Wagawin GmbH (“Wagawin“) is an IT company that provides its customers (“Advertisers“) with the opportunity to place advertising ofspecial quality on mobile devices. For this purpose, Wagawin has developed theso-called LivingAd technology (“LivingAds“). LivingAds are proprietary mobile display and video advertising formatsthat allow the end user to provide feedback to the Advertiser through variousintegrated interaction elements directly in the advertisement. This enables theLivingAds of Wagawin to generate exclusive 1st-party target group data.Advertisers can receive the data in real time if they use appropriate systems(“Tracking Solutions“). TheAdvertiser is the exclusive owner of the collected data and can, at his owndiscretion, activate it for further advertising activities via his dataplatforms.
Wagawin offers these services as so-called Self Service and as so-calledManaged Service. These services differ with respect to the scope and access tothe Wagawin platform. These General Terms and Conditions apply exclusively toservices within the scope of the Managed Service.
As part of the Managed Service, Wagawin handlesthe complete campaign management according to the Advertiser’s instructions,from the creation of the LivingAds on the Wagawin platform to the managementand optimization of the campaign. Wagawin also handles the media purchasing,which takes place via direct and programmatic placements. LivingAds arecompatible with IAB Standards VPAID 2.0 and MRAID 2.0. The collected data aresent in real time directly to the Advertiser’s data platforms, if desired. TheAdvertiser is informed about the campaign progress through regular reporting.The exact details of each campaign are specified in separate Insertion Orders(“IO“). Wagawin takes noresponsibility for the success of the advertising campaign.
1.SCOPE OF APPLICATION; DEVIATING CONDITIONS; CHANGES
1.1 These General Terms and Conditions onlyapply to companies in the sense of section 14 German Civil Code (Bürgerliches Gesetzbuch, “BGB“). Consumers cannot become users of the Wagawin platform and cannot usethe services of Wagawin.
1.2 General Terms and Conditions of the Advertiser do not apply unlessWagawin has expressly accepted these. Individual agreements between Wagawin andthe Advertiser always take precedence over these GTCs.
2. CONCLUSION OF CONTRACT
2.1 To use the Managed Services, the Advertiser must place an IO. A bindingcontract for the performance of Managed Services only comes into effect whenthe IO is confirmed by Wagawin. The confirmation by Wagawin is made by e-mailand/or by letter.
2.2 Unless otherwise agreed in the IO, these GTCs shall apply to theperformance of Managed Services. This shall also apply if no explicit referenceis made to these GTCs in the IO.
3. SUBJECT OF THE CONTRACT; SERVICES OF WAGAWIN
The specific services to be performed are defined in detail in therespective IOs.
4. OBLIGATIONS OF THE ADVERTISER TO COOPERATE; GRANTING OF RIGHTS
4.1 The Advertiser is obliged to provide Wagawin with the advertisingmaterials required for the performance of services.
4.2 By making the advertising material available for the use in connectionwith the execution of an IO, the Advertiser grants Wagawin for the time of theagreed advertising placement the non-exclusive and territorially unrestrictedright to use the advertising material in the manner agreed in the respectiveIO.
5. REQUIREMENTS FOR ADVERTISING CONTENT
The Advertiser is not allowed to provide advertising material or other datathat
5.1 does not comply with the basic rules forcommercial communication of the German Advertising Council (Deutscher Werberat);
5.2 violates the law for the protection of minors;
5.3 contains content that glorifies violence, war, sedition, contempt forhumanity,
5.4 signs of unconstitutional organizations,
5.5 or other illegal content
or that refers to advertising material of such content. Furthermore, theAdvertiser may not provide advertising material or other data that violates therights of third parties.
6. DATA PROTECTION; CONTRACT DATA PROCESSING; RIGHTS TO DATA
6.1 For Wagawin compliance with data protectionregulations is a major concern. Any processing of personal data is thereforestrictly in accordance with the provisions of data protection law, inparticular the EU-General data protection regulation (Datenschutzgrundverordnung; “DSGVO”). The Advertiser will find further informationregarding the use of data in the data protection declaration published on thewebsite wagawin.com.
