this Google Adwords is extended by Google Shopping; Google controls itself the use of the chosen daily budget between these two advertising platforms. The daily budget serves to display and use Product Listing Ads when people search for your products on Google Search or Google Shopping / Product Listing Ads. The advertisement for the customer includes, among other things, pictures of the articles, prices and the name of the shop. Internet users who click on the customer's ad will be redirected to the customer's website where they can buy the item directly. The use of Product Listing Ads only incurs costs when an Internet user clicks on the customer's ad and accesses the customer's website. The customer pays only if the Internet user is forwarded to their business via Google. A detailed description can be found at www.google.com/ads/plasetup.

§ 5 Provision, participation, inspection and other obligations of the customer; Indemnification for infringements of content provided

  1. The customer provides the information necessary for the marketing services about the products and services of the customer offered by the customer and to be advertised by emarketing, either by the customer
  2. emarketing allows the client's website to be read automatically (via so-called crawlers) and / or uses a plugin offered by emarketing which reads out the database of the customer's web shop and transmits the information necessary for providing the marketing services to emarketing, and / or
  3. even submit the desired keywords or products to emarketing.
  4. If the customer permits the automated read-out of his websites, these must comply with the requirements for the placement of advertising campaigns in accordance with the applicable GTC (see § 16), otherwise the advertisements may be deleted for a fee.
  5. The application of substances, services or other services, products and / or materials whose application and / or marketing is unlawful, prohibited or unethical, is inadmissible and may be deleted and charged if necessary. emarketing reserves the right to assert further claims for damages. In the case of the use of keywords, which offends against the advertising guidelines of the advertising platforms (see § 16), emarketing keeps the 100 € zzgl. Mwst. as a processing fee. The customer affirms that he is entitled to use and disseminate the data provided by him including the specified keywords and to observe the applicable data protection regulations. The customer also assures that the data provided by him, in particular the specified keywords, are free of third party rights and comply with applicable law. The same applies to terms that are used as keywords on the websites specified by the customer for evaluation purposes (eg in the so-called meta tags in the HTML code). The same applies to the terms that are contained in texts on these websites. emarketing assumes no responsibility for the content, in particular not for the truthfulness of the advertisements and other services commissioned.
  6. The customer is obliged to emarketing to avoid violations of the kind mentioned in § 5 (2) and § 7 (1) above. In particular, it is obliged to carefully examine in advance the information provided by it for the creation of advertisements and keywords under this contract for infringement of industrial property rights (such as trademarks) and other rights of third parties. Upon request of emarketing, the customer must provide proof of appropriate permission and / or license for the trademarks and other proprietary rights used by him. He also has to examine the emarketing generated on the basis of information provided by him on his own responsibility for legal violations. As far as available for the respective service, the preview function offered by emarketing can be used for this purpose.
  7. With respect to the data and keywords provided by the customer, the customer exempts emarketing from any disadvantages emarketing incurs as a result of their use within the scope of the contract. The customer bears full responsibility and liability for the content of the advertisement (s) created for him by emarketing on the basis of his data in the context of the purpose of the contract. He indemnifies emarketing from any competition, copyright, name and / or trademark and / or other claims of third parties based on a breach by the customer of § 5 (2) or § 5 (3). The same applies in the case of sale and / or other marketing of illegal products.
  8. The customer is responsible for the accuracy and timeliness of the data provided by the customer.
  9. The customer grants emarketing the right to use the data provided by him in anonymous form for statistical purposes. In particular, this includes the unlimited right to use the supplied data to optimize the algorithm or to improve the success estimates.
  10. In certain cases described below, a success measurement of the advertising platforms takes place on the basis of a so-called tracking of the end customers by means of so-called tracking pixels. In this way - even using cookies that are stored by the advertising platforms on the computers of end customers - from the advertising platforms u.a. be measured whether the display of an advertisement has led later to a call of the corresponding product page by the end customer. The statistical information gained in this way is used by emarketing to provide the customer with detailed feedback on the success of the commission (see § 3 (5)). The tracking procedure is used in particular if the customer uses an online shop system with an interface to emarketing; In this case, in principle, a tracking pixel code provided by the advertising platforms is integrated in the Internet pages of the shop for the purpose of the above-described performance measurement. The tracking process takes place in the same way if the customer integrates the corresponding tracking pixel code from the advertising platforms themselves on his pages. Finally, emarketing may offer special types of campaigns, whose use / performance measurement is also based on the tracking process presented - in this case, emarketing will separately inform the customer that a performance measurement will be made on its websites via tracking methods. The customer is obliged in all cases, in turn, to ensure compliance with the statutory data protection provisions, in particular the Federal Data Protection Act and the Telemedia Act. He commits himself to emarketing, which in turn causes him to comply with these laws. He shall inform the customers of his online shop and his other advertised websites in a timely and understandable manner about the collection and use of personal data connected with the use of these pages - by himself and also through the advertising platforms - pursuant to § 13 para. 1 sentence 1 and p. 2 of the Telemedia Act. In addition, Customer shall, to the extent required under applicable law, obtain legal customer consent to tracking and / or setting cookies for the purposes described in this section. The customer indemnifies emarketing against all claims of the end customer and other third parties resulting from a breach by the customer of this § 5 para. 7 or against statutory provisions on data protection.

