1. Scope of application
1.2 The services offered by VERTAMA are exclusively directed at commercial customers.
2. Conclusion of contract
2.1 In order to use the services offered by VERTAMA, a JayMob account is required. For this purpose VERTAMA will provide you with access data. You are responsible for the confidentiality of your access data and are obliged to report any misuse or (imminent) loss of data to VERTAMA immediately.
2.2 For the booking of the JayMob account a registration under acceptance of these conditions is necessary. The contract is concluded only by sending the corresponding acceptance by VERTAMA. There is no claim that VERTAMA accepts your contract offer.
3. Obligations of VERTAMA (services)
3.1 VERTAMA provides the following services to the customer for a fee. In particular, VERTAMA enables the dispatch of a mobile campaign created by the customer to addressees to be selected by the customer. With the help of JayMob’s distribution channels, the dispatch can take place as a personalized SMS, voice-to-digital number, via shortlinks or via QR code. In the course of this, the addressee receives a link that allows him to access a mobile-first page with the mobile campaign. VERTAMA also organizes the interface to the customer’s address database.
3.2 For the design VERTAMA enables the customer to design the Mobile First Pages through a template library. The building blocks of the template, the widgets, can be defined as text block, photo, video or various links. Within the widgets, the customer can freely design the content. Text can be edited as headline, subheadline or text block, headlines and captions can be placed in photos and links can be created as web links, phone numbers or mail addresses.
3.3 VERTAMA offers the customer different possibilities of tracking and evaluation for the marketing of the customer.
3.4 VERTAMA is authorized to use third parties and vicarious agents to fulfill its contractual obligations.
4. Duties customer
4.1 The customer undertakes to ensure that the content in a message transmitted with the help of VERTAMA’s services does not violate applicable laws and does not infringe the rights of third parties. In particular the messages must not contain discriminating, insulting, racist, defamatory or otherwise illegal contents or representations. It is also prohibited to send messages in which company, brand or other business logos or other protected signs are displayed exclusively or only among others without authorization.
4.2 Furthermore, the customer undertakes to comply with all legal requirements when sending messages via the services of VERTAMA. In particular, the data protection regulations as well as the requirements of the UWG have to be observed and the customer has to ensure that the addressees have consented accordingly when sending advertising and have not effectively revoked this consent.
4.3 If the customer uses the tracking options of VERTAMA’s services, he undertakes to comply with all data protection regulations.
4.4 If the customer violates the obligations according to clause 4, he is obliged to refrain from further violation, to compensate VERTAMA for the damage incurred and still to be incurred as well as to indemnify and hold VERTAMA harmless from claims for damages and reimbursement of expenses of third parties arising from the violation of the above obligations, including reasonable defense costs. VERTAMA shall immediately notify the customer of any claims subject to this indemnification. The customer shall be entitled, upon request and at its own expense, to take over the exclusive prosecution of the claim.
5. Rights of use
5.1 The customer shall be granted the non-exclusive, non-transferable and non-sublicensable right, limited in time to the term of this contract, to access and use the software within the scope of the purpose of the contract, which is used by VERTAMA in the provision of the services. The customer shall not have the right to grant third parties the right to use the same.
5.2 In the event of a breach of the previous provision by the customer, VERTAMA shall be entitled to terminate this agreement with immediate effect by written notice of termination to the customer.
6.1 VERTAMA guarantees an availability of its services of 98% on an annual average. This does not include times when the non-availability is not due to VERTAMA’s fault.
6.2 VERTAMA is entitled to carry out necessary maintenance work to guarantee its services. VERTAMA shall announce the maintenance work to the customer within a reasonable period of time in advance. If impairments of availability are generated by maintenance work, these shall not be considered as downtime and shall be considered as service time rendered.
7.1 The customer shall pay to VERTAMA the amounts due in connection with the provision of services.
7.2 Pricing shall be based on the prices agreed upon at the time the services are used. Price changes shall be announced by VERTAMA to the customer at least 10 days before the price change takes effect.
7.3 All prices are stated as net prices and are exclusive of value added tax at the statutory rate, unless expressly stated otherwise.
8.1 VERTAMA shall be liable without limitation in case of intent or gross negligence, for injury of life, body or health and according to the provisions of the Product Liability Act.
8.2 VERTAMA shall not be able for only slightly negligent breaches of non-essential contractual obligations (cardinal obligations). A breach of a cardinal obligation shall be deemed to have occurred if a contractual obligation is not performed, the performance of which enables the proper execution of the contract in the first place and on the compliance with which the customer may regularly rely. In this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.
8.3 VERTAMA is explicitly not liable for damages caused by force majeure or technical failures which are in the responsibility of other companies. This applies in particular to damages which occur due to lacking or delayed availability of a third party telecommunication network or faulty configuration of a terminal device. Liability for indirect and consequential damages, such as loss of sales or profit, is excluded to this extent.
8.4 VERTAMA’s liability for loss of data shall be limited to the usual costs of recovery which would have been incurred if back-up copies had been made regularly and in a manner commensurate with the risks.
