Terms of Use

(Effective from 01.10.2023; the German versions of these provisions are legally binding. Translated versions are provided for convenience only.)

Introduction

solute GmbH, Zeppelinstraße 15, 76185 Karlsruhe, (hereinafter "solute Group") provides cloud-based marketing platforms (hereinafter "platforms") on which customers can book and use marketing services. The services offered are aimed at commercial online retailers or other business professionals. "Customer" refers to the business professional who uses the services of the solute Group.

§ 1 Subject matter of the terms and conditions

1. These General Terms and Conditions (hereinafter "GTC") govern the use of the platforms and the services offered on them.

2. To provide its services, solute Group works with advertising platforms, data providers, and other cooperation partners (individually and collectively referred to as "Partners"). A list of these partners can be requested from solute Group. solute Group may update this list at any time. These Terms and Conditions also apply to services provided by solute Group in conjunction with other cooperation partners not explicitly named in the list.

3. Use of the platforms by customers is subject exclusively to these Terms and Conditions. The customer's own terms and conditions do not apply. This remains true even if solute Group does not explicitly object to the customer's terms and conditions.

4. The customer warrants that they are entering into this contract solely as a business entity within the meaning of § 14 of the German Civil Code (BGB), i.e., in the course of their commercial or self-employed professional activity.

§ 2 Subject of the Contract; Services

1. solute Group provides platforms to support customers' online marketing. Examples of use include increasing the online reach of a website, acquiring new customers, optimizing advertising campaigns, adjusting prices, generating market data, and/or increasing online sales figures.

2. The subject of this contract is the use of the platforms, which enables the customer to utilize the services mentioned in para. 1.

3. The platforms are server-based and interact with partners via API interfaces.

4. The marketing services offered are provided based on software specifically developed for this purpose.

5. The software remains the exclusive property of solute Group. The customer may use it only in accordance with the selected pricing model, strictly subject to the provisions set forth in these Terms and Conditions, and only on the websites operated by solute Group.

6. Registration on one of the platforms is a prerequisite for use. During registration, a customer account is created, which the customer can access using an email address and password. The password must be kept confidential from third parties. The email address provided during registration will be used for communication regarding the execution of the contract, unless otherwise specified in the cooperation agreement.

7. To use the platforms, it is necessary to link the platforms with the customer accounts held with partners. Linking is performed exclusively at the customer's request, which can be made online or via email. Access to partners by solute Group is generally handled technically via an API.

8. solute Group offers various pricing models that include different services and features. Details regarding these marketing services, their terms, and pricing can be viewed by the customer online before completing a purchase (https://solute.de/) or are stipulated in a separate cooperation agreement.

9. solute Group provides its marketing services based on information provided by the customer (hereinafter "Information"). Such information is read automatically from the website or via interfaces. The customer may also provide this information in other ways, e.g., via email.

10. solute Group grants the customer a non-exclusive, non-transferable right to use the services described in § 2, para. 1, limited to the term of the contract. This entitles the customer to use the service on the platforms for their own purposes. Any modifications within the scope of this non-exclusive use are prohibited.

11. The customer is entitled to partially or fully assign the contractual services to a third party (e.g., an advertising client), whether for payment or free of charge, provided this complies with § 2 and the usage rights granted in § 2, para. 10, or to create corresponding accounts for such third parties. In such cases, the customer remains the sole contractual partner and debtor for all payment claims by solute Group. No direct contractual relationship is established with the third party.

12. The customer retains all rights, in particular all copyrights, to the information and data recorded for the services. The customer grants solute Group the right to use this information and data within the scope of its services, including the right to reproduce and transmit such information and data as part of those services.

§ 3 Customer's Obligations Regarding Provision, Cooperation, Verification, and Other Duties; Indemnification for Legal Violations via Provided Content

1. The customer shall provide the information necessary for using the platforms. The customer is obligated to carefully check the information provided under this contract in advance for any infringement of industrial property rights (e.g., trademarks) or other third-party rights. Upon request by solute Group, the customer must provide proof of appropriate authorization and/or licensing for the trademarks and other property rights used.

