General Contract Terms and Conditions of solute GmbH for Cooperation Partners

(Date: Karlsruhe, 01.12.2019)

1. Scope

1.1

The following General Contract Terms and Conditions apply exclusively to the contractual relationship between solute and the operators of websites which want to integrate dealer offers of solute into their websites ("Portal Partner/s").

1.2

solute provides its services exclusively on the basis of the cooperation agreement concluded with the Portal Partner which is supplemented by these General Contract Terms and Conditions. Deviating, opposing or supplementary terms and conditions of the Portal Partner will not be part of the agreement, even where there is knowledge of these, unless solute has expressly consented to their application. These General Contract Terms and Conditions also apply to all future agreements concluded during an on-going business relationship between solute and the Portal Partner.

1.3

solute has a right to amend and/or supplement the General Contract Terms and Conditions in all cases providing it gives reasonable notice. Notice can be given by way of publication on the internet on solute's web pages or in text form (especially by e-mail). The Portal Partner has a right to object to the amended or supplemented terms and conditions within a period of 30 days of publication on the internet or receipt in text form. If the Portal Partner does not object within the time limit, the new terms and conditions will become an effective part of the agreement. If the Portal Partner objects to the amended or supplemented terms and conditions within the time limit, solute has the right to terminate the contractual relationship from the time when the amended or supplemented terms and conditions take effect.

2. Services and rights of solute GmbH

2.1

solute offers the Portal Partner the possibility of advertising dealer offers of online shops connected with solute on websites of the Portal Partner.

2.2

solute reserves the right to change, supplement and delete the dealer offers provided to the Portal Partner at any time. In legitimate individual cases, solute will block content, i.e. dealers and related offers, for Portal Partners.

2.3

solute reserves the right to modify, expand, delete and/or publish new versions of the API definitions. The same right applies to the exports and reports provided.

3. Duties and responsibilities of the Portal Partner

3.1

The data supplied by solute or parts of these data may only be passed on to third parties with solute's prior written consent. The services provided by solute or parts of these services may only be passed on, reproduced, distributed or otherwise made available to third parties for use in accordance with this agreement.

3.2

The dealers as well as the individual offers of the dealers at solute change regularly, e.g. availability and price. The Portal Partner will take account of these changes immediately, i.e. without undue delay, in its online portals.  

3.3

The Portal Partner has a duty to no longer make available to third parties, i.e. the users of its online portal, content of third parties marked as "blocked", i.e. "offline".

3.4

The data concerned may be used solely for caching purposes, and only retained or stored for a maximum period of 24 hours. These data must then be deleted by the Portal Partner without awaiting a request to do so. This is necessary in order to be able to give the Portal Partner a guarantee that the data is up-to-date and to take account of the rights of use in the dealer data.

3.5

The Portal Partner may flexibly display the solute offers on its portal and they may be used in sequence with the Portal Provider's own data or data of competitors. Duplicate offers will be removed by the Portal Partner.

3.6

The Portal Partner will ensure that the CPCs provided are at no time displayed in an unencrypted form (even in the URL that is displayed on mouseover) or otherwise published or otherwise made available to third parties.

3.7

Dealer offers must be depicted in a completely unchanged manner together with the dealer link. solute's tracking code may especially not be removed.

3.8

The target URL for a dealer link transmitted by solute may not be changed or shortened, in particular the target URL may not be framed or access to the target URL connected with a pop-up or pop-under.

3.9

The Portal Partner will ensure that the dealer offers provided by solute are not displayed on online portals which glorify violence or contain pornographic, unethical, youth-endangering, criminal or otherwise illegal content. The Portal Partner will especially ensure that the content of its website does not infringe any property rights and statutory provisions and especially that the provisions of the German Telemedia Act (TMG), the Federal Data Protection Act (BDSG) and the GDPR are complied with.

3.10

The Portal Partner undertakes not to conduct any SEM/SEA or Google Adwords campaigns for registered/protected trade marks or for names and incorrect spellings of advertising customers registered with solute.

3.11

The Portal Partner agrees to prevent the use of PLA/Google CSS campaigns for the advertising of dealer offers.

3.12

The Portal Partner has a duty to ensure a minimum level of traffic quality. The minimum level for the traffic quality is an average dealer conversion rate of 1.4% based on the overall traffic of the Portal Partner.

4. Availability of solute's services

4.1

Since the dealer offers are regularly updated, solute does not guarantee that they will be available at all times.

4.2

solute will endeavour to ensure that the service, taking into account any maintenance and repair work and downtime for updates, is available 24 hours a day, 7 days per week. solute does not guarantee that the services (especially the API, exports and reports) will be available without interruptions at all times on time and without errors. Operational interruptions are possible.

5. Right of use

5.1

solute will grant the Portal Partner a simple revocable right limited to the term of this agreement, without the right to grant licences to third parties and limited to the purpose of the agreement:

  • to use the API/exports and to access the product database which contains the dealer offers;
  • to display, integrate and make available to the public the dealer offers obtained via API/exports in accordance with the requirements of this agreement on its own websites;
  • if necessary, to display, integrate and make available to the public content of the dealer offers on its own websites.

