General Terms and Conditions of
Conversional GmbH (GTC)
Conversional GmbH, Römerstr. 69, 70180 Stuttgart (hereinafter referred to as "Conversional") offers a software solution (hereinafter referred to as "Tool") to improve the User experience for online providers (hereinafter referred to as "Partner"). The improvement is based on the wishes and requirements of the respective customers of the Partner (hereinafter referred to as "Users") and the Tool offers them individual suggestions and recommendations. The information is provided to the Partner.
The Tool is made available to the Partner for the duration of the Contract period. The Partner places and promotes the Tool on its website.
If the User provides his contact details and confirms his email address, further information relevant to the User will be sent in the name of the Partner.
These GTC govern the contractual relationships within the relationship between Conversional and the Partner (hereinafter referred to as the "Contract") as well as the use of the Tool and websites and functions belonging to the Tool. Conversional and the Partner are collectively referred to as the "Parties".
1. Application of the GTC
1.1. The GTC apply between the Partner and Conversional for all legal transactions, including future legal transactions and similar relationships of the same type, which are established in connection with the Tool.
1.2. The GTC in the version valid at the time of the conclusion of the Contract shall become an integral part of the Contract between Conversional and the Partner (hereinafter referred to as the "main Contract").
1.3. Service descriptions, commission and fee tables as well as similar agreements, in each case provided by Conversional as integral parts of the Contract, shall become part of the main Contract and shall take precedence in the event of a contradiction to these GTC. Individual agreements between the Contracting parties that deviate from these GTC shall take precedence over these GTC if they have been agreed in writing. This also applies to the waiver of the written form.
1.4. Terms and conditions of the Partner that deviate from these GTC shall not apply unless Conversional has expressly acknowledged the deviating or conflicting terms and conditions of the Partner. A lack of objection to the Partner's terms and conditions does not constitute such acknowledgement.
2. Scope of Services and Functions of the Tool
2.1. Conversional offers various performance levels. In addition, the Partner has the opportunity to test the Tool without obligation for a period of time defined jointly beforehand. If the Partner decides to continue using the Tool, he can further adapt it to his needs.
2.2. The concrete scope of the Tool as well as the services associated with the Tool will be made available to the Partner in the context of an individual Contract conclusion as well as service and function overviews. The same applies to the fees incurred for the services of Conversional.
2.3. The Tool is continuously developed by Conversional and aligned to the needs of the market, the Partners and the Users. Conversional therefore reserves the right to make extensions, changes and adjustments to the services and functions of the Tool without this constituting a defect of the Tool, provided that these are reasonable for the Partners and do not conflict with any ongoing contractual obligations.
2.4. Conversional also reserves the right to change or supplement descriptions, designations and other contents of the Tool. For example, in order to provide Users with additional information.
3. Conclusion of Contract with the Partner and Authorisation
3.1. The Contract is concluded individually with the Partner.
3.2. Only companies and persons with legal capacity can become Partners. Conversional selects the Partners at its own discretion. There is no entitlement to use the Tool.
3.3. By participating in the Tool, Partners declare that they are acting as entrepreneurs and are not consumers. "Entrepreneur" within the meaning of the GTC is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or self-employed professional activity. A "consumer" within the meaning of these GTC is any natural person who enters into a legal transaction for purposes that are predominantly neither attributable to his commercial nor to his independent professional activity.
3.4. The Partner authorises Conversional to act on its behalf insofar as this is necessary for the provision of the services commissioned by the Partner.
4. Restriction to Services within the Scope of the Tool
4.1. The services of Conversional are limited to the provision of the Tool and related services, functions and websites.
4.2. Furthermore, Conversional is not involved as a contractual party in the initiation and conclusion of Contracts between the Partners and the services offered and brokered by them within the context of the Tool and bears no responsibility in this respect.