2. With regard to the information provided by the customer, the customer shall indemnify solute Group against all disadvantages and claims arising from its use for the purposes of the contract. The customer bears full responsibility and liability for the content used for the purposes of the contract based on the information provided in accordance with § 2. The customer shall indemnify solute Group against any claims by third parties—including those related to competition, copyright, naming rights, trademark rights, or other legal areas—that arise from the customer's breach of this provision or other obligations under these Terms and Conditions. The same applies in the event of the advertising, marketing, offering, sale, rental, and/or leasing of illegal products.

3. The customer is responsible for the accuracy and currency of the information provided. The indemnification clause in the preceding paragraph also applies to any claims or disadvantages resulting from inaccurate or outdated information.

4. The customer grants solute Group the right to use the information provided by them in anonymized form for statistical purposes. This includes, in particular, the unrestricted right to use the supplied information to optimize the algorithm or to improve success estimates.

5. The customer undertakes to use all services exclusively as intended. The customer is prohibited from manipulating the platforms, in particular from using mechanisms or other scripts in connection with the platforms that could disrupt the functionality of the platform services. The customer may not take any measures that could result in an unreasonable or excessive load on the platforms. Use of the services in conjunction with third-party software is prohibited. A prerequisite for such measures is always that solute Group has previously consented to them in writing.

Section 4 Contract term and termination

1. A contract between solute Group and the customer is concluded upon electronic order placement on the platforms or the signing of a cooperation agreement. The order is considered placed as soon as solute Group has sent the customer a confirmation email after completion of the ordering process or the cooperation agreement has been signed by both parties. The contract is concluded for an indefinite period unless a different duration has been agreed upon in the contract.

2. solute Group and the customer are entitled to terminate the contract at any time without notice for good cause. Good cause exists for solute Group in particular if

1. the customer is in default of due payments for more than 10 working days after receipt of a payment reminder or dunning notice

2. the customer has violated essential provisions of these GTC (Section 5) or other legal regulations and has not provided a remedy within a reasonable period despite a warning. A warning is not required if it promises no success or if the breach is so serious that it is unreasonable for the provider to continue the contract.

3. solute Group reserves the right to terminate the contract immediately if customers violate the provisions of Section 5. In this case, prepaid services for outstanding service periods will be refunded pro rata. Termination by solute Group to the customer will be sent to the email address of the customer's solute Group account.

4. If the order was placed on the platforms, the customer must terminate the contract with solute Group via their customer account. In all other cases, termination must be sent electronically to info@solute.de

5. In the event of ordinary termination, solute Group undertakes to make all contract and customer data stored by it, as well as all access to the platforms, available to the customer until the end of the term.

6. After termination and, if applicable, the expiry of the notice period, solute Group will block the terminated service for the customer. Upon termination of the contract, the customer loses their right to use the service in question and must cease using it. The customer is responsible for backing up their data in good time beforehand and—without prejudice to mandatory statutory claims—has no claim to the release of the data they have recorded after the contract has ended.

7. The customer undertakes to remove all tracking pixels and tracking codes independently and without prompting within 14 days after the end of the contract. Should the customer fail to comply with this obligation within 14 days, solute Group reserves the right to invoice the customer for any costs incurred without prior notice.

8. The customer will notify solute Group immediately if:

1. the opening of insolvency proceedings has been applied for by the customer or must be applied for within the next 14 days,

2. the opening of insolvency proceedings has been applied for by third parties,

3. the customer has ceased or must cease payments (in whole or in part) due to payment difficulties,

4. measures have been taken against the customer for the satisfaction of third-party creditor claims in connection with payment difficulties, or

5. the customer has agreed to arrangements for the satisfaction of third-party creditor claims in connection with payment difficulties.

9. If the customer violates their obligations under this contract, solute Group is entitled, after a prior warning, to block the customer's access and withhold services under this contract. In the event of serious breaches of duty, such as payment default, manipulation of services, posting of illegal content, etc., solute Group is entitled to block access immediately.

