1 - Scope of Application
1.1 The following General Terms and Conditions apply to all contracts and services rendered between and/or by remerge GmbH or any of its’ subsidiaries hereinafter referred to as (“Remerge”). Remerge is the provider of the remerge.io platform, a seamlessly integrated app retargeting platform that enables advertisers to efficiently segment and manage their app’s user-base and retarget their customers with relevant marketing messages (collectively, the “Remerge Services”). The following General Terms and Conditions apply to all business relationships between Remerge and its customers with regard to the Customers’ use of the Remerge Services. Remerge may offer additional services or revise any of the Remerge Services, at its discretion, and these General Terms and Conditions will apply to all additional services or revised services. Remerge also reserves the right to cease offering any of the Remerge Services.
1.2 These General Terms and Conditions constitute a material part of each agreement unless expressly agreed otherwise in writing, and they apply to any future business transaction between Remerge and the customer, even without express reference thereto.
1.3 Any deviating general terms and conditions of the customer as well as any deviations and/or amendments to these General Terms and Conditions shall only become part of the agreement if they have been expressly acknowledged by Remerge in writing. These General Terms and Conditions shall also apply exclusively if Remerge has not explicitly objected any contrary general terms and conditions or if Remerge unreservedly perform the Remerge Services in the knowledge of the customer’s general terms and conditions. Individual agreements concluded with the customer in individual cases (e.g. in an Insertion Order) have priority over these General Terms and Conditions.
1.4 Remerge reserves the right to modify these General Terms and Conditions with effect for the future at any time. In this case, Remerge will notify the customer of these changes. The changes shall be deemed to be accepted if the customer does not object within four weeks after receipt of the amendment notification. Remerge will inform the customer in its amendment notification about the customer’s right to object and the effects of a lack of objection. If the customer rejects the changes, Remerge has the right to terminate the agreement.
2 - Offer and Conclusion of a Contract
2.1 Offers by Remerge are non-binding and subject to change, unless they are expressly identified as binding or contain a specific acceptance period. The offers will include, inter alia, the media costs and any other fees payable by the customer to Remerge, the terms of the advertising campaigns, possible specific requirements by the providers of ad inventory (“Publishers”) or Real Time Bidding-Exchanges (“RTB Exchanges”) that the advertising campaigns must comply with, specific requirements for the advertising materials to be submitted by the customer, etc. Furthermore, the general description of the Remerge Services (“Remerge Services Description”) will apply that is provided to the customer by Remerge or is available on the Remerge website.
2.2 The agreement between Remerge and the customer is concluded upon signature of an individual order (“Insertion Order”) by Remerge and the customer. In order to conclude the agreement, the customer must send the countersigned Insertion Order to Remerge by email (“Acceptance”). In addition to any provisions contained in the Insertion Order, these General Terms and Conditions shall apply.
2.3 The customer represents and warrants that all personal information as well as other relevant contractual data provided by the customer during the conclusion of the agreement are complete and correct. The customer is obliged to promptly inform Remerge about any changes to this data. In the event of a culpable breach of this obligation, Remerge is entitled to suspend the Remerge Services upon giving prior notice until the updated data is provided.
2.4 The customer acknowledges and agrees that contractual declarations (e.g. confirmation emails, amendments to the General Terms and Conditions as well as other notifications) may be sent in text form via email. They are deemed to have been received when they can be retrieved in the email inbox, which was specified by the customer under normal circumstances. However, notifications of the Parties regarding the termination of an agreement have to be made in writing to be valid.
3 - Remerge Services
3.1 Remerge shall render the Remerge Services in accordance with the terms of the respective Insertion Order, the Remerge Services Description and these General Terms and Conditions.
3.2 With respect to any advertising campaign, within the scope of the media plan (if any) agreed with the customer, Remerge selects and acquires in its free discretion and in its own name and for its own account the advertising inventory offered on third party media (such as mobile apps) on which the customer’s creatives will be displayed (“Ad Inventory”) from the Publishers.
3.3 The key performance indicators and volumes of user activities (e.g. ad views, ad clicks, new app sessions, user registrations, etc.) that are included in an Insertion Order are non-binding estimates. Remerge does not warrant that an advertising campaign will achieve such key performance indicators and/or volumes. If an estimated or agreed volume cannot be reached within the agreed term, the Parties may either (i) mutually agree in text form (email is sufficient) to extend the term of the advertising campaign until such volume is reached (provided that appropriate Ad Inventory is available for such purpose) or (ii) terminate the advertising campaign at the end of the term. In the latter case, the customer is only obligated to pay the media costs for the volume that was actually delivered.