§ 6 Contract period and termination

  1. The contract between emarketing and the customer is concluded with the placing of order by the customer under emarketing.de and will be concluded for an indefinite period.
  2. Each party to the contract may in principle terminate the contract in writing (including by e-mail) to the other party with a notice period of one day to the end of the day, unless specified in an individual order offer accepted by the customer by e-mail or fax. a minimum term or notice period has been agreed. If the customer violates the agreed minimum term, further claims of emarketing towards the customer may arise in accordance with §9, point 4.
  3. In particular, emarketing reserves the right to immediately terminate prior to the first ad serving, if the customer's website is designed to be ineligible for emarketing's services or rejected by google.
  4. The customer must declare his termination by e-mail or fax in writing to emarketing.
  5. At the end of the contract term, the customer's right to use emarketing-created and / or switched advertising of any kind (including advertising slogans, Adwords texts, graphic advertising and / or advertising or marketing campaigns) ends. Insofar as the customer continues to use the advertisement created and / or switched by emarketing in any way after termination, the customer owes the prices according to the price list plus a penalty of 100% of the remuneration for emarketing valid according to the price list.

§ 7 Infringing, dangerous or immoral advertising or other misuse; Right of refusal and termination; penalty

  1. The products or services to be advertised on behalf of the customer - or the advertising thereof - must not be contrary to legal provisions (eg child protection or criminal laws) or third-party rights, be immoral, endanger the health of humans and animals or be racist or racist. They (or the advertising for it) must also insult minorities or in any way offend the good taste. Furthermore, the advertising of the products or services must not violate the terms and conditions of the advertising platforms (e.g., Google AdWords) (see § 16).
  2. emarketing reserves the right not to use or remove data provided by the customer, insofar as there is a violation of § 7 (1). The same applies insofar as the content of the data could possibly be the subject of illegal, derogatory, defamatory, indecent statements or similar pictorial representations in the opinion of emarketing.
  3. emarketing can reject the provision of its contractual services for the customer at any time and terminate current contracts without notice if there is a violation of § 7 para. 1 or if there would be an advertisement. The same applies if a case of § 7 (2) sentence 2 is or would be present. Furthermore, the same applies insofar as the services are not feasible for technical reasons.
  4. If violations of the types mentioned in § 7 (1) and § 7 (2) (2) are ongoing, they may be deleted by emarketing for a fee. Unlawful acts may be reported if necessary. For each case of infringement against § 7 para. 1, the customer undertakes to pay a contractual penalty, the amount of which shall be determined at the equitable discretion of emarketing and will be reviewed by the competent court at the request of the customer.

§ 8 Changes in services

  1. If the technical, legal or commercial conditions change and emarketing makes the contractual performance with regard to the advertising platforms (eg Google AdWords) more difficult, it can adapt the offered services accordingly to the changes.
  2. In the case of a change, by which emarketing makes their service much more difficult, emarketing is entitled to discontinue the offered services or to continue offering for an increased fee. In such a case, it will inform the customer in due time in writing (e-mail suffices) about the material impediment and either demand a reasonable increase in the remuneration or discontinue the services after a reasonable period of notice.
  3. Changes to the services of the advertising platforms (for example, Google AdWords) (see § 4) may have an immediate effect on the provision of services. emarketing has no influence on this. In this respect, it is up to the customer to regularly inform themselves about the current functionality of the advertising platforms (eg Google AdWords) (see also § 4).
  4. The provisions on termination in § 7 remain unaffected by this § 8.