8.5 The above provisions shall also apply in favor of VERTAMA’s employees and vicarious agents.
9 Data Protection / Confidentiality
9.1 The parties undertake to fully comply with the respective statutory provisions on data protection. The parties shall oblige the employees and other agents used within the scope of the contract according to § 5 BDSG and shall ensure that they comply with the provisions. VERTAMA shall be bound by the customer’s instructions regarding his entered data in the course of using VERTAMA’s services.
9.2 If the customer collects, processes or uses personal data himself or through VERTAMA, he warrants that he is entitled to do so in accordance with the applicable provisions, in particular the provisions of data protection law, and in the event of a violation he shall indemnify VERTAMA against any claims of third parties.
9.3 The parties undertake to maintain secrecy towards third parties about all information they receive in the context of the contractual relationship.
9.4 The duty of confidentiality shall not extend to information which is generally accessible and known at the time of disclosure or which has been independently developed without the use of the other party’s confidential information, nor to information which the other party has previously agreed in writing to publish.
9.5 Furthermore, a breach of the duty of confidentiality shall not exist if a party is obliged to disclose the information for legal reasons or on the basis of an official or court order. Prior to the disclosure, the party shall inform the other party in writing and shall take all possible steps to prevent the disclosure of the information or to keep it as low as possible.
10. Commissioned data processing
10.1 This agreement refers only to the execution of the technical collection, processing and use of personal data according to an algorithm specified by the customer (commissioned data processing). A transfer of tasks to VERTAMA as regards content is not made with this agreement.
10.2 The customer shall be responsible for compliance with the provisions of data protection law, in particular for the lawfulness of the transfer of data to VERTAMA as well as for the lawfulness of the data processing (§ 3 para. 7 BDSG). He may at any time demand the surrender, correction, deletion and blocking of the data (§ 11 para. 2 p. 2 No. 4 and 10 BDSG). If a data subject contacts VERTAMA directly for the purpose of deletion or correction of his data, the contractor shall forward this request to the customer without delay.
10.3 If required, the customer shall keep the register of procedures according to § 4g para. 2 sentence 2 BDSG. VERTAMA shall provide the customer with information for inclusion in the directory of procedures upon the customer’s request.
11 Term / Termination
11.1 This agreement is concluded for an indefinite period.
11.2 The agreement may be terminated by either party with four weeks’ written notice.
11.3 The parties shall be entitled to terminate the agreement in writing without notice for good cause. Good cause entitling VERTAMA to terminate the contract shall exist in particular if the customer breaches any material provision of these terms and conditions and (if the breach can be remedied or terminated) does not remedy or terminate the breach without undue delay after receipt of a written notice to that effect. VERTAMA shall also be entitled to terminate the contract extraordinarily and without notice if the customer, despite a reminder, does not meet its obligation to pay the remuneration according to clause 6. An important reason shall furthermore exist if the respective other party ceases its business activities, becomes insolvent, insolvency proceedings are opened against its assets or an application for opening insolvency proceedings is filed against its assets.
11.4 On the day of termination, all payments of the Customer to which it has contractually committed itself shall immediately become due and payable.
11.5 The termination of the Agreement shall not affect any accrued rights or obligations that the parties may have at the time of the effectiveness or entry into force of the termination, nor shall it affect the continuation of the provisions of the Agreement that expressly or tacitly enter into force or are to be continued at or after the termination. This applies in particular to clauses 4.4, 8 and 9.
12. Final provisions
12.1 The customer may declare a set-off against the remuneration owed by the customer according to these terms and conditions only with recognized or legally binding claims.
12.2 The customer may not assign his rights and obligations under the contract without the prior written consent of VERTAMA, which consent may not be unreasonably withheld. Notwithstanding the foregoing, the customer may assign the contract to a successor organization created by merger, amalgamation or acquisition. In the event of a permitted assignment, the customer shall remain responsible for its obligations under the contract.
12.3 VERTAMA shall in principle be entitled to modify these terms and conditions. However, such a change shall only be made for good reasons, in particular due to new technical developments, changes in jurisdiction or other equivalent reasons. If the amendment threatens the contractual equilibrium between the parties, the amendment shall not be made. Amendments or supplements to these terms and conditions shall be announced by notification to the customer in text form. They shall be deemed approved if the customer continues to use VERTAMA’s services or if he does not object in writing within one month after notification. If such an objection is made, VERTAMA shall be entitled to terminate the contractual relationship with the customer by ordinary termination.
12.4 VERTAMA is entitled to present the customer’s respective name and company logo as a reference on its website and in other publications.
12.5 The contract shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes arising in connection with this agreement shall be Berlin.
12.6 If individual provisions of these terms and conditions and/or the other contents of the contract are or become invalid, the validity of the rest of the contract shall remain unaffected. Invalid provisions shall be deemed to be replaced by mutual agreement by such provisions as are best suited to achieve the desired economic purpose, taking into account the interests of both parties. The same shall apply to the filling of gaps that arise in the application of the contract.
Status: November 2022