3.4 In case of unforeseen events, Remerge is entitled to suspend the Remerge Services for maintenance or repair purposes if this is necessary to ensure the proper operation of the Remerge Services.
3.5 Remerge is entitled to use the assistance of third parties in order to fulfill its contractual obligations; provided that, Remerge shall remain responsible and liable to the customer for the acts and omissions of such third parties in performing the duties of Remerge under this agreement.
4 - Customer’s Rights and Obligations
4.1 The customer agrees to keep the passwords and login data provided by Remerge for access to the Remerge Services confidential and to inform Remerge immediately as soon as the customer becomes aware of unauthorized third parties gaining access to these passwords. If, due to the customer’s fault, unauthorized third parties use any services provided by Remerge by using the passwords, the customer is liable to Remerge for usage fees and damages.
4.2 The customer is obliged to provide Remerge with any information and data on marketing objectives, targeted users, etc. that are required to perform the Remerge Services in a timely manner.
4.3 In order to enable Remerge to conduct a retargeting campaign, the customer is obliged to provide Remerge with non-personally identifiable information of the users to be targeted as specified in the respective Insertion Order, i.e. device identifiers that Remerge cannot or only with unreasonable effort use to identify a user. The customer grants Remerge a limited, non-exclusive, revocable license during the term of this agreement to use such data solely for the purposes of providing the customer with services described in insertion orders executed by the customer and Remerge, and shall permanently destroy all such data upon request after expiration or termination of this agreement for any reason. The customer shall retain all right, title, and interest, including all associated intellectual property and other proprietary rights, in such data. The customer also agrees that Remerge is entitled to link a user inside the customer’s mobile app. The customer expressly acknowledges and agrees to not provide Remerge with any personally identifiable user data for retargeting purposes.
4.4 The customer will obtain access to reporting on its advertising campaigns via the Remerge Platform, via an API or by receiving an XLS or CSV-file upon request.
4.5 The customer must follow Remerge’s instructions as well as the protocols and specifications provided by Remerge with regard to the telecommunication/data transmission.
5 - Creatives, Advertising Campaigns
5.1 If the customer engages Remerge to conduct an advertising campaign, including the provision of media buying services, the customer will deliver to Remerge appropriate advertising creatives in the form of banners and/or text that match the industry standards (e.g. 320x50, 320x480) to be displayed on the Ad Inventory (“Creatives”), unless expressly specified otherwise in the Insertion Order. The customer acknowledges and agrees that its Creatives will meet the ad specifications as stated in the current Advertiser Specifications that are provided to the customer by Remerge.
5.2 The customer is obliged to provide the final Creatives, free of viruses and other harmful components, to Remerge in a advertising campaign.
5.3 The customer hereby grants to Remerge for the term of the respective advertising campaign the non-exclusive, limited, revocable, worldwide right to use the Creatives and all contents therein provided by the customer solely as necessary for the provision of the Remerge Services. This grant of rights includes all copyrights, neighbouring rights to copyright, trademarks, designs, rights to persons’ likenesses and any other rights necessary for such use of the Creatives, including but not limited to the right to publish, to reproduce, disseminate, distribute, transmit, make publicly available and edit the Creatives and all contents therein, solely to the extent necessary for the provision of the Remerge Services. Remerge is entitled to grant the Publishers sublicenses to the foregoing rights in the Creatives solely as necessary for integration and delivery of the Creatives on their RTB exchanges.
5.4 Remerge is entitled to reject Creatives that do not comply with the ad specifications or if Remerge has reason to assume that the Creatives’ content, the customer’s mobile app and/or their use might violate applicable law, third party rights and/or the requirements or specifications of the Publishers. In such event, Remerge may also adjourn an ongoing advertising campaign. Remerge will inform the customer about such rejection and/or adjournment and allow the customer to provide Remerge with different Creatives that comply with the ad specifications. This paragraph also applies if a Publisher rejects the customer’s Creatives and/or adjourns an ongoing advertising campaign.
6 - Fees, Payment
6.1 The fees for the Remerge Services are set out in the applicable Insertion Order. Unless explicitly stated otherwise, all fees are quoted exclusive of the statutory value- added tax (VAT), if applicable at the time. Invoices will be sent to the customer in electronic form via email, unless expressly agreed otherwise.