6.2 To the extent Wagawin generates 1st-Partytarget group data in the form of personal data while performing the ManagedService, data processing by Wagawin is exclusively performed as contractprocessing on behalf of the Advertiser for the contractual provision of the LivingAds.In this respect, the contract on order data processing (Contract on order dataprocessing according to Art. 28 DSGVO) applies.
6.3 The Advertiser is entitled to all commercial rights relating to the1st-party target group data.
6.4 The Advertiser is not entitled to any rights relating to the Wagawinplatform, in particular regarding the LivingAd technology (including contentand databases).
7. REMUNERATION OF WAGAWIN
7.1 The prices for the Managed Services are specified in the respective IO.
7.2 Unless otherwise agreed, Wagawin’s payment claims become due uponconclusion of the contract for the respective Managed Services and are payableeven before the complete performance of services by Wagawin. Unless otherwiseagreed, the Advertiser is in default if he does not pay within 14 days of theinvoice date. Objections to invoices must be raised by the Advertiser within 14days of receipt of the invoice at the latest; otherwise the invoice shall bedeemed approved.
7.3 Payments shall be made to the account of Wagawin and the Advertisershall bear all costs of the payment transfer.
7.4 If the Advertiser is in default of payment, Wagawin is entitled todemand interest on arrears at the statutory rate and to charge reminder costs.Wagawin reserves the right to assert further damages caused by delay.
8. LIABILITY OF WAGAWIN; LIMITATION OF LIABILITY
8.1 Wagawin shall only be liable for grossnegligence (grobe Fahrlässigkeit) and intent (Vorsatz) as well as for the breach of obligations theperformance of which is a prerequisite for the proper execution of the contractand on the compliance of which the Buyer is regularly entitled to rely on (“Essential Obligations”).
8.2 In respect of a slightly negligent breach of an Essential Obligation,Wagawin’s liability is limited to the typical damage foreseeable uponconclusion of the contract.
8.3 Wagawin is not liable for a slightly negligent breach of contractualobligations that are not essential obligations.
8.4 Insofar as Wagawin’s liability is limited or excluded, this alsoapplies to the liability of Wagawin’s employees, representatives or vicariousagents.
8.5 The aforementioned limitations or exclusionsof liability do not apply if Wagawin has maliciously (arglistig) failed to disclose a defect, has assumed aguarantee or a procurement risk, is liable on the basis of the German ProductLiability Act and in the event of bodily injury (injury to life, limb orhealth). This does not lead to a change in the burden of proof to the detrimentof the Advertiser.
8.6 Wagawin takes no responsibility for the success of an advertisingcampaign ordered by the Advertiser.
9.1 No guarantees are agreed. Warranty claims shall be based on thestatutory provisions subject to the following regulation:
9.2 The warranty period for the services ends one (1) year afteracceptance.
9.3 If a defect already exists at the time ofthe transfer of risk and the Advertiser notifies Wagawin accordingly, Wagawinshall remedy the defect at its own expense (“SubsequentPerformance“). The Advertiser grants Wagawin a sufficient,reasonable period of time for Subsequent Performance, which shall in no case beshorter than one (1) month from receipt of the Advertiser’s complaint ofdefects. Subsequent Performance shall take place at the original place ofdelivery and shall only be deemed failed after at least three unsuccessfulattempts.
10.1 The Advertiser assures that advertising material and data provided byhim for the purpose of use in connection with Managed Services as well as theadvertised contents do not violate applicable law in the intended circulationarea of the advertisement and the Federal Republic of Germany, and that he canfreely dispose of all rights to the advertising material, in particularproperty rights and/or personal rights, insofar as they are necessary for theplacement of the advertising material.
10.2 If claims are asserted against Wagawin inconnection with the performance of services due to actual or allegedinfringement of third party rights or other violations of applicable law, whichare attributable to the contractual use on advertising material provided by theAdvertiser (hereinafter referred to as “Third Party Claims“), Wagawin and the Advertiser have to inform each other immediately andcoordinate the defense of Third Party Claims in close cooperation.
10.3 If Wagawin incurs costs and/or damages in connection with the defenceor other handling of Third Party Claims (including the legally stipulated costsfor legal prosecution or defence), the Advertiser has to indemnify Wagawin fromsuch costs and damages. If Wagawin incurs costs and/or damages (including thelegally stipulated costs for legal prosecution or defence) due to a settlementconcluded by Wagawin, which has to be agreed upon beforehand between Wagawinand the Advertiser and decided upon jointly, the Advertiser has to indemnifyWagawin from such costs and/or damages.
