General Platform Terms and Conditions for optilyz GmbH
Release: May 2019
These General Platform Terms and Conditions (hereinafter ‘SaaS T&Cs) form the basis for all agreements regarding the provision and use of the web-based software solution developed by optilyz GmbH, Neue Schönhauser Str. 19, 10178 Berlin, Germany (hereinafter ‘OPTILYZ’) including for the management of data for advertising campaigns (hereinafter ‘OPTILYZ Platform’) vis a vis the respective contractual partner (hereinafter: the ‘Client’).
Divergent, conflicting or additional general terms and conditions of the Client shall become contractually binding only if and insofar as OPTILYZ has explicitly agreed to their validity in writing.
Insofar as the provisions of the single order or a framework agreement contradict these T&Cs, the provisions of the single order have priority.
§1 Conclusion of contract
- 1. The contract enters into effect by means of corresponding acceptance of an order from the client.
- 2. The contract can also enter into effect by means of the provision of a user account by OPTILYZ to the Client and its first-time use of access by the Client.
§2 Scope of service
- 1. OPTILYZ provides the Client with the OPTILYZ Platform and associated services (hereinafter together ‘SaaS services’) as Software as a Service.
- 2. OPTILYZ makes the SaaS service available on servers of third-party service providers contracted by OPTILYZ for use at the data centre access point of the third-party service provider data centre (‘SaaS Service Transfer Point’). In order to use the SaaS Services, the Client is required to have its own internet access and via this access to the OPTILYZ Platform at the SaaS Service Transfer Point.
- 3. For using the SaaS Services, the Client is provided with, via a technical connection, access to the OPTILYZ Platform and an individual user account (hereinafter together the ‘OPTILYZ Account’) assigned by OPTILYZ. For this purpose, the Client is to communicate to OPTILYZ the login details requested by OPTILYZ. Via the OPTILYZ Account, the Client has access to Client data on the OPTILYZ Platform in accordance with these SaaS T&Cs.
- 4. At its own reasonable discretion, OPTILYZ will update the OPTILYZ Platform by means of updates, upgrades and releases. Access to Client Data provided under a previous version of the OPTILYZ Platform can only be guaranteed in technical terms for two (2) years after the date of first publication of a new release of the OPTILYZ Platform.
- 5. The SaaS services have 99.8% availability. With reference to the duration of one (1) calendar year, availability refers to the proportion of the period during which use of the SaaS services was possible for the Client with an internet connection in place (plus the period during which access was not possible due to scheduled maintenance work or due to faults beyond the control of OPTILYZ) compared to the length of the entire calendar year.
6. Faults occurring on the OPTILYZ Platform are graded by OPTILYZ at its reasonable discretion into the following categories and dealt with according to the agreed reaction, clearance and resolution times during working hours from 09:00h to 18:00h (CET/CEST):
a) Critical fault (class/priority 1): Fault causing outage of the entire system or significant parts thereof rendering use completely or almost incompletely impossible and/or causing a substantial security issue. Operation is adversely affected in such a way that immediate assistance is essential.
b) Significant fault (class/priority 2): A fault adversely affecting use of the system in such a way that meaningful work with the system is no longer possible or only possible with disproportionally significant effort. The simultaneous occurrence of several significant faults can lead to a critical fault.
c) Non-critical fault (class/priority 3): A fault only insignificantly affecting use of the system. The simultaneous occurrence of several such faults can lead to a significant or critical fault.
|Class/priority||Reaction period||Remedy period|
|1||Within 2 hours during business hours||Within 4 hours during business hours|
|2||Within 4 hours during business hours||Within 8 hours during business hours|
|3||Within 8 hours during business hours||Within 48-72 hours during business hours|
- 7. With its SaaS Services, OPTILYZ provides the Client with technology for planning, designing and running advertising campaigns. Nevertheless, in itself this technology does not prevent operating errors or content-related mistakes by the Client (e.g. incorrect data, unsuitable design, misleading content of advertising resources), and any resulting drawbacks for the commercial success of an advertising campaign.