5.2

The Portal Partner is prohibited from saving and/or using the dealer offers provided via API/export directly or indirectly for purposes other than for the purpose of the agreement. The same applies in particular to their disclosure to and use by third parties.

6. Reporting / tracking

6.1

solute has a reporting tool for measuring and distributing traffic and clicks on websites. This system is the basis for calculating the remuneration to be paid to the Portal Partner. solute has the right to replace its tracking system by another system at any time.

6.2

The Portal Partner will receive a daily click report showing the clicks per dealer/dealer offer per day. The values shown in this report represent a non-binding estimate during the course of the current billing month which will be adjusted again, as necessary, after the end of the month in order to remove traffic generated in an abusive manner and/or poor-quality traffic.

6.3

The Portal Partner will receive a performance report which includes all dealers and which shows the conversion rate (CR) and Cost-of-Sale Rate (COS) on average across all dealers and clicks on a daily, weekly or month-to-date basis. This type of report puts the Portal Partner in a position to perform its own statistical evaluations and thus obtains information which will assist it to further increase performance.

7. Billing and remuneration

7.1

For the services under the cooperation agreement, the Portal Partner and solute agree on a Revenue Share model for the turnover from click outs on the Portal Partner's websites.

7.2

The basis for the calculation is the daily click report provided by solute. This report lists all click outs relevant for billing purposes including the relevant CPCs (before deduction of any cancellations, credits, payment defaults) (gross clicks).

7.3

A dealer click will only be remunerated if the dealer has properly paid solute. If it should not be possible for solute to obtain payment from the dealer, solute will not have a duty to make a payment to the Portal Partner.

7.4

A dealer click will only be remunerated if the Portal Partner complies with the minimum level of traffic defined in section 3.12. If this is not reached, solute has a right to reduce the amounts on which the calculation of the Revenue Share is based. The reduction will be calculated on the basis of the percentage by which the minimum level of the dealer conversion rate of 1.4% is understepped. In the case of a dealer conversion rate of 0.7%, i.e. a dealer conversion rate which falls below the minimum level of 1.4% by 50%, the payment to the Portal Partner will be reduced accordingly by 50% (payment means the turnover share of the net sales proceeds which is paid to the Portal Partner). In the case of a dealer conversion rate of 0.98%, i.e. a dealer conversion rate which falls below the minimum level of 1.4% by 30%, the payment to the Portal Partner will be reduced accordingly by 30%.

7.5

The sum of all clicks, multiplied by the corresponding CPC, results in the gross turnover at the end of the month. The net turnover is calculated by deducting any cancellations, credits and payment defaults from the gross turnover.

7.6

The net turnover is relevant for billing and forms the basis for calculating the Portal Partner's share and forms the basis for the associated invoice.

7.7

The net turnover is allocated in accordance with the distribution key agreed in the cooperation agreement.


   Example calculation where the revenue share is 50:50

   Gross turnover                                                                                               5.000,- €

   ./. cancellations, credits, payment defaults                                              ./.200,- €

   = net turnover                                                                                                4.800,- €

 

   Portal Partner's share                                                                                  2.400,- €

   solute share                                                                                                   2.400,- €

7.8

solute will send the Portal Partner monthly billing information in the first 10 days of the subsequent month by e-mail showing the total of the Portal Partner's share.

7.9

The share of Portal Partners with their registered offices in Germany will be paid within 30 days in the form of a credit note (including VAT).

7.10

The payment of the share for Portal Partners with their registered offices outside of Germany and for small business owners within Germany will be made 30 days after receipt of an invoice. The Portal Partner will provide solute with an invoice on the basis of the billing information.

7.11

solute has a right, in legitimate cases, in particular due to a lack of conversion and the resulting click peaks, to cancel clicks.

7.12

solute will inform the Portal Partner at the beginning of each month about the relevant billing information for the previous month. Deviations due to payment defaults or cancelled clicks can be deducted up to 6 months later by including them in the current report. Similarly, payment defaults, which are subsequently balanced, will be settled with the Portal Partner.

7.13

Where the Portal Partner share is < EUR 100 net, the corresponding amount will be added to the amount for the following month and/or paid out by the end of the agreement at the latest.

8. Liability and warrenty

8.1

The dealer offers and information contain data provided by third parties, especially by dealers. solute therefore does not accept any responsibility for the accuracy and completeness of these data.

8.2

solute does not check whether the third parties, especially the dealers, have a right to grant such rights of use in material protected by copyright or trade mark rights. solute does not accept any responsibility for the content of the product database being free from rights of third parties.

8.3

solute cannot be required to provide article information which is not available to it and which cannot be researched at the manufacturer/dealer or which has not been released. Recourse claims or a reduction of the agreed remuneration on such grounds are excluded. solute will inform the Portal Partner without undue delay in writing if there is anything to suggest that the content provided by solute infringes rights of third parties or violates legal provisions; this especially applies if claims are brought by third parties in relation to the content provided.