11.1 The Advertiser is obliged not to discloseto third parties any confidential information (including business secrets),which he gets to know in the course of his business relations with Wagawin, andto use such information only to fulfill his contractual obligations to Wagawin.This applies in particular to prices. No third parties in the meaning of thisprovision are employees in the business operations of the Advertiser, providedthat they are also subject to an obligation of confidentiality. ConfidentialInformation means (i) all commercial and technical information not in thepublic domain, or (ii) other information marked “Confidential” or similarlymarked, or (iii) information considered confidential under the circumstances(hereinafter “Confidential Information“). No confidential information in the meaning of the foregoing shall beinformation, which (i) were in the public domain or known to the Advertiser atthe time of transmission or subsequently became so, (ii) were lawfully madeavailable to the Advertiser by third parties or (iii) were developed by theAdvertiser himself without using confidential information. The obligation ofconfidentiality does not apply if the Advertiser is obliged to disclose theconfidential information by law or on the basis of an existing or legallybinding official or court decision. In this case the Advertiser willimmediately inform Wagawin about the obligation of disclosure. Upon Wagawin’srequest the Advertiser has to return the confidential information to Wagawinimmediately or destroy it.
11.2 The Advertiser is obliged to keep all third party information,including data provided via the platform, confidential and to use it exclusivelyfor the planning and management of advertising campaigns, including postcampaign analysis.
12. TERM; TERMINATION
12.1 The term of the respective IO and any ordinary termination rights inthis respect shall be specified in the respective IO.
12.2 The statutory right of both parties to terminate the contract withoutnotice for good cause shall remain unaffected.
13. FORCE MAJEURE
In cases of force majeure or other events which were unforeseeable uponconclusion of the contract and which Wagawin could not avert despite takingreasonable care according to the circumstances of the individual case, such aswar, natural disasters, epidemics or pandemics, operational breakdowns, legalstrikes, lock-outs or governmental orders, Wagawin is entitled to postpone theperformance of its services for the duration of the impairment and a reasonablelead time. If such impairments lead to a delay in performance of more thanthree months, both parties may withdraw from the contract. If, due to theaforementioned circumstances, the performance of services becomes impossible orunreasonable without Wagawin being responsible, Wagawin shall be entitled towithdraw from the contract in whole or in part with respect to the portion ofthe contract not yet fulfilled. In this case the Advertiser shall not beentitled to any damage claims against Wagawin. Any statutory rights ofwithdrawal shall not be affected thereby.
14. ASSIGNMENT; OFFSETTING; RIGHT OF RETENTION
14.1 The assignment of the Advertiser’s rights and obligations from thecontractual relationship with Wagawin is only permitted with the prior consentof Wagawin.
14.2 The Advertiser is only entitled tooffsetting (Aufrechnung) against counterclaims if the counterclaimsare undisputed, or have been finally and non-appealably established. TheAdvertiser is only entitled to exercise a right of retention (Zurückbehaltungsrecht) if the counterclaims areundisputed or have been finally and non-appealably established and it they arebased on the same contractual relationship.
15.1 If Wagawin does not exercise a right or only exercises it with delay,this cannot be interpreted as a waiver of this right. Even the exercise of onlyindividual rights or parts thereof does not constitute a waiver of the unexercisedrights or parts thereof.
15.2 These GTCs shall be subject to the law of the Federal Republic ofGermany under exclusion of the United Nations Convention on Contracts for theInternational Sale of Goods (CISG).
15.3 The place of jurisdiction for all disputesarising from or in connection with these GTCs shall be Munich, if theAdvertiser is a merchant (Kaufmann) as definedby the German Commercial Code (Handelsgesetzbuch; “HGB”) or does not have its registered office or habitualresidence in a member state of the European Economic Area. However, Wagawin isalso entitled to bring an action at any other legal place of jurisdiction.
15.4 If a provision of the contract, including these GTCs, is or becomesinvalid in whole or in part, the validity of the remaining provisions of thecontract shall not be affected by the invalidity of saidprovision.