5. Usage Specifications and Restrictions
5.1. The Partner may only use the tool with the input masks, interfaces and other software and data access options provided. Actions that are likely to impair the functionality of the Tool and its infrastructure (e.g. through the Partner's own software interfaces) are prohibited. In particular, an excessive load that exceeds the regular usage intensity and frequency to be expected during normal use of the Tool is prohibited (e.g. software of the Partner that permanently generates unnecessary accesses due to technical errors). Conversional reserves the right to restrict the Partner's use of the Tool in the event of a violation.
5.2. It is the Partner's responsibility to exercise the greatest possible care when using access data to the Tool and to take every measure to ensure confidential and secure handling of the data and to prevent their disclosure to third parties. The Partner is responsible for the misuse of access data if the Partner cannot demonstrate and prove that this was not due to its fault.
6. Specifications for Content and Cnformation
6.1. The term "Content" as used herein means all content and information, such as photographs, graphics, brand logos, videos, texts, source codes, advertising material, data, information about places and persons or links.
6.2. The Partner guarantees that the information provided to Conversional as well as within the websites on which the Tool is integrated, and in particular the Content provided to Conversional, especially if it is integrated within the Tool, is legally in accordance with the law and these GTC and does not violate the rights of third parties. Before activating the tool, the Partner shall check all Content, in particular images, to ensure that they correspond to the part of the Partner's websites or services within which the Tool is integrated and that the Partner holds the rights of use for the Content.
6.3. If advertising Contents or designs or design options of the Tool are provided by Conversional, the Partner will not redesign them outside the options provided by Conversional or replace them with the Partner’s own Contents and will only use them within the scope of the Tool and for no other purposes.
6.4. Conversional reserves the right to restrict the use of the Tool by the Partner or to cancel its publication if there are concrete indications that its Content violates legal requirements, official prohibitions, third party rights or morality. However, Conversional is not obliged to check the Content in advance.
6.6. The Partner shall not book the term "Conversional" as well as the protected brands and other identifiers of Conversional (including, in particular, trademarks and company names) on Internet search engines, either as a result link or comparable link, or as a special booking outside the result links displayed on the Internet search engines.
7. Breach of Duties and Indemnification
7.1. The Partner undertakes to indemnify Conversional upon first request against claims made by third parties against Conversional for reasons for which the Partner is responsible. The indemnity shall include all costs incurred by Conversional to defend against these claims, insofar as these costs are based on measures that Conversional was entitled to consider necessary at the time they were taken.
7.2. The Partner is obliged to inform Conversional immediately about possible infringements of rights and to support Conversional in the defence against the aforementioned claims by submitting the necessary declarations and information.
7.3. Legal claims of Conversional against the Partner (in particular claims for removal, injunctive relief, information and damages) shall not be affected by the aforementioned provisions on breach of duty.
7.4. In cases where a violation is material, Conversional is entitled, depending on the degree of misconduct, to terminate further cooperation with a Partner and to block the Partner's access to the Tool and prohibit a renewed registration.
8. Usage subject to Payment, Invoicing, Terms of Payment
8.1. The payment period and the amount of the remuneration as well as the method of payment shall be based on the prices notified to the Partner prior to the conclusion of the Contract.
8.2. Unless otherwise agreed, in the case of services that have been used for a certain period of time, an appropriate fee adjustment is only permissible after the expiry of this period. The change shall become effective if Conversional does not receive an notice of termination from the customer within two weeks after receipt of the corresponding change notification by the Partner. Conversional shall inform the Partner of the objection period and the consequences of a failure to object in the notification of change.
8.3. Unless otherwise indicated, all prices are exclusive, i.e. plus VAT.
8.4. Fees are generally due after the end of the respective billing period. Unless otherwise stated, invoices are due after two weeks.
8.5. Invoices and reminders may be sent electronically.
8.6. The Partner can settle invoices using the payment methods offered by Conversional.
8.7. If the Partner defaults on payments, Conversional has the right to refuse to fulfil due services to the Partner and to restrict access to the Tool or its use until the default has been remedied. In such cases, Conversional shall notify the Partner of the restriction with a period of notice of 7 working days to remedy the default. Conversional's other legal and Contractual rights due to the Partner's default shall remain unaffected. The restriction may not take place if it is unreasonable and/or unreasonable for the Partner. Conversional's claim to remuneration shall remain unaffected by the restriction. Access to the Tool shall be reactivated immediately after payment of the arrears. The right to restriction shall also exist as a mitigating means if Conversional has a right to extraordinary termination.