§ 9 Remuneration

  1. The customer determines a daily budget, which he provides for advertising by emarketing and wants to spend at most. This daily budget must be at least $ 5 and includes all expenses incurred by emarketing to execute the contract (for example, the cost charged by the advertising platform when clicking on an AdWord ad served by emarketing to the customer). The daily budget is exclusive of a commission from emarketing and plus VAT. The advertising budget which the customer issues without the commission of emarketing can optionally be paid directly to the advertising platform (such as google) according to the maturity dates agreed with the advertising platform or settled via emarketing.
  2. The agreed promotional budget will not be fully spent if full use of the advertising budget is not economical at the discretion of emarketing.
  3. emarketing generally receives remuneration for its services from the customer, which is regulated in the current price list, unless otherwise stated in an individual agreement, e.g. in the form of an offer, which the customer has accepted, has been agreed with the customer. The prices are usually composed of a flat-rate monthly basic remuneration as well as a percentage remuneration, which depends on the advertising budget spent. Separate remuneration for setting up and setting up campaigns can be agreed on a case-by-case basis. The commission is plus VAT. The commission claim applies to every day on which emarketing works on behalf of the customer.
  4. If a minimum term has been agreed (which has usually led to discounts), in the case of early termination by the customer, the fees payable would have been due if no minimum term had originally been agreed. Remunerations paid so far will be credited accordingly. Payment of the due balance must be made to the account of emarketing within 3 (three) working days.

§ 10 Invoice, terms of payment and direct debit authorization

  1. emarketing will issue a monthly invoice to the customer on a monthly basis, unless another billing cycle in an individual agreement, e.g. in the form of an offer, which the customer has accepted, has been agreed with the customer. In the invoices the commissions incurred by emarketing in the invoiced period (see § 9 para. 3) plus 19% VAT and, if agreed with the customer, the advertising budgets issued to the customer during the accounting period which emarketing on the advertising platforms, plus 19% VAT. Budget transfers are disregarded. If it has been agreed with the customer that emarketing does not interpret the advertising budgets, the corresponding advertising platform (such as Google) will charge the advertising budget to the customer and will debit in the respective debiting procedure (invoice, direct debit, credit card).
  2. The invoice will be provided electronically in PDF format and made available for download via the customer account. The customer agrees to this type of invoicing acc. § 14 sales tax law too. The provision of the electronic invoice for download via the customer account justifies - beyond the resulting transmission of the invoice within the meaning of § 14 Value Added Tax Act - no adverse legal consequences for the customer. In particular, the provision of the invoice for downloading as such does not lead to default. The above sentence does not apply in the event that emarketing also sends the electronic invoice in its own discretion by e-mail to the customer's e-mail address specified in the customer's account. In this case (ie the sending of the invoice by e-mail) the regulation of § 286 BGB concerning the delay applies.
  3. Unless otherwise agreed, the invoice will be settled by SEPA Direct Debit (giro account). A collection by credit card or payment by invoice is possible if this is agreed between the parties by mail, fax, letter or the corresponding setting in the logged-in state on emarketing.de by the customer and emarketing was accepted. If the direct debit procedure is chosen, the customer authorizes emarketing to collect amounts due by direct debit from the current account specified by the customer (in the authorization procedure) and undertakes not to initiate a chargeback. When choosing a credit card payment, the customer authorizes emarketing to debit the credit card specified by the customer for payment with the invoiced amounts.
  4. The collection or debit of due amounts acc. Section 11 (1) shall in principle be effected on the 4th day after delivery of the invoice. However, emarketing can, if emarketing ausauslagt the advertising budget, during the current month partial amounts of 50 EUR plus VAT, as soon as each corresponding budget has been used (for used daily budget and commission). The amount of the partial amounts can be raised by emarketing to 100 EUR, 200 EUR, 500 EUR or 1,000 EUR by individual agreement. At the end of the month the remaining used budget acc. § 11 para. 3 confiscated or encumbered. All amounts collected or debited are included in the invoices acc. Section 11 (1). The customer is advised that the collection or debiting of (partial) amounts thus already before the billing in accordance with. § 11 para. 1 can take place. The customer will ensure that the bank account or credit card is sufficiently covered.
  5. In the case of returned direct debits due to insufficient funds or due to unjustified objections, the customer will compensate the damage incurred. The damage is set at a flat rate of € 25.00 per return debit. Sentence 1 and Sentence 2 of this § 11 para. 6 shall also apply if the customer revokes the direct debit authorization in spite of due invoices and thereby incurs no fault of the emarketing chargebacks. The customer will also replace the damage incurred in the case of a chargeback (chargeback). In cases of the above sentence, the damage will be assessed at a flat rate of € 50.00 per chargeback. In all cases of this § 11 Abs. 6 the customer is allowed to prove that a damage was not incurred at all or substantially lower than the lump sum.
  6. In the case of termination or other termination of the contract, the daily commission for the current day and the expenses already incurred will be charged in full. Any remainder of the daily budget (including any budget carry-over) will also be charged, unless emarketing receives this remainder from the advertising platforms.
  7. An offsetting by the customer with claims that are disputed and not legally established, is excluded. Furthermore, the exercise of rights of retention by the customer is excluded if this is based on other contractual relationship based.

