General Terms and Conditions
(valid from May 1st, 2015)
The services offered on easymarketing.de are aimed at commercial online retailers or other tradesmen who would like to extend the range of coverage of their web presence and win new customers. easymarketing.de is run by easymarketing AG, Rosa-Bavarese-Str. 3, 80639 Munich Germany (hereinafter referred to as “easymarketing“). "Customer" is hereinafter referred to as a tradesman using the services of easymarketing. easymarketing manages partially, but for the most part fully automated, at least one advertisement campaign of the customer. This includes the extraction, analysis and selection of keywords, the phrasing of advertisement texts, the creation of advertisement banners, their placement on various platforms as well as the optimization and allocation of individual advertisements and daily CPC updates in order to achieve maximum success for the used budget.
§ 1 Validity of the General Terms and Conditions; registration; prerequisite of the commissions
- These General Terms and Conditions (hereinafter referred to as "GTC") solely regulate the placement of at least one advertisement campaign for the customer within the scope of the advertisement platforms (hereinafter referred to as "advertisement platforms") mentioned in section 2 by easymarketing.
- The advertisement platforms supported by easymarketing are Google AdWords and Google Shopping/Product Listing Ads. Google AdWords and Google Shopping/Product Listing Ads are advertisement platforms of Google Ireland Limited, Gordon House, Barrow Street, Dublin 4, Ireland (hereinafter: "Google") as well as Facebook for social media marketing campaigns.
- As far as easymarketing also offering the placement of advertisements on other coverage-efficient platforms like Bing and the customer commissions this, the GTC apply accordingly if no specific provisions are made. The same applies for advertisements by means of platforms and technologies of third parties, e.g. in retargeting or the like.
- A customer is registered on easymarketing.de and commissions the placement of ads within the scope of advertisement platforms solely by taking the GTC into account. The GTC of the customer does not apply.
- This also applies if easymarketing does not expressly object to the GTC.
- The registration of a customer on easymarketing.de is a prerequisite for commissioning easymarketing. During registration, a customer account is created for the customer to log in using his email address and password. The password must be kept confidential from third parties. In the case of commissioning, the customer's email address provided during registration is also used for communication purposes within the scope of the contract execution. The customer agrees to an electronic invoicing as a download in the customer account [see § 11 (2)].
- The customer ensures to only commission the supplier as a contractor in terms of § 14 BGB (German Civil Code), meaning within the scope of his commercial or self-employed work.
§ 2 Subject of the contract
- easymarketing designs and places - within the scope of advertisement platforms or other coverage-efficient platforms - advertisements (i.e. graphical advertisement in any form, especially online) for customers, and manages corresponding advertisement and marketing campaigns. Typically, they are placed via an interface to the advertisement platforms (API). The customer commissions easymarketing for these services.
- The basis of the services provided by easymarketing are advertisement platforms with functionalities described in § 4. easymarketing will create an account for the use of advertisement platforms in order to deliver services for their customer. This account is linked to a particular account of easymarketing (the so-called MCC account) and is managed via this account by easymarketing. Alternatively, the customer can link his existing Google account with easymarketing so that easymarketing optimizes, manages and/or extends the existing customer account.
- The contractual relationship is solely between the customer and easymarketing (in terms of an agency contract about services). For agencies or other service providers that easymarketing wants to use for delivering their own services for their clients, a separate framework agreement must be signed.
- easymarketing delivers their marketing services (see § 4) for the customer based on the information provided by the customer. Especially, information is automatically read out from the website or from interfaces of the customer's shop systems [see § 5 (1)]. easymarketing will use the personal data provided by the customer only as permitted by law. For more details see the data protection declaration: https://easymarketing.de/datenschutz
- For the duration of the contract between himself and easymarketing, the customer commits himself to easymarketing not to promote the same products using the same advertisement campaign, especially not to place AdWords on one URL twice.
- The customer is not eligible to use advertisement campaigns (including advertisement slogans, graphical advertisement and/or advertisement or marketing campaigns) created and/or placed by the supplier for advertisement purposes himself.