8.8. Costs incurred by chargeback of a payment transaction due to lack of funds or due to incorrectly transmitted data by the Partner as well as by reminders of due receivables shall be charged to the Partner. The Partner reserves the right to provide evidence of no or lower costs.
8.9. Offsetting is only possible with claims already recognised by the other Party or established by a court of law, unless these are claims for main performance and defects. A right of retention may only be asserted for claims arising from the respective Contract.
9. Term and termination
9.1. Subject to individual Contractual agreement, the main Contract between Conversional and the Partner is concluded for an indefinite period of time and can be terminated by either Party at any time without stating reasons.
9.2. The Contracting parties are obliged to confirm receipt of a notice of termination by the other Party.
9.3. The termination shall take effect on the calendar day following receipt of the notice of termination.
9.4. The right to extraordinary termination for good cause remains unaffected and exists in particular in the case of
- breach of essential obligations of these GTC;
- opening of insolvency proceedings against the Partner or the Partner's assets;
- majority change in voting rights in the Partner's company.
9.5. After termination, the Partner is obliged to immediately remove the Tool from its websites and to refrain from accessing or otherwise using the Tool.
10.1. Conversional does not provide any guarantee for particular results (e.g. conclusion of contracts, lead generation, etc.), sales or other target agreements that have not been expressly agreed.
10.2. Liability without fault for defects already present at the time of conclusion of the Contract, as long as these were recognised by the Partner or the Partner should have recognised them and in both cases did not report them within 24 h, is excluded.
10.3. Maintenance periods (which include typical maintenance, conversion, update or installation work) do not constitute defects.
10.4. Defects do not include restrictions or failures of the Tool and processed data due to circumstances beyond Conversional's control and responsibility (fault of third parties, disruption of telecommunication lines, force majeure, etc.).
10.5. If the security of the Partner programme or the infrastructure of Conversional is acutely at risk (e.g. by malware or unauthorised access attempts), Conversional may temporarily restrict access to the Tool and the scope of its functions as required. This also applies if the interests of the Partner are at risk.
10.6. Conversional is entitled to block the Partner's access in the event of serious violations of the Partner's obligations. Serious violations are those that make it unreasonable for Conversional to maintain the fulfilment of the Contract because the rights and interests of Conversional, third parties or the Partner are at risk (e.g. access by unauthorised persons).
10.8. Claims due to defects shall become statute-barred after twelve months, unless the defect was fraudulently concealed. The commercial inspection and complaint obligations apply.
11.1. Insofar as Conversional offers interfaces with which the Partner can access the Tool with third-party software, Conversional guarantees the functionality of the interfaces in accordance with the availability regulations of these GTC only to the extent that the functionality is within Conversional's sphere of influence.
11.2. In particular, no warranty can be assumed for a lack of compatibility of the interfaces or accessibility, insofar as the deficiencies lie in the software or its modifications of the third-party provider that cannot be influenced by Conversional.
11.3. The same restrictions apply when Partners link third party software to the Tool via their interfaces.
12.1. Conversional shall be liable under this Contract only in accordance with the following liability provisions.
12.2. Conversional shall be liable without limitation for damages caused intentionally or by gross negligence by Conversional itself or by legal representatives or executives of Conversional as well as for damages caused intentionally by other vicarious agents; for gross negligence of other vicarious agents, liability shall be determined in accordance with the provisions for slight negligence set out below in section 12.6 of these GTC.
12.3. Conversional shall be liable without limitation for damages caused intentionally or negligently by injury to life, body or health by Conversional as well as the legal representatives or vicarious agents of Conversional.
12.4. Conversional shall be liable for damages due to the lack of warranted characteristics up to the amount that was covered by the purpose of the warranty and that was recognisable to Conversional when the warranty was given.