§ 11 No warranty

  1. The accessibility and retrievability of individual advertisements can not be guaranteed. In addition, emarketing does not assume any contractual warranty for access restrictions based on force majeure or other circumstances for which emarketing is not responsible and beyond its control.
  2. emarketing is authorized to perform maintenance on servers and databases that may cause short-term disruption to the advertising platform's offerings and products. Disruptions to the operation, especially the retrieval of data, will keep emarketing as low as possible.
  3. Notification of obvious inaccuracies with AdWord advertisements sent to the customer must be made no later than 4 business days after the advertisement has appeared on the ad. Otherwise, any resulting claims will lapse.
  4. emarketing does not warrant or guarantee the effective results of the managed advertising campaigns. Estimates of expected new customer revenue or traffic increase displayed on emarketing.de are only a statistical estimate.

§ 12 Liability

  1. emarketing is liable in the case of intent and gross negligence, in the context of product liability, in the provision of guarantees and for damages resulting from injury to life, body or health in accordance with statutory provisions.
  2. Without prejudice to § 13 para. 1, liability for slight negligence only exists for damages caused by the violation of so-called cardinal obligations and is limited in amount to the contractually typical damage foreseeable at the time the contract was concluded. Compulsory replacement does not include the cost of recovering lost data. Cardinal obligations are those obligations whose infringement jeopardizes the purpose of the contract and / or the fulfillment of which enables the proper performance of the contract in the first place and on whose compliance the other party may regularly rely.
  3. Incidentally, a liability of emarketing is excluded. This also applies to damage caused by a legal representative or a vicarious agent of emarketing. It is clarified that § 13 (1) and (2) remain unaffected by this paragraph.

§ 13 change of the terms and conditions

  1. If the customer does not object to an amendment or addition announced to him electronically or in writing three weeks in advance within two weeks of receipt of the announcement, the changes and additions shall also become effective for ongoing contractual relationships in accordance with the announcement. If the customer objects in due time, the contract will be continued under the previous conditions; emarketing reserves the right in this case to terminate the contract properly at the earliest possible date.
  2. In the case of changes and additions that are indispensable for compelling legal reasons, the customer's right of revocation pursuant to § 14 (2) shall be canceled. The same applies to changes and additions made by emarketing, because the GTCs no longer fit or become incomplete due to subsequently changed circumstances are. The same applies to changes and additions made by emarketing, because the relationship between the performance provided by emarketing and the remuneration to be paid has subsequently changed in such a way that an adaptation of the GTC is required. However, changes and additions covered by the preceding two sentences will be announced by emarketing to the existing customer in writing or electronically three weeks in advance.

§ 14 Final Provisions

  1. The contract is subject to German law, excluding the UN Sales Convention.
  2. Jurisdiction is Munich.
  3. Should a provision or part of a provision of this contract be or become ineffective, the validity of the contract shall not be affected. The contracting parties undertake to replace the ineffective provision by one which corresponds to the contract purpose economically.
  4. emarketing is for the transfer of the contractual relationship existing with the customer to one within the meaning of §§ 15ff. Company Law entitled company law; the possibility of termination according to § 6 of these Terms and Conditions remains unaffected.

§ 15 additions

In addition, if applicable, the current GTC, advertising guidelines and other guidelines of the advertising platforms shall apply with the proviso that the duties of the user described in relation to the advertising platforms describe the obligations of the customer towards emarketing. In the case of contradictions or ambiguities, these General Terms and Conditions of emarketing are subject to the GTC for the advertising platforms. In particular, these are Google's for use of the Terms of Service Google AdWords and Google Shopping / Product listing Ads (available at: https://adwords.google.com/select/tsandcsfinder?country=DE, https://support.google.com/adwordpolicy/topic/1626336?hl=DE&ref_topic=2996750, https://support.google.com/adwordspolicy/answer/176095?hl=en We save the contract text and send you the order data by e-mail. The terms and conditions can be viewed at any time here. Past orders can be viewed in your account.