§ 3 Services of easymarketing
- easymarketing creates customized advertisement campaigns for customers, writes advertisement texts, designs advertisement banners - if applicable - and places them on advertisement platforms via interfaces or insertions. When creating the corresponding advertisement campaigns easymarketing follows the content on the target website provided by the customer - typically the customer's web presence or online shop - or other information delivered by the customer [see § 5 (1)]. If - in the case of a literal adoption of the keywords delivered by the customer or identified based on the information provided by him - due to a wide-spread distribution of these keywords, the chances of a fade-in of the advertisement are rated as low according to reasonable grounds by easymarketing, easymarketing is eligible to possibly use related or similar terms in the customer's interest.
- Based on due judgement and taking their own specific skills into account, easymarketing will specify the amounts which are at most offered per click on the advertisements created for the customer and must not be exceeded (so-called CPC). During the contract duration, easymarketing will continuously check which product of the advertisement platforms (e.g. Google AdWords) meets the customer's advertisement goals best, and will set the maximum click prices according to an internal algorithm themselves and in a fully automated way. It is generally agreed that also the fade-in of an ad (e.g. AdWords ad) represents an advertisement service of easymarketing.
- The frequency of the clicks depends on the industry demand and the used budget. The customer's ads can appear until the daily budget is used up due to the costs per click individually calculated by the advertisement platforms. easymarketing cannot guarantee that and how often a specific ad will appear at what ad position within a certain period of time.
- easymarketing will make every effort to optimize advertisement campaigns (e.g. AdWords campaigns) so that a low click price and a high ad position can be achieved depending on the industry relevance for the customer. In the case of AdWords campaigns this is achieved by a high-quality ad [see § 4 (2)].
- The customer receives regularly, online statistics listing the search terms and the overall impressions and overall clicks allowing him to track the success of his advertisement campaigns (e.g. AdWords campaign). The statistics can be accessed via the customer account.
- easymarketing will deliver the services mentioned in § 3 on a regular basis and in an automated form based on specially designed software. easymarketing will ensure that their used procedure corresponds to the best available technology. However, there will be no evaluation of the information read out from the customer's website or based on the information provided by him and identified keywords on trade market infringements or other infringements of an industrial property or infringements of rights. This also applies for advertisement texts and keywords which are generated based on texts of the website. Generally, easymarketing does not verify the results of the software - including the designed ads and keywords - manually in terms of coherence or infringements.
§ 4 Concepts of the advertisement platforms
- The advertisement concept Google AdWords, as used by easymarketing, works in such a way that - after a search with the internet search engine Google - the respective internet user sees fade-ins of additional ads (AdWords ads) above and adjacent to the actual search results. Google charges costs as soon as internet users click on one faded-in ad (if the customer uses the services of easymarketing, Google charges easymarketing, not the customer). Generally, AdWords ads are always faded-in when the key words entered for the customer are identical with the entered search terms. In the case many organizations booked AdWords ads for specific keywords it may occur that not all AdWords ads are shown. This is due to lack of space which easymarketing has no influence on. In this case, the decision which AdWords ads are actually shown in which order are automatically identified for each Google search process within the scope of a so-called auction by Google. The chance to be faded-in or be faded-in as high up as possible depends on the fixed maximum amount per click and the evaluation of the so-called quality of the ad by Google (hereinafter referred to as quality factor). For current information about the functionality of Google AdWords see http://adwords.google.de.
- The advertising concept of Google Shopping, as it is used by easymarketing, works in such a way that the internet user sees a fade-in of corresponding offers of retailers after searching with the internet search engine Google (when using the option “shopping” or on the sub-site http://www.google.de/shopping). Google AdWords is extended by Google Shopping. Google controls the use of the selected daily budget between those two advertisement platforms itself. The daily budget is used to place and use ads with product information when internet users are looking for your products in Google search or in Google Shopping/Product Listing Ads. The ads for the customer contain among other things images of the items, prices and the name of the shop. Internet users who click on the customer's ad are forwarded to the customer's website where they can purchase the item directly. The use of ads with product information only incurs costs when an internet user clicks on the customer's ad and gets to his website. The customer only pays when the internet user is forwarded to his business via Google. For a detailed description see www.google.com/ads/plasetup.