6.2 The fees will be calculated and invoiced monthly on the basis of the delivered volumes of agreed user activities (e.g. ad views, ad clicks, new app sessions, user registrations, etc.) as recorded by Remerge. If the difference between measurements made by the customer or third parties on behalf of the customer (“Controlling Measurement”) exceeds 10% over the invoice period and the Controlling Measurement is lower the parties will facilitate a reconciliation effort between Remerge and Customer measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Remerge reserves the right to either: Consider the discrepancy an under-delivery of the advertising campaign, whereupon Remerge delivers bonus clicks or actions until the discrepancy is 0% (bonus flight), or Calculate fees based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery (discrepancy payment)
6.3 The payment of the invoices shall be due and payable within 30 days from the customer’s receipt of the invoice solely via SEPA, ACH or international wire transfer to the bank account specified in the invoice. All transaction fees are to be paid by the customer. In the event of the customer’s default of payment, Remerge will charge default interest in accordance with the statutory provisions. Remerge reserves the right to prove and assert greater damages due to default. If the customer’s payments are considerably delayed, Remerge reserves the right to suspend the provision of any further services, in particular the customer’s access to the Remerge Services, at the expense of the customer until all due payments have been made. In the event of suspended services, the customer is nevertheless obliged to pay the agreed fees. After having set the customer a reasonable deadline and expiration of that deadline, Remerge has the right to terminate the agreement with immediate effect. In case of returned direct debits or unpaid checks, the customer shall reimburse Remerge for the costs incurred to the extent that the customer was responsible for the event given rise to these costs. Further claims and rights to which Remerge may be entitled in this respect shall remain unaffected. Even if the customer does not use the provided Remerge Services, the customer is still obliged to pay the agreed fees.
6.4 Any complaints relating to an invoice must be submitted to Remerge by email to email@example.com within four weeks upon receipt of the invoice. If no such complaint has been made within four weeks upon receipt of invoice, the invoice is deemed to be accepted. Remerge will inform the customer in the invoice about the consequences of failing to submit a timely complaint.
7 - Grant of Rights, Ownership, Collaboration
7.1 Upon conclusion of the agreement, Remerge grants the customer and its affiliated entities the non-exclusive, non-transferable and non-sublicensable right to use the Remerge Services during the term of the agreement, insofar as this is necessary to use the Remerge Services according to the respective Insertion Order.
7.2 Remerge shall retain all intellectual property rights as well as any other property rights in and to the Remerge Services provided under this contract, including source codes, databases, hardware and/or any other material (e.g. documentations, developments, functions, report templates, preparatory material, etc.).
7.3 Unless otherwise expressly agreed between the parties, Remerge is entitled to refer to the collaboration with the customer and to depict the customer’s logo for self-promotional purposes.
8 - Representations and Warranties, Indemnification
8.1 The customer represents and warrants that (a) the customer is entitled to market the mobile app, (b) the customer holds the rights granted in the Creatives and (c) the Creatives, all contents therein and its mobile app (i) are fully compliant with applicable law, (ii) do not infringe any third party’s rights, and (ii) do not contain or promote any illegal content, including but not limited to content that glorifies violence or war, is pornographic or harmful to minors, is deceptive or misleading, is defamatory or libelous; is liable to incite racial hatred or degrading, or is obscene or defamatory.
8.2 The customer shall indemnify, defend and hold Remerge harmless from and against any claims, liability, damage, loss and/or expense (including reasonable attorneys’ fees and legal costs) arising from, relating to or in connection with a breach by the customer of any of the customer’s representations and warranties made under this section 8.
8.3 Remerge represents and warrants that (a) it holds all rights necessary to offer and perform the Remerge Services, and (b) the Remerge Services (including the remerge.io platform and all parts thereof) (i) are fully compliant with applicable law, (ii) do not and will not infringe any third party’s rights, and (iii) as applicable, will be performed by qualified personnel in accordance with good industry practice.
8.4 Remerge shall indemnify, defend and hold customer and customer’s affiliated entities harmless from and against any claims, liability, damage, loss and/or expense (including reasonable attorneys’ fees and legal costs) arising from, relating to or in connection with a breach by Remerge of any of Remerge’s representations and warranties made under this section 8.
9 - Liability
9.1 Remerge shall be responsible that the Remerge Services correspond to their intended use. Remerge does not assume any liability for any damages resulting from a usage other than the intended use. The same applies to any damages resulting from a usage that is not in accordance with Remerge’s instructions and recommendations or any other unauthorized usage.