Section 5 Infringing, dangerous or immoral advertising or other misuse; right of refusal and termination; contractual penalty

1. The products or services to be advertised for the customer according to the order – or the advertising for them – must not violate legal regulations (e.g., youth protection or criminal laws) or third-party rights, be immoral, endanger the health of humans or animals, or be racist or incite hatred. Furthermore, they (or the advertising for them) must not insult minorities or violate good taste in any other way. Additionally, the advertising for the products or services must not constitute a violation of the advertising platforms' terms and conditions. The promotion of substances, services, or other benefits, products, and/or materials whose promotion, marketing, offering, sale, rental, and/or leasing is illegal, prohibited, or unethical is inadmissible and may be deleted at the customer's expense and, if necessary, reported to the authorities. solute Group reserves the right to assert further claims for damages.

2. solute Group reserves the right not to use or to remove information provided by the customer if there is a violation of § 5 para. 1. The same applies if, in the assessment of solute Group, the content of the information could potentially be the subject of illegal, disparaging, defamatory, or immoral statements or similar visual depictions.

3. The customer shall indemnify solute Group against any third-party claims as well as potential fines and consequences of regulatory proceedings resulting from the customer's violation of this § 5.

4. solute Group may refuse to provide its contractual services to the customer at any time and terminate ongoing contracts without notice if there is a violation of § 5 para. 1 or § 5 para. 2 sentence 2, or if such a violation would exist upon the placement of the advertisement, or if the services cannot be performed for technical reasons.

§ 6 Changes to Services & Amendments to General Terms and Conditions

1. These General Terms and Conditions may be amended to the extent necessary to adapt to developments that were not foreseeable at the time of contract conclusion, which solute Group did not initiate or cannot influence, and whose non-consideration would significantly disrupt the balance of the contractual relationship, provided that essential provisions of the contractual relationship are not affected. Essential provisions are those concerning the nature and scope of the contractually agreed services and the term, including provisions regarding termination. Furthermore, these General Terms and Conditions may be adjusted if necessary to eliminate significant difficulties in the execution of the contract due to regulatory gaps that have arisen after the conclusion of the contract. This may be the case, in particular, if case law regarding the validity of provisions in these General Terms and Conditions changes, e.g., if a provision is declared invalid by the courts or a change in the law leads to its invalidity.

2. The contractually agreed services may be changed if and to the extent that this is necessary for a valid reason that was not foreseeable at the time of contract conclusion, and provided that the balance between performance and consideration is not unreasonably altered to the detriment of the customer. A valid reason exists if new technical developments make a change in service necessary because the service can no longer be provided in the previously agreed form, or if newly enacted or amended legal or other official requirements necessitate a change in service.

3. solute Group will notify the customer of any changes to these General Terms and Conditions or the contractually agreed services in accordance with paragraphs 2 and 3 above in text form at least four (4) weeks before they are scheduled to take effect. For changes that are not exclusively to their advantage, the customer has the right to object to the changes in text form (e.g., by letter or email) by the time they take effect. The customer will be specifically informed of this in the change notification.

4. In the case of changes and additions that are essential for mandatory legal reasons, the customer's right of objection under this provision does not apply. In this case, the customer has the right to terminate the contract via email within two weeks of receiving the announcement. If the customer objects within the deadline, the contract will continue under the previously applicable conditions; in this case, solute Group reserves the right to terminate the contract at the earliest possible date.

5. Changes to the services of advertising platforms can have a direct impact on the provision of services. solute Group has no influence over this. It is therefore the customer's responsibility to regularly inform themselves about the current functionality of the advertising platforms.

§ 7 Invoicing; Payment Terms; Direct Debit Authorization

1. solute Group will invoice the customer for paid services. Unless another billing mode has been agreed upon, invoices are payable in advance using the payment method selected by the customer at the time of booking.

2. The invoice will be generated electronically in PDF format and made available to the customer. The customer agrees to this method of invoicing in accordance with § 14 of the Value Added Tax Act (Umsatzsteuergesetz). The provision of the electronic invoice for download via the customer account does not result in any adverse legal consequences for the customer beyond the transmission of the invoice as defined by § 14 of the Value Added Tax Act.

3. In the event of direct debit returns or unjustified chargebacks, solute Group will charge a processing fee of 25.00 euros per affected invoice.

4. The customer is not permitted to offset claims that are disputed and not legally established. Furthermore, the customer is excluded from exercising rights of retention if these are based on other contractual relationships.