§ 5 Obligation for provision, to cooperate, for inspection and other obligations of the customer; indemnity in case of infringements by provided content.
- The customer provides the information required for the marketing services about the products and services offered by the customer and promoted by easymarketing. This happens when either the customer
If the customer allows that his website can be read out automatically they have to meet the requirements of the placement of advertisement campaigns according to the valid GTC (see § 16). Otherwise, the ads can be deleted for a fee.
- allows that easymarketing reads out his website (via a so-called crawler) automatically, and/or uses a plug-in offered by easymarketing which reads out the data base of the customer's web shops and transmits the information required for executing the marketing services to easymarketing, and/or
- transmits the desired keywords or products to easymarketing himself.
- The promotion of substances, specific services and other services, products and/or materials, whose advertising and/or marketing is unlawful, forbidden or unethical, is prohibited and can be deleted for a fee, and may be reported to the authorities. easymarketing reserves the right to make additional claims for damages. In the case of the use of keywords violating the advertisement guidelines of the advertisement platforms (see § 16), easymarketing retains €100 plus VAT as a processing fee. The customer confirms that he is eligible to use and forward the data provided by him including the indicated keywords and that he complies to the valid data protection regulations. Also, the customer assures that the data provided by him, especially the indicated keywords, are free of third-party rights and are compatible with the applicable law. The same applies for terms used on the websites indicated by the customer for evaluation as keywords (e.g. in the so-called metatags in the HTML code). The same applies for the terms in website texts. easymarketing assumes no responsibility for the content, especially for the veracity of the ads and other services included in the order.
- The customer is obligated to easymarketing to avoid violations like those mentioned in the previous § 5 (2) as well as § 7 (1). He is particularly obligated to check any information provided by him within the scope of this contract for creating ads and keywords carefully and in advance with regards to the violation of commercial property rights (e.g. brands) and other third-party rights. Upon request of easymarketing, the customer has to prove an explicit approval and/or license for the brands used by him and other property rights. Based on the information provided by him, it is his own responsibility to check the ads generated by easymarketing for infringements. This can also be used, where the respective service is available, for the preview function offered by easymarketing.
- Concerning data and keywords provided by the customer, the customer exempts easymarketing from all disadvantages for easymarketing within the scope of the purpose of the contract. The customer bears the full responsibility and liability for the content based on his data of the ad(s) created for him by easymarketing within the scope of the purpose of the contract. He exempts easymarketing from any claims in terms of competition, copyright, name rights and trademark rights and/or other third-party claims based on a violation of the customer against § 5 (2) or § 5 (3). The same applies in the case of the sales and/or any other marketing of unlawful products.
- The customer is responsible for the correctness and timeliness of the data provided by the customer.
- The customer grants easymarketing the right to use data provided by him anonymously for statistical purposes. In particular, this includes also the unlimited right to use the provided data to optimize the algorithms or to improve the estimations for success.
§ 6 Contract term and termination
- The contract between easymarketing and the customer takes effect with the placement of an order by the customer on easymarketing.de and will be concluded for an indefinite period of time.
- Each contractual party can always terminate the contract giving notice of one day by the end of the day in writing without giving reasons (also via email) against the other contractual party provided that no minimum term or notice period was agreed upon in an individual agreement accepted by the customer via email or fax. If the customer violates the agreed minimum term, easymarketing may assert additional claims against the customer according to § 9, item 4.
- easymarketing retains the right to give immediate notice of termination even before the placement of the first ads particularly when the customer's website is designed in a way that it is not suitable for the services of easymarketing or is rejected by Google.
- The customer must explain his termination to easymarketing via email or fax in writing.