8.4

For the event that a third party brings claims against solute on grounds of non-contractual use of the content provided by the Portal Partner or brings a claim on grounds of another kind of breach of duties by the Portal Partner under this agreement, the Portal Partner will indemnify solute against these claims. This includes the reasonable costs of legal defence (i.e. the court and legal fees).

8.5

For disruptions which are outside of the sphere of influence of the parties (force majeure, fault of third parties, communication network downtime and downtime of gateways of other operators or disruptions which are the responsibility of other network providers, etc.), neither party will be liable to the other.

8.6

solute is only liable for any damage, irrespective of the legal basis, if an essential contractual obligation has been culpably breached in a manner which puts the purpose of the agreement at risk or if the damage was caused as a result of gross negligence or with intent or where there is liability for damage caused as a result of injury to life, body or health The limitation of liability also applies in the case of fault by one of solute's vicarious agents. If the breach of an essential contractual duty was not caused by gross negligence or intent, solute's liability is limited to the typical damage and the typical scope of damage which was sensibly foreseeable at the time when the agreement was concluded. This does not apply to liability under the German Product Liability Act (ProdHaftG). Unless otherwise provided for by mandatory statutory provisions, liability is excluded in all other respects.

9. Term and termination

9.1

Unless otherwise agreed, the agreement is being concluded for an unlimited term and can be terminated observing a notice period of three months to the end of a month.

9.2

Both parties have a right to terminate the agreement without notice for good cause. Good cause for termination without notice by solute will especially be where

     a)   contractual relations with dealers of solute are at serious risk as a result of the Portal Partner's behaviour; 

     b)   the Portal Partner breaches essential provisions of these General Contract Terms and Conditions;

     c)   the data/content provided by the dealer violate/s statutory prohibitions/requirements, accepted principles of morality or rights of third parties. 

9.3

Termination without notice will take place following a prior warning by solute unless the warning is clearly not going to be successful and/or solute can no longer be reasonably expected to continue to perform the agreement.

10. Public communications, press relations, newsletter

10.1

The Portal Partner agrees to solute clearly referring dealers to Portal Partners.

10.2

The Portal Partner consents to receiving newsletters with offers of solute's individual services at regular intervals at the e-mail address provided. The Portal Partner can object to receiving the newsletter at any time for the future without costs being incurred for this other than the transmission costs on the basis of the basic fees.

10.3

solute has a right to refer in its advertising materials to the Portal Partner and the cooperation with the Portal Partner. In this regard solute can especially use the trade marks, including the logos of the websites of the Portal Partner, into which the dealer offers are integrated. In this connection the Portal Partner grants solute a simple, revocable right of use, unrestricted in terms of territory and without the right to grant licences to third parties which is limited to the term of the agreement.

11. Confidentiality

11.1

The parties undertake to observe confidentiality with regard to the content of the agreement and the data, trade and business secrets and other confidential information obtained from the other party and its affiliated companies. The parties also have a mandatory duty to impose the obligations they have assumed on the parties they entrust with the information or services under this agreement. This prohibition does not apply to disclosures which are made exclusively to persons subject to statutory or contractual duties of confidentiality.

11.2

Confidential information in the sense of this section includes all data exchanged between the parties, especially the knowledge about click rates, interfaces, programming, price structures, business partners and turnover. Passing on such information to or using it for third parties, excluding affiliated companies within the meaning of sections 15ff. German Stock Corporation Act (AktG), will require the prior consent of the other party.

11.3

The parties will also impose the same duties on their employees, subcontractors and parties they commission accordingly.

11.4

This confidentiality duty does not apply to confidential information with respect to which the disclosing party can prove that

11.4.1

the information was in the public domain or had to be disclosed on grounds of statutory duties or a duty imposed by an authority or

11.4.2

it already had the information before it was disclosed by the disclosing party

11.4.3

it was notified of the information by a third party in a lawful manner which was not acting as a representative of another party

11.4.4

the information was developed by it or for it independently.

11.5

Exempted from the provisions in this section are mentioning the parties and generally describing the subject of the agreement in press releases, customer/cooperation partner lists, offers or other marketing documents of the parties.

11.6

After the end of the cooperation and on request by the other party, the party which received the information must return this to the other party or, if it is not possible to physically return the information, to delete the information and to provide the disclosing party with suitable evidence that it has done so.

11.7

If the agreement comes to an end for whatever reason, the duties under this section will continue to apply for a term of 24 months after the end of the agreement.

12. Other provisions

12.1

Amendments and additions to this agreement, including this clause, must be in writing. E-mail or fax will be deemed to satisfy the written form requirement.

12.2

The agreement contains all agreements on the subject of the agreement; there are no further written or oral agreements. Amendments and additions to as well as termination of this agreement must be in writing in the sense of section 12.1 of the General Contract Terms and Conditions; this also applies accordingly to this written form clause.

13. Severability clause

Should one or more than one of the provisions of this agreement be invalid or unenforceable in its entirety or in part, this will not affect the validity of the remaining provisions of this agreement. In place of the invalid or unenforceable provision, the parties agree to agree a provision which most closely reflects, in legal and real terms, the economic purpose of the invalid or unenforceable provision. The same applies accordingly if there is an unintended lacuna.

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