§ 8 No Warranty

1. The accessibility and availability of advertisements, as well as the unrestricted use of booked marketing services, cannot be fully guaranteed. In particular, temporary impairments in the use of partners are not uncommon. Furthermore, solute Group assumes no liability for access restrictions experienced by the customer that are based on force majeure or other circumstances beyond solute Group's control and outside its sphere of influence.

2. solute Group exclusively guarantees the usability of the platform as described in § 2. The customer acknowledges that software cannot be created entirely free of errors. The software is therefore only guaranteed to be free of errors to the extent customary in the market and industry.

3. solute Group and its partners are entitled to perform maintenance work on servers and databases, which may result in short-term interruptions to marketing services. solute Group will keep disruptions to operations, particularly data retrieval, to a minimum. This does not entitle the customer to any claims for compensation.

4. Any obvious inaccuracies in the advertisements placed for the customer must be reported no later than 2 working days after the advertisement appears. Otherwise, any claims resulting from this shall be forfeited.

5. solute Group provides no warranty or guarantee for the effective results of the marketing services provided.

§ 9 Liability

1. solute Group is liable in accordance with statutory provisions in the event of intent and gross negligence, within the scope of product liability, when providing guarantees, and for damages resulting from injury to life, body, or health.

2. Without prejudice to § 9 (1), liability for slight negligence exists only for damages caused by the breach of so-called cardinal obligations and is limited in amount to the foreseeable damages typical for the contract at the time of its conclusion. The obligation to compensate does not include the cost of recovering lost data. Cardinal obligations are those obligations whose breach endangers the purpose of the contract and/or whose fulfillment is essential for the proper execution of the contract and upon whose compliance the other party may regularly rely. The limitation to the compensation of typical contract damages also applies to any consequential damages.

3. Otherwise, any liability on the part of solute Group is excluded. This also applies to damages caused by a legal representative or a vicarious agent of solute Group. It is clarified that § 9 (1) and (2) remain unaffected by this paragraph.

§ 10 Competition and Advertising

solute Group and the customer agree to treat the technical and economic details of their cooperation as strictly confidential.

solute Group and the customer are permitted, until revoked by either party, to state in general customer information, brochures, presentations, etc., that a service relationship exists between the parties or, in the case of agencies, that work is being performed for their end customers. Upon request, the parties will provide company logos for reference purposes.

§ 11 Data Protection

1. Compliance with data protection regulations is of particular importance to solute Group. In addition to solute Group's data protection provisions, the following regulations apply.

2. solute Group will process personal data from the customer's inventory and user base for the fulfillment and execution of the contract with the customer, and otherwise only to the extent permitted by applicable data protection regulations (in particular the EU General Data Protection Regulation and the German Federal Data Protection Act). solute Group is entitled to use data generated during the use of the services by the user, such as collected tracking/tag information and statistics, in an anonymized manner.

3. The customer is obligated to comply with all applicable data protection regulations (in particular the EU General Data Protection Regulation and the German Federal Data Protection Act).

4. Should solute Group be held liable due to the customer's violation of data protection regulations or the personal rights of third parties, or should solute Group incur other damages as a result, the customer shall indemnify and hold solute Group harmless from all related claims of any kind, including reasonable legal defense costs (e.g., court and attorney fees), provided the customer is responsible for the violation/damages.

§ 11 Final Provisions

1. The contract is governed by German law, excluding the UN Convention on Contracts for the International Sale of Goods.

2. The place of jurisdiction is Karlsruhe.

3. Should any provision or part of a provision of this contract be or become invalid, the validity of the remainder of the contract shall not be affected. The contracting parties undertake to replace the invalid provision with one that corresponds economically to the purpose of the contract.

4. solute Group is entitled to transfer the existing contractual relationship with the customer to a company affiliated with it within the meaning of §§ 15 et seq. of the German Stock Corporation Act (AktG); the possibility of termination pursuant to § 5 of these terms and conditions remains unaffected.

§ 12 Amendments

In addition, the current terms and conditions, advertising guidelines, and other policies of the partners apply where applicable, with the proviso that the obligations of the user towards the partners described therein describe the obligations of the customer towards solute Group. In the event of contradictions or ambiguities, these solute Group terms and conditions take precedence over the terms and conditions of the partners.