12.5. Conversional shall be liable for product liability damages in accordance with the provisions of the German and similar compelling Product Liability Act.
12.6. Conversional shall be liable for damages resulting from the breach of cardinal obligations by Conversional itself as well as by the legal representatives or vicarious agents of Conversional. Cardinal obligations are the essential obligations which form the basis of the Contract, which were decisive for the conclusion of the Contract and on the fulfilment of which the Partner may rely. If Conversional has breached these cardinal obligations due to slight negligence, Conversional's liability shall be limited to compensation for the damage that is foreseeable and typical according to the nature of the transaction in question. The typical damage is generally limited to the specified amount and otherwise to the amount of the remuneration for the period in which the breach of duty occurred. This shall not apply if the limitation would be unreasonable in the individual case from the point of view of equity. The typical damage shall in principle not exceed five times the agreed remuneration. This also applies to lost profits and savings. Liability for other remote consequential harm caused by a defect is excluded.
12.7. Conversional shall only be liable for the loss of data in accordance with the above provisions if such loss could not have been avoided by reasonable data backup measures on the part of the Partner.
13. Amendment of the GTC
13.1. Conversional reserves the right to change the GTC at any time with effect for the future. The amendment of essential regulations that affect the contractual equity of the Partner to Conversional shall only take place in the presence of valid and objective reasons, in particular of a legal, technical and business nature.
13.2. In the event of changes to the GTC, Conversional shall inform the Partner of the changed GTC at least in writing so that the Partner has two weeks to object to the change. In the event of an objection, the Partner has the right to terminate the Contract. If the Partner does not object to the amended terms and conditions within the period, they shall be deemed to have been accepted. The Partner shall be informed of his right of objection and its consequences.
14. Data Protection
14.1. Each Party shall ensure that the data processing taking place in its corporate sphere complies with the applicable data protection requirements. The Partner undertakes to obtain the necessary consent from the respective data subject or to provide evidence of legal permissions for all data processing that is necessary for the performance of the Contract.
14.2. The Partner undertakes to enter into Contracts and agreements provided for by law. This includes, in particular, order processing Contracts in accordance with Article 28 of the GDPR and agreements on joint responsibility in accordance with Article 26 of the GDPR. Conversional shall provide the Partner with the corresponding Contract template. The Partner's own Contract templates can only be taken into account in return for an appropriate review fee for the Partner template.
14.3. Conversional is entitled to sub-contract the services to third parties in accordance with the above mentioned data processing or joint control agreements with the Partner as well as other data use agreements that may be attached.
15. Data Protection Agreements and Privacy Information Template
15.1. Conversional is responsible for the processing of personal data (in short "data") within the scope of the Tool. Insofar as the Partner is jointly responsible for this processing pursuant to Article 4 No. 7, 26 DSGVO by participating in the Tool (which, according to the current legal situation, includes the pseudonymous analytics, insofar as it is made available to the Partner, also in anonymous form), Conversional agrees to assume primary responsibility pursuant to GDPR for the processing of the Users' data and to fulfil all obligations arising from GDPR with regard to the processing of the data (including Articles 12 and 13 GDPR and Articles 32 to 34 GDPR). Articles 12 and 13 GDPR, Articles 15 to 22 GDPR and Articles 32 to 34 GDPR). This means that Conversional ensures that the technical and organisational security of the processing of the data complies with the legal requirements, as well as for the fulfilment of objections, information or other enquiries of the Users. The Partner's contribution is limited to the integration of Conversional's Tool into its websites or online services.
15.2. Users may address their enquiries regarding the processing of their data within the Tool directly to Conversional. If a data subject or a supervisory authority under the GDPR makes a request to the Partner regarding the processing of data within the Tool, the Partner is obliged to provide Conversional with all relevant information without undue delay, but no later than within 7 calendar days. The Partner agrees to use reasonable efforts in a timely manner to cooperate with Conversional in responding to any such request.
15.3. The Partner is not authorised to act or respond on behalf of Conversional. To the extent that there is an obligation on Conversional to provide statistical information, it shall only include aggregate statistics.