- With the end of the contract term, the right of the customer also ends to use any ads created and/or placed by easymarketing (including advertisement slogans, AdWords texts, graphical advertisement and/or advertisement and marketing campaigns). If the customer continues to use the ads created by and/or placed by easymarketing in any way, the customer owes easymarketing the prices according to price list plus a contractual penalty of 100% according to the valid compensation for easymarketing according to the price list for each month of the continued use.
§ 7 Infringing, dangerous and immoral advertisement or other improper use; right of refusal and to terminate; contractual penalty
- The products or services to be promoted for the customer as part of the order - or the advertisement for that - must not violate against any legal provisions (e.g. youth protection regulation or penal laws) or third-party rights, be immoral or endanger the health of humans and animals or be racist or inciting. Furthermore, you (or the advertisement) must not insult minorities or violate against the good taste in any way. Moreover, the advertisement for products and services must not present a violation against the GTC of the advertisement platforms (e.g. Google AdWords) (see § 16).
- easymarketing retains the right not to use or to delete data provided by the customer if there is a breach against § 7 (1). The same applies if the content of the data may be subject of unlawful, degrading, defamatory, immoral statements or visual presentations according to the opinion of easymarketing.
- easymarketing can reject to deliver contractual services to the customer any time and terminate existing contracts immediately if a violation against § 7 (1) occurs or may occur when placing the ad. The same applies if the case of § 7 (2), p. 2 occurs or may occur. Furthermore, the same applies if the services cannot be delivered due to technical reasons.
- In the case that the violations as mentioned in § 7 (1) and § 7 (2), p. 2 affect ongoing campaigns, they can be deleted for a fee by easymarketing. Unlawful acts may be reported to the authorities. For each case of violation against § 7 (1), the customer obligates himself to pay a contractual penalty which is fixed by easymarketing according to reasonable discretion and will be checked by the responsible court at the request of the customer.
§ 8 Service changes
- If the technical, legal or commercial framework conditions change and thus it will become more difficult for easymarketing to deliver contractual services regarding the advertisement platforms (e.g. Google AdWords), they can adequately adjust the offered services according to the changes.
- In the case of a change which makes the services significantly more difficult for easymarketing, easymarketing is eligible to suspend the offered services or to continue to offer them for an increase in compensation only. In such cases they will inform the customer in writing in a timely manner (email is sufficient) about the significant aggravation. And they will either request an adequate raise of the compensation or suspend the services after the end of an adequate announcement period.
- Changes of the services of the advertisement platforms (e.g. of Google AdWords) (see § 4) can directly affect the provision of services. easymarketing doesn't have any influence on this. Therefore, it is the responsibility of the customer to familiarize himself regularly with the current functionality of the advertisement platforms (e.g. Google AdWords) (see also § 4).
- The regulations about the termination in § 7 remain unaffected by § 8.
§ 9 Compensation
- The customer determines the daily budget that he provides for advertisement by easymarketing and that he is prepared to spend. This daily budget must be at least €5.00 and includes all expenditures made by easymarketing for fulfilling the contract (e.g. the costs the advertisement platforms charge when clicking an AdWords ad placed by easymarketing for the customer). The daily budget is without a commission for easymarketing and plus VAT. The advertisement budget the customer spends without the commission for easymarketing can either directly be paid to the advertisement platform (such as e.g. Google) according to agreed contractual maturities with the advertisement platform, or via easymarketing.
- The agreed advertisement budget will not be used up completely if the full use of the advertisement budget is not economical according to easymarketing.
- Usually, easymarketing receives a compensation from the customer for his services which is regulated in the current price list if nothing else was agreed upon with the customer individually e.g. in the form of a quotation accepted by the customer. Normally, the prices consist of a monthly basic lump-sum compensation as well as a proportional compensation depending on the spent advertisement budget. Special compensations for the setup and installation of campaigns can be agreed upon in individual cases. The commission is plus VAT. The entitlement for commission applies for each day easymarketing works on behalf of the customer.