9.2 The customer is obliged to duly examine the Remerge Services and notify Remerge of all noticeable defects detected in such examination (“Obvious Defects”) without undue delay, but no later than two weeks from either (a) receipt of the respective performance report by Remerge or (b), if no such report is owed for a certain Remerge Service, upon the full supply of the respective Remerge Service. If the customer fails to give notice within the aforementioned time period, the respective Remerge Services will be deemed to be approved in accordance with the agreement with regard to such Obvious Defects. If a defect becomes evident at a later time (“Hidden Defects”), the customer is obliged to provide notice to Remerge without undue delay, but at the latest within five business days after discovery of the Hidden Defect. If the customer fails to give notice within the aforementioned time period, the respective Remerge Services will be deemed approved in accordance with the agreement also with regard to the Hidden Defect. For the observance of the aforementioned duty to report defects, it is sufficient if the customer send a timely notification to Remerge. This section does not apply if Remerge has fraudulently concealed a defect.
9.3 Remerge does not assume any liability for any disturbances, limitations, interruptions or disruptions of the Remerge Services, which are caused by circumstances beyond Remerge’s area of responsibility.
9.4 Unless Section 9.6 below applies, the liability of the Parties for damages is excluded to the extent that the damages (a) were not caused by gross negligence or willful misconduct of the other Party, its legal representatives, executive officers or other vicarious agents or (b) were not caused by a culpable, i.e. at least negligent breach of a material obligation by the other Party, its legal representatives, executive officers or other vicarious agents, which jeopardizes the attainment of the contractual purpose, in particular by a culpable breach of so-called “‘cardinal contractual obligations” (“Kardinalpflichten”). A cardinal contractual obligation according is a material contractual obligation of a Party, the fulfilment of which is prerequisite for enabling the proper fulfilment of the agreement in the first place, and on which the other Party usually relies.
9.5 The liability of the Parties (a) in case of a culpable breach of cardinal contractual obligations, to the extent that it is not caused by gross negligence or willful misconduct, as well as (b) in case of a grossly negligent breach of other obligations (i.e. non cardinal contractual obligations) by employees or vicarious agents of the Parties who are not legal representatives or executive officers of the Parties, is limited to damages that typically occur in transactions of this kind and that were reasonably foreseeable at the time the agreement was concluded.
9.6 The limitations and exclusions of the Parties’ liability for damages set forth in Sections 9.4 and 9.5 above shall not apply to damages (a) for which a Party is liable as a result of a breach of a written and express guaranty by that Party as to the quality of the services, (b) caused by defects of the Services that were fraudulently concealed by Remerge, (c) resulting from injury of life, body or health, and/or (d) for which a Party is otherwise liable pursuant to applicable mandatory law and regulations where such liability cannot be excluded by agreement between the Parties in advance, e.g. any product liability under the German Product Liability Act (“Produkthaftungsgesetz”).
9.7 The limitation period for any claims of the Parties arising from or in connection with the agreement (including any claims for defects of the Remerge Services) shall be one year from the provision of the respective Remerge Service or, respectively, acceptance of the respective Remerge Service (if acceptance is required under applicable law or agreed in the Insertion Order). This limitation does not apply to claims for damages, which are subject to the statutory limitation provisions.
10 - Term, Termination
10.1 The term of the agreement is included in the Insertion Order. The termination of the agreement for convenience is expressly excluded.
10.2 The right to immediate termination for cause shall remain unaffected. In particular, Remerge has the right to immediately terminate the agreement if the customer breaches its obligations pursuant to Section 4.3, 4.6, 5.3, 8.1 or if the customer is in default of payment and does not settle the outstanding payment upon receipt of a warning letter with a deadline for payment and expiration of that deadline to no avail if the customer is insolvent, subject to insolvency proceedings, insolvency or proceedings have been commenced or the commencement of insolvency proceedings is dismissed due to lack of assets. if the customer violates the provisions of these Terms and Conditions and fails to remedy this violation upon receipt of a written request with an adequate deadline. No such request is necessary if it has no prospect of success or if the violation is so serious that Remerge cannot be reasonably expected to adhere to the agreement. A violation is also deemed serious if the customer has received notices of warnings several times because of similar violations.
Additionally, customer has the right to immediately terminate the agreement if Remerge breaches its obligations pursuant to Section 3.1, 4.3, 5.3, or 8.3 if the customer is insolvent, subject to insolvency proceedings, insolvency or proceedings have been commenced or the commencement of insolvency proceedings is dismissed due to lack of assets. if Remerge violates the provisions of these Terms and Conditions and fails to remedy this violation upon receipt of a written request with an adequate deadline. No such request is necessary if it has no prospect of success or if the violation is so serious that customer cannot be reasonably expected to adhere to the agreement. A violation is also deemed serious if Remerge has received notices of warnings several times because of similar violations.