15.4. Conversional recommends that the Partner informs Users about the use of the Tool within their websites and suggests including the following notice:
Information on the processing of personal data within the scope of services provided by Conversional GmbH
Within our website, we use the services of the provider Conversional GmbH, Germany, https://www.conversion.al/en/ (herein after “Services”). The Services are used for the purpose of simplifying communication with interested parties for our products and services (e.g. by allowing customers to select the product constellations corresponding to their wishes before sending an offer enquiry). In this context, personal data of the interested parties is collected and processed by Conversional GmbH on our behalf in accordance with the legal requirements for the purpose of answering their pre-contractual enquiries (e.g. e-mail addresses of the interested parties are forwarded to us).
Furthermore, in the context of the use of the Services, personal usage data of the visitors of our website are processed pseudonymously for the purposes of analysing and optimising the Services of Conversional GmbH and our website. Further services, such as Google Analytics, may be used for this purpose.
16. Confidentiality, Property rights and Protection of Trade Secrets
16.1. The Contracting parties undertake to treat all confidential information of which they become aware in the course of implementing this Contract as confidential and to use it only for Contractually agreed purposes.
16.2. For the purposes of this provision, confidential information means information, documents, particulars and data which are designated as such or which by their nature are to be regarded as confidential.
16.3. In particular, the following matters are deemed to be covered by this confidentiality agreement:
- Customer lists;
- Contracting parties and Contract internals;
- Turnover figures;
- Price lists, pricing and discount agreements;
- Business balances;
- Technical know-how and software developments (especially related to the Tool);
- Creditworthiness of the company;
- Personnel matters (for example: promotion plans);
- Production and development processes;
- Marketing procedures and planned marketing measures.
16.4. Reverse engineering", i.e. observing, examining, dismantling or testing products, hardware and software of one Party, is not permitted without the consent of the other Party.
16.5. The Parties grant access to confidential information of the other Party only to those employees who are entrusted with the provision of services under this Contract. The Contracting parties shall not file applications for property rights for confidential information of the other Party.
16.6. The rights and obligations under this Section on Confidentiality shall not be affected by any termination of this Contract. Both Parties shall, at the other Party's option, return or destroy Confidential Information upon termination of this Contract, insofar as this is not precluded by compelling legal reasons or contractual agreements.
16.7. Conversional is entitled to refer to the client's use of the Tool, subject to any express confidentiality obligations, for the purpose of presenting its own services.
17. Competition Clause
The Parties are entitled to conclude Contracts of the same or a different kind with competitors of the respective Party, provided that this is not opposed by any considerations of trust and the purpose of this Contract is not jeopardised.
18. Place of jurisdiction, applicable law, form and final provisions
18.1. The GTC, together with an individual Contractual agreement, the overview of services and the data protection agreements, constitute the entire agreement between Conversional and the Partner. Additions and amendments to this agreement must be made in writing.
18.2. For the purposes of these GTC, written form means text form with a recognisable sender and recipient (e.g. fax or e-mail with a recognisable sender). Declarations that meet higher formal requirements, for example written form with a handwritten signature, are also effective. Oral or conclusive declarations are not valid.
18.3. The law of the Federal Republic of Germany shall apply.
18.4. The place of performance and exclusive place of jurisdiction for all disputes arising from or in connection with the Contract shall be the registered office of Conversional, provided that the Partner is a merchant, a legal entity under public law or a special fund under public law. Nevertheless, Conversional shall also be entitled to sue at the Partner's place of business.
18.5. The partner may only transfer the Contract and the contractual relationships resulting from the Contract as well as claims against Conversional to third parties with the consent of Conversional.
18.6. The invalidity of individual provisions of these GTC and the Contractual agreements based on them shall not affect the validity of the remaining provisions. In this case, the Contracting parties undertake to agree on effective provisions which come closest in economic terms to the intended purpose of the invalid provisions. This applies accordingly to the closure of any Contractual loopholes in this Contract.
As at 21. May 2021