Contracting parties for the usage of OMP Tools GmbH software are Hurricane Trade Pty Ltd, t/a Reach Social, 66 Albert Road, Woodstock 7925, Cape Town, South Africa (“Provider” or “Reach Social”) and the respective client.
§ 2 Subject matter of contract
Subject matter of this contract is the server-based usage of the software (hereinafter “OMP Tools Software”), which creates, manages and controls Google AdWords campaigns. The OMP Tools Software runs solely server-based and intervenes regularly via the API interfaces of markets in keywords, ad texts and CPC offers. It controls according to the client’s targets (i.e. cost per inquiry) and implements those targets, as far as the market conditions allow. The programming and the OMP Tools Software remains exclusively the property of the provider. The client is allowed to use it against payment and exclusively in accordance and implementation with this contract provided it is only used on the operated websites of the provider.
§ 3 Duties of the provider
(1) To provide the client with the technical oppurtunity, to use the service described under section §2. The provider and not the WorldWideWeb is responsible for the correct operation of this service.
(2) To provide the client with a username and password for the login on the provider’s website.
(3) The provider will undertake any necessary technical changes, which influence the operation of the service laid out in §2 significantly, insofar as is technically possible, outside the normal period of use. Preferably at night or during the early morning hours.
(4) The provider shall ensure, using its best endeavours, the contiuned provision of services, however, it cannot guarantee the uninterrupted availability of the tracking component, due to, inter alia when the availabilty is interrupted by technical or other issues which are not in the sphere of influence of the provider (i.e. force majeure, fault of third parties, manipulation on server side, failure of API interfaces to the markets, upfront communicated maintenance services etc.). Additionally interruptions may occur within the first 4 weeks after the start of the contractual relation and therefore fall under the initial operation.
§ 4 Duties of clients
(1) The client is obliged to handle the login details in accordance with § 3 section 2 carefully and undertakes not to pass them on to third parties to avoid a abusive usage of the login details through third parties.
(2) Unauthorized parties in terms of § 4 section 1 of this contract is any person using the login without the knowledge or consent of the provider.
(3) The client warrants to the provider, that he controls the texts created by the software and that no campaigns or content wil be saved or uploaded to the internet, which breaches the provisions, publication or usage against applicable law (especially the naming- and brand right, data protection law or other legal regulations).
(4) The client indemnifies and holds harmless the provider from all and any claims from any third parties in any form whatsoever, arising from the operation of the contract, including all legal costs on an attorney and own client basis.
§ 5 Blocking of contents
If and insofar the client saves or uploads illegal contents in breach of the warranty referred to in section 4 above, the provider shall be entitled without notice, to immediately terminate the service.
§ 6 Remuneration
The client is obliged to pay the determined remuneration as per service level agreement.
§ 7 Right of use
(1) The client will not transfer usage of the contractual services to third parties (agencies), or create campaigns for third parties without first notifying the provider in writing.
(2) The client will remain as the contractual party and there will be no contractual relationship created between the provider and the third parties.
§ 8 Warranty and liability
(1) The provider does not guarantee the client any specific campaign results, nor is the provider responsible for any damages to the client’s business resulting from any actions whatsoever. The client enters into this agreement entirely at their own risk.
§ 9 Duration, termination
(1) The duration of the service agreement depends on the agreement. A termination is possible 3 months prior the end of the contract, the only exception is the monthly subscription, the notice period can not be less than 30 days here. Unless the contract is terminated, it shall be extended by the same period.
(2) Both parties will be authorized to prematurely terminate the service agreement without compliance of the notice period for good cause. Good cause shall be deemed to exist if
a) The client customer is in default of payment by more than 10 working days after receipt of a reminder or warning;
b) the client breaches the substantial regulations of these T&C’s (§ 4) or other legislations and does not remedy despite a warning within a reasonable period. A warning is not required if it does not assure success or the breach is that fatal that it is not reasonable for the provider to adhere to the contract.
(3) For any culpable violation of statutory regulations, the user agrees under preclusion of a plea of continuation of the violation to provide all saved contract- and client data (including end-customer of the client) as well as all accesses until the end of the duration of the contract. Upon request of the client, all client-oriented data will be destroyed. This destruction may only take place, once the provider provided all saved contract- and client data (including end-customer of the client).
§ 10 Confidentiality
Both parties agree to treat all technical and economical details with confidentiality. However, both parties are allowed to report a service agreement between both parties in the general nature in client information, brochures, presentations etc.. Should the provider request to name the endcustomer in general nature (i.e. in case of agencies), it requires the consent of the client, which may not be refused unreasonably.
§ 11 Data protection
(1) The provider will not pass on any data consisting information of the client to third parties. Furthermore client data will only be saved for a frictionless operation at usual market safety standards.
(2) The provider reserves the right to use the indicated contact detals for product-specific information. The client can always cancel his permission via email. These data will not passed on to third parties.
§ 12 Final provisions
(1) This agreement constitutes the whole agreement between the provider and the client in relation to its subject matter and supersedes all prior agreements and no documentation, representation, warranty or agreement not contained herein shall be of any force between the parties.