10.3 The termination must be made in writing and be submitted by email.
11 - Confidentiality
11.1 The parties shall keep all documents, information and data, which have been disclosed during the course of the cooperation strictly confidential during the term of the agreement and perpetually thereafter. The parties undertake to use the same degree of care in safeguarding the documents, information and data of the other party that is uses for its own confidential information, but at least with the due care of a prudent businessman. All such documents, information and data shall be used exclusively to perform the contractual services.
11.2 These confidentiality obligations also apply to documents, information and data that relate to companies affiliated with the parties, other cooperation partners or contractors and to documents, information and data about customers and sales representatives of the parties.
11.3 These confidentiality obligations do not apply to documents, information and data that are in the public domain or later become part of the public domain through no breach of contract by a party, is required to be disclosed by operation of law, court or administrative order or that has been subsequently exempted from this confidentiality obligation by an agreement in writing via email.
12 - Use of Data, Data Protection
12.1 Each party is obliged to comply with the applicable data protection laws when using and/or providing the Remerge Services. If applicable, the customer is also obliged to comply with the US Children’s Online Privacy Protection Act (“COPPA”) when using the Remerge Services.
12.2 Remerge will make available to the customer only non-personally identifiable and aggregated user data and agrees to not combine such data with any personally identifiable data. The provision of non-personally identifiable but non-aggregated data (such as anonymous identifiers, e.g. advertising identifiers), generated and/or provided by the Publishers or other third party providers with whom Remerge cooperates may depend on the customer complying with additional requirements requested by such third party providers or may not be permitted at all by such third party provider (as the case may be). Remerge and the third party provider respectively are entitled to request the execution of an additional agreement by the customer defining the scope and purposes of use of the anonymous non-aggregated data before providing such data to the customer. Remerge will include such additional requirements in its respective offer for an Insertion Order.
12.3 The customer agrees not to combine any of the data that was collected, aggregated and/or transferred while using the Remerge Services for the delivery and/or tracking of an advertising campaign with any personally identifiable data, unless the customer has obtained the prior valid consent from the respective users in accordance with applicable data protection law. Remerge grants to the customer the non-exclusive, worldwide, perpetual, non-transferable and non-sublicensable right to use such data only to review and analyze the performance of its advertising campaigns and for optimizing the targeting of its advertising campaigns if not expressly otherwise agreed between the Parties in the Insertion Order.
12.5 The customer is obliged to notify Remerge of any restrictions applying to the collection, processing and use of any user data in connection with an advertising campaign before the beginning of such advertising campaign, e.g. as a result from opt-outs by users or the lack of consent by users required under applicable law.
12.6 Remerge expressly agrees to not transfer any of the non-personally identifiable user data that the customer provided to Remerge in order to enable Remerge to conduct a retargeting campaign (“customer’s first party data”) to any other advertiser and to not combine and/or mix the customer’s first party data with other advertisers’ data.
12.7 Remerge expressly agrees that it shall use the non-personally identifiable user data as well as any use-related data that was collected, generated and/ or aggregated in connection with the customer’s advertising campaigns only in order to improve and provide the Remerge Services for its customers, and for no other purpose.
13 - Final Provisions
13.1 Place of performance and exclusive place of jurisdiction for all disputes between the parties shall be Berlin if the customer is a merchant, a legal entity under public law or a special fund under public law. Berlin shall also be the exclusive place of jurisdiction if the customer does not have a general place of jurisdiction in Germany, if the customer, once it has concluded the contract, moves its domicile out of Germany or whose domicile is unknown at the time the lawsuit is filed.
13.2 Any modifications and or amendments of offers and these General Terms and Conditions must be made in writing. This also applies in case of a nullification of the written form requirement.
13.3 If any provision of these General Terms and Conditions or part thereof is invalid or becomes invalid at a later time, the validity of the remaining provisions shall remain unaffected. The relevant provision shall be replaced by a provision that as closely as possible reflects the economic purpose of the invalid provision. The foregoing shall apply analogously if any provision has inadvertently been omitted.
13.4 Unless expressly agreed otherwise, the legal relationship between Remerge and the customer shall be governed by the laws of the Federal Republic of Germany (excluding the 1980 UN Convention on the Internationals Sales of Products).