General terms and conditions
How to work with E2Ma
As of January 1, 2016
The term „consumer profile/consumer profiles“ refers to the information provided by the consumers who gave a positive answer to the question or questions asked by E2Ma on behalf of the customer.
Inclusion of these terms
These terms apply to all oral and written offers made to E2Ma customers with respect to the deployment of consumer profiles. They prevail over the general terms and conditions of the customer.
Variations from these terms and conditions or changes thereof have to be approved in writing by E2Ma.
Conclusion of contracts
Unless otherwise stipulated all offers and messages by E2Ma with regards to the supply of consumer profiles are non-binding.
E2Ma has the right at all times, to accept or reject offers to acquire use rights to consumer profiles, depending in particular on the customer’s products/services.
An order becomes binding only upon written confirmation by E2Ma.
Additions or changes to contracts have to be made in writing. This also applies to a change or a removal of this stipulation requesting the written form.
Any deadlines or delivery dates stated by E2Ma are non-binding and do not entitle the customer to refuse to pay or refuse the delivery of consumer profiles nor does it entitle the customer to request damage. In case of a minor exceedance of a delivery date given by E2Ma the consumer does not have the right to withdraw from the order, unless there was a binding agreement with E2Ma regarding the delivery date .
The consumer profiles are sent out at the consumer’s own risk and expense, if necessary on data mediums like discs and such.
The price for the consumer profiles does not include legal VAT.
If after 6 months after the conclusion of the contract, the cost for the future usage rights has increased to an extent that was not predictable by E2Ma and due to which E2MA cannot be expected to continue with the order fulfilment, E2Ma has the right to adjust its prices also within a contractual year. In this case, the customer has the right to cancel the order.
Invoicing is based on the minimum billing rate. Final settlement is made after the alignment protocol has been received.
The payment of the agreed price has to be made without any deductions within 14 days after receiving the invoice.
If the payment is not made in time or is not made in full the customer shall reimburse all judicial and extrajudicial costs incurred by E2Ma to assert their claim. After 14 days after the receipt of the invoice, the customer is in default of payment. As of such date, a penalty interest of 8 percent points beyond the basic interest rate in accordance with Art. 288 (2) of the German Civil Code shall be applied to the outstanding amount.
If advance payment was agreed, E2Ma has the right to delay the delivery of usage rights until the full amount of the advance payment has been paid.
E2Ma has the right to suspend the delivery of usage rights if the customer is already in default of payment with respect to exploitation rights already supplied.
The customer does not have the right to set off any amount against counterclaims, unless E2Ma does not contest this claim or the claim has been finally determined by a court.
Usage right, data protection
The customer receives the following usage rights with respect to the supplied consumer profiles for the duration set forth in the contract:
– no time limit for acquisition of new customers for himself or the final customer via e-mail;
– for a duration of three months for the acquisition of new customers for himself or for the final customer by postal mail or over the phone.
Any use or exploitation of the supplied consumer profiles beyond the above is expressly excluded.
Unless expressly agreed in writing by E2Ma, the customer is not authorized to transfer his rights under the contract to third parties.
The customer has the right to indicate the supplier of the consumer profiles provided pursuant to this contract. It is the customer’s own responsibility to comply with the valid data protection laws pertaining to the consumer profiles supplied pursuant to this order, in particular the German data Protection Act and the German Broadcast Media Act.
In connection with advertising, the consumer shall not distribute any illegal and/or immoral content that infringes upon advertising guidelines. Any costs resulting from possible cease-and-desist orders (lawyers’ fees, contractual penalties etc.) issued by consumer protection associations or other organizations referring to telephone advertising shall be borne solely by the customer. To avoid any misuse of data E2Ma uses so-called cover addresses (e-mail, postal mail, phone) as well as external service providers for data protection and quality monitoring. The customer agrees that phone calls with consumers based on the supplied consumer profiles may be recorded by external service providers.
The customer hereby commits to indemnify and hold harmless E2Ma from all claims that might result from the publication of the above-mentioned telephone advertising, unless the claims are based on the use of addresses that do not comply with the performance features specified in this contract. The customer is sole responsible for advertising material/phone calls and their content. The indemnification includes in particular all direct and indirect judicial and extrajudicial costs and in the case of an unavoidable counterclaim (counterstatement) it includes the costs for the necessary campaign period as well as the costs incurred in connection with a criminal prosecution or proceedings for a misdemeanor committed by staff members of E2Ma.
Warranty and liability
E2Ma is not liable for a specific quality of the consumer profiles it supplied. E2Ma is also not liable for the functionality of the data medium that was used. Any complaints have to be made in writing to E2Ma at the latest 10 working days after the delivery.
E2Ma does not assume liability for any damage resulting from the supplied consumer profiles. This includes all direct and indirect damage, including consequential damage caused by the fact that the consumer profiles were either not supplied at all or not supplied in time or caused by the use of the consumer profiles, possible incompleteness or errors in the consumer profiles; this provision also applies to all damage caused by the loss of the consumer profiles, the supplied data and data mediums, including the costs incurred because to repair or reproduce the consumer profiles.
The disclaimer of liability does not apply to damage caused by loss of life, bodily injury or damage to the health of a person or if E2Ma or the people appointed to carry out this order acted willfully and knowingly or with gross negligence. In case E2Ma is liable, E2Ma is exclusively liable for the immediate damage suffered by the customer.
For the duration of the individual contract and for a period of 12 months thereafter, the customer will refrain from submitting an employment or employment offer to E2Ma employees or acting in any other way, terminating their employment contract at E2Ma or in any other way break up.
For each case of violation of the ban on poaching, the customer will pay a contractual penalty in the amount of half the gross annual salary of the employee concerned, but at least EUR 25,000 to E2Ma. Further claims for damages remain unaffected.
In the context of this contract Force Majeure includes all circumstances that are mentioned with respect thereto in the law and by the jurisprudence; furthermore all circumstances beyond the control of E2Ma which made it impossible for E2Ma to fulfil its obligations or to fulfil its obligations in time. Events of Force Majeure that are limited in time do not give the customer a right to cancel the order. In case of a permanent Force Majeure situation, E2Ma has the right to require the cancellation of the order without E2Ma being liable for damages.
If any clause in these terms and conditions or any other part of the contract becomes ineffective at any time or is declared to be ineffective, the other terms as well as the order itself remain unaffected. The parties will replace the ineffective clause or the clause that was declared ineffective by a clause that comes as close to the purpose of the order contract and the conditions the parties pursue as possible.
E2Ma has the right to terminate the contract with immediate effect if the customer does not fulfil his obligations resulting from the order and these terms and conditions, at all, not in time or not properly despite a written reminder with a reasonable notice period.
The customer’s payment obligations relating to consumer profiles that were supplied prior to the termination remain unaffected and all outstanding payments are due upon termination.
Disputes and applicable law
The place of jurisdiction for all disputes resulting from this contractual relationship is Cologne.
The order is subject to German law.