- If a minimum period was agreed upon (which usually results in price discounts), fees will be due in the case of a premature termination by the customer which have applied if initially no minimum term would have been agreed upon. Compensations which have already been paid are offset accordingly. The due remaining amount must be transferred to the account of easymarketing within 3 (three) working days.
§ 10 Invoice, payment conditions and direct debit
- easymarketing will invoice the customer on a monthly statement if no other billing cycle was agreed upon with the customer individually e.g. in form of a quotation accepted by the customer. The invoices of easymarketing include the commissions incurred during the billing period [see § 9 (3)] plus 19% VAT as, and, if agreed upon with the customer, advertisement budgets spent for the customer during the billing period that easymarketing has advanced on the advertisement platforms plus 19% VAT. Budget carryovers remain unaffected. If there is no agreement with the customer that easymarketing will not advance the advertisement budgets the corresponding advertisement platform (such as e.g. Google) bills the advertisement budgets itself and debits it using the respective pre-authorized payment procedure (invoice, direct debit, credit card).
- Each invoice will be created in electronically in PDF format and provided as download via the customer account. The customer consents to this kind of invoicing according to § 14 VAT Act. The provision of an electronic invoice as download via the customer account does not justify any disadvantageous legal consequences for the customer - beyond the transmission of the invoice in accordance with § 14 VAT Act. Particularly, the provision of the invoice as download does not lead to a delay. The previous sentence does not apply for the case that easymarketing sends the electronic invoice at their own discretion also via email to the email address provided in the customer account. In this case (i.e. sending the invoice via email), the regulation of § 2386 BGB (German Civil Code) on a delay applies.
- As far as nothing else has been agreed upon, the invoice is settled via SEPA Direct Debit Scheme (checking account). A bank collection via credit card or payment by invoice are possible when this has been agreed upon between the contractual parties via email, fax or letter, the respective setting has been chosen by the customer when logged in on easymarketing.de and accepted by easymarketing. When choosing direct debit, the customer authorizes easymarketing to debit due amounts by direct debit from the checking account provided by the customer (by empowerment procedure) and obligates himself to initiate no charge back. When choosing the credit card payment, the customer authorizes easymarketing to debit the credit card intended for payment with the invoiced amounts.
- Due amounts according to § 11 (1) will always be collected or debited on the fourth day after delivery of the invoice. However, easymarketing can - if they disburse the advertisement budget - collect partial amounts during the current month plus VAT as soon as the corresponding budget has been used up (for used daily budget and commission). Upon prior individual agreement, easymarketing can raise partial amounts to €100, €200, €500 or €1,000. In the end of the month the remaining used budget can be debited or collected according to § 11 (3). All debited or collected amounts are shown in the invoices according to § 11 (1). The customer will be notified that (partial) amounts will not be debited or collected before invoicing according to § 11 (1). The customer will ensure that the bank account or the credit card have sufficient covering fundings.
- In the case of charge backs due to insufficient funds or due to unjustified objection, the customer will replace the incurred loss. The damage will be estimated with €25.00 for each charge back. Sentence 1 and sentence 2 of § 11 (6) apply also when the customer rejects the direct debit despite due invoices and this results in charge backs without easymarketing being at fault. The customer will also replace the loss incurred in the case of a charge back. In the cases mentioned in the previous sentence the damage will be set at €50.00 for each charge back. In all cases of this § 11 (6), the customer is permitted to provide evidence that a loss has occurred or is significantly lower that the lump-sum.
- In the case of a regular termination or other contract terminations, the daily provisions for the current day as well as the expenditures already made are invoiced in whole. A remaining daily budget (including a possible budget carryover) is billed as well, unless easymarketing will be reimbursed themselves by the advertisement platforms.
- A set-off by the customer with claims which are contested and not established as legally valid are excluded. Furthermore, the execution of the rights of retention by the customer is excluded if they are based on other contractual relationships.
