General Platform Terms and Conditions for optilyz GmbH

Release: October 2022

Scope

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 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 individual order or a master agreement contradict these T&Cs, the provisions of the individual order have priority.

§1 Conclusion of contract

• 1. The contract enters into effect using the corresponding acceptance of an order from the Client.
• 2. The contract can also enter into effect using (1) the provision of a user account by OPTILYZ to the Client and (2) 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. To use 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 shall communicate to OPTILYZ the login details requested by OPTILYZ. Via the OPTILYZ Account, the Client has access to Client Data on the OPTILYZ Platform by these SaaS T&Cs.
• 4. At its own reasonable discretion, OPTILYZ will update the OPTILYZ Platform using 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 the first publication of a new release of the OPTILYZ Platform.
• 5. The SaaS Services have 99.8% availability. Concerning 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 an outage of the entire system or significant parts thereof rendering use completely or almost completely 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 the 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 affects the use of the system. The simultaneous occurrence of several such faults can lead to a significant or critical fault.

• 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 material), 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 Client and/or his customers) (hereinafter together ‘Client Data’) generated by Client or by OPTILYZ for Client in connection with this SaaS Contract is a matter for Client alone. The  Client is aware that OPTILYZ does not create any separate backup copies of Client Data and that OPTILYZ is entitled to delete Client Data Clause 3.5 and/or after the end of the contract by Clause 8.3. Independently making backup copies of Client Data is a matter for the Client.

§3rd Duties of Client, license for Client Data, rights of third parties

• 1. Client shall treat access details regarding the OPTILYZ Account as strictly confidential and not disclose access details to third parties at any time. Client shall inform OPTILYZ without delay if he becomes aware of its access details or User Login Details being used by unauthorized 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. Using suitable measures, Client shall ensure that hardware and software employed by him and used in connection with OPTILYZ Services by these SaaS T&Cs, including workstations, routers, data communication, data communications systems, etc. (hereinafter ‘IT Systems’) are free from any viruses, worms, Trojans, etc. (hereinafter ‘Malware’). In particular, suitable measures include the Client using his IT Systems the updated version of the operating system as well as a virus scanner, and regularly checking the IT Systems used for Malware and removing it. Client shall ensure that all data stored by himself when using the services of OPTILYZ under this SaaS contract on OPTILYZ servers, e.g. Client Data created or uploaded by Client, is free from any Malware.
• 3. Client grants OPTILYZ a non-exclusive right unlimited by place and limited by time to reproduce, process, transfer, and otherwise use Client Data where required for performing the contractual duties of OPTILYZ vis a vis Client.
• 4. Client warrants (i) that he holds all required rights to the Client Data for granting OPTILYZ the aforementioned rights, (ii) that Client is free to dispose of the Client Data, and (iii) that the Client Data is not affected by rights of third parties standing in the way of usage in the sense of clause 3.3.
• 5. Regardless of other rights, Client indemnifies OPTILYZ in the event of a breach of the aforementioned assurances from any liability towards third parties, including appropriate legal defense 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 Client does not delete it without undue delay despite being requested.

§ 4th Rights of use the SaaS Services

• 1. OPTILYZ grants the Client the geographically unlimited, temporary, revocable, non-exclusive, non-assignable, and non-sub-licensable right to use the SaaS Services for its 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; Client shall ensure that the authorized 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. 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 parts of the SaaS Services for which 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 by Sections 69d or 69e of the German Copyright Act (Urhebergesetz); and (vi) to remove, conceal or change legal information, in particular regarding commercial protective rights of OPTILYZ.

§5th Remuneration

• 1. The remuneration payable by the Client for the SaaS Services rendered by OPTILYZ stems from the offer, the master 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. Client is invoiced by OPTILYZ for the SaaS Services on an annual basis in advance. Agreed setup costs are invoiced at the conclusion of 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.

§6th Warranty

In the event of defects, Sections 536 et seq of the German Civil Code (Bürgerliches Gesetzbuch) invariably apply as well as the following provisions of this clause 6:

• 1. Strict liability for initial defects by Section 536a para 1 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 defects by opting for either free improvements or replacement delivery.
• 3. Termination by Client by Section 543 (para 2, sentence 1, no. 1) of the German Civil Code due to failure to provide the contractually guaranteed use is only permitted when OPTILYZ has had sufficient opportunity to remedy the defects and 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 himself responsible for internet access to the SaaS Service Transfer Point.

§7th Liability

• 1. OPTILYZ shall be liable for all damages caused intentionally or by gross negligence, which is the consequence of the non-existence of a guaranteed quality of the subject of performance, which is the consequence of culpable injury to health, body or life, or for which liability is provided for under the German Product Liability Act (Produkthaftungsgesetz), by the statutory provisions.
• 2. In case of breach of cardinal obligations, OPTILYZ shall also be liable for slight negligence. Cardinal obligations are such contractual obligations, the fulfillment of which enables the proper execution of the contract in the first place and the observance of which the contractual partner may regularly rely on, and the violation of which endangers the achievement of the purpose of the contract on the other side. If there is no case of clause 7.1, the liability, in this case, shall be limited to such damages, the occurrence of which must be typically and foreseeably expected in the context of the provision of services such as contractual services. Irrespective of the limitation, liability is limited to an amount of EUR 3,000,000.00 (in words: three million euros) per case of damages. This also includes the reimbursement of futile expenses.
• 3. Apart from that, liability for direct and indirect damages (loss of profit, consequential damages) – irrespective of the legal ground – of OPTILYZ as well as of its vicarious agents and assistants is excluded.
• 4. The limitation period for claims for damages against OPTILYZ shall be one (1) year except in the cases of clause 7.1.

§8th Contractual term and termination

• 1. The agreement regarding the provision of SaaS Services has a contractual term of 12 months and is automatically extended unless one of the Parties terminates the contract with a notice period 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. With the termination of 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 his 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 clause 8.3.

§9th Counterclaims

The Client is only entitled to offsetting if his counterclaim has been legally established, is acknowledged or not disputed by OPTILYZ, or his claim is related to our claim in a synallagmatic relationship.

§ 10th 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 of these SaaS T&Cs shall not be affected thereby. Instead, the parties agree to replace the Faulty Provision with 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.