- 8. The backing-up of any content and data (including drafts, files, address details or other data of the Client and/or its customers) (hereinafter together ‘Client Data’) generated by the Client or by OPTILYZ for the Client in connection with this SaaS Contract is a matter for the Client alone. The Client is aware that OPTILYZ does not create any separate backup copies of the Client Data and that OPTILYZ is entitled to delete Client Data in accordance with Clause 3.5 and/or after the end of the contract in accordance with Clause 8.3. Independently making backup copies of Client Data is a matter for the Client.
§3 Duties of the Client, licence for Client Data, third-party rights
- 1. The Client shall treat access details regarding the OPTILYZ Account as strictly confidential and not disclose it to third parties at any time. The Client shall inform OPTILYZ without delay if it becomes aware of its access details or user login details being used by unauthorised persons. Acts undertaken by using the access details to the OPTILYZ Account apply independently from the permission of the person acting specifically for and against the Client.
- 2. By means of suitable measures, the Client shall ensure that hardware and software employed by it and that the Client uses in connection with OPTILYZ services in accordance with these SaaS T&Cs, including workstations, routers, data communication, data communications systems etc. (hereinafter ‘IT Systems’) are free from any viruses, worms, Trojan horses etc. (hereinafter ‘Harmful Software’). In particular, suitable measures include the Client using on its IT Systems the updated version of the operating system as well as a virus scanner, and regularly checking the IT Systems used for Harmful Software and removing it. The Client shall ensure that all data stored by itself when using the services of OPTILYZ under this SaaS contract on OPTILYZ servers, e.g. Client Data created or uploaded by the Client, is free from any Harmful Software.
- 3. The Client grants OPTILYZ a non-exclusive right unlimited by place and limited by time to reproduce, process, transfer and use in any other way Client Data where required for performing the contractual duties of OPTILYZ vis a vis the Client.
- 4. The Client warrants (i) that it holds all required rights to the Client Data for granting OPTILYZ the aforementioned rights, (ii) that the Client is free to dispose of the Client Data, and (iii) that the Client Data is not affected by third-party rights standing in the way of usage in the sense of Clause 3.3.
- 5. Regardless of other rights, the Client holds OPTILYZ harmless in the event of a breach of the aforementioned assurances from any liability towards third parties, including appropriate legal defence costs. Furthermore, OPTILYZ is entitled (i) to delete Client Data not meeting the provisions of Clause 3.2, and (ii) to delete content not meeting the provisions of Clause 3.4 if the Client does not delete it despite being requested.
§4 Rights to use the SaaS Services
- 1. OPTILYZ grants the Client the location independent, limited, revocable, non-exclusive, non-assignable, and non-sub-licensable right to use the SaaS Services for its own operational purposes.
- 2. In addition, OPTILYZ is entitled to allow the Client to create personal sub-login details for individual employees for the OPTILYZ Account (hereinafter ‘User Login Details’). The number of User Login Details agreed in detail may not be exceeded. The Client shall ensure that the authorised employee treats the User Login Details as confidential and does not disclose them to third parties. Other employees of the Client are also regarded as third parties.
- 3. The simultaneous use of access details for an OPTILYZ Account via several terminals is not allowed. This also applies to individual User Login Details.
- 4. The Client is not entitled (i) to rent, lease, loan, reproduce, sell or otherwise distribute or disclose the SaaS Services or access to the SaaS Services, not even over the internet or a downstream private or public data network; (ii) to use the SaaS Services for developing other services, (iii) to activate and use component parts of the SaaS Services for which the Client was not granted rights of use; (iv) to assign the rights of use to the SaaS Services to third parties or provide third parties with access to the SaaS Services; (v) to change, translate, reproduce or decompile the program code of the SaaS Services or investigate its functions unless prescribed by law in accordance with Sections 69d or 69e of the German Copyright Act; and (vi) to remove, conceal or change legal information, in particular regarding commercial protective rights of OPTILYZ.
- 1. The remuneration payable by the client for the services rendered by OPTILYZ stems from the offer, the framework agreement or the order confirmation.
- 2. All prices stated by OPTILYZ, especially on the OPTILYZ Platform, in connection with the services of OPTILYZ are quoted, unless stated otherwise, before value-added tax.
- 3. The Client is invoiced by OPTILYZ for the SaaS Services on a monthly basis. Agreed setup costs are invoiced on entering into the contract.
- 4. Invoicing occurs at the start of the respective invoicing month and payment becomes due within ten (10) days after receipt of the invoice by the Client. Invoicing is by email.