§ 11 No warrantee
- The accessibility and availability of individual ads cannot be ensured. Especially, temporary impairments are not unusual when using the advertisement platforms. Furthermore, easymarketing does not assume any contractual liability for access restrictions based on force majeure or other circumstances that are not imputable to and beyond the influence of easymarketing.
- easymarketing is eligible to perform maintenance work on servers and data bases which can result in short-term interruptions of the offerings of the advertisement platforms and their products. easymarketing will seek to minimize disruptions of operational procedures, especially of data retrievals.
- Indications of obvious inaccuracies with the AdWords ads placed for the customer must be claimed always latest four working days after the appearance of the advertisement. Otherwise, consequential potential claims may cease.
- easymarketing will not assume any liability or warrantee for the effective results from the managed advertisement campaigns. The estimates shown on easymarketing.de regarding the expected increase of new customers or increase of traffic are solely a statistical estimation.
§ 12 Liability
- easymarketing bears sole responsibility in the case of gross negligence within the scope of product liability, when issuing guarantees as well as for damages arising from injury to life, body and health according to legal regulations.
- Without prejudice of § 13 (1), there is a liability for slight negligence solely for damages caused by the breach of so-called cardinal obligations, and is limited to damages foreseeable at the time of the conclusion of the contract and typical for the contract. The obligation to pay a compensation does not contain the expenditure for a replacement of lost data. Cardinal obligations are obligations whose breach endangers the contractual purpose and/or whose fulfillment enables the proper execution of the contract at all, and whose compliance the other party can always rely on.
- Apart from that, a liability by easymarketing is excluded. This also applies for damages caused by easymarketing's legal representative or the agent. It is made clear that § 13 (1) and (2) remain unaffected by this paragraph.
§ 13 Change of the GTC
- If the customer does not object to a change or an amendment announced to him electronically or in written form three weeks in advance within two weeks of receiving the announcement, the changes and amendments are effective also for ongoing contractual relationships in accordance with the announcement. If the customer objects at due date, the contract will be continued at the previously applicable conditions. In this case, easymarketing retains the right to ordinarily terminate the contract at the earliest possible date.
- In the case of changes or amendments which are unlawful due to urgent legal reasons, the right of objection of the customer expires according to § 14 (2). The same applies in the case of changes and amendments easymarketing made because the GTC do not fit anymore or have become incomplete due to subsequently changed circumstances. The same applies also for changes and amendments easymarketing made because the relation between the services delivered by easymarketing and the compensation to be paid for this has changed subsequently so that an adjustment of the GTC is necessary. Nevertheless, easymarketing will announce changes and amendments to existing customers which are included in the previous two sentences three weeks in advance in writing or electronically.
§ 14 Final clauses
- The contract is subject to German law with the exclusion of the UN sales law.
- Place of jurisdiction is Munich.
- In the case that a regulation or part of a regulation of this contract is invalid, the validity of the contract will not be affected otherwise. The contractual parties obligate themselves to replace the invalid regulation by one which are economically equivalent to the contractual purpose.
- easymarketing is eligible to transmit the ongoing contractual relationship with the customer to an organization connected with them in accordance with the Stock Cooperation Act §§ 15 ff. AktG (German Stock Corporation Act). The possibility of termination according to § 6 of these GTC remains unaffected.
§ 15 Supplements
In addition, where applicable, the current GTC, advertisement guidelines and other guidelines of the advertisement platforms apply providing that the obligations of the user described therein towards the advertisement platforms describe the obligations of the customer towards easymarketing. In the case of contradictions and uncertainties, these GTC of easymarketing take priority over the GTC for the advertisement platforms.
In particular, with Google these are for the use the GTC of the services Google AdWords and Shopping/Product Listing Ads (accessible at https://adwords.google.de/select/tsandcsfinder?country=DE, https://support.google.com/adwordspolicy/topic/1626336?hl=de&ref_topic=2996750,https://support.google.com/adwordspolicy/answer/176095?hl=de
We will save the contract text and send you the order details via email. Here you can see the GTC any time. Previous orders can be seen on your customer account.