- 5. In the event of a delay in payment by the Client, OPTILYZ is entitled to refuse to further perform SaaS Services until payment has been received.
In the event of defects, Sections 536 et seq of the German Civil Code invariably apply as well as the following provisions of this Clause 6:
- 1. Strict liability for initial defects in accordance with Section 536a (1, 1) Var. of the German Civil Code is excluded. The strict liability of OPTILYZ remains in place. When establishing whether OPTILYZ is at fault, it is acknowledged by the Client that software can virtually never be produced free from error.
- 2. OPTILYZ corrects faults by opting for either free improvements or replacement delivery.
- 3. Termination by the Client in accordance with Section 543 (2, 1, 1) of the German Civil Code due to failure to guarantee use according to the contract is only permitted when OPTILYZ has had sufficient opportunity to remedy the fault and this has failed.
- 4. OPTILYZ provides no guarantee for internet access of the Client, in particular for the availability and structural design of the internet access. The Client is responsible itself for its internet access at the SaaS Service Transfer Point.
- 1. OPTILYZ shall be liable for loss resulting from death, physical injury and damage to health due to a breach of duty by OPTILYZ, a legal representative, or a vicarious agent as well as for damages resulting from the absence of a quality that OPTILYZ had guaranteed.
- 2. OPTILYZ shall be liable for damage caused intentionally or due to grossly negligent behaviour by OPTILYZ, a legal representative, or a vicarious agent.
3. In case of breaches of essential contractual obligations resulting from slight negligence, OPTILYZ is liable, except in cases stated in Clause 7.1 or 7.4, limited to the foreseeable damage typical for the contract. Essential contractual obligations are obligations, the fulfilment of which mainly facilitates the proper performance of the contract and the observance of which the client relies on, and may rely on, regularly.
- 4. Liability under the Product Liability Act shall remain unaffected.
- 5. All further liability for damages on behalf of OPTILYZ is excluded.
6. The limitation period for damages claims against OPTILYZ is one (1) year except for cases stated in clauses 7.1, 7.2 or 7.4. in which the statutory limitation period applies.
§8 Contractual term and termination
- 1. The agreement regarding the provision of SaaS Services is for 12 months and is automatically extended unless one of the Parties terminates with notice of three (3) months to the end of the term.
- 2. The statutory rights of both Parties to extraordinary termination remain unaffected. Termination is required to be in writing with a signature.
- 3. By ending the agreement, the Client loses access to the OPTILYZ Platform and is no longer able to use the SaaS Services. Nevertheless, for a period of ninety (90) days after the end of the contract, the Client is still able to access its Client Data stored on the OPTILYZ Platform in connection with this agreement. At the end of these ninety (90) days, OPTILYZ is entitled to delete the Client Data stored on the OPTILYZ Platform in connection with the provision of the SaaS Services. Access to the OPTILYZ Platform and Client Data held there due to individual orders remains unaffected by this Clause 8.3.
The Client is only entitled to offsetting if its counterclaim has been legally established, is acknowledged or not disputed by OPTILYZ, or its claim is related to our claim in a synallagmatic relationship.
§10 Data protection
OPTILYZ processes and uses personal data of customers of the Client made available by the Client. This use and processing of data by OPTILYZ is the subject of a separate agreement regarding data processing between the Client and OPTILYZ.
§ 11 Miscellaneous
- 1. This agreement is subject to the law of the Federal Republic of Germany to the exclusion of the UN Sales Convention and international civil law.
- 2. Jurisdiction for all obligations under this agreement lies with the courts of Berlin, Germany.
- 3. Subsequent order changes, collateral agreements and other declarations of intent as well as any transfer of rights and obligations from this agreement require written approval (email or contact dialogue on the OPTILYZ Platform is sufficient) by OPTILYZ.
- 4. Should one provision of this SaaS contract be, or become, void, ineffective, or unenforceable – in full or in part – (in each case a “faulty provision”), the validity and enforceability of the remaining provisions shall not be affected thereby. Instead, the parties agree to replace the ineffective provision by an effective provision, which, in the context of legal possibilities, most closely approximates what the parties would have agreed upon within the sense and purpose of these SaaS T&Cs had they had knowledge of the faultiness of the provision.